End-User License Agreement
WHITESMOKE SOFTWARE LTD.
SOFTWARE LICENSE AGREEMENT
WhiteSmoke is a world-class software application for correcting and enhancing your English writing. It allows you to perform advanced grammar, spelling, style, structure and punctuation checking in a single click. In addition, WhiteSmoke includes a multilingual dictionary, full-text translator, letter templates and a “Writing Review”, an improvement tool that provides a detailed score of the original text along with improvement tips. An Internet connection is required to use WhiteSmoke
- LICENSE GRANT ("LICENSE")
1.1 The Software is licensed, not sold. This agreement only gives you some rights to use the Software. Licensor hereby grants to you, and you accept, a nonexclusive license to use the Software only for purposes of obtaining services from WhiteSmoke ("Services") and only as authorized in this Agreement. The Software may be used only on a single workstation and only on the original workstation in which it was installed. Neither concurrent use on two or more computers nor use in a local area network or other network is permitted. Usage of a single License on more than a single workstation is only permitted where an addition of an “EXTRA LICENSE” item has been made. Limitations of “EXTRA LICENSES” are detailed in section 1.11 below.
1.2 The Software is licensed as a single product. You may not separate the components or install them on different devices. Other than the rights expressly set forth in section 1.1 above, no other right or interest whatsoever in or relating to the Software is transferred or granted to you.
1.3 Without limiting the foregoing, You may not (i) reverse engineer, decompile, or disassemble the Software or any part of it, (ii) modify, divide, part or revise the Software, or any part thereof, or otherwise use parts, portions or elements of the Software, standing alone, (iii) assign, sublicense, resell, transfer, pledge, loan, lease, rent, or share your rights under this Agreement in whole or in part to any third party, or (iv) remove any copyright notices. This Agreement shall automatically terminate upon occurrence of any of the events set forth in (i), (ii) (iii) or (iv) above.
1.4 From time to time Licensor may, in its sole discretion, advise Licensee of updates, upgrades, enhancements or improvements to the Software and/or new releases of the Software (collectively, "Enhancements"), and may allow Licensee to use such Enhancements upon and subject to payment of prices as may be established by Licensor from time to time. All such Enhancements to the Software provided to the End-User Licensee shall also be governed by the terms of this License and the other terms of this Agreement.
1.5 You expressly agree not to use the Software or the Services in a manner that violates any law or regulation, or to facilitate the violation of any law or regulation. You acknowledge that prohibited conduct includes, but is not limited to, use of the Software or the Services to invade the privacy of third parties, to transmit abusive, profane, libelous, slanderous, threatening or otherwise harassing material, to transmit or uploading any viruses, worms, ''Trojan Horses'' or other similar materials onto the Service or the Whitesmoke website, or to reproduce, send or distribute to or through the Service any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. You expressly agree not to damage, alter or modify the Software or the Service or any content thereof.
1.7 Information designed to assist you in using the Software and the Service can be accessed by clicking "Help" within the Software or by visiting the Whitesmoke website at http://www.whitesmoke.com.If you require further assistance, please contact us at email@example.com or http:///www.whitesmoke.com/contact.html. If you would like to uninstall the Software, please go to Control Panel in your computer, click on "Uninstall a Program," and double click on "WhiteSmoke. Please note that the serial key for the Software will remain in the computer registry after the uninstall has been completed.
1.8 If you are using a version of the Software that is not the most current version, the Software may display pop-up advertisements when the computer is started. In addition, the Software may display pop-up advertisements at a maximum frequency of every twelve hours. Such pop-up advertisements include an image with a link to WhiteSmoke website. In addition, text advertisements for Whitesmoke products or services may be embedded in screens visible to the users of the Software.
1.9 You expressly agree not to use the Software and the Service in a manner other than personal private use. You acknowledge that any business or corporate use of the Software or the Service without the written consent of the Licensor may result in termination, limitation or denial of Service.
1.10 Acceptable usage volume of the Software and Service is limited to an amount of 200 Entrances per day, where Entrances are defined as each and every instance the Software or Service is accessed. Licenses exceeding these usage volume figures may be charged with additional fees at the discretion of the Licensor. Failure to comply with these additional fees may result in termination, limitation or denial of Service. Licenses exceeding the acceptable usage volume are not eligible for any reimbursements of fees paid for the Software or Service.
