Last updated: December 6 , 2023
Please read the following carefully before installing and/or using the software. By clicking “I agree” or “accept” (or other similar button), or by otherwise accessing and/or using any part of the Service (defined below), you acknowledge that you have read, understood, and agreed to be bound by all the terms and conditions of these Terms of Service (the "Agreement"), the date of such occurrence being the "Effective Date".
This Agreement constitutes a binding agreement between the customer entity specified in the Subscription Plan (defined below) ("Customer" or "you" or "your") and AI21 Labs Ltd or the other AI21 entity specified in the Subscription Plan ("AI21", "Wordtune", "we", "us" or "our"), and governs your access and use of the Service (defined below).
If you are entering into this Agreement on behalf of an entity, you represent that you have the right, authority, and capacity to bind such entity to this Agreement and in such case all references to "Customer", "you", or "your" hereinafter shall mean such entity.
If you do not agree with any of the terms and conditions of this Agreement, please do not download, install or use the Service. By accessing or using the Service, you confirm that you are at least 18 years old, that you are legally able to enter into this Agreement, and that you have read, understand and agree to be bound by this Agreement.
The following capitalized terms have the meanings set forth below:
"Content" means any text, data, information, reports, files, images, graphics, software code, or other content.
"Input" means any User Content (defined below) submitted by Customer to the Service in order to receive an Output. Unless the context clearly requires otherwise, references herein to "User Content" shall be deemed to include Input.
"Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
"Subscription Scope" means any Service-related usage and/or consumption limitations and parameters (for example, as to volume of users, location, features, duration, etc.) set forth in the Subscription Plan.
"Output" means any data or other content which is generated and provided to Customer through the use of Service in response to Customer's Input.
"Subscription Plan" means any written or electronic order form entered into between Customer and Wordtune for the Service.
"Service" means the services provided by the Software including, without limitation, a writing assistant tool and the document summarization tool (such summarization tool, "Summarization Service").
"Software" means Service’s Chrome web application and extension known as Wordtune Business, including its features and interfaces. Unless the context clearly requires otherwise, references in this Agreement to the "Service" shall be deemed to include the Software.
"Service Content" means any Content (excluding User Content) appearing on or in, or otherwise provided or made available via, the Service.
"User Content" means any Content uploaded, submitted or otherwise transmitted by or on behalf of Customer in connection with use of the Service.
2. Service Subscription
2.1. General. Subject to the terms and conditions of this Agreement, Wordtune grants Customer a personal, limited, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable right and license to do the following for Customer's own end-use (collectively, the "Subscription"):
(a) access and use the Service; and
(b) download, install and use the Software on a Customer-owned or -controlled device.
For the avoidance of doubt: (A) the Subscription is subject to the applicable Subscription Scope, and Customer shall not use any technical or other means within, or external to, the Service to exceed or circumvent the Subscription Scope, (B) the Service is only provided on a license/subscription basis (and is not sold) hereunder, and (C) Customer's use of the Software shall be subject to any applicable Usage Rules (defined below). Any rights not expressly granted herein are hereby reserved by Wordtune and its licensors, and, except for the Subscription, Customer is granted no other right or license in or to the Service, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
2.2. Restrictions. As a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, create public Internet “links” to, "frame", or "mirror" the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, adapt, translate, or create a derivative work of the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, weights, ideas, or algorithms) of, the Service or any Output; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service or any Output; (h) use the Service or any Output to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Service; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service, or use any robot, spider, scraper, or any other automated means to access the Service; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of Users or servers/machines that directly access or use the Service (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling'); (k) forge or manipulate identifiers in order to disguise the origin of any Input or other User Content; (l) take any action that imposes or may impose (as determined in Wordtune's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (m) use the Service in connection with any stress test, penetration test, competitive benchmarking or analysis, or vulnerability scanning, or otherwise publish or disclose (without Wordtune's prior express written approval) any the results of such activities or other performance data of the Service; (n) use the Service to circumvent the security of another person’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; and/or (o) use any communications systems or tools provided by the Service to send unauthorized and/or unsolicited commercial communications.
In addition, Customer may not use the Service and/or any Output for the purpose of (i) engaging in illegal activities; (ii) generating defamatory, libelous, harassing, abusive, or hateful content; (iii) infringing on intellectual property; (iv) generating malware or spam; (v) impersonating others; (vi) promoting harmful activities; (vii) engaging in any activity that has a that has high risk of physical or economic harm; and/or (viii) providing any medical or financial advice; (ix) represent that Output was human-generated when it was not; (x) Use Output to develop products or services that compete with the Service.
