PLEASE READ CAREFULLY THESE PROFESSIONAL TERMS OF SERVICE (the “ToS”) AS THEY CONSTITUTE A LEGAL AGREEMENT. Except as described in Section 2.2, this ToS is between Wickr Inc. (“Wickr”) and the entity (“Customer”) (each, a “Party” and collectively, the “Parties”) registering for the professional version of Wickr’s real-time secure communications service (the “Service”). BY REGISTERING FOR THE SERVICE OR BY USING OR INSTALLING THE ADMIN CONSOLE MADE AVAILABLE THROUGH THE SERVICE, YOU REPRESENT THAT YOU HAVE ALL NECESSARY AUTHORITY TO BIND CUSTOMER AND THAT YOU UNDERSTAND AND AGREE TO THE ToS. IF YOU DO NOT AGREE TO THE ToS, DO NOT REGISTER FOR THE SERVICE OR USE THE ADMIN CONSOLE. This ToS governs Customer’s use of the Service and its distribution of the Service to its End Users (as defined below). The Parties hereby agree as follows:
1. Definitions. In addition to those terms defined throughout the ToS, the following terms shall have the following meanings:
1.1 “Documentation” means any applicable how-to guides made available on Wickr’s website and tutorials available to the End User through the Service.
1.2 “End User” means an individual employee or contractor of Customer that has been registered to access the Service pursuant to process outlined in Section 2.2 below, regardless of whether such End User actually uses the Service after the End User registers.
1.3 “Feedback” means all recommendations, feature enhancements and requests, suggestions, and other such feedback that Customer or an End User chooses to provide to Wickr.
1.4 “Fees” means those amounts Customer agreed to pay when registering for the Service.
1.5 “Intellectual Property Rights” collectively means any and all rights, title and interest, including all patents, patent registrations, patent applications, copyrights, trademarks, trade names, service marks, service names, trade secrets, know-how or other similar right arising or enforceable under any jurisdiction or international treaty.
1.7 “Supported Platforms” means those operating systems, clients, and platforms specified on Wickr’s website as being a supported platform.
1.8 “Term” has the meaning ascribed to it in Section 9.1.
1.10 “Third Party Components” means any component of the Service provided by a third party.
1.11 “Update” means any update, upgrade, modification, or enhancement of the Service, excluding any Additional Features (as defined in Section 10.1).
2.1 Subject to the terms and conditions of this ToS and Customer’s payment of the Fees when due, Wickr will make the Service available to Customer for use only by the number of End Users selected by Customer when registering for the Service and only for Customer’s internal purposes. Customer may only authorize End Users to use the Service for Customer’s benefit and not for the benefit of or on behalf of any other entity.
3. Use Restrictions. The Service is only available through the Supported Platforms. Other clients, operating systems, and platforms are not guaranteed to be supported. In addition to restrictions included in the ToU, Customer agrees not to or attempt to, or allow any third party to do the same: (a) use the Service for any illegal purpose, in furtherance of illegal activity, or in any manner that does not comply with all applicable laws, regulations, rules, ordinances, and other legal requirements of all applicable jurisdictions; (b) use the Service in any manner that is, or upload or transmit any content that is, unlawful, harmful, threatening, abusing, harassing, stalking, bullying, threatens violence, defamatory, vulgar, obscene, or infringes, misappropriates, or otherwise violates another’s intellectual property, proprietary, or privacy rights; (c) use the Service in support of or as a part of any organization designated by the United States as a foreign terrorist organization by the United States Secretary of State; (d) use the Service in any manner that breaches any applicable third party terms; (e) use the Service to send or disseminate other people’s private and confidential information, such as credit card numbers or Social Security/National Identity numbers, without that person’s express authorization and permission; (f) use the Service for the purpose of spamming others or sending junk mail, chain letters, or pyramid schemes; (g) use the Service to impersonate others in a manner that does or is intended to mislead, confuse, or deceive others; (h) use the Service to disseminate any virus, worm, malicious code, or other program designed to interrupt, damage, or limit any software, hardware, or data; (i) remove, circumvent, disable, damage or otherwise interfere with security features of the Service, including any technical measures Wickr may use to prevent or restrict unauthorized access to the Service, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on use of the Service; (j) intentionally interfere with or damage operation of the Service or any user’s enjoyment of the Service, including by (i) uploading, disseminating, or using any robot, spider, scraper or other automated means to access the Service without Wickr’s express written permission; or (ii) selling, transferring, or allowing another person other than the rightful End User to access any account password or use that End User’s account; (k) modify, reproduce, copy, adapt, alter, improve, translate, or create derivative works from the Service; (l) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; (m) merge the Service with other software; (n) sublicense, lease, rent, loan, transfer, or otherwise make available the Service to any third party; (o) use the Service to develop a product that is similar to the Service or to operate a service bureau; (p) publish or disclose any results of any benchmark tests run on the Service or any component thereof; (q) commercialize Customer’s use of the Service; or (r) remove, alter, or obscure any trademark, trade name, logo, slogan, branding, symbol, label, or copyright or other proprietary notice on any portion of the Service (collectively, the “Use Restrictions”). Customer further agrees that the Use Restrictions also apply to use of the Service by all End Users. Customer will ensure that each End User complies with the Use Restrictions and the ToU. Customer will be liable for any End User’s failure to comply with the Use Restrictions or the ToU.
