SMART Technologies ULC
Software End User Licence Agreement for SMART Meeting Pro™,
SMART Meeting Pro Premium and SMART GoWire™ Software
Last Revised: 24 June 2011
Please read all of this software end user licence agreement (“Licence") carefully before using the Software. This Licence contains provisions dealing with limitation of user rights and SMART liabilities that apply to your use of the Software.By using the Software, you are agreeing to be bound by the terms and conditions of this Licence. If you do not agree to the terms of this Licence, do not use the Software.
This Licence is a legal agreement between the "End User" (either an individual or an entity) and SMART Technologies ULC and its affiliates and subsidiaries ("SMART") for Use of the Software. Licensee Organisations (including their administrators or other representatives) accepting this Licence on behalf of End Users are obligating the Licensee Organisation to ensure that each such End User comply with the terms, conditions, limitations and requirements set out in this Licence. You warrant that you have the authority to accept the terms of this Licence on Licensee Organisation's and, if applicable, other End Users' behalf.
1. DEFINITIONS:
1. "Computer" means a personal computer (whether in laptop or desktop form) regardless of which operating system it runs on. A Computer may have touch-enabled or pen-enabled capability provided that the Computer is intended for individual use rather than multi-person display, and further provided that such Computer is not attached or connected (including wirelessly) to an Unlicensed Product. A Computer attached or connected to an Unlicensed Product shall constitute and be deemed an Unlicensed Product.
2. "Display Device" means a display frame, overlay, other monitor, screen or other device that is capable of displaying the results of and media delivered by the Software, including Licensed Products as applicable, excluding Unlicensed Products.
3. "Documentation" means SMART Technologies ULC's (SMART) proprietary manuals and instruction documents for the Software, whether in paper or electronic form
4. "End User" (or alternatively referred to as "you") means the Licensee Organisation and, where applicable, any employees and consultants who Use the Software, and in the case of SMART GoWire™ software, other interested members granted permission by the Licensee Organisation to Use such Software.
5. "Licensed Product" means each applicable SMART product that includes in its price, ships with, or is designed to operate with, the applicable Software, which are limited to: (a) the SMART Board™ interactive whiteboard (600 and 800 series), (b) the SMART integrated flat panels, (c) the SMART Podium™ interactive pen display (ID422w, DT770, ID350, ID370, SP518, and SP524 series), d) the SMART Board interactive display overlay (400 series), and/or (e) such other SMART product introduced by SMART from time-to-time and identified by SMART as a Licensed Product for the Software.
6. "Licensee Organisation" means the entity (or individual if individually acquired) that acquired the Licensed Product and this associated Licence on its own behalf and, where applicable, on behalf of its End Users.
7. "Maintenance" means access to commercially released upgrades (meaning new versions and point releases of the Software which contain enhancements improving the functionality or capabilities of the Software), and bug fixes, service packs and updates (meaning Software for which SMART has provided fixes or minor revisions to correct errors or defects in the existing operation of the Software in accordance with the published specifications), for the specific licence of Software associated with or offered together with the Maintenance programme, in all cases limited to that which SMART makes generally available to its Maintenance customers at no additional charge. Maintenance specifically excludes services in connection with computer viruses or conflicts involving software that is not installed or introduced by SMART. Maintenance further excludes add-ons, plug-ins, customisations, new applications, modules or other software that is not generally and regularly made available to users of the Software for no additional fee, but rather is separately made available by SMART.
8. "Room" means a meeting space in a single physical location containing one Computer and one or more Display Devices, all such Display Devices being connected to the same single Computer.
9. "Software" means the current version of the following proprietary SMART supplied software, drivers and firmware as applicable: SMART Meeting Pro™ proprietary software and firmware, including the various editions of the Software made available by SMART from time to time (such as SMART Meeting Pro, SMART Meeting Pro Premium - Single, and SMART Meeting Pro Premium - Multi conferencing software), and the SMART GoWire version of each of SMART Meeting Pro and SMART Meeting Pro Premium; each consisting of computer program(s) in object code form (including any and all upgrades, releases, databases and enhancements) delivered to End User and any copies thereof pursuant to this Licence. The SMART Meeting Pro Premium and SMART GoWire Meeting Pro Premium Software may contain portions of the SMART Bridgit™ conferencing software for which a separate server licence is required to activate and Use. Software shall also include any third-party software and the Documentation delivered to End User by SMART. Software may be contained or installed on Licensed Products, downloaded from SMART's website or SMART supplied CD or installed on a SMART supplied USB or, in the case of SMART GoWire editions of the Software, on the SMART GoWire auto-launch cable.