2.3. Output Responsibility. Customer acknowledges and agrees that artificial intelligence and machine learning are rapidly evolving fields, and that, given the probabilistic nature of artificial intelligence and machine learning, use of the Service may in some situations result in incorrect Output and/or the Output may not be unique across users and the Service may generate the same or similar Output for different users of the Service. Customer is solely responsible and liable for evaluating and verifying (including without limitation by human review) the Output as being suitable and appropriate for Customer's use. Wordtune recommends Customer to carefully test, review, and vet the Output before use or other implementation. In addition, Customer shall not engage in any automatic decision-making (including, without limitation, profiling), or rely upon Output in isolation to make a decision, relating to any person, which has a legal effect or a similarly significant effect on that person.
2.4. Additional Software. Wordtune may offer Customer additional software, including certain interfaces, for download ("Additional Software"), and in such cases references herein to the "Service" shall be deemed to include such Additional Software. As part of the Subscription, Customer may install and use Additional Software on devices Customer owns or controls, solely in conjunction with Customer authorized use of the Service. Upon expiration or termination of this Agreement for any reason, Customer shall cease any further use of the Additional Software and shall promptly uninstall and erase all copies thereof.
2.5. Delivery and Hosting. The Service will be made available to Customer electronically (via the Software or via other mutually agreed means). The Software and other components distributed to Customer shall be deemed accepted upon delivery. The hosting of the Service (and related processing) may be provided by a third party cloud hosting provider selected by Wordtune ("Hosting Provider"), and accordingly the availability of the Service shall be in accordance with the Hosting Provider's then-current uptime commitments.
2.6. Features and Functionalities; Feature Specific Terms. Wordtune may, from time to time, modify and replace the features and functionalities, as well as the user interface, of the Service. Some features and functionalities may in any event be restricted by geography or otherwise, in order for Wordtune to comply with applicable law or commitments to third parties. Customer agrees that its purchase hereunder is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written statements made by or on behalf of Wordtune regarding future functionalities or features. Features and functionalities may be accompanied by separate or additional terms and conditions (in each case, "Feature Specific Terms"). Except to the extent expressly stated otherwise within Feature Specific Terms, all Feature Specific Terms apply in addition to (and not instead of) this Agreement.
2.7. Updates and Upgrades. Wordtune may from time to time and its sole discretion provide updates or upgrades to the Service (each a "Revision"), but are not under any obligation to do so. Such Revisions will not result in materially less performance or functionality of the Service, and will be supplied according to Wordtune's then-current policies, which may include automatic updating or upgrading without any additional notice to Customer. Customer consents to any such automatic updating or upgrading of the Service. All references herein to the Service shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original Service (or portion thereof), unless the Revision is accompanied by a separate terms and conditions which will govern the Revision.
3.1. In order to access the Service, Customer may be given the opportunity (or otherwise be required) to create or generate an account by submitting the information requested in the applicable online registration page or Service interface ("Account"). Customer's Account registration may impose limitations on the number or types of Accounts; absent such limitations, Customer shall be entitled to a single administrator Account that will have administrative privileges over the Account ("Admin Account") and such number of user Accounts for each user (each, a "User Account"). Customer shall ensure that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between Wordtune and Customer, Customer shall be solely responsible and liable for maintaining the confidentiality and security of its Account credentials, as well as for all activities that occur under or in such Account. Customer shall immediately notify Wordtune in writing of any unauthorized access to, or use of, an Account, or any other breach of security.
3.2. At any time during the Subscription Term, Wordtune may collect or receive from log files and analytic information about the usage of the Service, and Wordtune may use this information for quality control purposes, for enforcement of this Agreement, and for analytic and statistics purposes, all the above without restrictions or limitations.
4. Usages rules
If you download the Software from Google Chrome or the Apple App Store (each, a "Distributor"), please be aware that the Distributor may have established usage rules which also govern your use of the Software ("Usage Rules"). You acknowledge that, prior to downloading the Software from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules.
The Usage Rules that are applicable to your use of the Software are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the Software; if you are unable to make such a representation you are prohibited from installing and/or using the Software.
