SmartDraft® Software License Agreement
(Revised: June 6, 2024)
READ CAREFULLY: SmartDraft, Inc. (“SmartDraft”) licenses this Software to You only upon the condition that You accept all of the terms contained in this Software License Agreement (“Agreement”). This Agreement constitutes the entire agreement concerning the Software between You and SmartDraft and it supersedes any prior agreement, proposal or representation.
By selecting the “I accept this agreement” button, or by copying, installing, uploading, accessing, or using any or all portions of the Software, You agree to enter into this Agreement. A contract is then formed between SmartDraft and either You personally (if You acquire the Software for yourself), or the company or other legal entity for which You are licensing the Software.
If You do not agree or do not wish to bind yourself or the entity You represent: (a) do not install, upload, access, or otherwise use the Software; (b) select “I do not accept this agreement” (which does not allow You to Install the Software); and (c) within thirty (30) days from the date of acquisition, return the Software to the location where You acquired it for a refund.
Installing, uploading, accessing, or using this Software, or any accompanying documentation except as permitted by this Agreement, is unauthorized and constitutes a material breach of this Agreement and an infringement of the copyright and other intellectual property rights in such Software and documentation. If You copy or use any or all portions of this Software or its User Documentation without entering into this Agreement or otherwise obtaining written permission of SmartDraft, You are violating copyright and other intellectual property law, You may be liable to SmartDraft and its licensors for damages, and You may be subject to criminal penalties.
1. DEFINITIONS
1.1 “Access” means to use or benefit from using the functionality of the Software.
1.2 “Computer” means a single electronic device with one or more central processing units (“CPUs”) that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, including a virtual machine.
1.3 “Home Use” means the installation of a second copy of the SmartDraft Software at a Home Location on an employee’s Computer away from your office location.
1.4 “Install” means to place a copy of the Software onto a hard disk or other storage medium through any means (including, but not limited to, use of an installation utility application accompanying the Software).
1.5 “License Types” means the definition and limitation of the applicable license scope in Section 2.2 hereof.
1.6 “Permitted Number” means a number relevant for the applicable License Types that SmartDraft may specify in the applicable User Documentation. The Permitted Number is one (1) unless otherwise provided by SmartDraft in writing.
1.7 “Primary License” means the installation of the SmartDraft Software at the work location.
1.8 “Home Location” means the installation of the SmartDraft Software on your employees’ Computer located at their homes.
1.9 “SmartDraft Subscription Program” means the platform implemented to keep SmartDraft software up to date and supported. Coverage is for one calendar year (12 months) and included in the purchase price of SmartDraft software. Renewable options are available after the first 12 months.
1.10 “Software” means the Computer program in which this Agreement is embedded or that is delivered prepackaged with this Agreement. If programs are delivered to You as part of a Software package that includes the term “Suite” in its title, the term Software shall include all programs delivered to You as part of that Suite.
1.11 “User Documentation” means the explanatory printed or electronic materials that SmartDraft or its authorized distributor incorporates in or delivers in or on a package with the Software or sends to You on an invoice, via email, facsimile or otherwise after You acquire or Install the Software, including, but not limited to, license specifications, registration code, license files, instructions on how to use the Software, and/or technical specifications.
1.12 “You” means you personally (i.e., the individual who reads and is prompted to accept this Agreement) if You acquire the Software for yourself. “You” also means (and binds) the company or other legal entity for whom You acquire the Software.
2. SOFTWARE LICENSE
2.1 License Grant. SmartDraft grants You a non-sub-licensable, non-exclusive, non-transferable, limited license to use the Software within the scope of the License Types. SmartDraft’s license grant is conditioned upon your continuous compliance with all license limitations and restrictions described in this Agreement. If You violate any of these limitations or restrictions, the license grant will automatically and immediately expire. The license descriptions in this Section 2 define the scope of rights that SmartDraft grants to You. Any usage of the Software outside the scope of the applicable license grant constitutes an infringement of SmartDraft’s intellectual property rights as well as a material breach of this Agreement. This Agreement constitutes a license and a license only. You agree that You have not purchased a copy of the Software, but rather are paying for a license to use the Software and Your adherence to all license terms shall be considered conditions precedent to Your ability to continue to use and license the Software. All copyright rights and other intellectual property rights are owned and remain solely owned and held by SmartDraft and You agree that You will not sell, transfer, copy, distribute, make derivative works of, sublicense, or otherwise use the Software outside the scope of this license without the express written authorization of SmartDraft.