10. "Unlicensed Product" means (a) any non-SMART supplied touch-enabled or pen-enabled interactive device, including but not limited to: whiteboards, screen digitising devices, overlays, display screens or projectors, and (b) any SMART supplied product that is not a Licensed Product.
11. "Use" or "Used" means to directly or indirectly install, load, execute, access, employ, utilise, store, or display the Software.
2. LICENCE GRANT:
2.1 General. This Licence is a legal agreement between End User (whether an individual or the Licensee Organisation) and SMART Technologies ULC for Use of the Software. In the event that a Licensee Organisation systems or technical administrator, or other representative, is accepting these terms on behalf of all intended Licensee Organisation's End Users, it is the responsibility of that Licensee Organisation to ensure the terms of this Licence are understood and complied with by each End User. The Software is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties.The rights granted in this Licence are limited to SMART's and its licensors' intellectual property rights in the Software and do not include any other patents or intellectual property rights. The Software is licensed, not sold and is subject to the terms and restrictions of this Licence. In the event that the Software is delivered by SMART to End User on a CD, DVD, USB or other form of physical media, Licensee Organisation, or (where applicable) End User, owns the media on which the Software is recorded, but SMART and/or SMART's licensor(s) retain ownership of the Software itself. The terms of this Licence will govern any software upgrades, updates or revisions provided by SMART (including through a Maintenance programme) that replace and/or supplement the original Software, unless such upgrade, update or revision is accompanied by a separate licence in which case the terms of that licence will govern the Use of the Software.
2.2 Grant of Licence. For each Software application licensed and paid for by the Licensee Organisation, based on the type of licence acquired, SMART grants and End User accepts a non-exclusive, non-transferable, non-sub-licensable licence to Use the applicable edition of the Software on such Computers, Licensed Product and Display Devices as set out below, subject to the following terms and conditions:
(a) For SMART Meeting Pro Software:
For each licence acquired and paid for by End User, End User may Use the Software on one Licensed Product and one Computer (that operates on a Windows operating system). End User may also display the Software on associated or attached Display Devices within the same Room as the Licensed Product and Computer.
(b) For SMART Meeting Pro Premium - Single Software:
For each licence acquired and paid for by End User, End User may Use the Software on one Licensed Product and on one Computer (that operates on a Windows operating system). End User may also display the Software on associated or attached Display Devices within the same Room as the Licensed Product and Computer.
(c) For SMART Meeting Pro Premium – Multi Software:
For each licence acquired and paid for by End User, End User may Use the Software, on one Computer (that operates on a Windows operating system), and on up to 16 Licensed Products as granted in the applicable licence option chosen and paid for by End User attached to such Computer, all within a single Room. End User may also display the Software on associated or attached Display Devices within the same Room as the Licensed Products and Computer.
(d) For SMART GoWire Meeting Pro and SMART GoWire Meeting Pro Premium Software:
For each licence acquired and paid for by End User, End User may Use the Software on one Computer (that operates on a Windows operating system) attached or connected to a Licensed Product (including wirelessly). The Software may be used on Computers and Licensed Products that are not restricted to a single Room, provided never more than one such Computer and Licensed Product at a time, and further provided that both the Computer and Licensed Product on which the Software is Used at any given time are in the same Room.
