NoteSmith® End User License Agreement

Do not install the Software onto any other media until you have read and agreed to the NoteSmith® End User License Agreement (NEULA) presented on these next pages. The act of installing the Software constitutes your acceptance of the terms and conditions of this NEULA.

1. Copyright. NoteSmith® software, NoteSmith®  Basic, NoteSmith® Pro, NoteSmith® Network, and the accompanying documentation (collectively the “Software”) are copyrighted and the property of Adagio Systems, LLC (“Licensor”). The Software must not be copied or reproduced, in whole or part, without the express written consent of Licensor. One copy of the installation media may be retained by you, the licensee (“Licensee”), for backup purposes only.

As prescribed by the Digital Millennium Copyright Act (DMCA) of 1998, Licensee is prohibited from removing or altering any electronic rights management information without written permission from Licensor. Further, Licensee must prevent circumvention of technological measures used to protect this copyrighted work and to prevent tampering with the integrity of copyright management information, which includes, but is not limited to, altering any files, settings, or properties within the Software or the Licensee’s operating system designed for electronic rights management.

2. License. Subject to the payment of the license fee to Licensor, and the compliance with the other terms and conditions of this NEULA, Licensor hereby grants to Licensee, and Licensee hereby accepts, a personal, nonexclusive license to use the Software as indicated below. This NEULA allows Licensee to use one fully installed copy of the NoteSmith® Software (also known as NoteSmith®  Basic or NoteSmith®  Regular) on any one computer; or two fully installed copies of NoteSmith® Pro on two computers, both of which belong to Licensee and both of which service the same data, such as making a backup of Licensee’s data at the office to review on Licensee’s home or laptop computer, as long as both installations are not run simultaneously. NoteSmith® Network users may install the Server version onto one computer to house shared data and may install the Workstation edition onto multiple computers of a single local area network with continual access to that server data.

Wide area networking is not licensed or supported. Licensee may access their NoteSmith® computer remotely using “dumb terminal software” such as GoToMyPC or Remote Desktop.

There is no “two user license” for any version of NoteSmith®. Licensee is expressly prohibited from servicing unique accounts in separate databases located at separate locations without ordering additional licenses. If Licensee plans to use any version of NoteSmith®, NoteSmith® Pro, or NoteSmith® Network Software other than as specified herein, Licensee must order multiple licenses.

3. Deactivation. If Licensee sells Licensee’s computer, Licensee must deactivate and uninstall the Software from it. If Licensee upgrades Licensee’s licensed copy of the Software to a more current version, Licensee must deactivate and uninstall the older version which may no longer be used. If Licensee’s computer is vandalized, lost, destroyed, malfunctioning, or in any way unable to allow Licensee to deactivate and uninstall the Software, Licensee will need to order another NoteSmith® license to install the Software on another computer.

4. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, INSTALLATION, USE, EFFICIENCY AND SUITABILITY OF THE SOFTWARE AND LICENSOR SHALL HAVE NO LIABILITY THEREFOR.

5. No Legal or Accounting Advice. The Software is intended to be used as an assistant. Its calculations, reports, sample documents, textual clauses, forms and all other features must not be relied upon for legal, accounting, tax, mission critical, or any other uses. All figures should be rechecked by the Licensee. Licensor, through providing the Software and technical support, is not providing any legal, accounting or tax advice. Laws, regulations, usury rates, requirements for payoff calculations, application of loan proceeds, filing requirements, and the like are complex and often vary from state to state, and may change over time. Licensee acknowledges that Licensee shall consult with Licensee’s own legal counsel, certified public accountants or tax advisors as Licensee deems necessary with respect to any legal, accounting or tax implications of use of the Software or technical support, and that Licensee shall not rely upon the Software or technical support for any legal, accounting or tax advice.

6. Limitation of Liability.

       6.1 IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, OR DELAY OF THE LICENSOR IN THE DELIVERY OF THE SOFTWARE. LICENSOR SHALL NOT BE LIABLE FOR ANY HARDWARE OR DATA STORED WITH THE USE OF THE SOFTWARE.

       6.2 IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF THE USE OR MISUSE OF THE SOFTWARE, OR RELATED TO THIS NEULA, OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. LICENSOR’S LIABLITY HEREUNDER TO LICENSEE, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO LICENSOR BY LICENSEE.

7. Trademarks.

       7.1 NoteSmith® is a registered trademark of Licensor. Throughout the User’s Guide, Licensor makes references to product names that are trademarks of other companies. Licensor uses these references in an editorial manner, for the benefit of the user, with no intention of infringement of the trademarks.

       7.2 The Software and the User’s Guide include images from Corel which are protected by the copyright laws of the United States, Canada, and elsewhere, and are used under license.

       7.3 There is no business, financial, or cooperative relationship between Licensor, the author and publisher of NoteSmith®, and other authors and publishers, such as Microsoft (Windows), Intuit (Quicken and QuickBooks), TimeValue Software (TValue), or Adobe (PDF files).

8. Additional Technical Support and Software Matters. The following additional terms and conditions apply to technical support and the Software:

	8.1 Support duration. Technical support will be provided until the end (December 31) of the calendar year for which the Software is released. Support will be provided by email or toll free fax to the original Licensee on one computer running NoteSmith®, two computers running the same database on NoteSmith® Pro, or one local area network (LAN) running NoteSmith® Network. Program activation is required for all computers running any NoteSmith® program.