2.2 License Types. SmartDraft’s license grant is subject to one or more of the License Types defined in this Section 2.2. Unless SmartDraft expressly specifies or agrees otherwise in writing, all Software shall be governed solely by a license for an Individual Version.
2.2.1 Individual Version. If SmartDraft identifies the Software as an “Individual Version” or if the User Documentation does not identify the Software by any of the other version designations set forth in Sections 2.2.2 through 2.2.6, You may install, access and use one (1) copy of the Software on one (1) individual Computer, which may not be connected to a network in a manner that allows more than one (1) user to access, upload, operate, view or otherwise create or use a copy of the Software. You may not install, access or use the Software other than on one (1) Computer at a time.
2.2.2 Multi-Seat Version. If SmartDraft identifies the Software as a “Multi-Seat Version,” You may install, access and use the Software on Your Computer file server for your own internal business needs, so long as the maximum number of concurrent Users does not exceed the Permitted Number. The Software may also be installed on individual Computers, as a multiple-user Installation, so long as the maximum number of concurrent users does not exceed the Permitted Number.
2.2.3 Site Version. If SmartDraft identifies the Software as a “Site License,” You may install, access and use the Software on the specified number of Computers or Computer file servers, but only for the site location(s) specified in the User Documentation.
2.2.4 Corporate Version. If SmartDraft identifies the Software as a “Corporate License,” You may install, access and use the Software on the specified number of Computers or Computer file servers for all site locations, but for only the corporate entity specified in the User Documentation.
2.2.5 Education Institutional Version. If SmartDraft identifies the Software as an “Education Institutional Version,” You may install, access and use the Software on an unlimited number of Computers or Computer file servers for the site location(s) as specified in the User Documentation, but only for educational purposes. Without limiting the foregoing, You may not use the Software for any commercial, professional, or for-profit purposes.
2.2.6 Evaluation Version. If SmartDraft identifies the Software as a demonstration, evaluation, trial, or not for resale version (“Evaluation Version”), You may install, access and use the Software only for the purpose of commercial evaluation and demonstration on one (1) individual Computer, which may not be connected to a network in a manner that allows more than one (1) user to access, upload, operate, view or otherwise create or use a copy of the Software. Without limiting the foregoing, You may not use any Software for commercial, professional, or for-profit purposes. The Evaluation Version may only be installed for a 30-day evaluation period, after which it must be uninstalled from any and all computers and discarded. Additionally, functional limitations apply, as set forth in Section 7.
2.2.7 License Term. Subject to the terms and conditions of this Agreement, the license to use the Software is perpetual, unless the Software qualifies as an Evaluation Version, or is designated as a fixed-term license, a limited duration license, or a rental license. In such case, the term of the license shall be the term identified by SmartDraft or the term for which You have specifically paid, whichever is less. If SmartDraft identifies the Software as licensed for a fixed term, limited duration, or rental and does not specify a term, then the designated term shall expire ninety (90) days after the date You first Install the Software. Use of this Software beyond the applicable license term, or any attempt to defeat the time-control disabling function in the Software is an unauthorized use and constitutes a material violation of this Agreement and a violation of intellectual property law, including SmartDraft’s copyright rights.
2.3 Upgrades. If this Software is being licensed to You as an upgrade or update to Software previously licensed to You, this license replaces the previous license and does not add to your overall license count. If any terms in this license conflict with the old license, the terms in this Agreement will supersede those old terms.
2.4 Software Components. The Software is licensed to You as a single product and its components may not be separated for distribution or use on more than one Computer unless expressly permitted by SmartDraft in writing.
2.5 Home Use Program. The SmartDraft Subscription Program provides Home Use of the SmartDraft software that You have under Subscription, allowing employees the opportunity to work at home with the same SmartDraft products licensed by their employer and they use at work. The Home Use Program includes licenses of SmartDraft Suite, SmartDraft Survey, SmartDraft PConnect, and SmartDraft HEC-RAS Tools.
3. SOFTWARE LICENSE – HOME USE
3.1 Request for a Home Use License must be made by the contract manager or software coordinator.
3.2 Installation of the software at a Home Location must be for the purpose of producing work related to your internal business needs or for your employees’ personal education or training of the SmartDraft software.