(e) For all Software:
Other than for SMART GoWire versions of the Software, unless otherwise agreed in writing by SMART, End User may only Use the Software on computers owned and controlled by the End User. For support purposes and up to a maximum of four times over the course of the life of the Software (other than for SMART GoWire versions for which the number of transfers shall be unlimited), the Software may be transferred from one End User computer to another End User computer, however, you must deactivate the Software from the original computer and activate or re-activate it on the new computer each time a transfer occurs. End User acknowledges that in order to enable the collaboration capabilities of the Meeting Pro Premium Software functionality (ability to connect the Software users to users and Display Devices in local and remote locations outside of the Room), End User will be required to separately purchase a server and/or user licences of SMART Bridgit conferencing software, which will be subject to the applicable end user licences. End User further acknowledges that to enable use of gesture capability in the 'Desktop Mode' (as opposed to the 'Whiteboard Mode'), End User will need to separately acquire a licence to Microsoft® Windows 7 software, which will be subject to that end user licence;
(f) Trial Versions. In connection with the foregoing licence grants: End User may Use a copy of the trial version of the applicable Software only (i) for the amount of time specified in the copy of such Software, or on the download website for such Software, and if no such date is specified, the earlier of: thirty (30) days from the date of End User's acceptance of this Licence or End User's Use of the Software; and (ii) according to the licence grants above in Section 2.2 (a) to (d) inclusive during such trial period, including the limitations regarding Use on Licensed Products only. A trial version of the Software is not provided for any Unlicensed Products and End User is not entitled to Use the trial version of the Software on any Unlicensed Products. BY USE OF THE TRIAL VERSION OF THE SOFTWARE END USER ACKNOWLEDGES AND AGREES THAT AFTER THE AMOUNT OF TIME SPECIFIED IN THE SOFTWARE OR IN THE MATERIALS ACCOMPANYING THE SOFTWARE, THE TRIAL LICENCE SHALL TERMINATE AND THE SOFTWARE MAY AUTOMATICALLY DISABLE USER FROM CONTINUED ACCESS AND/OR USE OF SUCH TRIAL SOFTWARE AND ANY DATA OR CONTENT END USER MAY HAVE ENTERED INTO SUCH SOFTWARE UNLESS END USER THEN PURCHASES A LICENCE TO THE APPROPRIATE FULL VERSION OF SUCH SOFTWARE. All other terms of this Licence apply to the Trial Use of the Software, including, without limitation, the restrictions set out in Section 2.3 below. At the end of the trial period, End User's Use of the Software shall be terminated. If End User elects to convert from the trial version of the Software to the full licensed version of the Software using the unlock licence purchase process within the Software (if applicable) or through some other licence purchase process, End User's use of the new unlocked version of the Software shall be in accordance with the corresponding terms and conditions of this Licence.
2.3 Other Licence Terms. The licence grant in section 2.2 is subject to the following additional licence terms:
(a) Copies.End User may make one copy of the Software in machine-readable form for backup purposes only, provided that the backup copy includes all trade-marks, copyright or other proprietary notices contained on the original media. End User may copy the Documentation for internal purposes only. End User may not distribute copies of the Software or any component thereof;
(b) Preservation of Rights.All rights not expressly granted are reserved by SMART;
(c) Use on Unlicensed Products. In the event that the End User wishes to Use the Software with any Unlicensed Product, End User must obtain prior written permission from SMART to Use such Software on an Unlicensed Product from SMART. SMART reserves the right to refuse such permission. In the event such standalone Software licence is permitted by SMART, End User must provide SMART with the serial number of the Unlicensed Product(s) to enable SMART to create a licence key to be used by End User to activate the standalone Software Licence. Accordingly, the standalone Software Licence is non-transferable and the Software may not be Used with any Unlicensed Product(s) other than the specific Unlicensed Product for which a serial number has been provided to SMART by End User for that standalone Software Licence.End User may, in addition to the Unlicensed Product registered with SMART, Use the standalone Software Licence on one computer owned and controlled by Licensee Organisation.
