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SPELLCHECKER SOFTWARE LICENSE AGREEMENT
SPELLCHECKER.NET, INC. (“SPELLCHECKER”) IS WILLING TO LICENSE THE SOFTWARE (AS DEFINED IN SECTION 1 BELOW) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). PLEASE READ THE AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACCEPT THE FULL TERMS OF THIS AGREEMENT.
IF YOU ARE AGREEING TO THIS LICENSE ON BEHALF OF AN ENTITY OTHER THAN AN INDIVIDUAL PERSON, YOU REPRESENT THAT YOU ARE BINDING AND HAVE THE RIGHT TO BIND THE ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. SUBJECT OF AGREEMENT
“Software”, as referred to in this Agreement, shall be the binary software package “SpellChecker Engine,” on a physical computer with a specific operating system (“Hardware”). The Software consists of executable files in machine code as well as other data files as required by the executable files at run-time and Documentation in electronic form. “Documentation” shall mean the on-line user manuals for the Software. The Software includes all Documentation and Updates provided to you by SpellChecker under this Agreement and the terms of this Agreement will apply to all such Documentation and Updates unless a different license is provided with an Update or Documentation.
2. LICENSE TERMS
2.1 SpellChecker grants you a personal, non-exclusive, non-transferable, limited license to reproduce, install, execute, and use internally the Software on the Hardware for Production Use. “Production Use” means use of the Software on the Hardware for the purpose of providing services to End Users via the Internet so long as you comply with the terms and conditions of this Agreement, and either destroys or returns the Software when you no longer have the right of use. End Users shall mean a third party to whom you provide services using the Software, via the Internet, pursuant to this Agreement.
2.2 You may make a single copy of the Software and Documentation (provided that all copyright and other proprietary notices of SpellChecker and its licensors are reproduced), solely for archival and emergency back-up purposes, and disaster recovery testing purposes. You shall not make the Software available to unauthorized third parties. You shall not lease, rent or sublicense the Software to any third party, or otherwise use it except as explicitly permitted in this Agreement. You agree not to cause or permit reverse engineering, disassembly, or decompilation of the Software, or otherwise attempt to determine source code or protocols from the Software. The Software is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility and SpellChecker and its licensors disclaim any express or implied warranty of fitness for such uses.
2.3 SpellChecker may periodically audit your relevant books and records to ensure compliance with the terms of this Agreement. Any such audit shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your business activities. If an audit reveals that you have under-paid fees to SpellChecker then you shall pay SpellChecker’s reasonable costs of conducting the audit, in addition to the underpaid amount.
2.4 SpellChecker may, in its discretion, monitor the Software and your use thereof to determine and ensure compliance with this Agreement and to protect itself and other users of the Software from fraudulent, unlawful, abusive, or otherwise unauthorized use of the Software. SpellChecker may also remotely cease functionality of the Software due to unauthorized use, or intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of SpellChecker, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request.
3. LICENSE FEES
3.1 In consideration of the applicable license(s) granted pursuant to Section 2.1, you agree to pay SpellChecker the applicable license fee(s) within 30 days of issuance of SpellChecker’ invoice. All charges and fees provided for in this Agreement are exclusive of and do not include any taxes, duties or similar charges imposed by any government (“Taxes”). You agree to pay or reimburse SpellChecker for all such Taxes (other than taxes on the net income of SpellChecker).
3.2 If you are outside the United States, you agree that the amounts to be remitted to SpellChecker are to be the actual amounts due without withholding taxes or other assessments by authorities anywhere in the foreign location, which withholding taxes or assessments you agree to pay. You will promptly furnish SpellChecker with certificates evidencing payment of such amounts.
4. TECHNICAL SUPPORT
4.1 Technical Support Services.
SpellChecker shall provide you with up to twenty (20) hours per year of off-site Software technical support, pursuant to SpellChecker’s then-current policies, at no additional charge, as well as provide you with Updates as they are made generally available. “Updates” shall mean correction of discrepancies in the Software which are generally made available by SpellChecker to you under this Agreement at no additional cost. Updates shall not include any future products which SpellChecker may choose to license separately but may, at SpellChecker’s discretion, include new features. Additional technical support may be obtained from SpellChecker at a rate of $100.00 per hour, which rate is subject to change. You shall pay technical support fees for required additional years of technical support as more fully set forth at SpellChecker’s website.
4.2 Your Responsibilities.
You are responsible for installation of the Software, and for providing all technical support, training and consultations to End Users. Any questions from End Users will be referred by SpellChecker to you. You agree to provide SpellChecker with reasonable access to your personnel and equipment, if necessary during normal business hours in order to provide Maintenance and Support. You agree to document and promptly report all errors or malfunctions of the Software to SpellChecker.
Any amounts not paid when due (including license fees and technical support) will be subject to interest at the lesser of 1.5% per month or the highest amount permissible under applicable law.
6. LIMITED WARRANTY/LIMITATIONS ON LIABILITY
6.1 SpellChecker warrants to you and for your benefit only that the Software you license from SpellChecker will perform in substantial accordance with the Documentation for a period of thirty (30) days from the date you receive the Software. If during this time period the Software does not perform as warranted, SpellChecker shall, at its option, undertake to correct the Software, replace such Software free of charge or, if neither of the foregoing is commercially practicable, terminate this Agreement and refund to you the license fee. This warranty will not apply if the Software has not been properly installed, used outside the scope of the applicable license, modified, altered or operated in an unwarranted environment.