3.3 The Home Use benefit is only applicable as long as your SmartDraft software remains current under the SmartDraft Subscription Program and applies only to the number of SmartDraft licenses that are under Subscription.
3.4 The Home Use License may NOT be used concurrently with the Primary License.
3.5 The Home Use benefit does not provide additional licenses or usage rights.
3.6 A Home Use License is not eligible for Web, email, or telephone support.
3.7 The Home Use by an employee is only permitted as long as the employee is employed by You, and all use by such employee must cease at the end of such employment.
3.8 When an employee leaves your employment, You, as the licensee, shall instruct the employee to uninstall the Home Use License from any computer on which it was installed. Any continued installation or use will be considered a violation of the Subscription terms and conditions and the software license for the SmartDraft software.
3.9 A Home Use License is the same version as the Primary License and each Home Use License follows the same installation limits as an Individual License.
3.10 A Home Use License will have a different serial number than the Primary License on which it is based.
3.11 A Home Use License cannot be used by an employee towards a discount or an upgrade of any SmartDraft software.
3.12 SmartDraft reserves the right to deny requests for a Home Use License at any time and may modify, cancel, or terminate the Home Use License at any time without prior notification.
4. PERMITTED AND PROHIBITED ACTIONS
4.1 Permitted Actions
4.1.1 Backup Copy. Regardless of which version of the Software You have acquired, You may make and install one archival (backup) copy of the Software. Subject to Section 4.1.2, such archival copy may not be installed on a Computer other than the original computer on which the first copy of Software was installed, unless such other Computer is a partitioned drive of a server to which only the user of the active copy of the Software can Access. In any event, the archival copy may not be accessed as long as another copy of the Software is installed on any Computer.
4.1.2 Additional Installation for an Individual Version License Type. You may install and access a second copy of the Software on the hard disk of a second Computer owned by You or under your control provided that:
(i) the original and second copies are used only by the same person;
(ii) the second copy is installed and accessed only on a notebook, laptop or mobile Computer or other nonserver Computer away from your usual work location for the purpose of enabling You to perform work while away from your usual work location;
(iii) only one of the Software copies is accessed at any one time; and
(iv) both copies of the Software are installed and accessed exclusively with the copy protection device (if any) supplied with the Software.
4.2 Prohibited Actions. SmartDraft does not permit any of the following actions and You acknowledge that such actions shall be prohibited and act as conditions precedent to this Agreement the violation of which will cancel and terminate all of your rights under this Agreement and make any use of the Software a violation of SmartDraft’s copyright and other intellectual property rights:
4.2.1 Use. You may not install, access or otherwise copy or use the Software or User Documentation, except as expressly authorized by this Agreement.
4.2.2 Reverse Engineering. You may not reverse engineer, decompile, or disassemble the Software.
4.2.3 Transfers. You may not distribute, rent, loan, lease, sell, share, sublicense, or otherwise transfer all or any portion of the Software or User Documentation, or any rights granted in this Agreement, to any other person without the prior written consent of SmartDraft.
4.2.4 Hosting or Third-Party Use. You may not install or access, or allow the installation or access of, the Software over the internet, including, without limitation, use in connection with a web hosting or similar service, or make the Software available to third parties via the internet on your Computer system or otherwise.
4.2.5 Notices. You may not remove, alter, or obscure any proprietary notices, labels, or marks from the Software or User Documentation.
4.2.6 Modifications. You may not modify, translate, adapt, arrange, or create derivative works based on the Software or User Documentation for any purpose.
4.2.7 Circumvention. You may not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by SmartDraft in connection with the Software, or use the Software together with any, authorization code, serial number, or other copy protection device not supplied by SmartDraft directly or through an authorized distributor.
4.2.8 Export. You may not export the Software or User Documentation unless expressly allowed by this agreement. Such violations will also violate U.S. export control laws and other applicable export control laws.
5. ALL RIGHTS RESERVED
You agree that title, ownership and all rights and interest including, without limitation, copyrights, in and to the Software and User Documentation and any authorized copies made by You remain with SmartDraft. You further agree that the structure, organization, and code of the Software are valuable trade secrets of SmartDraft and its licensors and You shall keep such trade secrets confidential. The Software and User Documentation are licensed, not sold and you may not transfer the Software or User Documentation to any other person, company, or party without the express written authorization of SmartDraft.
