SmartDraw End User License Agreement

IMPORTANT: CAREFULLY READ THIS LICENSE AGREEMENT ("LICENSE") BEFORE USING THIS PRODUCT. THIS LICENSE IS AN INTEGRAL PART OF THE SALES AGREEMENT UNDER WHICH YOU HAVE PURCHASED A LICENSE TO USE SMARTDRAW.COM'S SOFTWARE PRODUCT (the "Sales Agreement").

YOUR INSTALLATION, COPYING, OR USE OF THIS PRODUCT INDICATES YOUR ACCEPTANCE OF THIS LICENSE, AND THAT YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL OF ITS TERMS.
IF YOU HAVE PURCHASED THE PRODUCT ON BEHALF OF ANY ORGANIZATION, COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ENTER INTO THIS LICENSE AND THE SALE AGREEMENT ON BEHALF OF SUCH ENTITY. ALL REFERENCES HEREIN TO "YOU" SHALL APPLY TO SUCH ENTITY.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, THEN: (A) DO NOT COPY, INSTALL, OR USE THIS PRODUCT, AND (B) RETURN THE COMPLETE PRODUCT TO SMARTDRAW.COM IMMEDIATELY FOR A REFUND OF THE LICENSE FEES THAT YOU HAVE PAID.

A. DEFINITIONS

SmartDraw.com is also referred to in this License as "we" or "us."

The "Product" consists of: (1) all materials with which this License is packaged or otherwise supplied by SmartDraw.com, which may include, but are not limited to, computer program(s), software, and code; the Images (as defined below); templates; symbols; text; accompanying printed materials; and "online" or electronic documentation, and (2) any Maintenance Releases and Upgrades (each as defined below) and any other supplemental software code and supporting materials which may be provided to you as part of support services provided or authorized by SmartDraw.com for the Product.

An "Upgrade" is a new version of the Product, and is identified by the numeral to the left of the decimal point following the name of the Product. A "Maintenance Release" is a software update to an existing version of the Product that is identified by the numeral to the right of the decimal point following the name of the Product. For example, in "Product 2.1", "1" is the Maintenance Release number and "2" is the Upgrade number. SmartDraw.com has the right, its sole discretion, to determine whether a particular change or addition to the Product is an Upgrade or a Maintenance Release.

B. SCOPE OF LICENSE

SmartDraw.com hereby grants you a non-exclusive, non-transferable license (without the right to sublicense) to use the Product in accordance with all of the terms and conditions of this License and the Sales Agreement. SmartDraw.com offers several different types of licenses for the Product:

Single User License. If you purchased a single-user license, you may install and use one copy of the Product on a single computer (the "Primary Computer"). Subject to the terms and conditions of this License, you may make one (1) other copy of the Product and install it on another computer, provided the second computer is used exclusively by you. The two installations may not be used at the same time, and the second installation may not still be used after the time you no longer own the Primary Computer on which the Product is installed. Your right to use the Product is perpetual (provided that this License is not terminated as specified elsewhere herein). You have the right to receive, free of charge, all Maintenance Releases for the version of the Product that you originally purchased. You do not have the right to receive free Upgrades, but you may be entitled to a discount on our standard fee for Upgrades, if so provided in your Sales Agreement.
Workgroup Multi-Seat License. If you purchased a workgroup multi-seat license, you may install the Product on more than one computer, or install the Product on a network server so that multiple computers can access it, in either case up to the limit set forth in the Sales Agreement. The Product may be installed on a network server, provided that the number of computers that access the Product via that server or otherwise does not exceed the number of computers specified in your Sales Agreement. For example, if your Sales Agreement specifies a workgroup multi-seat license for 100 computers, the Product may be installed: (a) on a network server where it will be accessible by no more than 100 different computers connected to the network served by that server, or (b) on up to 100 individual PC's, or (c) or on some combination of both (a) and (b), provided that the total number of PC's that access the Product does not exceed 100. Your right to use the Product is perpetual (provided that this License is not terminated as specified elsewhere herein). You have the right to receive, free of charge, all Maintenance Releases for the version of the Product that you originally purchased. You do not have the right to receive free Upgrades, but you may be entitled to a discount on our standard fee for Upgrades, if so provided in your Sales Agreement.
Workgroup Concurrent-User License. If you purchased a workgroup concurrent-user license, you may install the Product on a network server, where the number of PC's that access the Product simultaneously does not exceed the number of users specified in your Sales Agreement. Your right to use the Product is perpetual (provided that this License is not terminated as specified elsewhere herein). You have the right to receive, free of charge, all Maintenance Releases for the version of the Product that you originally purchased. You do not have the right to receive free Upgrades, but you may be entitled to a discount on our standard fee for Upgrades, if so provided in your Sales Agreement.
Freedom Site License.
1. Full "Freedom" license. If you purchased a "Freedom" site license, you may install any number of copies of the Product, but only on computers owned by your company/organization, for use strictly by your employees and agents. While you may install the Product on any number of computers without violating the license, you acknowledge that additional fees will be assessed, pursuant to the Sales Agreement, if you install the Product on more computers than the quantity listed in the Sales Agreement. Such fees shall be determined at the end of each 12-month period, and shall be assessed for the subsequent 12-month period. Your employees and agents may install a copy of the Product on their personally owned home computers, provided that they use the Product for your internal business purposes only, and not for their own personal use. You are responsible for the compliance of your employees and agents with the terms of this License. Your right to install and use the Product is valid only during the limited term specified in your Sales Agreement. The term will automatically renew for consecutive 12-month periods unless you provide written notice to cancel the license at least 30 days prior to the expiration of the term. You acknowledge that the Product is designed to cease to function on the expiration date if the license term is cancelled. You have the right to receive, free of charge, all Maintenance Releases and Upgrades that we make generally available during your license term.
2. "Departmental Freedom" License. If you purchased a "Departmental Freedom" license, all Full "Freedom" site license terms apply, as set forth above in Section 4(a). In addition, you represent and warrant that at the time you purchased the "Departmental Freedom" license, the group, department, company or other organization (the "Unit") utilizing the Product was comprised of no more than 20 individuals. During each 12-month period of the "Departmental Freedom" license, such Unit may increase in size to over 20 individuals without violating the terms of the license. However, you acknowledge that additional fees will be assessed, pursuant to the Sales Agreement, for Units comprised of over 20 individuals. Such fees shall be determined at the end of each 12-month period, and shall be assessed for the subsequent 12-month period.
Student License. If you purchased a Student License, you must be a full-time student, at a post-secondary school level. You are authorized to use this license only in your studies or for your personal use, and not for commercial or business use.
Limited Edition. If you purchased a Limited Edition, you are authorized only to use the SmartTemplates and examples accessed from one button on the Template Browser. For example, if you purchased a Limited Edition to use for Calendars you may only use the templates shown in the Template Browser when the Calendar button is selected.
Backup Copy. Regardless of the type of license that you have purchased, you may make one (1) copy of the Product for archive or backup purposes.

C. YOU MAY NOT

install, use, distribute or copy the Product except as expressly permitted in this License.
translate, reverse engineer, decompile, or disassemble the Product, except to the extent, if any, that such activities are clearly and expressly permitted by applicable law despite such restrictions.
sell, transfer, rent, lease or assign the Product, or allow any third party to benefit from or access the Product on a "service bureau," hosted application, or similar basis.
modify the Product, merge the Product as part of any other product or collection of products, or create derivative works derived from the Product or any component thereof, without the prior written consent of SmartDraw.com.
use the Product, or any of its components, to create any product that competes with the Product or any of its components.
transfer the Product or your rights under this License to someone else.
permit others to perform any of the activities restricted by this Paragraph C.

In addition, in no event do we authorize you or anyone else to use the Product in applications or systems where the Product's failure to perform can reasonably be expected to result in significant physical injury, property damage, or loss of life, including but not limited to use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems. The Product is not fault-tolerant and is not designed, manufactured or intended for any such use. Any such use is entirely at your own risk, and you agree to defend, indemnify and hold SmartDraw.com, and its principals, shareholders, officers, employees, affiliates, contractors, affiliates, and licensors, harmless from any and all claims or losses relating to such unauthorized use.

D. TERM

If you purchased a "Freedom" site license, your license to use the Product is for a limited time period, as specified on your Sales Agreement. In all events, your rights regarding the Product under this License shall remain in effect only as long as you are in full compliance with the terms and conditions of this License and the Sales Agreement, and shall terminate automatically if you fail to comply with any such terms or conditions. You agree, upon termination, to destroy all copies of the Product received, made or used by you in connection with this License. Paragraphs D, E, F, G and H and your indemnity obligations hereunder shall survive the expiration or termination for any reason of this Agreement.