4. Maintenance and Support.
4.1 Maintenance. During the Term, Wickr will use commercially reasonable efforts to correct documented and reproducible defects in the then-current version of the Service that are reported to Wickr and that cause the Service not to operate in all material respects in accordance with the applicable Documentation (“Maintenance”). As part of the Maintenance, Wickr will update the Service with those Updates that Wickr, in its discretion, makes generally available to its general user base. All Updates shall be created in Wickr’s sole discretion and may require additional terms and conditions governing such Update, to which Customer automatically agrees upon its first use of the Update.
4.2 Support. Wickr will use commercially reasonable efforts to provide the degree of support selected by Customer when registering for the Service (“Support”). The Support provided by Wickr is more fully described on its website, but will, at a minimum, include email support for the then-current version of the Service.
4.3 Enhanced Maintenance & Support. Additional or varying degrees of Maintenance and/or Support (“Enhanced Maintenance & Support”) may be offered by Wickr during Customer’s registration for the Service. If Customer elects any of such Enhanced Maintenance & Support, additional fees (as specified when registering) shall apply and be considered a part of the Fees.
4.4 Limitations. Wickr will not provide Maintenance or Support for problems attributable to: (a) modification, reconfiguration or maintenance of or to the Service by anybody other than Wickr; (b) any factor outside of Wickr’s control, including catastrophes, Customer’s or an End User’s negligence, operator error and environmental conditions; (c) any equipment, whether delivered by Wickr or not, or any Third Party Components or other software not supplied by Wickr; (d) the Service being used in a manner that violates this ToS; or (e) Customer’s misrepresentation of the Service. Furthermore, Wickr will only provide Maintenance and Support for Supported Platforms.
5. Fees; Payment; Taxes.
5.1 Fees. Customer agrees to pay to Wickr the Fees. Unless Customer selected the option to pay the first year’s Fees in advance, Fees will be billed on a monthly basis. If an invoice is delivered to Customer, payment on each invoice will be due within thirty (30) days of the date of invoice. If no invoice is to be delivered, payment is required when presented to Customer. Customer agrees to pay a late payment fee of 1.5% (or the highest rate permitted by applicable law) on all late payments. Additionally, Customer agrees to pay Wickr’s costs of collection, including reasonable attorneys’ fees, for all late payments. If Customer is paying on a month-to-month basis, Wickr may increase the Fees at any time by giving written notice of the increase to Customer. If Customer paid for twelve (12) months’ of Fees in advance, Wickr may not increase the Fees until expiration of that twelve (12) month period, and then only by providing written notice of the increase to Customer. Customer acknowledges and agrees that notices of Fee increases may be posted on Wickr’s website.
5.2 Taxes. If Wickr is required to pay any sales, use or other taxes related to the use or delivery of the Service or its performance hereunder, then such taxes shall be billed to and be paid by Customer; provided, however, that Wickr shall be solely responsible for the payment of taxes based on Wickr’s income. Customer will make all payments of the Fees to Wickr free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Fees will be Customer’s sole responsibility, and Customer will provide Wickr with official receipts issued by the appropriate taxing authority, or such other evidence as Wickr may reasonably request, to establish that such taxes have been paid.
