END USER LICENSE AGREEMENT

Thank you for using our software.  This End User License Agreement is a legal agreement between SMART Technologies ULC (referred to as “SMART”, “we”, “us” or “our”) and you (where “you” or “your” includes your organization, school or company that you are using or installing the software on behalf of).  You represent and warrant that you have the authority to accept these terms and, where applicable, bind your organization, school or company and ensure all of its end users comply with these terms.  If you are a minor your parent or guardian must agree to these terms on your behalf.  

By installing or using the software you are agreeing to be bound by these terms.  If you do not agree, do not use our software.  Please read this entire agreement, including all linked terms, because together they create a contract that binds you.  Unless other terms accompany them, these terms also apply to updates, patches and any related Internet or mobile based applications.

Our software is licensed, not sold.  Unless applicable law gives you more rights you may only use our software as expressly permitted in this agreement.  In doing so, you must comply with and not attempt to circumvent any technical limitations in the software that allow you to activate or use it in only certain ways.

You may have other rights under the laws of your country.  This agreement does not change your rights if the laws of your country do not permit it to do so.    

SMART GRANTS YOU AND YOU ACCEPT A REVOCABLE, NON-EXCLUSIVE, NON-TRANSFERABLE AND NON-ASSIGNABLE LICENSE TO USE THE SOFTWARE SUBJECT TO THE FOLLOWING:

1. REVOKING YOUR LICENSE.  This license is effective until revoked or terminated. If you do not comply with the terms of this agreement, including the linked terms, we may immediately revoke your license and terminate this agreement.  Some of our software may be offered on a subscription basis. For subscriptions, your license to the subscription based software is automatically revoked and your software will stop working at the end of the subscription period without any additional notice to you, unless the subscription is renewed.  After the subscription period ends you have no further right to use the software.  In such events, you must immediately stop using the software and destroy all your copies.

2. LANGUAGE.  Any translation we may do is for convenience and in the event of a conflict between the English and non-English versions, the English version shall prevail and govern.

3. GOVERNING LAW.  This agreement is governed by and construed in accordance with the laws of Alberta, Canada. You irrevocably agree that any dispute, including litigation, involving this agreement or SMART must be brought in the courts in the City of Calgary, Province of Alberta.  You shall not assert any claim that you are not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument.  This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  Notwithstanding this, you agree that SMART shall still be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

4. CLASS ACTION WAIVER.  To the extent permitted by law, any and all proceedings to resolve or litigate a dispute must be conducted solely on an individual basis.  Neither you nor SMART shall seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts, or proposes to act, in a representative capacity.  

5. LINKED TERMS.  You are also bound by the following terms and conditions:  
   Terms of Use (http://www.smarttech.com/Home+Page/Legal/Legal+Notice)
   Privacy Policy (https://smarttech.com/Legal/Privacy+Policy)
In the event of a conflict or variance between the linked terms and the terms in the body of this agreement, the terms in the body of this agreement shall prevail and govern.  If for any reason you are unable to access these links please contact SMART at the address listed in Section 17 and a copy will be provided to you.

6. LIMITED WARRANTY.  SMART warrants to you that the software, when properly installed and used, shall operate in substantial accordance with our published specifications for a period of ninety (90) days from the date of purchase. Subject to entitlements under a maintenance program (if any), you assume the entire cost of all necessary upgrades, servicing, repairs or correction of the software.  SMART's sole obligation under this limited warranty shall be, at SMART's option and expense, to either: a) refund the purchase price paid by you for the defective software; or b) to replace the defective software with software that substantially conforms to applicable SMART published specifications.  Any replacement software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.  

7. NO WARRANTY.  OTHER THAN THE LIMITED WARRANTY AS STATED ABOVE IN SECTION 6, THE SOFTWARE IS PROVIDED “AS-IS” AND ITS USE IS AT YOUR OWN RISK.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMART AND ITS SUPPLIERS, LICENSORS, DISTRIBUTORS AND RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT WITH REGARD TO THE SOFTWARE AND SMART PRODUCTS AND ANY COMPONENT THEREOF, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. SMART DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE IS OR WILL BE INTERRUPTION FREE, DEFECT FREE OR WILL MEET YOUR NEEDS.  

