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WhiteSmoke Privacy Statement
Thank you for visiting WhiteSmoke Software Ltd's. (“WhiteSmoke”) website (the “Site”). Your privacy is important to us. To better protect your privacy, we provide this notice (the “Policy”) which applies to information provided or collected through this Site located at www.whitesmoke.com and in connection with WhiteSmoke's various services and software products (collectively, "Services").
The Information We Collect.
We receive and store any information you enter on our website or give us in any other way (for example, through surveys, questionnaires, information provided at registration and in the course of other communications with us). This includes information that can identify you (“personal information”).
When you register as a user of WhiteSmoke, you voluntarily provide information about yourself (such as name and e-mail address). In addition, when you use WhiteSmoke Services, the documents, text and information transmitted to us for analysis and correction is transferred to our servers, and this information may include personal information.
The amount of personally identifying information you provide is up to you, and you are not obligated to provide such information. However, your use of the Site or the Services may be affected if such information is not provided.
You may provide information on behalf of another entity. If you completed the registration or provide information on behalf of a certain entity, you represent to us that you were authorized by that entity to give us consent to use the submitted information.
We also may collect certain non-personally identifying information when you visit our Site or use the Services, such as your IP address, the type of browser you are using, the type of operating system you are using and access times. We also may collect information about your online activity. We may use third party contractors to collect and aggregate this information. For more information, please see Cookies and other technologies.
The Site and Services are directed to a general audience and we do not offer services directed to children. If we gain actual knowledge that a child under the age of 13 has provided any personal information to us, we will immediately delete this information.
How We Use the Information.
We and our affiliates may use personal information provided to us to as follows:
Information Sharing and Disclosure.
We may share aggregated or anonymous data with third parties for any use whatsoever.
We also may share your information:
Other than as set out above, you will be notified when personal information about you will be shared with third parties, and you will have an opportunity to choose not to have us share such information. WhiteSmoke does not sell, rent or lease the personal information that you provide about yourself to third parties unless we have your consent.
We also may share aggregate or anonymous information with third parties without restriction.
Cookies and other technologies
The Help portion of the toolbar on most browsers will tell you how to prevent your browser from accepting new cookies, how to have the browser notify you when you receive a new cookie, or how to disable cookies altogether. Please note that if you refuse to accept cookies, you may not be able to access certain of the functionality of Site or Services. We do not link the information we store in cookies to any personally identifiable information you submit while on our site.
Clear Gifs (Web Beacons/Web Bugs)
Our third party advertising partner employs a software technology called clear gifs (a.k.a. Web Beacons/Web Bugs), that help us better manage content on our site by informing us what content is effective. Clear gifs are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of Web users. In contrast to cookies, which are stored on a user’s computer hard drive, clear gifs are embedded invisibly on Web pages and are about the size of the period at the end of this sentence. We do not tie the information gathered by clear gifs to our customer’s personally identifiable information.
Our Commitment to Security. Physical and electronic procedures have been put into place to safeguard and help prevent unauthorized access, maintain data security, and correctly use personal information. These include use of firewalls, passwords and other measures.
Although we take measures we believe are appropriate to safeguard against unauthorized disclosures of information, we cannot assure you that personally identifiable information that we collect will never be disclosed in a manner that is inconsistent with this Policy. Regardless of the precautions taken by you or by us, “perfect security” does not exist on the Internet. We cannot ensure or warrant the security of any information you transmit to us, and you transmit such information at your own risk.
When you enter sensitive information such as credit card number on our order form, our merchant services providers encrypt that information using secure socket layer technology (SSL).
We are not responsible for any collection or use of information in connection with third party software, sites or services.
Correcting or Updating your Information. WhiteSmoke allows you to view the information you provided during registration and to alter any data, inaccuracies or errors. To request such access, or correct, update, or amend your personal information please contact us at the following e-mail address, postal address or telephone number:
E-mail address: email@example.com
501 Silverside Road, Suite 105
Wilmington, DE 19089
Telephone number: 1-888-741-7193
We will retain your information for as long as your account is active or as needed to provide you services. If you wish to cancel your account or request that we no longer use your information to provide you services, please contact us at the e-mail address, postal address, or telephone number listed above. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
If you choose to use the Plagiarism Checking Service in any of our solutions, the text you enter will be searched against an online database. This database is maintained by our partners and text may be retained in their systems. Only text entered in the Plagiarism search will be forwarded, without any additional information about the user.
your personal information, in which case we will let you know if we are unable to do so and why.
How to Contact Us. If you have any questions or concerns about this Policy you may contact us at:
501 Silverside Road, Suite 105
Wilmington, DE 19809
Telephone number: 1-888-741-7193
Terms and Conditions
Thank you for visiting WhiteSmoke Inc.'s website (the “Site”). The Site makes available to you certain content for informational purposes. Please carefully read these terms and conditions (the “Terms”). By using our Site, you thereby agree to the Terms. If you do not agree to the Terms, you should exit our Site and not use or review any of the information that is posted on this Site.