(d) End User Modifications and Enhancements. End User may not modify, enhance, adapt, vary the Software, or create derivative works based on the Software, or merge or separate the Software or any component thereof without SMART's prior written consent;
(e) Prohibition Against Reverse Engineering. End User may not reverse engineer, reverse compile, translate, decompile, disassemble, modify, create derivative works or otherwise attempt to derive source code from (or the underlying ideas, algorithms, structure or organisation of) the Software or any component thereof, for any purpose, including for the purpose of discovering any aspect of the technology inherent therein. End User may undertake such activities provided that such activities are limited to the minimum extent required for the purpose of achieving inter-operability of other independently developed computer programs and only to the minimum extent that such activity is expressly and strictly permitted by applicable law notwithstanding the foregoing limitation;
(f) Transfer. Other than as expressly permitted in this Licence, End User may not rent, lease, lend or sublicense, distribute or supply the Software or any component thereof to any other party. This restriction extends to the product licence key that the End User receives or has been granted access to by SMART for Software installation or activation. This restriction also applies to posting of any portion of the Software on public websites;
(g) Applicable Laws. End User must comply with all applicable laws regarding the use of the Software and any component thereof;
(h) Proprietary Notices. End User must maintain all trade-marks, copyright and other proprietary notices on all copies of the Software;
(i) Access to Third-Party Programs. The Software may include and/or be accompanied by third party software programs and content (collectively, "Third Party Components") that may require a separate end-user license agreement from the third party, some of which may be provided for your review upon initial installation or subsequent updates of the Software. None of the rights described in this licence apply to such Third-Party Components. Some freeware or open source Third-Party Components are made available subject to the terms of their respective licences (referred to in the Intellectual Property Tab in the About Window) the terms of which may be different from or additional to those contained in this Licence. Acceptance of this Licence also confirms End User's acceptance of such freeware or open source licence terms. SMART does not endorse or promote any products or services provided by third parties providing the Third-Party Components. Software may also contain and/or be accompanied by SMART development tools and utilities, which may be Subject to separate licence agreements. You acknowledge that it is your responsibility to read, accept and comply with the terms and conditions of all such Third-Party Component and SMART development tools and utilities licence agreements;
(j) Links to Third-Party Websites. Links to third-party websites are provided for 'information purposes' only and SMART is not responsible for any third-party content provided by such sites including but not limited to information relating to any products or services;
(k) Content Copyright. All title and intellectual property rights in and to the content which may be incorporated through use of Software or SMART products is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Licence grants you no rights to use such content.
(l) Software Usage Data: Customer Experience Programme. End User acknowledges that End User product usage information may be tracked by SMART for research and usability assessment purposes.This feature may be opted into or out of by the individual End User, or by the Licensee Organisation (through the Licensee Organisation's administrator). This usage tracking does not collect personal information (as defined in the Personal Information Protection and Electronic Documents Act (Canada)). It is the responsibility of the Licensee Organisation to ensure that the default selection is consistent with its internal corporate policies; and
(m) Licensee Organisations. Licensee Organisations or their administrators accepting this Licence on behalf of End Users acknowledge that Licensee Organisation is responsible for ensuring that each such End User comply with the terms, conditions, limitations and requirements set out in this Licence. Representatives (including End Users) accepting this Licence warrant that they have the authority to do so, including on the Licensee Organisation's behalf.
2.4 Maintenance.
(4.a) Maintenance programmes are offered by SMART in certain jurisdictions. In those jurisdictions where Maintenance programmes are offered, Licensee Organisation has the obligation to keep the Software under a Maintenance programme for a minimum of one year. Licensee Organisation may elect to purchase a longer Maintenance programme, as may be made available by SMART from time to time, for that licence of the Software. Maintenance programmes, and services provided as part of such Maintenance programmes, if any, may be further described in separate policies and programmes contained in SMART-provided materials made available from time to time.
(4.b) The Maintenance period is calculated commencing on the date of purchase of the Software licence offering associated with or included together with the Maintenance programme and continues for the duration of the term based on the length of the Maintenance programme purchased by the Licensee Organisation (the "Maintenance period").
(4.c) Ongoing Maintenance beyond the initial or subsequent Maintenance period(s) may be separately purchased and shall be subject to the terms of any applicable additional Maintenance programme agreement provided by SMART at such time (if any). In the event that an extension to the Maintenance period is not obtained prior to the expiry of the Maintenance period then in effect, End User must bring Maintenance fees in arrears up to date to qualify for ongoing Maintenance or may purchase an upgrade for the applicable Software licence (with the associated required Maintenance fee, if applicable).