5. User Content
5.1. Ownership of User Content. As between the parties, Customer shall exclusively own all User Content.
5.2. Responsibility for User Content and User Derived Content. Customer is solely responsible and liable for all User Content, as well as for any summaries, content or text derived or extracted from the User Content using the Summarization Service and/or other tools of the Service ("User Derived Content"). Customer is solely responsible for the legality, accuracy and quality of User Content and User Derived Content, such as for ensuring that Customer’s collection, processing, storage and transmission User Content and User Derived Content is compliant with all applicable laws, as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its customers. Customer represents and warrants that: (a) no processing of User Content or User Derived Content under this Agreement (whether by Wordtune, its affiliates, or if applicable the Hosting Provider) will violate any law, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy laws (if applicable), necessary to provide, make available, and otherwise expose User Content and User Derived Content to Wordtune, its affiliates, and the Hosting Provider (if applicable). Wordtune shall have no responsibility or liability to Customer with respect to any User Content and/or User Derived Content
5.3. Sensitive Data. Customer acknowledges and agrees that it shall not submit, upload, post, or otherwise provide any sensitive information to the Service. Sensitive information includes, but is not limited to, the following: (i) Personal Health Information: such as any information about an individual's health status, provision of healthcare, or payment for healthcare that can be linked to a specific individual; (ii) Confidential Financial Information: such as credit or debit card numbers, bank account numbers, and other financial account information; (iii) Passwords: such as passwords associated with your or any third party's account for the Service or for any other websites, platforms, or services; and (iv) Personal Identification Information: such as government-issued identification numbers, such as social security numbers, driver's license numbers, passport numbers, and similar identifying information.
5.4. Data Storage. The Service is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Service for the storage of any User Content. Customer is solely responsible and liable for the maintenance and backup of all User Content.
5.5. License to User Content. Customer hereby grants to Wordtune and its Affiliates a worldwide, non-exclusive, royalty-free, paid-up, sublicensable (through multiple tiers, such as to Wordtune's data subprocessors, Hosting Providers, as well as to third party service providers engaged by Wordtune in the provision of the Service), irrevocable right and license to copy, process, create derivative works of, modify, adapt, and otherwise use User Content (in any media, now known or hereafter developed): (A) during the Term of this Agreement, for the purpose of performing under this Agreement (such as providing, administering, and maintaining the Service and Software); and/or (B) as permitted under Section 8 (Data Usage and Privacy).
6. Wordtune Intellectual Property Rights
Wordtune (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Service; (b) the Service Content; (d) Wordtune's Confidential Information; (e) any feedback, suggestions, or ideas for or about the Service Content (collectively, "Feedback"); and (f) any improvements, derivative works, enhancements, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship. To the extent any of the foregoing Intellectual Property Rights do not automatically vest in Wordtune, Customer hereby irrevocably assigns (and shall assign) same to Wordtune (and its designees, successors, and assigns). “Wordtune”, and the Wordtune logo are Marks of Wordtune and its affiliates. To the extent any moral rights (or similar personal rights) exist in any Feedback, and are incapable for vesting in or being assigned to Wordtune, Customer hereby irrevocably waives, and covenants never to assert, any such moral rights (or similar personal rights).
7. Subscription fees and trial period
7.1. Fees. Customer agrees to pay Wordtune the fees and other charges set forth in the Subscription Plan (the "Subscription Fees").
7.2. Fee Increases. Wordtune shall be entitled from time to time, and by written notice, to increase the Subscription Fees under the Subscription Plan; provided, however, that the updated Subscription Fees shall apply to the next Subscription Plan renewal, provided that such notice was given at least thirty (30) days prior to such renewal.
7.3. Payment Terms. Unless expressly stated otherwise in the Subscription Plan or this Agreement: (a) all Subscription Fees are stated, and are to be paid, in US Dollars; (b) all Subscription Fees are shall be paid in advance at the commencement of each billing cycle (except for Subscription Fees for overages, which are charged in arrears); (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month or the highest amount permitted by applicable Law; and (e) Wordtune shall be entitled to issue invoices (and any associated reporting) and billing notices via email to the applicable Customer contact email address specified in the Subscription Plan and/or via a functionality of the Service.
7.4. Payment Dispute. If Customer believes that Wordtune has invoiced Customer incorrectly, Customer must contact Wordtune no later than thirty (30) days after receiving the invoice in which the alleged error appeared; otherwise Customer shall be deemed to have waived all claims in connection with the applicable invoice and payment.
