WebSpellChecker LLC, which maintains its principal place of business at 38 Nauky Ave., Kharkiv, 61166, Ukraine (“Licensor”),
and TeamDev Management OU, a company representing and acting on behalf of WebSpellChecker LLC, according to the terms of the Software License Agreement № LA-TD-19 as of March 1, 2019 (“Agent”) on one side,
and any individual or legal entity (“Licensee”), further referred to as “Parties” and individually, a “Party”, have entered into this Agreement.
IMPORTANT: BY INSTALLING, USING OR COPYING THE SOFTWARE OR ANY RELATED DOCUMENTATION YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SOFTWARE.
- “Software” means the Licensor’s intellectual property, WebSpellChecker — a package of spelling and grammar check components, that is provided to the Licensee for commercial use governed by this Agreement. The Software includes the Documentation and Updates, and any Additional Dictionaries provided by the Licensor under this Agreement. The detailed description of the Software is provided in Appendix 1 hereto.
- “Authorized Users” means the parties, to whom the Licensee makes available the functions of the Software.
- “Licensee Program” means a Licensee’s web application, into which the Licensee intends to integrate the Software.
- “Hardware” means a physical or virtual server with a supported operating system.
- “Updates” means a set of changes in the form of the Software fixes, improvements, additions or release of a new version of the Software.
- “Licensee Data” means any information that the Licensee checks with the help of the Software, the Licensee’s custom dictionaries, and any code the Licensee creates in conjunction with the Software use.
- “Authorized User Data” means any information that Authorized User checks with the help of the Software, Authorized User’s personal dictionaries.
2. Commercial License Grant
2.1. Subject to a fee, payable to the Agent, the Licensor grants to the Licensee a worldwide, non-exclusive, non-transferable license to integrate the Software into Licensee’s Program, use the Software, including Software Updates during the License Term as defined per Section 2.2. below, and in quantity defined by the License Scope for the purpose of providing services of spelling and grammar check to the Authorized Users (“Commercial License”).
2.2. License Term. License shall be valid for twelve (12) month since the Commercial License activation date. Upon the end of the License Term, the license to use the Software shall expire. Commercial License may be renewed by Licensee for additional License Terms.
2.3. License Scope. License use is limited by the number of Authorized Users. License Scope can be extended subject to payment to the Licensor.
3. Evaluation License Grant
3.1. The Licensor provides the Licensee with a non-exclusive, non-transferable temporary license to install and use the Software for the purpose of evaluating the Software and defining its suitability for the Licensee’s commercial use (“Evaluation License”) for the term indicated in Section 3.3 herein.
3.2. The Evaluation License is provided free of charge.
3.3. Evaluation License is valid for thirty (30) days from the date of activation of a temporary license key to the Software.
4. License Restrictions
The Licensee has NO rights to:
4.1. Transfer the License to any third party for a fee or free of charge, except cases when these rights may be transferred with the written consent from the Licensor;
4.2. Make available the Software on the Internet for public access separately from the Licensee Program; resell, rent, lend, or distribute the Software.
4.3. Individually perform or allow any third party to perform the following actions:
- copy and reproduce the Software without the written consent from the Licensor;
- cause or permit exposure of the technology, decompile or disassemble the Software, or in any other way to try to determine the source code or protocols of the Software;
- make any changes to the object code of the Software, except for those changes that are described in the Documentation;
- examine the source code of the Software by any other means.
4.4. Make available the functions of the Software to more Authorized Users than is provided for by the License Scope.
4.5. Use the Software for any other purpose than it is intended for and is specified in the Section 2 “Commercial License Grant”. Prohibited use includes but not limited to: use the Software for application or website monetization, placing advertisements within the user interface of the Software.
4.6. Use the Evaluation License for purposes other than defining suitability of the Software for Licensee’s commercial use.
