IMPORTANT: BY USING THE SERVICE AND AGREEING TO THE ToU, YOU AGREE THAT Either Wickr or you may demand that any dispute or claim between Wickr and you about or involving the Service must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (“AAA”) in WILMINGTON, DELAWARE, USA, and, if so demanded BY EITHER PARTY, BOTH PARTIES hereby acknowledge and agree to submit exclusively to the jurisdiction of the AAA in WILMINGTON, DELAWARE, USA to resolve the applicable dispute or claim; provided that the foregoing shall not prevent Wickr from seeking injunctive relief in any court of competent jurisdiction. YOU ALSO AGREE THAT, REGARDLESS OF ANY APPLICABLE LAW TO THE CONTRARY, ALL CLAIMS AND CAUSES OF ACTION YOU MAY BRING RELATING TO THE SERVICE OR THIS ToU MUST BE BROUGHT WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR THAT YOU LEARNED OF SUCH CLAIM OR CAUSE OF ACTION, WHICHEVER IS LATER, AND YOU HEREBY WAIVE YOUR RIGHT TO BRING ANY SUCH CLAIM OR CAUSE OF ACTION AFTER SUCH DATE.
Your use of the Service may also be governed by the terms and conditions of the store, marketplace, or other source from which you obtained the Service (the “App Source”). You agree that this ToU is only between you and Wickr and not the App Source or any of Wickr’s partners, distributors, promoters or service providers (collectively with the App Source, the “Wickr Partners”). Should you have any issue or claim with respect to the Service, Wickr, and not any Wickr Partner, will be solely responsible for addressing the issue or claim. The Wickr Partners have no obligation or responsibility to provide you any warranty, maintenance or support services with respect to the Service.
1. LICENSE GRANT. The Service is licensed to you and not sold. So long as you are in full compliance with this ToU, Wickr grants you a personal, revocable, non-exclusive, non-transferable and non-sublicensable license to use the Service on any device that you legally own or control and that runs the same operating system as the version of the Service you downloaded. If you are using the Service on behalf of an enterprise that you represent, and that enterprise has selected you as its administrator, then the “Service” also includes the admin console. Any open source or third-party code that is incorporated in the Service is covered by the applicable open source or third-party end user license agreement.
In consideration for your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving service under the laws of the United States or other applicable jurisdiction. You also agree to provide and maintain true, accurate, current and complete information about yourself when registering and while using the Service. If you provide any information that is untrue, inaccurate, not current or incomplete, or Wickr has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Wickr has the right to suspend or terminate your registration and refuse any and all current or future use of the Service.
Wickr is concerned about the safety and privacy of all its users, particularly minors. For this reason, minors under the age of 13 may not register for or use the Service.
2. RESERVATION OF RIGHTS. The Service and all content, visual interfaces, information, graphics, design, compilation, computer code, products, software, trademarks, service marks, trade names, and services included in the Service or accessible through the Service are the property of Wickr or its subsidiaries or affiliated companies and/or third-party licensors. Except for the express license granted to you above, no right, title, interest or license to the Service is granted to you, whether by implication or otherwise. You do not have any right to use the names, trademarks, logos, or brands of Wickr or its subsidiaries or affiliated companies, whether in part, in modified form, or otherwise.
3. RESTRICTIONS. You agree that you will not, nor will you attempt to or allow any other person to, do any of the following restricted activities: (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”). If you commit any of the Use Restrictions, or Wickr suspects that you have, Wickr may immediately suspend or terminate your use of the Service.
4. USER DATA
You agree 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 you and other users from submitting User Data and to restrict or remove User Data for any reason at any time.
6. MODIFICATIONS. Wickr may modify this ToU from time to time. You will be asked to agree to any such modifications, and by continuing to use the Service, you agree to those modified terms. If you do not agree to those modified terms, you must immediately cease using the Service. Wickr may also modify the Service from time to time. Wickr does not guarantee that any features, functions, parts, or content available in or through the Service will continue to be available.
7. ACCOUNT INFORMATION. Wickr will not be liable for any damages or liability resulting from your failure to provide accurate or complete account information. You agree not to sell or transfer or allow another person to access your account password, to use your account, or to use the Service on any of your devices, and any activity conducted through your account will be presumed to be conducted by you and you shall remain liable for that activity.
8. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS. The Service may include links to other web sites or services solely as a convenience to you. Wickr does not endorse or make any representations regarding any such linked sites or any information or materials accessible through such linked sites. Wickr disclaims all liability relating to your use of such linked sites.
9. GOVERNMENT END USERS. If any Service is being acquired on behalf of or is to be used by any governmental entity, including the United States Government (a “Government User”), then the following provision applies: Each Service is being provided as a “commercial item” as that term is defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, all Services are commercial items provided to the Government User with only those rights customarily provided to all other users as set forth in this ToU. 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. EXPORT CONTROL. You agree to comply with all United States and foreign laws related to your use of the Service, online conduct, and acceptable User Data, including the export and importation of the Service. You 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); (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 you know or have 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. You represent and warrant that: (i) you are 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) you are not prohibited from participating in United States export or re-export transactions by any federal agency of the United States government.