6. Warranty & Disclaimer
6.1 Warranty. Wickr warrants that the Service, when used in accordance with this ToS, the ToU, and the Documentation, will operate substantially as described in the Documentation. If the Service fails to conform to this warranty, Customer shall notify Wickr in writing. Upon such notice, and as Customer’s sole and exclusive remedy for a breach of this warranty, Wickr will use reasonable efforts to repair the Service such that it complies with the Documentation. The foregoing warranty shall not apply to the extent any failure of the Service to operate as warranted arises from: (a) any use of the Service not in accordance with this ToS, the ToU, the Documentation, or for purposes not intended by Wickr; (b) any use of the Service in combination with other products, equipment, software, or data not supplied or specified in writing by Wickr; (c) any use of any release of the Service other than the most current release made available by Wickr; or (d) any modification of the Service by any person other than Wickr (collectively, the “Prohibited Users”).
6.2 User Data. Customer agrees that under no circumstances shall Wickr be liable for any damages arising from content and materials that users of the Service transmit through the Service (“User Data”). Wickr does not guarantee the accuracy, integrity, or quality of that User Data and is not required to monitor, block, or prevent the transmission of that User Data. Wickr reserves the right to prevent End Users from submitting User Data and to restrict or remove User Data for any reason at any time.
6.3 Disclaimer. To the maximum extent allowable under applicable law, the express warranty in Section 6.1 is in lieu of all other warranties, express, implied or statutory, regarding the Service and all other services and materials provided by Wickr pursuant to this ToS, including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement of third party rights. In addition, Wickr makes no warranties whatsoever related to the Third Party Components. Customer acknowledges that it has relied on no warranties other than the express warranty in this ToS. Wickr does not warrant the results obtained from the use of the Service or that any use of the Service will be accurate, error-free or uninterrupted.
7.1 By Wickr. Wickr will defend, at its own expense, any action against Customer brought by a third party to the extent that the action is based upon a claim that the Service infringes any Intellectual Property Right enforceable in the United States, and Wickr will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Wickr promptly in writing of such action, Customer giving Wickr sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Wickr’s expense, assisting in such defense. If the Service becomes, or in Wickr’s opinion is likely to become, the subject of an infringement claim, Wickr may, at its option and expense, either (a) procure the appropriate right(s) to the Service; or (b) replace or modify the Service so that it becomes non-infringing and remains functionally equivalent. If, in Wickr’s sole opinion, options (a) and (b) are not commercially reasonable, Wickr will notify Customer and either Party may, by providing written notice to the other Party, terminate this ToS. Notwithstanding the foregoing, Wickr will have no obligation under this ToS with respect to any infringement claim based upon or arising form any Prohibited Use. This Section 7.1 states Wickr’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
7.2 By Customer. Customer will, at its own cost, indemnify and hold Wickr harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees, and defend Wickr against any and all third party claims, suits, and other proceedings resulting from, arising out of, or in any way related to: (a) any breach of this ToS by Customer; (b) any failure by an End User to conform to the requirements of the ToU or Use Restrictions; (c) use of the Service by Customer or any End User for any unlawful purpose or for any purpose not expressly authorized by this ToS; (d) any use by Customer or an End User that is a Prohibited Use; or (e) any misrepresentation of the Service by Customer.
8. Limitation of Liability. To the maximum extent allowable under applicable law, in no event will either Party or its suppliers be liable for any consequential, indirect, exemplary, punitive, special or incidental damages, including any lost information, lost data and lost profits, arising from or relating to this ToS. Neither Party’s total cumulative liability in connection with this ToS and the Service, whether in contract or tort or otherwise, will exceed the amount of the Fees actually paid under this ToS in the 12 months immediately prior to the event giving rise to liability. Customer agrees that, regardless of any applicable law to the contrary, all claims and causes of action that Customer may bring relating to the Service or this ToS must be brought within one year after such claim or cause of action arose or that Customer learned of such claim or cause of action, whichever is later, and Customer hereby waives its right to bring any such claim or cause of action after such date. Notwithstanding the preceding, this Section 8 shall not apply to a Party’s indemnification obligations pursuant to Section 7 or either Party’s breach of Section 3. Customer acknowledges that the Fees reflect the allocation of risk set forth in this ToS and that Wickr would not enter into this ToS on these terms without these limitations on its liability.