4.7. Use the Evaluation License after expiration of its term according to Section 3 of this Agreement.
5. Maintenance and Support
5.1. Pursuant to the acquisition of the Commercial License and during the License Term, the Licensee shall be entitled to receive the Maintenance and Support services, in accordance with the terms defined in Appendix 2 to this Agreement.
6.1. The Licensor agrees to deliver the Software within three (3) business days from the date of payment of the Commercial License fee by the Licensee according to Section 8.
6.2. For the purposes of the evaluation, the Licensor agrees to deliver the Software within three (3) business days from the Licensee’s request.
6.3. Subject to the terms of Section 6.1. and 6.2. above, the Licensor shall send to the Licensee’s email address a web-link to the installation package for the Software and an appropriate license key which enables the Licensee to work with the Software.
7. Intellectual Property
7.1. The Software is copyrighted by the Licensor. The Licensor retains all property rights, copyrights and other proprietary rights for the Software, and any derivatives, modifications, or its translations. The Licensee does not receive any rights to the Software, except those that are specified in this Agreement. The Licensee retains title, copyright and other proprietary rights to the Licensee’s software and any of its translations and modifications, which are developed by or on behalf of the Licensee.
7.2. The Licensee shall retain all Licensor’s copyright notices on the Software. The Licensee must include the Licensor’s copyright notice for all of the Software and accompanying products at all times during the use of the Software.
7.3. The Licensee agrees to reproduce the unchanged Licensor’s copyright notice on any copy or translation of the Software, subject to the Licensor’s agreement for creation of such a copy or translation.
7.4. All other trade and service marks, chosen by the Licensor to identify the Software and other products and services of the Licensor, belong exclusively to the Licensor, and the Licensee has no rights in these marks.
7.5. Licensor does not receive any rights in or to the Licensee Data or Authorized User Data. The rights to such data remains with their respective owners.
8. Commercial License Fees
8.1. Fees. The Licensee agrees to pay the Agent fees as specified on the pricing page on the official Linesor’s website. Such fees are non-cancelable and the sums paid are non-refundable, except as provided in section 12 “Warranties”.
8.2. General Payment Terms. All fees payable hereunder shall be paid to the Agent within thirty (30) days from the date of the invoice issued by the Agent. The Commercial License fees shall not be subject to set offs or deductions due to any taxes or claims against the Licensor. All payments shall be made in the United States Dollars. Any amounts due by the Licensee hereunder which remain unpaid thirty (30) days after the due date shall be subject to late penalty interest equal to one and one-half percent (1.5%) per month from the due date until such amount is paid.
9.1. Infringement Indemnity. The Licensor will defend, indemnify, and hold the Licensee harmless against any judgment or settlement amount which the Licensor agrees arises from a claim that the Software licensed and used within the scope of this Agreement infringes a patent, copyright, trademark or other intellectual property right, provided that:
- The Licensee notifies the Licensor in writing within thirty (30) days of the claim;
- The Licensor has sole control of the defense and all related settlement negotiations; and
- At the Licensor’s request, the Licensee provides the Licensor with all necessary assistance, information, and authority to perform the above, at the Licensor’s expense.
9.2. Disclaimer of Liability. The Licensor shall have no liability for any claim of infringement based on: (i) use of other than the then current, unaltered version of the applicable Software, unless the infringing portion is also in the then current, unaltered release; or (ii) claim arising from modifications of the Software not supplied by the Licensor under this Agreement; (iii) the combination or use of the Software with software, hardware or other materials not furnished by the Licensor if such infringement would have been avoided by the use of the Software alone.
9.3. Licensor’s Indemnity. In the event the Software is held or is believed by the Licensor to infringe, the Licensor shall have the option, at its expense to (i) modify the Software to be non-infringing; (ii) obtain for Licensee a license to continue using the Software; or if either (i) or (ii) is not commercially feasible, (iii) terminate the licenses and refund the license fees received from Licensee for the affected Software less a usage charge based on a thirty-six (36) month amortization schedule. This Section 9 states the Licensor’s entire liability for infringement by the Software of any third party rights, including intellectual property rights.