Intellectual Property Rights. WhiteSmoke owns the copyright in the Site and its content, including its overall appearance, graphics design and underlying source files. You may download or copy material from our Site, only for your own personal, non-commercial use. Any other use is forbidden. Except as permitted above, you may not reproduce (in whole or in part), transmit (by electronic means or otherwise), modify, link into, frame or use for any public or commercial purpose the contents of this Site without the prior written permission of WhiteSmoke.
The entire contents of this Site are protected by copyright and/or other
intellectual property rights. Use of the WhiteSmoke portal is subject to
the terms of the WhiteSmoke End User License Agreement. No copyright
notices, other intellectual property or legal notices or other identifying
information may be removed from downloaded materials.
WhiteSmoke’s name and other WhiteSmoke product names and logos referenced in this Site are trademarks of WhiteSmoke or its affiliates. You may not separate from this Site, or copy or download separate from our Site, or otherwise use any of these trademarks or logos. Nothing contained in this Site should be construed as granting any license or right to use any of these trademarks or logos.
Use of Non-Personally Identifying Information. Subject to the provisions below in respect of personal identifying information, any communication or material that you transmit to WhiteSmoke through the Site, by electronic mail or otherwise, including any data, questions, comments, suggestions and the like, is, and will be treated as, non-confidential and non-proprietary information. Please do not transmit any confidential information to or through this Site. WhiteSmoke may use such communication or material for any purpose whatsoever including, without limitation, for disclosure, reproduction and publication. WhiteSmoke will be free, without any compensation to you, to use any concepts or know-how contained in any communication or material that you send to our Site for any purpose whatsoever.
Limitation of Liability; Disclaimers. WhiteSmoke has made and will continue
to make all reasonable efforts to include accurate and up-to-date
information on this Site. However, WhiteSmoke cannot guarantee that the
information posted on this Site is accurate, complete or suitable for any
purpose. In addition, WhiteSmoke cannot guarantee that the content posted
on this Site has not been affected by technical malfunctions or
unauthorized tampering. WhiteSmoke does not guarantee that material on this
Site will be free from infection, viruses, worms, Trojan horses and/or
other code that has contaminating or destructive properties. It is your
responsibility to take protective steps such as virus checking.
WhiteSmoke may alter or remove materials from this Site at any time. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, WHITESMOKE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WITH RESPECT TO THE USE OF THIS SITE OR SOFTWARE OR SERVICES OBTAINED THROUGH THIS SITE OR ANY INFORMATION POSTED ON THIS SITE. WHITESMOKE MAKES NO WARRANTY THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT ANY INFORMATION OR DATA RECEIVED ON OR THROUGH THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES. IN NO EVENT WILL WHITESMOKE, ITS AFFILIATES, EMPLOYEES OR OFFICERS BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND WHATSOEVER RESULTING TO YOU OR TO ANY THIRD PARTY DIRECTLY OR INDIRECTLY FROM ANY USE OF THIS SITE OR SERVICES, ANY DEFECT IN THIS SITE OR ANY INFORMATION CONTAINED IN THIS SITE, OR ANY OTHER DAMAGES ARISING OUT OF THE UNAVAILABILITY, USE, RELIANCE ON, INABILITY TO UTILIZE OR IMPROPER USE OF THE SITE, SOFTWARE OR SERVICES, EVEN IF WHITESMOKE WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR OTHER INDIRECT DAMAGES.
BY USING THIS SITE, YOU EXPRESSLY ASSUME ALL RISK THAT THE INFORMATION AND MATERIALS ON THIS SITE MAY BE INCOMPLETE, INACCURATE, OUT-OF-DATE, OR MAY NOT MEET YOUR NEEDS OR REQUIREMENTS.
Some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. You are responsible for checking your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
You will indemnify and hold harmless WhiteSmoke, its affiliates, and any of their respective officers, directors, and employees, from and against any and all damages, judgments, settlements, penalties, costs and expenses (including attorneys’ fees) paid or incurred in connection with claims due to, resulting from or arising in connection with your use of this Site, software or services or breach of this Agreement.
Revision and Update of Terms. WhiteSmoke may revise the Terms at any time without notice by updating this Site. All updates to the Terms will be posted on this page. You are bound by any revisions or updates. You should periodically visit these Terms to review the current terms that apply to your use of our Site. Last update: 13-Apr-2011.
Governing Laws. The Terms are governed and interpreted pursuant to the laws of the State of Israel, notwithstanding any principles of conflicts of law. If you access this site from another jurisdiction, you are responsible for ensuring compliance with any local laws relating to access and use of this Site.
How to Contact Us. If you have any questions or concerns about the Terms for this Site you may contact us at firstname.lastname@example.org
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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