7.5. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Wordtune's net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Wordtune shall be increased by the amount necessary so that Wordtune receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
7.6. Payment Processing. Customer represents and warrants that all payment and billing information provided is (and will remain) complete and accurate, and Customer has obtained all necessary consents to enable the necessary payment method. If applicable to the payment method, payment of Subscription Fees may be processed through a third-party payment processing service (which will receive and process Customer's billing information), and additional terms may apply to such payments. Customer authorizes Wordtune (and/or its designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds) from Customer on a recurring basis; and (b) make any inquiries Wordtune deems necessary, from time to time, to validate Customer's designated payment method or financial information, in order to ensure timely payment of Subscription Fees (including, but not limited to, for the purpose of receiving updated payment details from Customer's payment, credit card, or banking account provider – such as, updated expiry date or card number).
7.7. Reporting; Usage Audit. Wordtune may issue Subscription- and Subscription Fee-related reporting and billing notices via email to the applicable Customer contact email address specified in the Subscription Plan, as well as via a functionality of the Service. Wordtune (or a third party it reasonably designates) shall, from time to time, be entitled to audit Customer's use of the Service (a "Usage Audit"), and Customer shall facilitate such Usage Audit by providing Wordtune with all access (including without limitation VPN access) reasonably requested by Wordtune (such as, for the purpose of calculating any Subscription Fees for overages).
7.8. Trial Period. Wordtune may offer a free trial period for evaluation purposes during the applicable trial period (“Trial Period”) prior to charging for the Subscription Fees. Notwithstanding anything to the contrary in this Agreement, to the maximum permitted by law, Wordtune and Wordtune affiliates will have no warranty, indemnity, support, or other obligations or liabilities whatsoever, with respect to Trial Periods, and Wordtune has the right to terminate a Trial Period at any time and for any reason.
8. Data Usage and Privacy
8.1. Data Utilization Consent. By using the Service, Customer consents to Wordtune collecting and processing the Input and Output. Unless stated otherwise in the Subscription Plan, Wordtune may use the Input and Output on an anonymized basis to train its algorithms and improve the Service quality.. To the extent that Customer purchases a Subscription under the "Traceless Model" (as may be set forth in the applicable Subscription Plan), Wordtune will adopt a "Traceless Model" for your Input and Output. In this model, all Input and Output will be automatically deleted a few seconds after generation, ensuring that Wordtune neither stores nor utilizes it for training its algorithms or any other purpose.
9. Third Party Components
The Service may include what is commonly referred to as 'open source' software. Under some of their respective license terms and conditions, Wordtune may be required to provide Customer with notice of the license terms and attribution to the third party, in which case Wordtune may provide Customer with such information (whether via the Service, or otherwise). Notwithstanding anything to the contrary herein, use of the open source software will be subject to the license terms and conditions applicable to such open source software, to the extent required by the applicable licensor (which terms and conditions shall not restrict the license rights granted to Customer hereunder), and to the extent any such license terms and conditions grant Customer rights that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Wordtune will comply with any valid written request submitted by Customer to Wordtune for exercising any rights Customer may have under such license terms and conditions.
THE SERVICE, THE OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF WORDTUNE HEREUNDER (COLLECTIVELY, THE "WORDTUNE MATERIALS") ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY WORDTUNE AND ITS SUPPLIERS AND LICENSORS.
Wordtune does not make any representation, warranty, guarantee or condition: (a) regarding the effectiveness, usefulness, reliability, timeliness, completeness, or quality of Wordtune materials; (b) that Customer's use of Wordtune Materials will be uninterrupted, secure or error-free; (c) regarding the operation of any cellular networks, the passing or transmission of data via any networks or the cloud, or any other cellular or data connectivity problems; or (d) regarding the satisfaction of, or compliance with, any laws, regulations, or other government or industry rules or standards. Wordtune will not be liable or obligated in respect of delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or for issues related to hosting providers or public networks. Customer is advised not to rely in any way on the correct functioning or performance of the Service. Customer assumes all risks and all costs associated with the use of the Service.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT WHEN ACCESSING AND/OR USING THE SERVICE, AND/OR CREATING TEXT (TO THE MAXIMUM EXTENT PERMITTED BY LAW): (I) CUSTOMER SHALL BE SOLELY RESPONSIBLE AND LIABLE FOR THE TEXT AND THE CONSEQUENCES OF CREATING, USING, OR SHARING THE TEXT; (II) CUSTOMER MAY BE EXPOSED TO TEXT FROM A VARIETY OF SOURCES; AND (III) WORDTUNE IS NOT RESPONSIBLE AND TAKES NO LIABILITY FOR THE ACCURACY, USEFULNESS, INTEGRITY, LAWFULNESS, TITLE, NON-INFRINGEMENT, FUNCTIONALITY, OR INTELLECTUAL PROPERTY RIGHTS OF, OR RELATING TO, SUCH TEXT.
Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
11. Limitation of Liability
11.1. EXCEPT FOR CUSTOMERS BREACH OF THE SUBCRIPTION AND/OR MISUSE OF THE SERVICE (FOR EXAMPLE, A BREACH BY CUSTOMER UNDER SECTION 2.2 (RESTRICTIONS)), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
- ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
- ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
- ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
- THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
11.2. THE COMBINED AGGREGATE LIABILITY OF WORDTUNE AND ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO WORDTUNE UNDER THIS AGREEMENT IN THE SIX 63) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
11.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, OR OTHERWISE.
Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information (defined below) of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law, regulation or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information including, without limitation, the opportunity to seek appropriate administrative or judicial relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information shall not, however, include information that: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party.
13.1. Indemnification by Wordtune. In the event that, during the term of this Agreement and the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer's authorized access and use of the Service in accordance with this Agreement infringes such third party's copyright or patent (an "Infringement Claim"), Wordtune shall:
(a) At its own expense, defend Customer against the Infringement Claim; and
(b) Indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim.
13.2. Wordtune will have no obligation or liability under this Section (Indemnification by Wordtune) in respect of any Output, or otherwise to the extent that the Infringement Claim is based on or results from: (i) a modification to the Service not made by Wordtune; (ii) the combination of the Service with any third party product or service; (iii) any Customer instructions or specifications; (iv) any Customer breach under this Agreement; and/or (v) any failure by Customer to use the most current version of the Service made available by Wordtune pursuant to this Agreement.
13.3. Should the Service (in whole or in part) become, or in Wordtune's opinion be likely to become, the subject of an Infringement Claim or an injunction prohibiting Customer's use of the Service, then Customer permits Wordtune, at Wordtune's option and expense, to either: (x) obtain for Customer the right to continue using the Service (or part thereof, as applicable); or (y) replace or modify the Service (or part thereof, as applicable) so that its use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Wordtune's opinion, commercially feasible, Wordtune may terminate this Agreement upon written notice to Customer, and, following Customer's compliance with all post-termination obligations, Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees hereunder based remaining period of the Subscription Plan.
13.4. Indemnification by Customer. If Wordtune or its affiliates (or their respective directors, officers, or employees) (collectively, "Wordtune Indemnitees") incur or suffer any loss or liability whatsoever (including but not limited to a fine, penalty, damages award, legal costs and expenses such as attorney's fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual, organization, or governmental agency) against a Wordtune Indemnitee (each, a "Misuse Claim"), and such Misuse Claim arises directly or indirectly from any breach by Customer under this Agreement and/or from Customer's use of the Service, Customer agrees to:
- At its own expense, defend Wordtune Indemnitees against the Misuse Claim; and
- Indemnify and hold harmless Wordtune Indemnitees for such loss and liability, as well as for any amount finally awarded against or imposed upon Wordtune Indemnitees by the court (or otherwise agreed in settlement) under the Misuse Claim.
13.5. Indemnity Procedure. As a condition to indemnification under this Section (Indemnification), the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (the "Claim"); (B) to cede to the indemnifying Party sole control of the defense and settlement of the Claim (except that any settlement shall require the indemnified Party's prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise the defense of) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.
14. Term and Termination
14.1. Term of Agreement. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term (defined below).
14.2. Renewals. Unless specified otherwise in the Subscription Plan, at the end of the term specified in the Subscription Plan (the "Subscription Term"), each Subscription Plan shall automatically renew for successive periods of equal length, unless either Party notifies the other Party in writing that it chooses not to renew the Subscription Plan ("Non-Renewal Notice"); provided, however, that the Non-Renewal Notice is given at least thirty (30) days prior to the end of the then-current Subscription Plan. At the commencement of each renewal Subscription Term, Wordtune shall be entitled to invoice Customer for the applicable Subscription Fees therefore.
14.3. Termination. This Agreement, as well as any Product Order, may be terminated as follows
- In accordance with any termination rights specified the Subscription Plan;
- Either Party may terminate this Agreement or a Subscription Plan for cause upon written notice if the other Party commits a material breach under this Agreement or the Subscription Plan, and fails to cure such breach within thirty (30) days after receiving written notice from the other Party alleging the breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is non-payment by Customer;
- Either Party may terminate this Agreement or any Subscription Plan upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations; and/or
14.4. Wordtune reserve the right, at any time, to: (i) discontinue or modify any aspect of the Software and/or the Services; and/or (ii) immediately terminate this Agreement and your use of the Software and/or the Services, if you engage in any conduct or activities that we reasonably determine violates this Agreement or the rights of Wordtune or any third party, or is otherwise inappropriate or fraudulent, and, to the maximum extent permitted by law, Wordtune shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Software in any way, your only recourse is to immediately discontinue use of the Software. Unless otherwise stated in the Subscription Plan or required under applicable law, termination shall not give rise to any refund.