(4.d) For licences of the Software acquired by the Licensee Organisation prior to a Maintenance programme being made available by SMART in the applicable jurisdiction, SMART hereby grants a period of initial Maintenance for each such Software licence, which initial Maintenance period commences at the earlier of the time of installing this version of the Software or accepting this Licence, and continues until 31 December 2012, at no additional fee. After 31 December 2012, the provisions of subsection 2.4(c) shall apply, provided that a Maintenance programme is available in that jurisdiction.
(4.e) SMART reserves the right to terminate or modify available Maintenance programmes at any time in its sole discretion; provided, that any such modifications will not affect any Maintenance programmes already ordered by Licensee Organisation and accepted by SMART prior to such modifications during the applicable Maintenance period, except as mutually agreed by both parties.
2.5 Proper Use of Software. End User acknowledges that the continued integrity of the Software and SMART's performance of its obligations described in this Licence relies upon the proper Use and maintenance of the Software by End User. Proper Use and maintenance means that End User will:
(a) install all upgrades and releases made available by SMART;
(b) use the Software in accordance with the Documentation supplied by SMART and the terms and conditions of this Licence; and
(c) follow SMART's instructions for installing new releases and for correcting and circumventing bugs and fixes to the Software.
3. DELIVERY AND INSTALLATION:
31 Delivery. Software may be downloaded from SMART's website or CD or installed on SMART USB. Unless Software is shipped with a Licensed Product, Software will be delivered FCA (Incoterms 2000) SMART's point of manufacture. End User understands and agrees that it shall be primarily responsible for the installation of the Software.
32 Acceptance. End User agrees that the Software shall be deemed delivered and accepted upon receipt of Software and/or (if applicable) Licensed Product.
4. SUPPORT SERVICES: During regular business hours, technical support may be provided by SMART at no additional charge for any installation issues that arise during initial deployment of the Software. Any technical support related to the Software beyond its initial deployment ("Support Services") will be provided by SMART in its discretion and may be subject to a fee. End User acknowledges that SMART reserves the right to impose additional fees and/or limit the Support Services for Software provided. Support Services, if any, is limited to the current version of the Software and the two immediately preceding minor version releases (x.n to x.n-2).Use of Support Services, if any, is governed by the SMART policies and programs described in the Documentation and/or other SMART provided materials as modified by SMART from time to time. Any supplemental Software or firmware provided to End User as part of Support Services shall be considered part of the Software and is Subject to the Terms of this Licence. In all cases, the End User, and not SMART, assumes responsibility for (i) the selection of the Software to achieve its intended results; and (ii) the installation, use and results obtained from the Software. End User acknowledges that no Support Services shall be provided by SMART for any trial version of the Software.
5. REPLACEMENT, MODIFICATION AND UPGRADE OF THE SOFTWARE: SMART reserves the right to replace, modify or upgrade the Software, or any component thereof, at any time by offering End User a replacement or modified version of the Software, or any component thereof, or such upgrade and to charge End User for such replacement, modification or upgrade. Additional charges will not apply during the term of any valid Maintenance period. Any such replacement or modified Software or upgrade to the Software, or any component thereof, offered to End User by SMART (whether for an additional charge, without additional charge or as part of Maintenance) shall be considered part of the Software and subject to the terms of this Licence, unless provided under a separate licence, in which case, the terms of that subsequent licence shall govern the Use of the Software.In the event that SMART offers a replacement or modified version of or upgrade to the Software at no cost to the End User or as part of the Maintenance (a) End User's continued Use of the Software is conditioned on End User acceptance of such replacement or modified version of or upgrade to the Software and any accompanying superseding End User licence agreement, and (b) in the case of the replacement, modification, or upgrade of the Software, End User's use of all prior versions of the Software is terminated.
6. TERMINATION: This Licence is effective until terminated. The End User may terminate this Licence at any time by ceasing Use of the Software and destroying all copies of the Software in the End User's possession. The end of a trial period shall be an event of automatic termination and the End User must at the end of such trial period cease Use of the Software and destroy all copies of the Software in the End User's possession.Without prejudice to any other rights, SMART may terminate this Licence if, at SMART's sole discretion, End User fails to comply with the terms and conditions of this Licence. In such event, End User must immediately stop using the Software, destroy all copies of the Software and all of its component parts, return or destroy all Documentation in its possession and upon request, provide an affidavit certifying End User's compliance with the foregoing.