9.4. Licensee Indemnity. The Licensee will defend and indemnify the Licensor against any and all claims for damages against the Licensor, arising from any use by the Licensee, or its Authorized Users of any product not provided by the Licensor but used in combination with the Software if such claims would have been avoided by the exclusive use of the Software.
10. Use of Personal Data
10.1. In case the Licensee is an individual, the Licensee agrees that subject to Licensee’s consent provided separately on the Licensor’s website, the Licensor will receive the Licensee’s personal data, including name and address for the purposes of performance of this Agreement. The Licensor shall retain such data unless the Licensee requests to delete it according to Section 11 of this Agreement, however the Licensor reserves the right to retain information necessary for accounting and legal purposes in accordance with Article 17 of the Regulation EU 2016/679, “GDPR”. For the purposes of the GDPR, the Licensor is the Controller of such collected data.
10.2. The Licensee’s personal data is processed on the servers outside the EU. The Licensor applies all reasonable protection measures to secure such data, including physical security, technical and organizational measures, and treats this information as confidential.
10.3. The Licensee’s personal data may be transferred to the Licensor’s vendors, who assist the Licensor in provision of the Software and related services. For the purposes of GDPR such vendors are Subprocessors of Licensee’s personal data. The list of Subprocessors is available on the following page.
10.4. The Licensor shall process the personal data in accordance with applicable international laws.
11. Personal Data Protection Rights under the GDPR
If the Licensee is an individual-resident of the EEA, the Licensee has the following data protection rights:
- The right to access, correct, update, or request deletion of Licensee’s Personal Data (as defined by GDPR), exercised by emailing firstname.lastname@example.org.
- The right to object to the processing of the Personal Data, request to restrict the processing of the Personal Data, or request portability of the Personal Data, exercised by emailing email@example.com.
- The right to opt-out of marketing communications Licensor may send, exercised by clicking on the “unsubscribe” or “opt-out” link in the marketing emails sent or by emailing firstname.lastname@example.org.
- The right to withdraw consent to Personal Data processing at any time. Withdrawing Licensee’s consent will not affect the lawfulness of any processing conducted prior to the withdrawal, nor will it affect the processing of Licensee’s Personal Data conducted in reliance on lawful processing grounds other than consent. Upon withdrawal of the consent to process Personal Data Licensor will not be able to provide services related to the Software.
- The right to complain to a data protection authority about Licensor’s collection and use of the Personal Data.
12.1. Exclusive Warranty. For a period of thirty (30) days after delivery of the Software to the Licensee, the Licensor warrants that the Software conform in all material respects to the Documentation. The Licensor does not warrant that the operation of the Software will be uninterrupted or “bug” free.
12.2. The Licensor shall not be liable for any failures in the Software that occurred due to:
- using a non-supported version of the applicable Software. The supported versions are listed on the official Licensor’s website (https://webspellchecker.com).
- integration or using the Software with software, hardware or other materials which are not provided under this Agreement, if the failure could have been avoided by using the Software only.
12.3. The Licensee shall make no warranties on behalf of the Licensor.
12.4. Remedies. If the Licensor breaches the foregoing warranty and the Licensee promptly notifies the Licensor in writing of the nature of the breach, the Licensor shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software without charge. If, after a reasonable opportunity to cure, the Licensor does not repair or replace the non-conforming Software, the Licensee must return the Software to the Licensor, or certify in writing that all copies have been destroyed, and the Agent will refund the Commercial License fees it received from Licensee for the affected Software. This is Licensee’s sole and exclusive remedy for breach of the exclusive warranty in Section 12.1.
12.5. Disclaimer of Warranty. THE FOREGOING WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE INCURRED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Licensor’s liability for damages hereunder for any case whatsoever shall in no event exceed the amounts received by the Agent from the Licensee with respect to the particular transaction which gives rise of the liability.
