AGREEMENT TO THESE TERMS OF SERVICE
This Terms of Service is a legal contract between you and Wickr® (“Wickr®“, “we“, “our“), governing your use of mobile or web services or mobile or web software (“ Wickr® Software ”) owned, controlled or offered by Wickr® (collectively, the ” Wickr® Services “). PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY USING THE Wickr® SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS TERMS OF SERVICE. IF YOU DO NOT AGREE TO THIS TERMS OF SERVICE, PLEASE CEASE USING THE Wickr® SERVICES IMMEDIATELY.
You acknowledge and agree that this contract is only between you and Wickr® and not any of Wickr®’s partners, distributors, promoters or service providers (collectively, “Distributors”). Should you have any issue or claim with respect to the Wickr® Services, Wickr®, and not its Distributors, will be solely responsible for addressing the issue or claim. If you have obtained the Wickr® Services from one of Wickr®'s Distributors, you agree that any such Distributor will have no obligation or responsibility to provide you any warranty, maintenance and support services with respect to the Wickr® Services.
1. LICENSE GRANT
All Wickr® Services are licensed to you and not sold. Subject to the terms of this agreement, Wickr® grants you a personal, non- exclusive, non-transferable and non-sublicensable license to use the Wickr® Services solely for your personal or internal business purposes. You may use the Wickr® Software for one Wickr® Services subscription account on up to ten mobile devices legally under your control, for your personal or internal business use. When you submit User Data to Wickr®, you hereby grant to Wickr®, a non- exclusive, royalty-free, worldwide license to distribute your User Data through the Wickr® Service on your behalf solely for the purpose of providing the secure messaging service. With respect to any open source or third-party code that may be incorporated in the Wickr® Software, such open source code is covered by the applicable open source or third-party end user license agreement, if any, authorizing use of such code. [Wickr® DOES NOT USE, COPY OR MODIFY USER DATA. IT’S IMPOSSIBLE FOR US TO DO THIS AS DATA IS ENCRYPTED AND WE CAN’T READ IT]
2. RESERVATION OF RIGHTS
The Wickr® Services and all content, visual interfaces, information, graphics, design, compilation, computer code, products, software, trademarks, service marks, trade names and services are the property of Wickr® or its subsidiaries or affiliated companies and/or third- party licensors. Except for the express license granted to you, no right, title, interest or license to the Wickr® Services is granted to you, whether by implication, or otherwise.
You acknowledge and agree that you will not: (a) reproduce or attempt to reproduce the Wickr® Software; (b) modify, adapt, translate or create any derivative works of the Wickr® Software or attempt to do the foregoing; (c) attempt to circumvent or disable the Wickr® Software or any technology, features or measures in the Wickr® Software by any means or in any manner; (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Wickr® Software; (e) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Wickr® Software to any third party; (f) use for a service bureau or otherwise commercialize or attempt to commercialize use of the Wickr® Software; or (g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Wickr® Software or used in connection with the Wickr® Software.
4. USER DATA
The Wickr® Services may allow the submission of content and materials by you (” User Data “), and the hosting, storing of such User Data. You shall be solely responsible for your own User Data and the consequences of storing or transmitting them. Wickr® assumes no responsibility whatsoever in connection with or arising from User Data. Wickr® does not endorse and has no control over the content of User Data submitted by other Users. Wickr® reserves the right to prevent you from submitting User Data and to restrict or remove User Data for any reason at any time.
When using Wickr®, you will be subject to any additional posted guidelines or rules applicable to certain features, which may be posted from time to time (the ”Guidelines“), which are also hereby incorporated by reference into this Agreement.
6. MODIFICATION OF THIS AGREEMENT
Wickr® may modify this Terms of Service from time to time. Any and all changes to this Agreement will be posted on the MyWickr®.com site, and you agree to be bound by any changes to the Terms of Service when you continue to use the Wickr® Services after those changes are posted.
7. ACCOUNT INFORMATION
Wickr® will not be liable for any damages or liability resulting from your account information. You agree not to sell or transfer or allow another person to access your account password or Wickr® Services account.
8 . USAGE RULES; PROHIBITED CONDUCT & USES
YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
1. use the Wickr® Services for any illegal purpose, or in violation of any laws, including, without limitation, laws governing intellectual property, data protection and privacy, and import or export control;
2. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Wickr® Services, features that prevent or restrict use or copying of any content accessible through the Wickr® Services, or features that enforce limitations on use of the Wickr® Services;
3. intentionally interfere with or damage operation of the Wickr® Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
4. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights; or
5. use any robot, spider, scraper or other automated means to access the Wickr® Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Wickr® Services or modify the Wickr® Services in any manner or form, nor to use modified versions of the Wickr® Services, including (without limitation) for the purpose of obtaining unauthorized access to the Wickr® Services.