7. EXPORT RESTRICTIONS: End User agrees that End User will not export or re-export the Software, or any component thereof, or any process or service that is the direct product of the Software (the foregoing collectively referred to as the "Restricted Components") to any country, person or entity subject to Canadian or US export restrictions. End User specifically agrees not to export or re-export any of the Restricted Components (i) to any country to which Canada or the US has embargoed or restricted the export of goods or services or to any national of such country, wherever located, (ii) to any person or entity who End User know or have reason to know will utilise the Restricted Components in the design, development, production or operation of nuclear, chemical or biological weapons, or missile end-use or training related thereto or (iii) to any person or entity who has been prohibited from participating in Canadian or US export transactions by any official body of the Canadian or US government.End User represents and warrants that no official of the Canadian or US government has suspended, revoked or denied End User's export privileges.
8. US GOVERNMENT RESTRICTED RIGHTS: The 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 herein.
9. LIMITED WARRANTY: The Software shall operate in substantial accordance with SMART's published specifications for a period of ninety (90) days from the date of Licensee Organisation's purchase of the Software licence. Subject to entitlements under a Maintenance programme, the Licensee Organisation assumes the entire cost of all necessary servicing, repair or correction of the Software. SMART's sole obligation under this express warranty shall be, at SMART's option and expense, to either i) refund the purchase price paid by Licensee Organisation for any defective Software product which is returned to SMART with a copy of the applicable receipt, or ii) to replace any defective media with software which 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.SMART does not warrant that the Software, or any portion thereof, works with any Unlicensed Product in the same manner that it works with Licensed Product.OTHER THAN THE LIMITED WARRANTY AS STATED ABOVE IN THIS SECTION, ANY USE OF THE SOFTWARE IS PROVIDED "AS-IS" AND AT END USER'S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMART AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH REGARD TO THE LICENSED PRODUCT, THE SOFTWARE, AND ANY COMPONENT(S) THEREOF, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. SMART DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE IS INTERRUPTION OR DEFECT FREE. SMART DOES NOT TEST THE SOFTWARE ON RESTRICTED PRODUCTS OR OTHER PRODUCTS NOT SUPPLIED BY SMART. END USER ASSUMES ALL RISK THAT THE SOFTWARE WILL NOT FULLY OR PROPERLY FUNCTION WHEN USED WITH RESTRICTED PRODUCTS OR OTHER PRODUCTS NOT SUPPLIED BY SMART.THIS LIMITED WARRANTY GIVES END USER SPECIFIC LEGAL RIGHTS. END USER MAY HAVE OTHERS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMART OR ITS SUPPLIERS OR LICENSORS 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 BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF PRIVACY, DAMAGES FOR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR LOSS OF USE, 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 LICENSED PRODUCT, OR OTHER SMART PRODUCT, 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 ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO END USER.
11. LIMITATION OF LIABILITY: IN ANY CASE, SMART'S ENTIRE LIABILITY AND END USER'S EXCLUSIVE REMEDY UNDER THIS LICENCE SHALL NOT EXCEED TEN CANADIAN DOLLARS (CAD $10.00).
12. SMART'S SUPPLIERS AND LICENSORS: ANY RELEASE, DISCLAIMER OR LIMITATION OF SMART'S LIABILITY OR DAMAGES PURSUANT TO THIS LICENCE SHALL BE CONSTRUED, IN ADDITION TO SMART'S BENEFIT, ALSO TO THE BENEFIT OF SMART'S SUPPLIERS, LICENSORS, EMPLOYEES AND CONTRACTORS, AND WITHOUT LIMITING ANY OTHER DEFENSES THAT SUCH SUPPLIERS, LICENSORS, EMPLOYEES AND CONTRACTORS MAY HAVE, END USER AGREE TO RELEASE SUCH PARTIES FROM LIABILITY OR DAMAGES IN ACCORDANCE WITH SUCH RELEASE, DISCLAIMER OR LIMITATION OF LIABILITY OR DAMAGES TO THE SAME EXTENT THAT SUCH PROVISIONS APPLY TO SMART.