1.11 Extra Licenses are defined as another concurrent installation of the Software to an additional workstation in the same household. Extra Licenses can only be added to a full License and are limited to three additional Extra Licenses per full License. Extra Licenses cannot be resold or transferred to any person outside the household. Licensors found to be using their Extra Licenses in more than a single household may be charged additional fees at the discretion of the Licensor. Failure to comply with these additional fees may result in termination, limitation or denial of Service. Licenses violating this policy are not eligible for any reimbursements of fees paid for the Software or Service.
1.12 The License for the Software is only valid for the version of the Software made available to the Licensee on the day of purchase. Unless “Free Version Upgrades” have been specifically mentioned in the package the Licensee purchased, the Licensor reserves the right to terminate, limit or deny Service to any version of the Software other than the one originally purchased.
- LICENSOR'S RIGHTS
2.1 You acknowledge and agree that the Software is a proprietary product of the Licensor, protected under copyright laws and any international copyright treaties, patent law, trade-secrets law and other intellectual property rights of general applicability.
2.2 You further acknowledge and agree that between you and Licensor, all right, title, and interest in and regarding the Software and all modifications thereto or derivatives thereof, including associated intellectual property rights, are and shall remain with Licensor.
2.3 This Agreement does not convey to you an interest in or regarding the Software, but only a limited right of use revocable in accordance with the terms of this Agreement.
- TERM; AUTOMATIC RENEWAL
FOR THE TRIAL VERSION: This License shall be valid for three (3) days unless earlier terminated as provided for herein.
FOR USERS WHO HAVE PURCHASED A DAILY LICENSE: This License shall be valid for one (1) day from the purchase date of the Software. The License term will be automatically renewed, subject to receipt of payment, in the manner described below unless automatic renewal is cancelled or unless earlier terminated as provided for herein.
FOR USERS WHO HAVE PURCHASED A MONTHLY LICENSE: This License shall be valid for thirty (30) days from the purchase date of the Software. The License term will be automatically renewed, subject to receipt of payment, in the manner described below unless automatic renewal is cancelled or unless earlier terminated as provided for herein.
FOR USERS WHO HAVE PURCHASED A QUARTERLY LICENSE: This License shall be valid for ninety (90) days from the purchase date of the Software. The License term will be automatically renewed, subject to receipt of payment, in the manner described below unless automatic renewal is cancelled or unless earlier terminated as provided for herein.
FOR USERS WHO HAVE PAID FOR AN ANNUAL LICENSE: This License shall be valid for one (1) year from the purchase date of the Software. The License term will be automatically renewed, subject to receipt of payment, in the manner described below unless automatic renewal is cancelled or unless earlier terminated as provided for herein.
FOR PURCHASERS OF ONE-TIME-PAYMENT, ONE-TIME-PURCHASE, LIFETIME OR EXTENDED LICENSES: This License shall be valid for six (6) years from the purchase date of the Software. For licenses purchased after September 2014, this License shall be valid for three (3) years from the purchase date of the Software and shall automatically terminate at the end of such term, unless earlier terminated as provided for herein.
Automatic Charge for Renewal Terms: The License for Daily, Monthly, Quarterly or Annual licenses shall automatically renew at the end of the subscription period in order to prevent a lapse in Services, unless automatic renewal is cancelled in the manner described below. For these Services, if Licensor has a valid credit card number or an alternate payment method on file, then your payment method will be charged and your subscription will be automatically renewed for another term at the then-current price for the Service minus applicable discounts or special offers for which you are eligible. The new term will begin at the expiration of the then current term. Licensor will notify you using the e-mail address provided at registration prior to renewal and again upon the renewal of your subscription term.
Cancelling Subscription Auto-Renewal: If you do not desire to have your subscription automatically renewed, then you must, inform Licensor of your intent before the expiration of your subscription term by sending a request to firstname.lastname@example.org If your subscription was automatically renewed and you request a refund of the subscription price within thirty (30) days of the renewal (or any such longer period that Licensor may, in its sole discretion, allow), then Licensor will refund the full subscription price to you using the payment information on file. You are required to notify Licensor to cancel this charge by sending an email to email@example.com.
You may terminate the License by destroying the Software and documentation and all copies thereof, but no License fees will be refunded.