8. NO LIABILITY.  To the maximum extent permitted by applicable law, in no event shall SMART or its suppliers, licensors, resellers or distributors be liable for any special, incidental, indirect, exemplary, consequential or punitive damages whatsoever (including, without limitation, damages for any injury to any person or property, damages for loss of profits, business interruption, loss of business information, loss of privacy, damages for procurement of substitute goods or services, damages for loss of use, loss of data, damages for failure to meet any duty including the duties of good faith or of reasonable care, for negligence or any other pecuniary loss) arising out of the use of or inability to use the software or any component thereof or the provision of or failure to provide support services, whether based on contract, tort, negligence, strict liability or otherwise, even if SMART or its suppliers, licensors, resellers or distributors have been advised of the possibility of such damages.  IN ANY CASE, SMART'S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED TEN CANADIAN DOLLARS ($10.00).  

9. FEEDBACK.  We do appreciate your suggestions but please be aware that any comments, feedback or ideas you share with us while not under a non-disclosure agreement shall be treated as non-confidential and you will, and do hereby, assign us all right, title and interest to them.  This means we are free to use them for any purpose, without compensation, acknowledgment or other obligation of any kind to you.  Individuals under the age of thirteen (13) may not provide personal information to us.

10. EXPORT RESTRICTIONS:  You agree that you shall comply with all domestic and international export laws and regulations that apply to the software.  In particular, you agree that you shall not export or re-export the software (including components) or any process or service that is the direct product of the software to any country, person or entity subject to Canadian, American or your own country’s export restrictions.

11. U.S. GOVERNMENT RESTRICTED RIGHTS.  Our software is a “Commercial Item”, as that term is defined at 48 CFR 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable.  Consistent with 48 CFR 12.212 or 48 CFR 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to US Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this agreement.  

12. INVALIDITY OF PROVISIONS.  If any provision of this agreement is invalid, illegal or unenforceable in any respect, such provision shall be severed from this agreement or the applicable linked terms, and the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.  The failure by a party to exercise any right shall not operate as a waiver of such party's right to exercise such right or any other right in the future.

13. ASSIGNMENT. You may not assign this agreement or your license without our prior written consent, which may not be granted.  SMART on the other hand, may assign this agreement without your consent.  Subject to the foregoing, this agreement shall be binding upon and enure to the benefit of the parties to it and their respective legal representatives, successors and permitted assigns.  Nothing in this agreement shall entitle any person other than you and SMART and their respective successors and permitted assigns to any claim, cause of action, remedy or right of any kind in respect of the subject matter of this agreement.

14. ENTIRE AGREEMENT. This agreement, together with the linked terms, constitutes the entire understanding of the parties and supersedes all prior End User License Agreements, representations, negotiations, tender documents and proposals between the parties with respect to the subject matter of this agreement.  

15. SURVIVAL. The obligations set forth in the preamble and Sections 2 to 15 inclusive shall survive termination of this agreement.

16. CONTACTING YOU.  We (including our software), or an authorized representative of SMART, may provide notice or contact you about this agreement or our software either by: a) sending an email or regular mail to the addresses we have on file for you; b) providing notification or updates via the software’s updater; or c) posting a message on the Terms of Use webpage (see Section 5).  You understand and agree that if you use our software after the date on which we provide notice to you that the terms of this agreement or the linked terms have changed, you will be agreeing to and accepting the updated terms.  

17. HAVE A QUESTION FOR US?  We would love to hear from you:
SMART Technologies ULC
Attention: Legal Department
3636 Research Road N.W.
CALGARY, AB CANADA T2L 1Y1
       +1.403.245.0333
       
Last Revised: June 13, 2014; 203689_1
© 2014 SMART Technologies ULC