11. TERMINATION. You agree that Wickr may terminate or suspend your access to the Service without prior notice and without liability. Your right to use the Service and this ToU will terminate immediately in the event that you are in breach of any provision of this ToU. You may terminate this ToU at any time by deleting all copies of the Service in your possession or control. Upon termination of this ToU, you will immediately stop using the Service and delete all copies of the Service in your possession or control. These remedies are in addition to any other remedies Wickr may have at law or in equity.
12. CONSUMER RIGHTS. You may have the benefit of consumer guarantees and warranties given under statute (“Mandatory Terms”). Where any statute applies to this ToU 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 ToU for your benefit, and nothing in this ToU excludes or limits those Mandatory Terms or liability for breach of them. This applies to all of the terms of this ToU.
13. DISCLAIMERS; NO WARRANTIES. THE SERVICE AND ALL THIRD-PARTY SOFTWARE, SERVICES, AND APPLICATIONS MADE AVAILABLE IN CONNECTION WITH THE SERVICE 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 SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF HARMFUL COMPONENTS. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR EQUIPMENT OR DEVICE, LOSS OF USE, OR LOSS OF DATA.
14. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Wickr, its affiliated companies, and its suppliers and partners from any and all claims, suits, actions, liabilities, losses, costs, damages, and any other expenses, including attorneys’ fees, arising out of or related to (a) your use or misuse of the Service, (b) any violation of the rights of any other person or entity by you, or (c) any breach or violation by you of this ToU. Wickr reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Wickr, and you agree to cooperate with the defense of these claims by Wickr.
15. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE THAT WICKR, AND NOT THE APP SOURCE, IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS RELATED TO THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP SOURCE DOES NOT GIVE OR ENTER INTO ANY WARRANTY, CONDITION, OR OTHER TERM IN RELATION TO THE SERVICE AND WILL NOT BE LIABLE TO YOU FOR ANY CLAIMS, LOSSES, COSTS OR EXPENSES OF WHATEVER NATURE IN RELATION TO THE SERVICE OR AS A RESULT OF YOU OR ANYONE ELSE USING THE SERVICE OR RELYING ON ANY OF ITS CONTENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WICKR AND ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, AND THIRD-PARTY PARTNERS AND SUPPLIERS SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATING TO YOUR USE OF THE SERVICE, EVEN IF WICKR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WICKR’S AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS ToU OR YOUR USE OF THE SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AND YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER FOR ALL SUCH DAMAGES, SHALL BE LIMITED TO THE ACTUAL DAMAGES YOU INCUR UP TO $100. THE EXISTENCE OF MULTIPLES CLAIMS OR SUITS UNDER OR RELATED TO THIS ToU OR USE OF THE SERVICE WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF LIABILITY.
16. COPYRIGHT. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to Wickr at the address indicated below:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located in the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf.
Notice of claims of copyright or other intellectual property infringement should be sent to the address specified at the bottom of this ToU.
17. MISCELLANEOUS. In the event anybody alleges that the Service, any content contained in the Service, or your use of either infringes a third party’s rights, you and Wickr both agree that Wickr, and not the App Source, will be responsible for the investigation, defense, settlement, and discharge of such claim. You will notify Wickr as soon as you learn of any such claim. If Wickr decides to defend such claim, which shall be in Wickr’s sole discretion, you will allow Wickr to have sole control over the defense and settlement of that claim, and you will provide reasonable assistance to Wickr in its defense thereof. This ToU will be governed by the laws of the State of Delaware, without regard to conflicts of law provisions, and you consent to the exclusive jurisdiction of the state and federal courts sitting in Wilmington, Delaware, USA. This ToU will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. You and Wickr both acknowledge that the App Source (including any of its subsidiaries and affiliates) are third party beneficiaries of this ToU and that such parties have the right to enforce this ToU against you as a third party beneficiary hereof. The App Source will never be responsible to maintain, support, or update the Service. Wickr may maintain, support, or update the Service in its sole discretion, but Wickr does not have any obligation under this ToU to do so. If you have a question, complaint, or claim with respect to the Service, please contact Wickr at the contact information included below. If you paid any amount to the App Source to use the Service, and if the Service fails to conform to any applicable warranty, please notify the App Source. Refunds shall be governed by the App Source’s terms and conditions. Notwithstanding the preceding, the App Source will have no other obligation or liability to you with respect to the Service. If any provision of this ToU 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 will be severed from this ToU if no such modification is possible, and all other provisions of this ToU will remain in full force and effect. A waiver by either Wickr or you of any term or condition of this ToU or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This ToU, 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 ToU that require or contemplate performance after the termination of this ToU and all provisions relating to limitation of liability, disclaimers, and indemnification will be enforceable notwithstanding such termination. Wickr will not be in default or be liable to you for any delay, failure in performance, or interruption of the Service resulting directly or indirectly from any cause beyond its reasonable control. Each party shall bear its own costs in bringing any legal action against the other under this ToU.
18. CONTACT INFORMATION
1459 18th St., #313
San Francisco, CA 94107
Attention: Jennifer DeTrani, General Counsel
Date Last Updated: January 12, 2017