3.1 This Agreement is effective upon your consummation of the transaction for the purchase of the license for the Software, following your payment of the applicable license fees.
3.2 In addition to all other legal rights and remedies, Licensor may terminate this Agreement upon the breach of any term hereof. The provisions of this Agreement that protect the rights of WhiteSmoke shall survive termination of this Agreement.
- DISCLAIMER; WARRANTY
4.1 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 4, THE SOFTWARE AND THE SERVICES AND ANY OTHER MATERIALS PROVIDED BY WHITESMOKE OR THIRD PARTIES ARE PROVIDED "AS IS AND WITHOUT WARRANTY OF ANY KIND, AND WHITESMOKE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, NON-INFRINGEMENT OF THE SOFTWARE OR SERVICES, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, TIMELINESS OR USEFULNESS OF THE SOFTWARE OR SERVICES.
4.2 LIMITED WARRANTY FOR PURCHASED PRODUCTS ONLY (NOT APPLICABLE TO FREE OR TRIAL VERSIONS):
The Software will perform substantially in accordance with its specifications, if any, for a period of thirty (30) from the date of purchase. In the event of notification, within the warranty period, of a failure of the Product to perform in accordance with such specifications, your sole and exclusive remedy and Licensor or any Software distributor's or dealer's sole and exclusive obligation shall be, at Licensor's option either (i) to replace the Software so that the Software will perform substantially in accordance with the specifications, or (ii) to refund to you the amount paid by you for the copies of the Software that you purchased. Copies of the Specifications may be obtained from the Licensor upon request.
This warranty does not cover any Software that has been purchased or obtained other than from Licensor or its authorized resellers, altered or changed in any way by anyone other than Licensor or used other than expressly permitted under this Agreement.
4.3 Licensor is not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Software with software not furnished by Licensor. DURING THE INSTALLATION PROCESS OF THE TRIAL VERSION OF THE SOFTWARE, THE USER HAS AN OPTION OF INSTALLING AN ADDITIONAL SOFTWARES AND/OR EXTENSIONS. INSTALLING THE ADDITIONAL SOFTWARES AND/OR EXTENSIONS TOGETHER WITH THE TRIAL VERSION OF THE SOFTWARE IS OPTIONAL. In the course of installation process, Licensees will be prompted to provide an email address.
4.4 No oral or written information or advice given by Licensor or its dealers, distributors, employees or agents shall in any way extend, modify or add to the foregoing warranty.
4.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN,
(A) THE EXPRESS WARRANTY SET FORTH ABOVE, CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE SOFTWARE.
(B) THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE IS BORNE BY THE LICENSEE. THE SOFTWARE IS NOT FAULT TOLERANT AND SHOULD NOT BE USED IN ANY ENVIRONMENT WHICH REQUIRES THIS. LICENSEE HEREBY EXPRESSLY AGREES NOT TO USE OR RELY ON THE SOFTWARE FOR ANY APPLICATIONS THAT MAY RESULT IN ANY DAMAGE IF FAILED.
(C) THE SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS ITS REQUIREMENTS.
(D) LICENSOR DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICES PERFORMED BY THE SOFTWARE OR BY THE SERVICE PROVIDED BY THE LICENSOR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT ANY INFORMATION OR DATA RECEIVED ON OR THROUGH THE SOFTWARE OR RELATING TO IT WILL BE FREE OF ANY VIRUSES, WORMS, OR ANY OTHER DESTRUCTIVE PROPERTIES, AND WILL NOT CONTAIN ANY OBJECTIONABLE MATERIALS.
(E) THE DOCUMENTS AND GRAPHICS IN THE SOFTWARE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. LICENSOR MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
4.5 Licensor may, at its sole discretion, at any time, without prior notice and temporarily or permanently:
(i) Terminate, limit or deny the Services;
(ii) Change, reduce or limit the functionality and features of the Software or Services;
(iii) Create different priorities or grades for different users;
(iv) Introduce new features that may cause functionality change in earlier versions;
(v) Condition the continuation of the License on your accepting Product improvements, corrections, adaptations, or changes, or accepting revised or new terms of License, as will be made available on or through the WhiteSmoke website. WhiteSmoke shall notify its users through the Software, by e-mail or through the WhiteSmoke website of changes in this Agreement.