14.5. Suspension. Wordtune reserves the right to temporarily suspend Customer's access to the Service: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Wordtune deems such suspension necessary as a result of Customer’s breach of the Subscription (such as a breach under Section 2.2 (Restrictions)); (c) if Wordtune reasonably determines suspension is necessary to avoid material harm to Wordtune, to its other customers, or to the Service; or (d) as required by Law or at the request of governmental entities.
14.6. Upon termination of this Agreement, you shall cease all use of the Software. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access to, and use of, the Service, and shall permanently erase any copies of the Software, and certify in a signed writing that it has done so; and (c) Customer shall pay any outstanding Subscription Fees and other charges that accrued as of termination (even if termination takes effective prior to the end of a billing cycle), which shall become immediately due and payable, and, if necessary Wordtune shall issue a final invoice therefor. This Section 14 and Sections 6 (Wordtune Intellectual Property Rights,) 10 (Disclaimers) to 13 (Indemnity), 17 (Governing Law and Disputes) and 18 (Waiver and Remedies) shall survive termination of this Agreement, as shall any clause which ought by its nature to survive.
15. Entire Agreement; Amendment
This Agreement represents the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. In entering into this Agreement, neither party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify, or supplement this Agreement shall be void and of no effect (even if signed by a party). Customer shall include the Order reference/number in any purchase order issued to Wordtune. The section and subsection headings used in this Agreement are for convenience of reading only, and shall not be used or relied upon to interpret this Agreement. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument. This Agreement may only be modified or supplemented by a written instrument referencing this Agreement, which is duly signed by each party.
This Agreement may not be assigned by Customer, in whole or in part, without Wordtune's prior express written consent. Wordtune may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any Wordtune obligation hereunder may be performed (in whole or in part), and any Wordtune right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an affiliate of Wordtune. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each party and its respective successors and assigns.
17. Governing law and disputes
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods, as well as the Uniform Computer Information Transactions Act (UCITA) (regardless of where or when adopted), shall not apply to this Agreement and are hereby disclaimed. Any claim, dispute or controversy between the parties will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel and each party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, Wordtune may seek injunctive (and other equitable) relief in any court of competent jurisdiction. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Wordtune shall only be enforceable against Wordtune, and not any other entity or Wordtune's officers, directors, representatives, employees, or agents.
18. Waiver and Remedies
No failure or delay on the part of either party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
The relationship of the parties is solely that of independent contractors, neither party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the parties. Neither party has any authority to enter into agreements of any kind on behalf of the other party and neither party will create or attempt to create any obligation, express or implied, on behalf of the other party.
20. Export Compliance
Customer represents and warrants that: (a) it is not a resident of, and will not access or use the Service in, a country that the U.S. government has embargoed for use of the Service, and that Customer is not a person or entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Wordtune. Customer shall not transfer, export, re-export, import, re-import or divert the Service in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert the Product to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, the Crimea, Donetsk, or Luhansk regions of Ukraine, or North Korea (or other countries specifically designated in writing by Wordtune from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Wordtune and its affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon them as a result of such breach. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or Wordtune or its affiliates, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
Wordtune may use Customer’s name and logo on Wordtune's website and in its promotional materials to state that Customer is a customer of the Service.
23. Customer Resources
Except for the Service, Customer shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for Customer to access and use the Service; and (b) for ensuring their compatibility with the Service.
24. Patent Notices
Wordtune's products, including but not restricted to the Service, are protected by issued patents in the United States of America. This website satisfies the virtual patent marking provisions of that jurisdiction, including the virtual patent marking provisions of 35 § 287(a). Wordtune's and/or its subsidiaries' products are protected by one or more of the following U.S. patents: US11574120, US11610055, US11610056, US11636256, US11699033, US11636257, US11636258, US11610057.
The contents of the aforementioned list are subject to change due to issuance, licensing or expiration of patent rights, product changes or launches and other circumstances. The absence of a product or a U.S. Patent number from this list does not constitute a waiver of Wordtune’s patent, trademark, or other intellectual property rights concerning that product or patent.