Smaart End User License Agreement
Following is the most current version of the End-User License Agreement for Smaart software (for all editions, version 9 and onward). Your use of Smaart Software is governed by this Agreement, and any other terms and conditions in effect at the time of purchase.
In order to use Smaart, you must agree to these terms and conditions upon installation of the software.
Effective September 27, 2022
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IMPORTANT NOTICE
THIS END-USER LICENSE AGREEMENT (‘EULA”) IS A LEGALLY BINDING AGREEMENT.
BY CLICKING “AGREE,” OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR BY INSTALLING OR USING THE SMAART SOFTWARE AND/OR ANY UPDATES TO SUCH SOFTWARE PROVIDED BY RATIONAL ACOUSTICS, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN DO NOT INSTALL, OR USE, THE SOFTWARE.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SMAART SOFTWARE.
THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND RATIONAL ACOUSTICS AS OF THE DATE YOU FIRST DOWNLOAD, INSTALL OR USE THE SOFTWARE, WHICHEVER IS EARLIEST.
1. DEFINITIONS1.1 You means any end user of the Software and includes the Licensee and its Representatives.
1.2 Licensee means the individual or other legal entity that has purchased a license, or licenses, to use the Software and to whom Rational Acoustics grants the license and who is responsible for complying with the terms and conditions this EULA and ensuring that anyone permitted to access the Software also complies with such terms and conditions.
1.3 Representatives means any representative of a Licensee, whether an employee, agent, independent contractor, subcontractor, or otherwise, whom Licensee authorizes to access or use the Software on Licensee’s behalf.
1.4 Software means any and all Rational Acoustics proprietary licensed computer software program(s) that is downloaded and/or installed on any device pursuant to this Agreement and any related documentation, modified versions of, derivative works of, updates, upgrades, or improvements to such Software.
1.5 Edition means the specific edition or operational mode of the Software licensed to You and covered by this EULA.
1.6 Agreement means this End User License Agreement (“EULA”) and any amendments that may be made to this EULA.
1.7 Device means (whether physical or virtual) a server, system workstation, computer, mobile device on which the Software is installed or through which the Software is used.
1.8 Rational Acoustics means Rational Acoustics LLC, a Connecticut Limited Liability Company.
1.9 Update means a revision to or derivative work of the existing version of the licensed Software that corrects, improves, or changes the functionality of the Software and may contain bug fixes, new features, or enhancements.
1.10 Upgrade means a subsequent version of the licensed Software that Rational Acoustics designates as a new release and makes commercially available for purchase, or a different Edition of the Software that Rational Acoustics makes commercially available for purchase.
2. LICENSE.
2.1 Grant of License. The Software is licensed, not sold, to You by Rational Acoustics under the terms of this Agreement. Rational Acoustics reserves all rights not expressly granted under this Agreement. Subject to the terms and conditions of this EULA and upon payment of all applicable fees for the Software, Rational Acoustics grants You a non-exclusive, non-transferable, non-assignable (unless such prohibition is otherwise prohibited by local law) limited license to install and use the Software on compatible Devices. You may install and use the Software on compatible Devices as permitted by the Software Edition, license type and number of installations purchased and as described in this Agreement. The Software Edition, license type and number of installations purchased is specified either within the Software or on the Software purchase receipt or invoice.
2.2 License Types. Unless otherwise stated, this Agreement is for the license of the Software on one of the following bases:
2.2a A Perpetual License that gives You the right to use the licensed version and Edition of the Software with no time limits;
2.2b An Annual Subscription License that gives You the right to use the licensed version and Edition of the Software (the current or at any time the latest version) for one (1) year from the date of purchase. If the subscription license is not renewed, You no longer have the right to use the Software; or
2.2c A Demo License that gives You the right to use the licensed version and Edition of the software solely for the purpose of evaluating whether to purchase a Perpetual or Annual Subscription license of the Software. Software provided under a Demo License may have limited features and may cease operating after a predetermined amount of time as determined by Rational Acoustics.
2.3 Scope of License. The scope of the Software license depends on which license type You have purchased and/or installed. You understand, and agree, that:
2.3a The Software may only be used by You (either an individual or legal entity).
2.3b For a Perpetual License, You may install the Software on more than one Device, but concurrent use of different installations of the Software shall not exceed the number of valid license installations You have paid for and have been authorized to use. If You wish to run the Software concurrently on more Devices than the number of installations available on your current Software license, You must first acquire from Rational Acoustics additional installations for an existing Software license, or additional Software licenses.