5.1 LICENSOR SHALL NOT BE LIABLE UNDER ANY CLAIM RELATED TO THE SOFTWARE, INCLUDING CLAIMS IN RESPECT OF INFRINGEMENTS OF RIGHTS, INFRINGEMENT OF PATENT, COPYRIGHT, REGISTERED DESIGN OR TRADEMARK AND OTHER INTELLECTUAL PROPERTY RIGHTS.
5.2 IN NO EVENT SHALL LICENSOR BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE USE OR INABILITY TO USE, OR THE QUALITY OF, OF THE SOFTWARE OR SERVICES. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, DELAYS, LOSS OF BUSINESS OR PROFITS OR BUSINESS INTERRUPTION), OR FOR LOST DATA, DAMAGE TO OTHER SOFTWARE, COMPUTER FAILURE, OR MALFUNCTION, OR DOWNTIME, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT
5.3 THE CUMULATIVE LIABILITY OF LICENSOR TO YOU FOR ALL CLAIMS RELATING TO THE SOFTWARE, SERVICESOR TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID BY YOU TO LICENSOR FOR THE LICENSE OF THE SOFTWARE.
- COMPLIANCE WITH LAWS
6.1 Licensee shall be solely responsible to comply, at its own expense, with local, state, national and international laws and regulations, including without limitation laws regarding data protection, security and privacy and with all governmental approvals, licenses, permits and authorizations which may be required with regards to the Licensee's use of the Software or Services.
6.2 Notwithstanding and without limiting any of the aforementioned, in no case shall the Licensor be held liable for any liability arising out of Licensee's failure to comply with any such laws, regulations, approvals, licenses or authorizations.
At Licensor's request, you agree to defend, indemnify and to hold harmless Licensor, its licensors, officers, directors, shareholders and employees from any losses, claims, liabilities or damages (including but not limited to attorney's fees) which may arise from your use of the Software or the Services and/or material obtained from or through the Service or from your breach of this Agreement. Licensor is not responsible for claims arising from use of the Software or Services or your breach of this Agreement, including, without limitation, claims of copyright infringement, patent infringement, misappropriation of trade secrets, libel, slander, trade libel, defamation, harassment, invasion of privacy or fraud.
- INTELLECTUAL PROPERTY
This Agreement does not grant any right, title or interest in connection with any trademarks, service marks or other intellectual property owned by the Licensor or any third party, and you agree that no such right, title or interest shall be asserted by you with respect to such trademarks, service marks or other intellectual property.
- GOVERNING LAW
This Agreement shall be construed and governed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of laws thereof, and the eligible courts of the State of New York shall have exclusive jurisdiction over all disputes between the parties.
ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU, ON THE ONE HAND, AND WHITESMOKE, ON THE OTHER HAND, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT WHITESMOKE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, YOU OR WHITESMOKE MAY INSTEAD OPT TO PROCEED ON AN INDIVIDUAL BASIS IN SMALL CLAIMS COURT.
The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf), as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, WhiteSmoke will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
With the exception of any of the language above in this Dispute Resolution provision relating to the waiver of class and representative actions, if a court decides that any part of this provision is invalid or unenforceable, the other parts of this provision shall still apply. If a court decides that any aspect of the language above in this provision relating to the waiver of class and representative actions is invalid or unenforceable, then the entirety of this provision shall be null and void. The remainder of the Agreement will continue to apply and be unaffected by this severability provision.
- FINAL AGREEMENT; SEVERABILITY
This Agreement sets forth all of your rights, and is the entire Agreement between you and Licensor for the Software and Services. This Agreement supersedes any other communications, representations or advertising relating to the Software or Services.
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
- NO WAIVER
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- RESERVATION OF RIGHTS
All rights not expressly granted herein are reserved by Licensor.
Any attempt by Licensee to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio.
LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR AND SUPERCEDES ANY PROPOSALS OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Licensee acknowledges that Licensor's Software integrates third parties' software, to which the Licensor has been granted a license with the right to sub license to further sub-licensee. Therefore, all Licensees' obligations under this Agreement shall be deemed to have been given by the Licensee both to the Licensor and to such third parties.
Notices to you may be made by email to the email address provided at registration, regular mail or through the Services.