E. OWNERSHIP

All patents, copyrights, trademarks, trade secrets and other intellectual property and other proprietary rights in the Product are and shall remain in SmartDraw.com or its licensors. The source code of the Product and all information regarding the design, structure or internal operation of the Product are valuable trade secrets of SmartDraw.com or its licensors ("Confidential Information"). To the extent, if any, to which you learn any Confidential Information, you shall not sell, transfer, publish, disclose, display, or otherwise permit access by any third party to, the Confidential Information. The restrictions set forth in this Paragraph E do not apply to information that was publicly known prior to the time you received it, or which becomes known to you through no violation of any obligation of confidentiality on the part of you or any third party. SmartDraw makes use of GNU GhostScript, an open-source interpreter for the PostScript language and the PDF file format. It is distributed under the GNU General Public License. You may obtain the source code for GNU GhostScript from http://www.gnu.org/software/ghostscript/ghostscript.html.

You shall ensure that any copies of the Product that you make or have made pursuant to this License bear all copyright and other proprietary notices contained in or affixed to the copy or copies of the Product as created and packaged by us. All rights of any kind in the Product that are not expressly granted in this License are entirely and exclusively reserved to SmartDraw.com or its licensors.

F. SERIAL NUMBER

This License has a unique serial number, which is Confidential Information. Publishing this serial number or disclosing it to any third party will be deemed a material breach of this License.

G. LIMITED WARRANTY; EXCLUSIONS OF LIABILITY

THE PROVISIONS OF THIS PARAGRAPH G APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
FOR A PERIOD OF 30 DAYS FOLLOWING YOUR PURCHASE OF THE PRODUCT (THE "WARRANTY PERIOD"), SMARTDRAW.COM WARRANTS THAT THE PRODUCT SHALL COMPLY IN ALL MATERIAL RESPECTS WITH ITS WRITTEN SPECIFICATIONS AND THAT ANY MEDIA UPON WHICH THE PRODUCT IS PROVIDED SHALL BE FREE OF MATERIAL DEFECTS. SMARTDRAW.COM'S SOLE LIABILITY, AND YOUR SOLE REMEDY, FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF THE PRODUCT OR MEDIA, AS APPLICABLE, OR THE REFUND OF ANY AMOUNTS PAID BY YOU FOR THE PURCHASE OF THE PRODUCT LICENSE. ALL WARRANTY CLAIMS MUST BE MADE DURING THE WARRANTY PERIOD.
EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH G(2), THE PRODUCT IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. SMARTDRAW.COM DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT IS ASSUMED BY YOU. SMARTDRAW.COM DOES NOT MAKE, AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMARTDRAW.COM, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY SET FORTH IN PARAGRAPH G(2), AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

NEITHER SMARTDRAW.COM, ITS PRINCIPALS, SHAREHOLDERS, OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES, LICENSORS, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PRODUCT, SHALL BE LIABLE FOR ANY LOSS BUSINESS INTERRUPTION, OR LOSS OF BUSINESS, DATA OR USE OF COMPUTER SYSTEMS, REGARDLESS OF HOW THE FOREGOING DAMAGES ARE CHARACTERIZED, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF SMARTDRAW.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. SMARTDRAW.COM'S AGGREGATE LIABILITY HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT UNDER A FREEDOM SITE LICENSE IN THE ONE YEAR PERIOD PRIOR TO SUCH LIABILITY ARISING FOR THE PRODUCT, OR, IF YOU HAVE A SINGLE-USER, WORKGROUP MULTI-SEAT OR WORKGROUP CONCURRENT USER LICENSE, THE INITIAL FEE THAT YOU ACTUALLY PAID FOR THE PRODUCT. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS AND EXCLUSIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SMARTDRAW.COM.

H. GENERAL

This License, together with the Sales Agreement, forms the entire agreement between you and us regarding the subject matter set forth herein, superseding any other agreement or discussions, oral or written, and may not be changed except by a signed agreement. This License shall be governed by and construed in accordance with the laws of the State of California, excluding that body of law applicable to choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention. If any provision of this License is declared by a Court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from the License and the other provisions shall remain in full force and effect. The prevailing party in any action to enforce or interpret this License agreement shall be entitled to recover its costs and expenses, including attorneys' fees.

You agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in San Diego, California, USA for any dispute or matter relating to, arising from or connected with this License agreement. Notwithstanding the foregoing, SmartDraw.com shall have the right to seek injunctive relief and the enforcement of judgments in any court of competent jurisdiction. Any waiver by us of any violation of this License by you shall not constitute, nor contribute to, a waiver by us of any other or future violation of the same provision, or any other provision, of this License. The parties acknowledge and agree that no third party (including but not limited to your customers, clients or licensees) shall have any rights, either against us or our licensors, as a third party beneficiary of any rights, licenses, products or services granted or provided by us to you hereunder. SmartDraw.com may freely assign or delegate this Agreement, in whole or in part. This License is personal to you, and you agree not to assign or delegate, in whole or in part, this License or any of your rights or obligations hereunder. Any assignment in violation of the forgoing restrictions shall be considered null and void.