9. Term and Termination.
9.1 Term. This ToS shall continue until terminated pursuant to this ToS (the “Term”).
9.2 Termination. Customer may terminate this ToS at any time by cancelling its account through the method provided by Wickr. Wickr may terminate this ToS at any time upon at least thirty (30) days’ written notice to Customer, unless Customer has breached any provision in Section 3, 10.2, 10.4, or 10.5, in which case Wickr may terminate this ToS immediately upon written notice to Customer.
9.3 Effects of Termination. Upon termination or expiration of this ToS: (a) all rights granted in this ToS will immediately cease to exist; (b) Wickr may disable Customer’s and all End Users’ access to the Service; and (c) Customer must promptly cease using the Service and ensure that all End Users cease using the Service. If this ToS is terminated by Wickr without cause and Customer had paid for twelve (12) months of Fees in advance, Customer will refund to Customer that portion of the Fees allocable to the remainder of that twelve (12) month period from the date of termination; otherwise, Fees are non-refundable.
9.4 Survival. All provisions of this ToS that by their nature are intended to survive the termination or expiration of this ToS shall so survive, including Sections 1, 3, 5, 6.2, 6.3, 7, 8, 9.3, 9.4, and 10 (excluding 10.1 and 10.3).
10.1 Additional Features. From time to time, Wickr may develop upgrades, modifications, enhancements, or additional features to the Service (“Additional Features”). These Additional Features are not included under this ToS unless they are released as an Update. If Customer desires to use Additional Features, the Parties must mutually agree to such Additional Features and any corresponding change to the Fees. Additional Features may require additional terms and conditions.
10.2 Ownership of Intellectual Property. Customer acknowledges that the Service, Documentation, Additional Features, Updates, Feedback, and all other items provided by Wickr to Customer or any End User hereunder, including the structure, organization and source code thereof and all modifications and improvements to each of the foregoing (collectively, the “Wickr Materials”), constitute valuable trade secrets of Wickr and/or its suppliers. The Wickr Materials and all Intellectual Property Rights therein are the exclusive property of Wickr and its suppliers. To the extent any right, title, or interest in or to the Wickr Materials does not automatically vest with Wickr, then Customer hereby automatically and irrevocably, and without the need for any additional documentation or consideration, assigns and transfers to Wickr all such right, title, and interest in and to the Wickr Materials. Wickr and its suppliers reserve all rights in and to the Wickr Materials not expressly granted to Customer in this ToS. Nothing in this ToS will be deemed to grant, by implication, estoppel or otherwise, a license under any of Wickr’s existing or future patents. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Wickr or its suppliers on any portion of the Service.
10.3 Customer Responsibilities. Customer agrees to provide to Wickr its reasonable cooperation in Wickr’s performance of its obligations hereunder, including providing any information and assistance to the extent reasonably requested by Wickr. Such cooperation will be at Customer’s sole cost and will be excluded from any calculation of Fees. Customer acknowledges and agrees that Wickr shall not be liable for any failure, delay, or damages arising from or related to Customer’s failure or delay in providing such cooperation.
10.4 Compliance with Laws; Exports. Customer will comply with all applicable laws, statutes, ordinances and regulations related to Customer’s use of the Service, including the laws and regulations governing export and import of the Service. Customer shall not provide, transport, export, re-export, or otherwise make available, whether directly or indirectly and regardless of form, including through visual access, the Service or any technology or technical data used to provide the Service or derived therefrom without Wickr’s prior written consent, and in no event: (a) into Cuba, Iran, North Korea, Sudan, Syria, the Crimea region of Ukraine, or any other country subject to United States trade sanctions or embargo, or to individuals or entities controlled by such countries or to nationals or residents of such countries (other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions); or (b) to anyone on any denied, prohibited, or unverified list maintained by the United States, including the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the Foreign Sanctions Evaders List, the Sectoral Sanctions Evaders List, or the United States Commerce Department’s Denied Person’s or Entities lists; or (c) to anyone that Customer knows or has reason to believe will use the Service and its related technology and technical data in connection with prohibited proliferation-related activities, including, but not limited to, biological and chemical weapons, missile, and nuclear applications. Customer represents and warrants that: (i) it is not located in, under the control of, a national or resident of, and shall not use the Service in any such country listed in sub-section (a) above; and (ii) it is not prohibited from participating in United States export transactions by any federal agency of the United States government.