14.1. “Confidential Information” means: (i) the technology, ideas, know-how, documentation, processes, algorithms and trade secrets embodied in the Software or such information embodied in or related to the Licensee’s programs; (ii) any software license keys related to the Software or Licensee’s programs, and (iii) any other information related to this Agreement, whether disclosed orally or in writing or magnetic media, that is identified as Confidential, Proprietary or with a similar legend at the time of such disclosure.
14.2. Parties guarantee that any documents, information, knowledge and experience gained under this Agreement shall be confidential.
14.3. The receiving party (“Recipient”) shall protect the disclosing party’s (“Discloser”) Confidential Information using the same degree of care which each party uses with respect to their own proprietary information and shall not: (i) use Confidential Information for purposes other than for the purposes of this Agreement, or (ii) disclose any Confidential Information to any third party without the Discloser’s prior written consent, except for its affiliates and its and their respective officers, directors, employees, consultants and representatives (“Representatives”) on a reasonable need-to-know basis, provided that such party is informed of the confidential nature of such information and directed to comply with the terms of this section. The Recipient will be liable for any act or omission of its Representatives that, if performed, or failed to be performed, by the Recipient, would constitute a breach of this section.
14.4. Confidential Information does not include any information that (i) is or becomes publicly known without breach of this Agreement by the Recipient or its Representatives; (ii) was rightfully known to the Recipient or any of its Representatives prior to receipt from the Discloser; (iii) is disclosed to the Recipient or any of its Representatives without confidential or proprietary restriction by a third party who rightfully possesses the information; (iv) is independently developed by or on behalf of the Recipient or any of its Representatives without the use of Confidential Information of the other party; or (v) is required to be disclosed pursuant to the order of a court, government agency or applicable law, rule or regulation, provided that the Recipient shall, to the extent reasonably practicable and not prohibited under the circumstances, promptly provide a written notice of such an order to the Discloser to enable the Discloser to contest such an order.
14.5. Each party’s obligations regarding the protection of Confidential Information shall survive any expiration or termination of the Agreement.
15. Term and Termination
15.1. Term. This Agreement becomes effective on the Commercial or Evaluation License issue date and shall be valid (i) in the case of the Commercial License for one (1) year (“Term”), unless terminated as provided below, and thereafter, shall renew on an annual basis unless terminated by the Licensor or the Licensee in accordance with this Section 15; (ii) in the case of the Evaluation License for the duration of the Evaluation License term, as defined in Section 3.
15.2. Termination of Agreement. Either party may terminate this Agreement at the end of any annual Term by providing the other party with a thirty (30) days prior written notice.
In the event that the Licensee materially defaults in performing any obligations under this Agreement, becomes insolvent or declares bankruptcy, or sells or dissolves its business in any form whatsoever, the Licensor may terminate this Agreement with a written notice immediately.
15.3. Rights Upon Termination or Expiration. Upon expiration or termination of this Agreement, all the Licensee’s rights to use the Software shall cease.
15.4. Effect of Termination. If this Agreement is terminated for any reason, neither party will be liable to the other because of such termination for damages for the loss of prospective profits, anticipated sales, or good will. Notwithstanding, termination of this Agreement shall not relieve Licensee’s liability to pay any fees which have accrued to the Licensor as of the termination date, or which accrue such termination date. Any election to terminate under this Section 15 shall not limit either party’s right to seek equitable or other appropriate relief relating to the breach.
15.5. Survival. The Parties’ rights and obligations under Sections 7 “Intellectual Property”, 12.5 “Disclaimer of Warranty”, 13 “Limitation of Liability”, 14 “Confidentiality”, 15 “Term and Termination”, 16 “Miscellaneous” and any outstanding obligation to pay any fees shall survive expiration or termination of this Agreement.
16.1. Assignment. The Licensee may not assign any rights under this Agreement without the Licensor’s prior written consent.
16.2. Governing Law. The Parties agree that this Agreement is governed by the laws of Ukraine and mutually consent to the exclusive jurisdiction and venue in the courts of Ukraine, and expressly disclaim the applicability of the laws of any other state or jurisdiction to the maximum extent possible.