U.S. Government Users. All software included in the Product and provided to the U.S. Government, including its civilian and military agencies, is commercial computer software that was developed at private expense prior to its provision to any U.S. Government entity. Subject to any applicable regulations set out in the FAR or DFARS (and any superseding regulations), the Product is provided with the commercial license rights and restrictions described elsewhere in this Agreement. For Department of Defense agencies, the restrictions set forth in the "Technical Data - Commercial items" clause at DFARS 252.227-7015 (Nov 1995) shall also apply. Contractor/manufacturer is SmartDraw.com, 9909 Mira Mesa Blvd., San Diego, CA 92131.

You agree that your use of the Product shall comply with all applicable laws and regulations. Without limiting the foregoing, you understand that the Product is subject to the export control laws and regulations of the U.S. or other applicable jurisdictions. You agree that you will not export or re-export the Product in violation of such laws or regulations.

You agree that SmartDraw.com or its designee may inspect your facilities, servers and computers to ensure that you are using the most recent version of the Product and to verify that you are in full compliance with this License (the "Inspection"). Such Inspection may be conducted by use of remote software monitoring tools. During the course of the Inspection, SmartDraw.com or its designee will not access any information other than the number of computers running the Product and the version number of the Product. All information and materials shall be treated as confidential, and will not be shared with any third parties without your written consent.

Further Restrictions on the Use of Clipart, Symbols, Templates, Photo Objects, and Photographic Images

This Product contains numerous clipart, symbols, templates and photo images (collectively referred to as the "Images"), which are either owned by SmartDraw.com or its licensors. As a user of this Product, you are free to use, modify and publish the Images as part of your own work product, subject to all of the restrictions set out below and elsewhere herein, and any additional conditions described in the credits dialog of certain symbol libraries. If you are uncertain as to whether your intended use is in compliance with the Guidelines set out below, we recommend that you seek the advice of your own attorney or legal counsel. SmartDraw.com will not provide you with an opinion as to whether your use is in compliance with these Guidelines.

A. YOU MAY, subject to any restrictions set out below and elsewhere herein:

incorporate any Image(s) into your own original work and publish, display and distribute your work in any media. You may not, however, resell, sublicense or otherwise make available the Image(s) for use or distribution separately or detached from your own work product or web page. For example, the Image(s) may be used as part of a web page design, but may not be made available for downloading separately or in a format designed or intended for permanent storage or re-use by others. Similarly, clients may be provided with copies of the Image(s) (including digital files) as an integral part of your work product, but may not be provided with the Image(s) or permitted to use the Image(s) separately or as part of any other product.
make one (1) copy of the Image(s) as incorporated in the Product for backup or archival purposes.

B. YOU MAY NOT

create scandalous, obscene, defamatory or immoral works using the Image(s), nor use the Image(s) for any purpose that is prohibited by law.
use or permit the use of the Image(s) or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Image(s) or any part thereof.
use the Image(s) in electronic format, on-line or in multimedia applications unless the Image(s) are incorporated for viewing purposes only, and no permission is given to those viewing the Images to download and/or save the Image(s) for any reason.
rent, lease, sublicense or lend the Image(s), or a copy thereof, to another person or legal entity.
use any Image(s) except as expressly permitted by this License.
use any Image(s) that relate to identifiable individuals, products or entities in any manner that suggests their association with, or endorsement of, any product or service.
make a modification to a licensed image which would remove embedded copyright information from the image.

You acknowledge that neither SmartDraw.com, nor its principals, shareholders, officers, employees, contractors, affiliates, or licensors, are liable for any offensive, harmful, illegal, indecent, incorrect, incomplete or inaccurate data, information or materials either comprising, part of, or associated with any Image or collection of Images. You agree to defend, indemnify and hold harmless SmartDraw.com and its principals, shareholders, officers, employees, contractors, affiliates, and licensors, from any and all third party claims and damages arising from your breach of any of the restrictions set forth herein.

[BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOUR ARE BOUND BY THE TERMS OF THIS LICENSE AND THE SALE AGREEMENT. IF YOU ARE PURCHASING THE PRODUCT ON BEHALF OF ANY ORGANIZATION, COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ENTER INTO THIS LICENSE AND THE SALE AGREEMENT ON BEHALF OF SUCH ENTITY.]