2.3c For an Annual Subscription License, You may install the Software on more than one Device, but concurrent use of different installations of the Software shall not exceed the number of valid license installations You have paid for and have been authorized to use. The purchase of additional installations onto an existing Annual Subscription License is not allowed.
2.3d For a Demo License, You may only install the Software on one (1) Device.
2.4 Duration of License (Term). The term of the Software license depends on which license type You have purchased and/or installed. You understand, and agree, that:
2.4a A Perpetual License does not expire and may only be terminated by Rational Acoustics if You violate the terms of this Agreement. Rational Acoustics will provide Software updates within the same version and Edition of the Software at no additional charge. Upgrades to subsequent versions or different Editions of the Software are not included in the Perpetual License and Rational Acoustics does not guarantee that the Software will run indefinitely or that Rational Acoustics will support the product indefinitely.
2.4b An Annual Subscription License will terminate one (1) year from the date of purchase. The Annual Subscription License to the Software will automatically renew for a new subscription period of the same duration and at the same quantities originally purchased unless You cancel your subscription. Each new subscription period will be subject to the same terms and conditions as set forth in this Agreement, which Rational Acoustics may update from time to time. Rational Acoustics reserves the right to increase the annual subscription fees for each renewal and any such increases will be communicated to You prior to expiration of the then-current subscription period. You agree that Rational Acoustics may disable the Software at the end of the subscription period if the subscription is canceled or if scheduled payments are not received when due. As long as the Annual Subscription License remains active and the annual subscription fees have been paid, Rational Acoustics will provide Software updates within the same version and Edition of the Software at no additional charge.
2.4c A Demo License will automatically terminate thirty (30) days from the date of installation of the Demo Software, unless otherwise determined by Rational Acoustics. After the expiration of a Demo License, You may not install another Demo License of the same Edition of the Software onto the same Device where a terminated Demo License was previously installed.
3. LICENSE RESTRICTIONS. The Software License is subject to the express restrictions set forth below. You shall not, and shall not permit any third party to:
3.1 Sell, rent, lease, loan, share or sub-license the Software to, or with, any other person or entity or make the Software available to any third party. This does not preclude rentals of computers on which the Software is legally installed.
3.2 Make or distribute copies of the Software.
3.3 Decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, or create derivative works of, or an installer for, the Software.
3.4 Adapt, translate, copy, or convert any, or all, parts of the Software in order to create Software, the principal purpose of which is to perform the same, or similar functions as the Software licensed by Rational Acoustics, or to replace any component of the Software.
3.5 Remove, alter, or obscure any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels in, or on, the Software.
3.6 Use the Software in violation of any law, regulation, or rule.
4. OTHER RIGHTS AND LIMITATIONS.
4.2 Not for Resale Software. Software identified as “Not for Resale” or “NFR,” regardless of license type, may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test, or evaluation.
4.3 Demo Software. You may not make copies of Software licensed under a Demo License including documentation, nor are You permitted to request donations or compensation for any such copies or distribute the Software to third parties. You acknowledge that Software licensed under a Demo License is merely a technology demonstration that may not be at the level of performance or compatibility of generally available Rational Acoustics products. Software licensed under a Demo License is provided to You “AS IS” and without indemnification, liability, support, or warranty of any kind. Except to the extent such terms conflict with the specific Demo License terms set forth in this section, all other terms of this Agreement shall apply to Software licensed under a Demo License.
4.4 Upgrades. If You have purchased the Software as an Upgrade from a previously released version of the Software or from a different Edition, You may only use the Software if You are also a currently licensed user of the base product to which the Upgrade applies. You may not separate Upgrade products from base products, nor transfer them separately to another individual or entity. Rational Acoustics reserves the sole and exclusive right to set its policies and prices regarding updates, upgrades, and enhancements. All other terms of this EULA apply with equal force to any such Upgrades.
4.5 Support. Subject to your continued compliance with the terms of this EULA, the purchase of an Annual Subscription License, or a Perpetual License, will entitle You to receive free-of-charge electronic web-based support as set forth in the Support section of www.rationalacoustics.com and, during our normal business hours, phone or email support regarding basic installation and configuration. You acknowledge that Rational Acoustics has no express or implied obligation to announce or make available any updates, enhancements, modifications, revisions, or additions to the Software and that this EULA does not give You any rights in or to any of the foregoing. You also acknowledge and agree that Rational Acoustics may use technical information provided by You to Rational Acoustics for its business purposes, including for product support and development.