10.5 Assignments. Customer may not assign or delegate, by operation of law or otherwise, any of its rights under this ToS (including its licenses with respect to the Service) to any third party without Wickr’s prior written consent. Any such attempted assignment or delegation shall be void.
10.6 Notices. All notices, consents and approvals under this ToS must be delivered either (a) via email to Customer’s registered email address or, if to Wickr, to email@example.com; or (b) in writing by courier, by electronic facsimile (fax), by certified or registered mail, (postage prepaid and return receipt requested) to the other Party at the following addresses: If to Wickr, then to Wickr, Inc., 1459 18th St., #313, San Francisco, CA 94107; if to Customer, then to that email or mailing address provided by Customer to Wickr. Notices will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either Party may change its address by giving written notice of the new address to the other Party. Customer consents to all such notices, consents and approvals being delivered to the address provided by Customer upon registration, including if such address was an email address.
10.7 Governing Law and Venue. This ToS shall for all purposes be governed and interpreted solely and exclusively by the laws of the State of Delaware without reference to conflict of laws principles. Except for an action for injunctive relief brought pursuant to Section 10.8, any action or proceeding arising from or relating to this ToS shall be brought solely and exclusively in the state or federal courts located in Wilmington, Delaware, and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and irrevocably waives any objections thereto.
10.8 Remedies. Except as otherwise expressly provided herein, the Parties’ rights and remedies under this ToS are cumulative. Customer acknowledges that the Service contains valuable trade secrets and proprietary information of Wickr and its suppliers, that any actual or threatened breach of this ToS will constitute immediate, irreparable harm to Wickr and its suppliers for which monetary damages would be an inadequate remedy. Accordingly, Customer agrees that in the event of any breach or threatened breach of this ToS, Wickr may seek equitable relief, including injunctive relief, without the need to post bond or any other security or to prove the inadequacy of monetary damages. If any legal action is brought to enforce this ToS, the prevailing Party is entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
10.9 Government Users. If Customer is or the Service is to be used by any governmental entity, then the following provision applies: The Service is being provided as commercial software only and such governmental entity may only use, distribute, and duplicate such software in accordance with and subject to the provisions of 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), with respect to the United States Government, or, as applicable, any similar foreign, state, or local statutes pertaining to the acquisition of goods and services by a governmental entity. Title to the Service shall at all times remain with Wickr regardless of the use of any federal, state, or other governmental funds in its development.
10.10 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this ToS on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.11 Severability. If any provision of this ToS is unenforceable, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. If such modification is not possible under applicable law, the unenforceable provision shall be stricken and the reminder of the agreement shall continue in full force and effect.
10.12 Full Power. Each Party warrants that it has full power to enter into and perform this ToS, and the person signing this ToS on such Party’s behalf has been duly authorized and empowered to enter into this ToS.
10.13 Construction. The section headings appearing in this ToS are inserted only as a convenience and are not to be used to interpret any provision of this ToS. Unless otherwise expressly stated: (a) the word “including” means “including but not limited to” and (b) references to any section numbers shall mean the corresponding sections of this ToS.
10.14 Force Majeure. Neither Party will be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, acts of terrorism, power shortages or outages, earthquakes, fires, floods, labor disturbances, riots, or wars.
10.15 Entire Agreement. This ToS together with all other documents and agreements referenced herein constitutes the complete and final agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, or other communications between the Parties, oral or written. Wickr may modify this ToS at any time. Customer will be asked to agree to the modified version of this ToS the next time it logs in, and Customer’s continued use of the Service constitutes its acceptance of the modifications. If Customer does not agree to those modified terms, it must immediately cease using the Service. Notwithstanding the preceding, the Fees may only be modified by the mutual agreement of both Parties.