	8.2 Support methods. Technical support by email or toll free fax is included in Licensee’s annual subscription. Technical support by postal mail is not included but is available for an additional charge. Technical support by telephone is neither offered nor available.

	8.3 Support timeliness. Without any representations or warranties as to timeliness, Licensor endeavors to answer all correspondence by the end of the business day that it arrives. During certain busy periods, such as tax season, major holidays, and upgrade releases, response time may increase.

	8.4 Support refusals. Licensor reserves the right to refuse technical support to anyone who, in Licensor’s sole opinion, is excessively rude or floods Licensor’s office with an unusually high number of support requests. Support will be refused to Licensees whose technical support payment did not clear Licensor’s bank and remains unpaid for 30 days or more. Support will be refused to anyone who makes an unauthorized copy of the Software and gives it or the registration number to someone else, which includes upgrading the software and giving the older version to someone else. Support will be refused to anyone who resells their copy of the Software or buys the Software from another Licensee, although a transfer of the Licensee’s license is allowed. Technical support also will be refused to any Licensee who is in default of any other terms and conditions of this NEULA.

	8.5 Refundability. When ordering directly from Licensor, first time Licensees may return their Software in “as new” condition within 30 days of their licensing date for a refund. An adjustment will be made for Software returned within 30 days that is not “as new.” The following are non-refundable under all circumstances: shipping and handling charges, upgrading to a more fully featured model of the Software, and the annual technical support fee in subsequent years.

	8.6 Operating system. The Software is designed to run on Microsoft Windows desktop operating systems available to the retail public at the time the Software is released, which includes all versions starting with Windows95 except for Terminal Server.

	8.7 Third party software. The Software works in conjunction with other software programs popular in the retail computing environment, although no outside program is required for the proper functioning of the Software. Supported interfaces include Quicken, QuickBooks, and Microsoft Office versions that were released prior to the release date of the currently shipping Software.

	8.8 Tax forms. Certain IRS tax forms common to real estate investors are supported, including 1098 and 1096 for NoteSmith® and additionally 1099-INT and 6252 for NoteSmith® Pro. NoteSmith® Pro supports electronic filing of 1098 and 1099-INT. The Software is released at the start of the calendar year to print the IRS forms due at the start of the same calendar year using payment data from the previous calendar year. Tax forms are supported only for the current year since Licensor has no control over changes the IRS will make to future forms.

	8.9 Credit bureau and web access. NoteSmith® Pro enables credit bureau reporting and optional uploading of data to Licensor’s web site. Since credit bureau reporting requirements are subject to change beyond Licensor’s control, and web services are priced by an outside vendor, both of these features are supported only for one calendar year.

	8.10 Expiration. The Software does not have an expiration date although, as noted above, some features are date dependent. There is no obligation to renew technical support. By paying Licensor’s technical support invoice, Licensee agrees to the terms and conditions contained herein. 

9. Future Software and Support. Licensor is under no obligation to provide the Software or technical support to Licensee other than in the year of licensing, except as may be otherwise agreed in a writing signed by both parties. Licensor does not represent or warrant that the Software or technical support will be available in future years.

10. Privacy and security. Licensor maintains Licensee contact information for the purpose of providing technical support and it is not sold, rented, or released. Contact information is protected by hardware and software firewall, but may be moved from Licensor’s office by email or on unsecured portable computers, and is stored as a backup off site on unsecured removable media. Licensor does not have access to Licensee credit card information. Licensee checks may be stored until deposit but no account information is saved. Licensee data stored on Licensor’s web site is encrypted using Licensee’s password in a folder that is password protected by Licensor, with neither knowing the other’s password. Data sent to Licensor for technical support is destroyed after a reasonable amount of time, but is otherwise unsecured.

11. Arbitration. Any dispute between Licensor and Licensee shall be decided by binding arbitration. Such arbitration shall proceed exclusively in Fort Collins, Larimer County, Colorado, shall be governed by Colorado law, and shall be conducted in accordance with the Uniform Arbitration Act of 1975, C.R.S. §13-22-200 et seq. The decision and award of the arbitrator shall be final and binding between the parties as to all claims that were or could have been raised in the arbitration. The award will be enforceable in any court of competent jurisdiction and judgment may be entered thereon. The following disclosures are made as to arbitration: (i) The decision of the arbitrator shall be final and binding on the parties; (ii) The parties are waiving their right to seek remedies in court, including their right to a jury trial; (iii) Pre-arbitration discovery is generally more limited than and different from court proceedings; and (iv) The arbitrator’s award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by arbitrators is strictly limited. 

12. Governing Law. This NEULA shall be governed by and its terms construed under the laws of the State of Colorado. 

13. Entire Agreement. This Agreement is the sole agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, of either party. This Agreement may be amended only by a writing executed by the authorized representatives of both parties.

14. Severability. If any provision of this NEULA or the application thereof to any person or circumstances shall be invalid, illegal or unenforceable to any extent, the remainder of this NEULA and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. 

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