Software End User License Agreement

30.1. Entire Agreement. This Agreement, together with the quote or order form and all other documents and terms that are incorporated by reference herein, constitutes the sole and entire agreement between you and SmarTECHS with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

30.2. U.S. Government Rights. The SmarTECHS Software provided under this Agreement utilizes commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors.

30.3. Survival. Sections 5 – 9, 11 – 15, 18 – 28, and 30 – 31 of this Agreement shall survive any termination or expiration of this Agreement, along with term of this Agreement which expressly, or by its nature, is intended to survive expiration or termination of this Agreement.

30.4. No Waiver. Any failure by SmarTECHS to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies hereunder or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.

30.5. Notices. All notices, consents, waivers, and other communications intended to have legal effect under this Agreement must be in writing and must be in English. You agree that SmarTECHS may provide written notice under this Agreement, having binding legal effect, by sending (1) an email to the email address to you provided during the registration process or subsequently updated by you in accordance with this section, or (2) by posting such notice on a part of User Portal. Without limiting the foregoing, the you agree that any notice SmarTECHS sends to the email address associated with your account will satisfy any legal notice requirement. Notices sent to SmarTECHS by you shall be sent by registered or certified mail, return receipt requested, to SmarTECHS, _____ ATTN: Legal Department, _______________________________________, and shall be effective upon receipt by SmarTECHS. SmarTECHS may change its address for receipt of notices by giving notice of the new address to you.

30.6. Severability. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, the remaining terms, covenants and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated.

30.7. Assignment. We may assign, transfer or otherwise dispose our rights and obligations under this Agreement, in whole or in part, at any time without notice to you. This Agreement will be binding upon all of SmarTECHS’s successors and assigns. You may not assign this Agreement, or transfer or sublicense your rights under this Agreement.

30.8. Force Majeure. SmarTECHS will not be responsible or liable to you, or deemed in default or breach hereunder, by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or your equipment, loss and destruction of property, or any other circumstances or causes beyond SmarTECHS’s reasonable control.

30.9. Equitable Relief. Parties acknowledge and agree that a breach or threatened breach by each Party of any of its obligations of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

30.10. Attorney’s Fees. If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled after a final judgment is rendered.

30.11. No Control Over Testing. You acknowledge that, unless otherwise agreed in a signed writing, SmarTECHS has no control over the testing of your products or applications or the use of such products or applications with SmarTECHS products.

30.12. Translation. Any translation of this Agreement is provided to comply with local legal requirements only. In the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern to the extent not prohibited by local law in the applicable jurisdiction.