6. sell or transfer or allow another person to access your account password or Wickr® Services account.
9. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
The Wickr® Services may include links to other web sites or services solely as a convenience to Users. Wickr® does not endorse or make any representations regarding any such linked sites or the any information or materials accessible through other linked sites. Wickr® disclaims all liability relating to your use of such linked sites.
10. GOVERNMENT END USERS.
If this Wickr® Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Wickr® Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
11. EXPORT CONTROL.
The Wickr® Software originates in the United States, and is subject to United States export laws and regulations. The Wickr® Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Wickr® Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Wickr® Software and the Wickr® Services.
12. VIOLATIONS; TERMINATION
You agree that Wickr® may terminate or suspend your access to the Wickr® Services without prior notice and without liability if such termination or suspension is based on (a) Wickr®’s good faith belief you have violated any of the terms and conditions of this Agreement, (b) Wickr®’s determination that you repeatedly infringe or have infringed the copyrights of others, (c) extended periods of inactivity with respect to any of the Wickr® Services. These remedies are in addition to any other remedies Wickr® may have at law or in equity. Wickr® reserves the right to terminate Free Accounts and free access to Wickr® Services at any time, with or without notice without any liability of any kind.
Wickr® reserves the right to terminate any account considered as squatting on a username, or accounts that are deemed as spammers, or violate any laws of the U.S. Wickr® may terminate or suspend its services at any time, and for any reason without any liability
13. CONSUMER RIGHTS
You may have the benefit of consumer guarantees and warranties given under statute (“Mandatory Terms”). Where any statute applies to this Agreement to give you the benefit of Mandatory Terms, and that statute does not permit Wickr® to exclude or limit the application of those Mandatory Terms (or would render void any attempt to do so), then those Mandatory Terms apply to this Agreement for your benefit, and nothing in this Agreement excludes or limits those Mandatory Terms or liability for breach of them. This applies to all of the terms of this Agreement, including any terms in relation to DISCLAIMERS: NO WARRANTIES, INDEMNIFICATION: HOLD HARMLESS, AND LIMITATION OF LIABILITY AND DAMAGES.
14. DISCLAIMERS; NO WARRANTIES
THE Wickr® SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH THE Wickr® SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Wickr®, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF PROPRIETARY RIGHTS. Wickr® AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE Wickr® SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE Wickr® SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF HARMFUL COMPONENTS OR THAT THE Wickr® SERVICES WILL MEET YOUR REQUIREMENTS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR EQUIPMENT OR DEVICE, LOSS OF USE, OR LOSS OF DATA.
15. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold harmless Wickr®, its affiliated companies, and its suppliers and partners from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, arising out of or related to (a) your use or misuse of the Wickr® Services, (b) any violation of the rights of any other person or entity by you, or (c) any breach or violation by you of this Agreement. Wickr® reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
16. LIMITATION OF LIABILITY AND DAMAGES
TO THE EXTENT PERMITTED BY APPLICABLE LAW, Wickr® OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS WILL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATING TO YOUR USE OF THE Wickr® SERVICES, EVEN IF Wickr® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings. This Agreement may be amended only by a writing signed by both parties.
This Agreement will be governed by the laws of the State of California, without regard to conflicts of law provisions, and you consent to the exclusive jurisdiction of the state and federal courts sitting in San Francisco County, California, U.S. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Either Wickr® or you may demand that any dispute or claim between Wickr® and you about or involving the Wickr® Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (” AAA “) in San Francisco, California, USA and, if so demanded by Wickr® or you, both parties hereby acknowledge and agree to submit exclusively to the jurisdiction of the AAA in San Francisco, CA to resolve the applicable dispute or claim; provided that the foregoing shall not prevent Wickr® from seeking injunctive relief in a court of competent jurisdiction.
If any provision of this Agreement should be held invalid or unenforceable by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and other provisions of this Agreement will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by Wickr® without restriction. The provisions of this Agreement that require or contemplate performance after the termination of this Agreement and all provisions relating to limitation of liability, disclaimers, and indemnification will be enforceable notwithstanding such termination. Neither party will be in default or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. If any dispute arises under this Agreement, the prevailing party will be reimbursed by the other party for any and all legal fees and costs associated therewith.