16.3. Equitable Relief. The Licensee acknowledges that any breach of its obligations with respect to the proprietary rights of the Licensor will cause the Licensor irreparable injury for which there are inadequate remedies at law and that the Licensor shall be entitled to equitable relief in addition to all other remedies available to it.
16.4. Force Majeure. Neither party shall be liable to the other for failure or delay in the performance of the required obligation if such failure or delay is caused by strike, riot, fire, flood, natural disaster, or other similar cause beyond such party’s control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this Agreement if such condition continues for a period of one hundred eighty (180) days.
16.5. Entire Agreement. This Agreement, with all Appendices, set forth the entire Agreement between the Parties and supersedes prior proposals, agreements and representations between them whether written or oral. This Agreement may be changed only by mutual agreement of the Parties in writing.
16.6. Agreement in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute together one and the same document.
APPENDIX 1. Software Description
1. Software Description
1.1. Software name: WebSpellChecker Server 5.0+
1.2. WebSpellChecker Server runs on the Licensee’s Hardware.
1.3. The WebSpellChecker Server package includes the following components: WebSpellChecker Proofreader (WProofreader), SpellCheckAsYouType (SCAYT) plugin for CKEditor 4, WebSpellChecker (WSC Dialog) for CKEditor 4, WebSpellChecker Web API. Each product has a default set of dictionaries for the languages listed in section 1.8. below and an ability to add additional specialized or language dictionaries.
1.4. WProofreader allows checking texts both in instant and dialog modes. In the instant mode the Authorized Users need to hover on the marked words or phrases for instant correction suggestions.In the dialog mode the Authorized User needs to click the dialog icon in the bottom right corner to have the whole text proofread at once.
1.5. SCAYT plugin for CKEditor 4 allows the Authorized Users to see and correct spelling and grammar problems right away while they are typing directly in the text input field. Every misspelled word found will be underlined with a straight red line and every grammar problem detected will be marked with a green one respectively. The Authorized User right-clicks a marked word or phrase and replaces it with a proper one from the list of given corrections.
1.6. WSC Dialog for CKEditor 4 is designed to check the whole text for any spelling or grammar problems at once in a separate pop-up window.
1.7. Web API provides a set of spelling and grammar checking commands and additional parameters to WebSpellChecker that can be used to build own spell and grammar check strategy in the Licensee’s software.
1.8. The spelling checking function is available for the following list of languages, included into the WebSpellChecker Server package by default.
- British English;
- Canadian English;
- Canadian French;
- Brazilian Portuguese;
1.9. The grammar checking function in the Software is available for the list of languages available on the following page: Default Languages List
1.10. The Thesaurus tool of the Software is available for the WSC Dialog product and is supported for the following languages:
- English (American and British);
2. Software System Requirements
2.1. The Software system requirements are described on the official Licensor’s support website: docs.webspellchecker.net.
3. Additional Dictionaries
The additional dictionaries are not included into the Software by default, and should be purchased by the Licensee separately. The additional dictionaries available for the WebSpellChecker Server of the Software:
3.1. Specialized dictionaries:
- Medical Dictionary for American, British English, and French;
- Legal Dictionary for American and British English;
3.2. Language dictionaries.
- The up-to-date list of these dictionaries is published on the official Licensor’s website.
- Pricing for additional dictionaries is available at the following page on the official Licensor’s website.
APPENDIX 2. Software Maintenance Agreement
This Software Maintenance Agreement (“Maintenance Agreement”) regulates the maintenance and support services for the WebSpellChecker Software.
The Licensee has entered into the Software License Agreement to acquire the Software of the Licensor.
This Maintenance Agreement is an addendum to the Software License Agreement. All terms used in this Software Maintenance Agreement have the meaning given in the Software License Agreement.
1. Maintenance and Support Services
1.1. Services Description
During the active Maintenance Period the Licensor shall provide the Licensee with the following services (“Technical Support Services” or “Services”).