6. LIMITED WARRANTY AND DISCLAIMER
6.1 Limited Warranty. SmartDraft warrants that, as of the date on which the Software is delivered by SmartDraft and for 90 days thereafter, the Software will provide the features and functions generally described in the User Documentation and that the media on which the Software is furnished, if any, will be free from defects in materials and workmanship. SmartDraft’s entire liability and your exclusive remedy under the limited warranty provided in this Section 6.1 will be, at SmartDraft’s option, to attempt to correct or work around errors, to replace the defective media on which the Software is furnished, if any, or to refund the license fees and terminate this Agreement. Such refund is subject to the return of the defective media, if any, and User Documentation, with a copy of your receipt to SmartDraft’s office or the authorized distributor from whom You obtained the Software within 90 days from the date of your receipt of the Software.
6.2 Disclaimer. Except for the express limited warranties provided in Section 6.1 hereof and any warranties that SmartDraft must provide by operation of law, SmartDraft makes no express warranties and You receive no express warranties. Any statements or representations about the Software and its functionality in the User Documentation of any communication with You constitute technical information and not an express warranty or guarantee. In addition, SmartDraft specifically disclaims any other warranty including, without limitation, the implied warranty of merchantability, fitness for a particular purpose and non-infringement. Without limiting the foregoing, SmartDraft does not warrant that the operation of the Software will be uninterrupted or error free.
7. WARNINGS
7.1 Functionality Limitations. Computer-aided-design software and other technical software are tools intended to be used by trained professionals only. They are not substitutes for your professional judgment. Computer-aided-design software and other technical software are intended to assist with product design and are not substitutes for independent testing of product stress, safety, and utility. Due to the large variety of potential applications for the Software, the Software has not been tested in all situations under which it may be used. SmartDraft shall not be liable in any manner whatsoever for the results obtained through the use of the Software. Persons using the Software are responsible for the supervision, management, and control of the Software as well as the implementation of any designs related to the Software or developed using the Software in any way. This responsibility includes, but is not limited to, the determination of appropriate uses for the Software and the selection of the Software and other programs to achieve intended results. Persons using the Software are also responsible for establishing the adequacy of independent procedures for testing the reliability and accuracy of any program output, including all items designed by using the Software.
7.2 Registration Code Required. Installation, access, transfers, and continued use of the Software requires a registration code. You must register your acquisition of the Software with SmartDraft before a registration code will be issued to You. SmartDraft shall use your registration details in conformance with its applicable privacy policy at the time of such use by SmartDraft. SmartDraft’s privacy policy is available and updated on SmartDraft’s website and may be changed at SmartDraft’s sole discretion.
8. LIMITATION OF LIABILITY
In no event shall SmartDraft or its licensors have any liability for any incidental, special, indirect, or consequential damages, loss of profits, revenue, data, or cost of cover. In addition, in no event shall the liability of SmartDraft or its licensors for any damages arising out of or in connection with the Software or this Agreement exceed the amount paid or payable by You for the Software. The limitations of liability shall apply 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 SmartDraft has been advised of the possibility of such damages and regardless of whether the limited remedies available hereunder are less than the value of the Software’s essential purpose related to Your use.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software is “commercial items,” as that term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software and User Documentation are being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
10. GENERAL
10.1 No Assignment; Insolvency. This Agreement and any rights hereunder are non-assignable by You and any purported assignment shall be void. The Agreement and the licenses granted hereunder shall terminate without further notice or action by SmartDraft if You become bankrupt or insolvent, regardless of any arrangements with your creditors, or go into liquidation.
10.2 Choice of Law. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by Arkansas law without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
10.3 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective only as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction.
10.4 Audits. To ensure compliance with this Agreement, You agree that upon reasonable notice, SmartDraft or SmartDraft’s authorized representative shall have the right to inspect and audit your installation, access and use of the Software. Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically. If such inspections or audits disclose that You have installed, accessed or permitted access to the Software on Computer(s) in a manner that is not permitted under this Agreement or have otherwise violated this Agreement or SmartDraft’s intellectual property rights, then SmartDraft may terminate this Agreement immediately and You are liable to pay for any unpaid license fees as well as the reasonable costs of the audit in addition to any damages and other remedies to which SmartDraft is eligible for any of Your legal violations. Nothing in this Section shall be deemed to limit any legal or equitable remedies available to SmartDraft for violation of this Agreement or under applicable law.