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 ORDER UNDER WHICH YOU HAVE PURCHASED A LICENSE TO USE SMARTDRAW.COM'S SOFTWARE PRODUCT (the "Sales Order").

* YOUR INSTALLATION, COPYING, OR USE OF THIS PRODUCT, IN COMBINATION WITH CLICKING "I AGREE" AT THE END OF THIS AGREEMENT, 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 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

The Sales Order is a bill of sale issued either by SmartDraw.com or a reseller authorized by SmartDraw.com ("Authorized Reseller."). This License is not valid unless sold by SmartDraw.com or an Authorized Reseller. To verify if a reseller is Authorized, contact SmartDraw at support@smartdraw.com or 1-858-225-3300.

A Portable License ("Portable License") is a license which may be transferred between two computers used non-concurrently by the same user.

A Product Update ("Product Update") consists of changes and additions to the specific Product listed on the Sales Order.

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 Order. SmartDraw.com offers several different types of licenses for the Product.

  1. License Term. The license may be either a Perpetual License, or a Subscription.
    1. Perpetual License. A Perpetual License provides a license to you to use the software perpetually; however, even if your license is a Perpetual License, it may still be terminated due to license violations, as specified elsewhere herein.
    2. Subscription. A Subscription lasts for a specified period of time, defined in your Sales Order. Your right to install and use the Product is valid only during the limited term specified in your Sales Order. You acknowledge that the Product is designed to cease to function on the expiration date if the license is not renewed. Upon expiration, a Subscription may generally be renewed, though terms of the License are subject to change upon renewal.
  2. License Types.
    1. Single Seat License. If you purchased a single seat license you may use the Product only on a single computer.
    2. Multi-Seat License. If you purchased a multi-seat license, the Product may be used only on the specified number of computers set forth on the Sales Order.
    3. Annual License. If you purchased an annual license subscription, you may use the Product only on the specified number of computers set forth on the Sales Order. Your right to use the Product is valid only during the limited term specified in your Sales Order and will cease operating at the end of the term unless it has been renewed.
    4. Academic Edition. If you purchased an Academic Edition, in addition to terms in sections 2a through 2c, the user must be a student at a post-secondary school level, or must be faculty at an academic institution. The user is authorized to use the Product only for studies or for teaching, and not for commercial or business use. The Academic Edition has a footer line which appears on all printed and displayed images, indicating the visual was prepared using SmartDraw's Academic Edition.
    5. Platinum Protection. If you subscribe to Platinum Protection, during the term of your subscription the following additional rights apply:
      1. unlimited downloads of the Product;
      2. one Portable License for each of the specified number of computers set forth on the Sales Order;
      3. access to applicable Product Updates.
  3. 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

  1. install, use, distribute or copy the Product except as expressly permitted in this License.
  2. 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.
  3. 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.
  4. 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.
  5. use the Product, or any of its components, to create any product that competes with the Product or any of its components.
  6. transfer the Product or your rights under this License to someone else.
  7. permit others to perform any of the activities restricted by this Paragraph C.

If you violate subsections 6 and/or 7 of this section you agree to the following: (a) You will indemnify SmartDraw.com for its lost profits due to re-sale of the Product or a copy or copies of the Product by a third party; and (b) You will pay liquidated damages in the amount of $100,000 to SmartDraw.com.

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. TERMINATION

Your rights regarding the Product under this License shall remain in effect only during the term of the License, and only as long as you are in full compliance with the terms and conditions of this License and the Sales Order, and shall terminate automatically if you fail to comply with any such terms or conditions. If SmartDraw.com determines you have installed more copies than your license covers, or your license has been violated in other ways, SmartDraw.com may disable such unlicensed or violated installations. You agree, upon termination, to destroy or return to SmartDraw.com all copies of the Product received, made or used by you in connection with this License. Paragraphs C, 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"). 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.

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

  1. 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.
  2. 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.
  3. 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 IN 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 AN ANNUAL LICENSE IN THE ONE YEAR PERIOD PRIOR TO SUCH LIABILITY ARISING FOR THE PRODUCT, OR, IF YOU HAVE A SINGLE-SEAT, OR MULTI-SEAT 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 Order, 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 without prior written approval from SmartDraw.com. Such written approval will be granted only upon sale or transfer of all or substantially all of your stock or assets to another ongoing business in the same field. Such approval will be at the discretion of SmartDraw.com. 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., Suite 300., 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.

I. VALIDATION

The software will, from time to time, update or require download of the validation feature of the software. Validation verifies that the software has been activated and is properly licensed. During a validation check, the software will send information about the software to SmartDraw.com. This information includes the version of the software and the serial number. BY USING THE SOFWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION.

If the software is not properly licensed, it may cease functioning.

J. 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 forth below and elsewhere herein, and any additional conditions described in the credits dialog of certain symbol libraries. In the cases where templates and examples display a copyright notice, that notice must be maintained and unaltered in any reproduction of the same. To determine if an image in a library you wish to use is covered by any copyright restrictions, right-click on the Image and select "Credits." All Images may be reproduced on a limited basis without fees or permissions. If more than a limited number of copies are being made, some copyright owners may request authorization to reproduce their images, and may require that a copyright notice and permission credits be shown. In the case of the Netter Images, owned by Elsevier, identified by the Netter\Elsevier copyright on the image, fees may apply to reproduction of more than a limited number of copies. Contact the copyright owner for more information.

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

  1. 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.
  2. make one (1) copy of the Image(s) as incorporated in the Product for backup or archival purposes.

B. YOU MAY NOT

  1. create scandalous, obscene, defamatory or immoral works using the Image(s), nor use the Image(s) for any purpose that is prohibited by law.
  2. 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.
  3. 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.
  4. rent, lease, sublicense or lend the Image(s), or a copy thereof, to another person or legal entity.
  5. use any Image(s) except as expressly permitted by this License.
  6. 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.
  7. 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.