4.6 Internet Connection. A Subscription License requires an internet connection to access internet-based features including activation, validation, and renewal of the Software. Without an internet connection, these features may not function properly, and the Software may become inactive without notice.
5. RESERVATION OF RIGHTS AND OWNERSHIP. No license, right, or interest in any trademark, trade name, or service mark of Rational Acoustics or any third party is granted to You under this EULA. All title, copyrights, and other intellectual property rights in and to the Software and any copies, versions, or derivative works thereof, and any documentation, printed or computer readable materials specific to the Software are owned by Rational Acoustics or its licensors or vendors, and are protected by United States copyright laws and other laws relating to the protection of intellectual property and by international treaty provisions. All rights not expressly granted in this EULA are reserved by Rational Acoustics.
6. OPEN SOURCE COMPONENTS. The Software may contain, or be provided with, components subject to the terms and conditions of ‘open source’ software licenses (“Open Source Software”). To the extent applicable, Rational Acoustics will, upon Your written request, identify such Open Source Software included in the Software. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this EULA with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
7. LIMITED WARRANTY. Rational Acoustics warrants that, for a period of thirty (30) days following the initial purchase and delivery of the Software to You, the Software will function substantially in accordance with the functions and features described in the Documentation applicable to the Software when properly installed. Rational Acoustics does not warrant that the Software will meet all of your requirements, that the use of the Software will be uninterrupted or error-free, that the Software will operate in combination with any other computer hardware, software, or system or that errors in the software will be corrected. This warranty does not apply to Software that is (a) modified or altered by You or any third party that is not authorized by Rational Acoustics, (b) Software that is otherwise operated in violation of this Agreement, or (c) failures that are caused by third party software or hardware products. To the maximum extent permitted under applicable law, as Rational Acoustics’ and its suppliers’ entire liability, and as your exclusive remedy for any breach of the foregoing warranty, Rational Acoustics will promptly repair or replace any Software that fails to meet this limited warranty or, if Rational Acoustics is unable to repair or replace the Software, refund to You the license Fees paid for the nonconforming software upon return of the Software to Rational Acoustics. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. This warranty does not apply to Demo versions of the Software, which are provided strictly on an “AS-IS” basis.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, RATIONAL ACOUSTICS, ITS SUPPLIERS OR LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, IN CONNECTION WITH THE SOFTWARE AND ANY RELATED DOCUMENTATION, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RATIONAL ACOUSTICS, ITS DEALERS, DISTRIBUTORS, RESELLERS, AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL RATIONAL ACOUSTICS, ITS SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE, RELATED DOCUMENTATION OR RELATED TECHNICAL SUPPORT, INCLUDING WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL RATIONAL ACOUSTICS, ITS SUPPLIERS' OR ITS LICENSORS' LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. INDEMNIFICATION. To the extent permitted by law, You will defend, indemnify and hold harmless Company and its affiliates, independent contractors, service providers, suppliers, partners, resellers, distributors and consultants, and their respective directors, officers, employees and agents from and against any third party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of, or inability to use the Software; or (b) your violation of any terms of this Agreement.
10. TERMINATION. This Agreement will automatically terminate if You fail to comply with the terms, conditions, or limitations contained herein, or upon the cancellation of an Annual Subscription License or the expiration of a Demo License evaluation period. Upon termination of this Agreement, however caused, all licenses granted automatically terminate and You must immediately discontinue use of the Software and delete all copies of the Software that are in your possession or control. The disclaimer of warranty and limitations on liability contained in Sections 6 and 7 shall continue in force even after your rights to use the Software are terminated.
11. SEVERABILITY. If any of the provisions, or portions thereof, of this Agreement are invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions shall remain in full force and effect.
12. GENERAL PROVISIONS
12.1 Governing Law. This Agreement will be governed by the laws of the State of Connecticut without reference to conflict of laws principals and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this Agreement, You consent to the exclusive personal jurisdiction and venue in the State and Federal courts within the State of Connecticut.
12.2 Entire Agreement. This Agreement sets forth all rights for the user of the Software and is the entire agreement between the parties. This Agreement supersedes any other communications with respect to the Software and any associated documentation. This Agreement may not be modified except by a written addendum or additional terms issued by a duly authorized representative of Rational Acoustics. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Rational Acoustics or a duly authorized representative of Rational Acoustics.
12.3 Language. This Agreement has been written in the English language, and the English language version governs any conflict with a translation into any other language.