13. GENERAL:
13.1 Confidentiality. End User acknowledges that the Software embodies confidential information of SMART and/or its suppliers and licensors. To the extent that End User has access to any such information; End User agrees to use such information only for the authorised Use of the Licensed Products and Software. End User further agree not to disclose such confidential information to any Other party and to protect such confidential information to the same degree it protects its own confidential information, but with no less than a reasonable degree of care. Software licensed under this Licence shall also be considered confidential information and, except as specifically permitted herein, shall not be disclosed to any third party.
13.2 Injunctive Relief. End User acknowledge that, in the event End User breaches any provision of this Licence, SMART will not have an adequate remedy in money or damages. SMART shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request without posting bond. SMART's right to obtain injunctive relief shall not limit its right to seek further remedies.
13.3 Assignment. End User may not assign this Licence or any of End User's rights hereunder (by operation of law or otherwise) without SMART's prior written consent which may not be unreasonably withheld. For the purposes of this section, an assignment or transfer shall include any change in majority ownership or control of End User, including merger or Other transfer of voting securities.SMART may assign this Licence without End User consent. Subject to the foregoing, this Licence shall be binding upon and inure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.
13.4 Amendment. No modification of this Licence shall be binding unless it is in writing and is signed by an authorised representative of the party against whom enforcement of the modification is sought.
13.5 Language. Any translation of this Licence is undertaken for local requirements and in the event of a dispute between the English and any non- English versions, the English version of this Licence will govern.
13.6 Governing Law. This Licence is governed by the laws of the Province of Alberta, Canada. Also to the extent permitted by applicable law, the parties irrevocably agree that any litigation involving this Licence, the Software, a Licensed Product or Unlicensed Product, shall be brought in the provincial courts in the Province of Alberta or the federal courts of Canada, as the case may be.End User agrees that End User shall not assert any claim that End User is 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 Licence shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
13.7 Entire Licence. This Licence constitutes the entire understanding and Licence of the parties and supersedes any and all prior or contemporaneous representations, negotiations, tender documents, proposals, understandings and Licences between the parties with respect of the Subject matter of this Licence. If any provision of this Licence is held invalid, the remainder of this Licence shall continue in full force and effect.
13.8 Waiver. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future.
13.9 Force Majeure. Either party's failure to perform it obligations hereunder shall not be deemed a breach of this License if such failure is due to fire, strike war, civil unrest, acts of terrorism, government regulations, acts of nature, or other causes beyond the reasonable control of the party claiming force majeure.
13.10 Questions. Should End User have any questions concerning this Licence, or if End User desires to contact SMART for any reason, please write to:
SMART Technologies ULC
3636 Research Road NW
CALGARY, AB CANADA T2L 1Y1
13.11 Feedback. Should End User provide SMART with any suggestions, comments or feedback (including modifications or suggested modifications to any component of the Software, Licensed Product, or other SMART product) regarding the Software, Licensed Product, or other SMART product, SMART shall treat it as non-confidential and be free to use it for any and all purposes, without any compensation, acknowledgment or other obligation of any kind to End User.
13.12 Notices. End User may provide SMART notice hereunder by sending it to the above address, or such other address SMART shall most recently have notified End User, and shall be sent "Attention: Legal Department". Notice to the End User, including, without limitation, of upgrades or updates to the Software or this Licence, may be provided by SMART either by a) sending it to the End User's email or business address on record, or such email or business address as End User may have most recently notified SMART, or b) providing notification on the SMART Product Updater program, accessible through the "Check for Updates" selection in the "Help" menu tab.
13.13 Publicity. In partial consideration of the licence(s) granted hereunder, SMART may identify Licensee Organisation in full or partial published lists of SMART customers.
13.14 Survival. The obligations set forth in Sections 2.3 (b), (d), (e), (f), (g), (h), (i), (k) and (l), 6, 7, 8, 10, 11, 12, 13.1, 13.2, 13.6, 13.11, 13.12, 13.13 and this 13.14 shall survive termination of this Licence for any reason.
SMART and SMART related brands are trade-marks of SMART Technologies ULC or its affiliates, and may be registered in the United States and other jurisdictions. Other brands, logos and marks are trade-marks of their respective owners.
© 2011, SMART Technologies.