1.1.1. Provision of the Updates to the Software.
1.1.2. Technical Support, including the following:
- Provision of guidance and troubleshooting in connection with: (i) installation and downloads; (ii) replacing a previous release with a new release of the Software, (iii) migrating the license key and Software to a new piece of Hardware.
- Provision of assistance related to the Software functionality and basic problem resolution.
- Answer to the Licensee’s “how to” questions related to the standard Software usage.
- Technical support is provided to the technical personnel of the Licensee, designated to integrate the Software on the Licensee’s side.
In addition to the Services specified in this Section 1, an online support portal with articles and examples supplementing the Documentation is available for all customers of the Licensor.
1.2. Technical Support Business Hours
10:00 a.m. – 7:00 p.m. GMT+3 (Daylight Saving Time) or GMT+2 (Standard Time) from Monday to Friday excluding official Ukrainian holidays. The Technical Support Services outside of these hours may be provided for an additional fee at rate of $125 per hour and must be arranged for ahead of time.
1.3. Amount of Technical Support
The Licensee shall be entitled to _____________ hours of the Services during the active Maintenance Period pursuant to the License Scope.
The Licensee has the opportunity to receive additional Services subject to an extra charge if the required support hours exceed the number of hours specified herein.
1.4. Exclusions to Technical Support
1.4.1. The Technical Support exclude requests related to:
- the Software that is used on or in conjunction with hardware or software other than that which is specified in the applicable Documentation;
- altered or modified Software, unless altered or modified by the Licensor;
- defects in the Software due to hardware malfunction, abuse or improper use;
- any version of the Software for which the Services have been discontinued by the Licensor;
- evaluation versions of the Software or other Software provided at no charge;
- customization, integration and any issues arising from non-standard usage of the Software;
- any on-site services or remote access services (unless the Licensor requests remote access to assist the Licensor in understanding an issue);
- training related to the Software;
- features development. Feature examples: modification of the Software’s behavior, changes to the licensing subsystem, addition of non-supported languages for spelling or grammar checking, changes of the user interface, application program interface, etc.
1.4.2. The Licensor shall not be obligated to provide Technical Support to the End Users. All requests from the End Users shall be processed by the Licensee, and in case, if related to the scope of the Services defined in Section 1.1. may be forwarded to the Licensor by the Licensee.
Notwithstanding the foregoing, the Licensor may provide the Licensee with the Technical Support related to exclusions, specified above in this section, subject to separate fees and with prior investigation of feasibility such services.
1.5. Technical Support Channels
The Services shall be provided by
- Email at email@example.com,
- Phone at +1 (917) 259-1071,
- Live Chat on the webspellchecker.com website,
- Screen sharing. The Licensor and the Licensee will agree on the time and date of the screen sharing call and tool to be used.
Technical Support queries are possible at any time. For this purpose, the Licensee shall send a request or leave a voicemail indicating the problem. The Licensor ensures response (via phone or email) within one working day during the Technical Support Business Hours.
2. Maintenance Period. Services Renewal
2.1. The Licensor agrees to provide the Services during an active License Term. After the License Term expiration, the Services shall cease.
2.2. The Licensor may reinstate the Services by renewing the Commercial License.
3. Disclaimer of Warranty
The Licensor shall make commercially reasonable efforts to correct bugs in the Software. The Licensee acknowledges that the Licensor is not required to correct every bug, error, or problem with the Software that it reports to the Licensor or of which the Licensor is otherwise made aware of. The Licensor does not guarantee any new Software Updates during any specific term.
This agreement may be terminated by the Licensor upon the Licensee’s non-payment, provided that at least one notification has been sent by the Licensor and no response or payment was received from the Licensee during thirty (30) days period.
This Agreement may be terminated by the Licensee upon non-renewal of the Commercial License.
Upon termination of the Services either for non-renewal or non-payment, all access to the Services for the Software will cease immediately.