THE FOREGOING IS SPELLCHECKER’S SOLE LIABILITY FOR AND YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY.
6.2 No Other Warranties.
EXCEPT AS PROVIDED IN SECTION 6.1, SPELLCHECKER MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND SPELLCHECKER HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. SPELLCHECKER MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE SOFTWARE OR ABOUT THE ACCURACY OF ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SOFTWARE.
6.3 Limitations on Liability.
SPELLCHECKER AND ITS SUPPLIERS SHALL NOT BE LIABLE, UNDER ANY THEORY OF LIABILITY, INCLUDING TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF YOUR USE OF THE SOFTWARE, OR THE USE OF THE SOFTWARE BY ANY END USER, USER, DISTRIBUTOR, OR ANY THIRD PARTY, OR IN ANY OTHER WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER. SPELLCHECKER’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID BY YOU TO SPELLCHECKER HEREUNDER FOR THE SOFTWARE GIVING RISE TO SUCH LIABILITY.
Some States do not permit disclaimers of certain warranties or limitations on certain types of liability under certain circumstances; consequently, some of the foregoing disclaimers and limitations may not be applicable to you, in whole or in part.
7. SOFTWARE CHANGES.
SpellChecker reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
Title, ownership rights, and all intellectual property rights in and to the Software and Documentation shall remain the sole and exclusive property of SpellChecker and/or its licensors. You agree to abide by the copyright law and all other applicable laws of the United States. You acknowledge that the Software contains valuable confidential information and trade secrets of SpellChecker and/or its licensors; therefore, you agree not to modify the Software, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Software or assist or encourage any third party in doing so.
9.1 SpellChecker agrees to indemnify and defend you from and against any and all claims, actions or proceedings, arising out of any claim that the Software infringes or violates any U.S. patent, copyright or trade secret right of any third party; so long as you provide: (i) prompt written notice to SpellChecker of such claim; (ii) cooperate with SpellChecker in the defense and/or settlement thereof, at SpellChecker’s expense; and, (iii) allow SpellChecker to control the defense and all related settlement negotiations.
9.2 If it is, or if in the reasonable opinion of SpellChecker it is probable that it will be, determined by a court of competent jurisdiction that such Software or the sale or use thereof infringes any U.S. patent, copyright, trade secret or trademark of a third party or if SpellChecker is enjoined from distributing such Software, then SpellChecker, at its sole option and expense, may: (i) procure for you the rights and to the same extent as those granted under this Agreement; (ii) replace such Software with other software, which complies with the specification of the Software; or, (iii) modify the Software, to avoid infringement while continuing to have the Software meet the Specification or (iv) terminate this Agreement and return to you your license fee, less an amount commensurate with your period of use of the Software, as amortized over a three year period.
9.3 You agree that this Section 9 represents SpellChecker’ sole obligation to you and shall be your sole and exclusive remedy pursuant to this Agreement for intellectual property infringement.
9.4 SpellChecker shall have no indemnity obligation for claims of infringement resulting or alleged to result from: (i) any combination, operation, or use of any Software with any programs or equipment not supplied by SpellChecker; (ii) any modification of the Software by a party other than SpellChecker; and (iii) your failure, within a reasonable time frame, to implement any replacement or modification of Software provided by SpellChecker.
10. TERM AND TERMINATION.
10.1 This Agreement will take effect upon your downloading or installing of the Software, and will remain in force until terminated in accordance with this Agreement. This Agreement may be terminated by you upon thirty (30) days’ prior written notice to SpellChecker or by destroying or returning to us all copies and partial copies of the Software and Documentation under your control; provided that no such termination will entitle you to a refund of any portion of any license or technical support fees. SpellChecker may, by written notice to you, terminate this Agreement immediately if any of the following events (“Termination Events”) occur: (a) you fail to pay any amount due SpellChecker within thirty (30) days after SpellChecker gives you written notice of such nonpayment; or (b) you are in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after SpellChecker gives you written notice thereof.
10.2 Termination of this Agreement will not affect the provisions relating to the payment of amounts due, or provisions limiting or disclaiming SpellChecker’s liability, which provisions will survive termination of this Agreement.
10.3 Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, you shall destroy the Software and all copies, in whole or in part, all Documentation relating thereto.
11. UNITED STATES GOVERNMENT RIGHTS.
The Software provided under this Agreement is commercial computer software developed exclusively at private expense, and in all respects are proprietary data belonging solely to SpellChecker.
11.1 Department of Defense End Users: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Software and any accompanying documentation acquired under this Agreement is subject to the restrictions of this Agreement.
11.2 Civilian Agency End Users: If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement.
12. NON-ASSIGNMENT/BINDING AGREEMENT.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law without the prior written consent of SpellChecker. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
13.1 If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the remaining terms, conditions and provisions will continue to be valid and enforceable to the fullest extent permitted by law. This Agreement (including any addenda hereto signed by both parties) represents the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except in writing, signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that you may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of SpellChecker to object to such terms, provisions or conditions. This License shall be governed by and construed in accordance with the laws of the State of California as applied to agreements made, entered into and performed entirely in California by California residents. You agree that any dispute regarding this License will be heard in the state or federal courts having jurisdiction in Los Angeles County, California, and you agree that you shall be subject to the personal jurisdiction of such courts. Use of SpellChecker, Inc. software constitutes an acceptance of the terms of this agreement. If you do not agree to be bound by these provisions, you are required to destroy all copies of SpellChecker software from your equipment immediately.