COMMENTARY

Peter Burgess

SOFTWARE LICENSE AGREEMENT SMARTDRAW 2012 PLEASE READ CAREFULLY: SMARTDRAW SOFTWARE, LLC ('SMARTDRAW') IS WILLING TO LICENSE THE SOFTWARE IDENTIFIED ABOVE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (THE 'AGREEMENT'). BY SELECTING THE 'I ACCEPT' BUTTON BELOW OR BY INSTALLING, UPLOADING, ACCESSING OR OTHERWISE USING ALL OF ANY PORTION OF THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND ALL REFERENCES TO 'YOU' SHALL APPLY TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN DO NOT INSTALL, UPLOAD, ACCESS OR OTHERWISE USE THE SOFTWARE. 1. DEFINITIONS. 'Software' means the computer program identified above, and in which this Agreement is embedded, and any updates or error corrections thereto provided by SmartDraw. 'User Documentation' means any user manuals and other documentation provided to you by SmartDraw under this Agreement. 'Computer' means computers, including desktop or laptop computers, or file servers, used for general computing functions (such as, but not limited to, word processing, e-mail, general purpose Internet browsing and office suite productivity tools). A 'Run' occurs each time that the Software is launched. 'User' means an individual user of the Software. 'You' means you personally if you license the Software for yourself, or the company or other legal entity for which you license the Software (but not the affiliates, subsidiaries or other related legal entities of such company or legal entity). 'Term' means the period of time commencing upon the installation of the Software and ending on the later to occur of (a) seven (7) calendar days, or (b) the conclusion of the fifth time the Software is Run. 2. LICENSE AND TERM. Subject to the terms and conditions of this Agreement, SmartDraw grants to you a nonexclusive, nontransferable, nonsublicensable, limited license to install and use the Software and use the User Documentation. The license lasts for the Term. The license may be earlier terminated by SmartDraw if you violate the terms of this Agreement. You acknowledge that (i) your right to install and use the Software is limited to the Term, and (ii) the Software is designed to cease to function upon expiration of the Term. Any attempt to defeat the time and use-control disabling function in the Software is a material breach of this Agreement and a violation of intellectual property law. 3. INSTALLATION AND USAGE. You may install and use the Software on one (1) individual Computer. The Software may be used only for the purposes of evaluation and demonstration. Without limiting the foregoing, the Software may not be used for educational or commercial, professional or other for-profit purposes. 4. AUDITS. To ensure compliance with this Agreement, you agree that upon reasonable notice, SmartDraw or SmartDraw’s authorized representative shall have the right to inspect and audit your use of the Software. Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically, either by SmartDraw or by representatives authorized by SmartDraw for this purpose. If such inspections or audits disclose that you have installed or permitted access to the Software in a manner that is not permitted under this Agreement, then (i) you are liable to pay for any unpaid license fees as well as the reasonable costs of the audit; and (ii) the license grant with respect to the Software will terminate immediately. Any information obtained by SmartDraw or SmartDraw’s authorized representative during the course of such inspection and audit will be used and disclosed by SmartDraw solely for purposes of such inspection and audit and for enforcement of SmartDraw’s rights under this Agreement and applicable law, unless other uses or disclosures are required under applicable law. Nothing in this Section shall be deemed to limit any legal or equitable remedies available to SmartDraw for violation of this Agreement or applicable law. 5. GENERAL RESTRICTIONS. You agree and acknowledge that, unless enforcement is prohibited by applicable law (and then only to the extent prohibited by applicable law), the following actions are expressly prohibited: (a) You may not (and may not permit any third party to) decompile, disassemble or reverse engineer the Software. (b) You may not modify, translate, adapt, arrange or create derivative works of the Software or the User Documentation. (c) You may not sell, transfer, rent, lease, loan, or otherwise distribute all or any portion of the Software, the User Documentation or any other rights granted to you in this Agreement. (d) Except as otherwise expressly provided in this Agreement, you may not allow access to the Software or the User Documentation over the Internet, including, without limitation, in connection with a web hosting, commercial time sharing, service bureau, or similar service. (e) You may not remove, alter or obscure any copyright or other proprietary notices, labels or marks from the Software or the User Documentation. (f) You may not otherwise install, access or otherwise use or copy the Software or the User Documentation other than in strict compliance with the terms of this Agreement. 6. FURTHER RESTRICTIONS ON USE OF CLIPART, SYMBOLS, TEMPLATES AND PHOTOGRAPHIC IMAGES. The Software contains clipart, templates and photographic images (collectively, 'Images') which are owned by SmartDraw or its licensors. You may use and publish the Images as part of your own work product, subject to the restrictions in this Agreement and any additional restrictions or conditions described in the credits dialog box in certain Image libraries. Where an Image in a library contains a copyright notice, the notice must be maintained and unaltered in any reproduction of the Image. To find out if an Image is covered by a copyright notice, right click on the Image and select 'Credits.' Subject to the foregoing; (a) You may incorporate any Images into your own original work and publish, display and distribute your work in any media. (b) You may not resell, sublicense or otherwise make available the Images for use or distribution separate from your own work. (c) You may not create scandalous, obscene, defamatory or immoral works incorporating any Image, or use any Image for any purpose prohibited by law. (d) You may not use any Images in a manner that suggests an association with, or endorsement of, any product or service provided by any identifiable individuals, products or entities. 7. ALL RIGHTS RESERVED. Title to and ownership of the Software, the User Documentation and all related intellectual property are retained by SmartDraw and its licensors. The Software is confidential and the Software and the User Documentation are copyrighted. The Software and the User Documentation are licensed to you, not sold. All rights of every kind that are not expressly granted to you in this Agreement are entirely and exclusively reserved to SmartDraw and its licensors. 8. LIMITED WARRANTY. The Software and the User Documentation are provided 'AS IS.' SmartDraw’s entire liability and your exclusive remedy will be, at SmartDraw’s option, to attempt to correct or work around errors, to replace the defective media on which the Software is furnished. 9. DISCLAIMER OF WARANTY. EXCEPT AS SPECIFIED IN THIS AGREEMENT, SMARTDRAW MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE AND THE USER DOCUMENTATION. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FUNCTIONALITY IN THE USER DOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. IN ADDITION, SMARTDRAW SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SMARTDRAW DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS. OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION, MAY APPLY YOU. 10. LIMITATION OF LIABILITY. IN NO EVENT SHALL SMARTDRAW HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES; LOSS OF PROFITS, REVENUE, OR DATA; BUSINESS INTERRUPTION, OR COST OF COVER. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF SMARTDRAW FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, USER DOCUMENTATION, OR THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000.00). THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EVEN IF SMARTDRAW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. 11. LIMITATIONS AND WATERMARK. Graphics created by the Software may be printed only three (3) times in the aggregate, after which the 'print' feature that allows graphics to be printed will be disabled. A substantial watermark indicating the limitations on use of the Software will added to all graphics created with the Software. 12. EXPORT REGULATIONS. All Software and User Documentation delivered under this Agreement are subject to United State export control laws and may be subject to export or import laws and regulations of other countries. You agree not to export the Software or the User Documentation in violation of United States or other applicable export control laws. 13. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Software is being acquired by or on behalf of the United States government or a United States government prime contractor or subcontractor, the Software and the User Documentation are provided with the same commercial license rights as are described elsewhere in this Agreement. 14. VALIDATION. The Software is licensed to you with a unique serial number, which is confidential and may not be published or disclosed by you. The Software will, from time to time, execute 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 regarding the Software to SmartDraw. This information includes the version of the Software and the unique serial number. BY INSTALLING AND USING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION TO SMARTDRAW. 15. GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, U.S.A. without giving effect to the conflict of laws principles thereof, excluding the UN Convention on Contracts for the International Sale of Goods. 16. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of you and SmartDraw relating the subject matter hereof and supersedes any and all other previous or contemporaneous communications, agreements, representations, warranties or advertising with respect to the Software and User Documentation. 17. SEVERABILITY. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest extent consistent with law. 18. NO WAIVER. No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach. 19. LANGUAGE. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.