Terms of Service/Use

Last Modified Date: August 17, 2022

AGREEMENT TO THESE TERMS OF SERVICE

This document and these terms (“Agreement”) represent a legal contract between you and Wickr (“Wickr“, “we“, “our“), governing your use of Wickr Messenger, a 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.

3. RESTRICTIONS

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.

5. PRIVACY POLICY; COPPA Compliance; GUIDELINES TO INDIVIDUAL FEATURES AND SERVICES

Wickr’s Privacy Policy is hereby incorporated into this Agreement by reference. Please read this Privacy Policy carefully for disclosures relating to the collection, use, and disclosure of your personal information. By using this service, you consent to Wickr’s collection and use of User Data as described in the policy in place at the time when data is collected.

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 Wickr.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

Wickr was founded upon the belief that private communications are a universal human right, and our Services are designed to enable secure end-to-end communication. While we don’t have the technical capability to monitor Wickr Services accounts or our users’ messages, we reserve the right to suspend or terminate accounts if we learn they violate the following terms.

YOU MAY NOT USE, OR FACILITATE, OR ALLOW OTHERS TO USE THE WICKR SERVICES:

• for any illegal or fraudulent activity;
• to violate the rights of others;
• to engage in the targeted harassment of others;
• to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm;
• for any content or activity that promotes child sexual exploitation or abuse;
• to send or disseminate other people’s private and confidential information, such as credit card numbers or Social Security/National Identity numbers, without their express authorization and permission;
• in any manner that infringes patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;

• to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (or “spam”);

• to impersonate others in a manner that does or is intended to mislead, confuse, or deceive others;
• to remove, circumvent, disable, damage or otherwise interfere with security features of the Wickr Services, including any technical measures we may use to prevent or restrict unauthorized access to 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;
• to intentionally interfere with or damage operation of the Wickr Services or any user’s enjoyment of them, including by uploading or disseminating viruses, worms, or other malicious code;

• to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device;

• to use any robot, spider, scraper or other automated means to access the Wickr Services without our express written permission;
• to modify the Wickr Services in any manner or form; or
• to sell, 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.

17. MISCELLANEOUS

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 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, 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.

18. REPORTING ABUSE

To report violations of these Terms, contact us via email at wickr-abuse@amazon.com.

Last Modified Date: August 17, 2022

Wickr is being sold by AWS. If you purchase or renew Wickr services from an AWS Contracting Party (excluding Wickr LLC), even if you originally purchased through Wickr Inc./LLC, the AWS Customer Agreement and Privacy Notice now apply to your use of such services instead of the terms and privacy policies published on the Wickr website. The AWS Privacy Notice governs AWS’s collection and use of the information you provide to us in connection with the creation or administration of your customer account. The Customer Agreement and any supplemental terms between you and AWS relating to the Wickr service apply to the data transferred to the AWS services for processing, storage, or hosting in connection with your use of the Wickr services. If you did not purchase Wickr services from an AWS Contracting Party, the following applies.

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.

1.6. “Privacy Policy” means that privacy policy applicable to each End User’s use of the Service.  The Privacy Policy describes what information Wickr will obtain from each End User and what Wickr does with that information.

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.

1.9. “ToU” means Wickr’s Terms of Use that govern each End User’s use of the Service.

1.10. “Third Party Components” means any component of the Service provided by a third party.

1.11. “Trial Service” means the Service when provided free of charge during the first thirty (30) days of the Term.

1.12. “Update”means any update, upgrade, modification, or enhancement of the Service, excluding any Additional Features (as defined in Section 10.1).

2. Service. 

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. When registering, Customer must (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. By registering for the Service, Customer agrees that Wickr may send Customer communications regarding the Services as well as notifications of Updates by email and via the Service.

2.2. Once Customer has registered for the Service, Customer will provide to Wickr the information requested by Wickr for each End User who is to be granted access to the Service. An email will then be delivered to each End User prompting that End User to provide the necessary information. The End User will then download the applicable software client for that End User’s preferred Supported Platform. A limited number of End Users will be selected by Customer as administrators. Only the administrators will have access to the admin console, which will allow for management of Customer’s implementation of the Service. For administrators only, the “Service” will be deemed to include the admin console. Customer agrees that each End User is subject to, and Customer is responsible for obtaining each End User’s agreement to, the ToU, which includes the Privacy Policy. Each End User’s use of the Service is further subject to the restrictions set forth in Section 3 below. While this ToS is between Wickr and Customer, by using the Service, you, as an End User and in your individual capacity, also agree to the ToU.

2.3. Trial Service. Trial Service is provided strictly “as is”. Customer may use the Trial Service in a manner consistent with the terms and conditions of this ToS subject to Wickr’s ability, in its sole discretion, to disable certain features and enforce time limits and other limits on the Trial Service such as total number of Users. In light of the fact that the Trial Service is provided free of charge, Wickr disclaims all warranties, representations, and liabilities as set forth in this ToS and Wickr shall not be liable for damages of any kind related to a Customer or End User’s use of the Trial Service. If you sign up for the Trial Service, you may cancel at any time prior to the conclusion of your trial. If you do not wish to incur charges, you must cancel the account by the end of your last day of your trial period. If you do not cancel your trial account, then your account will automatically convert to a paid subscription and we will begin billing your payment method after the conclusion of your Trial Service.

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 facilitate, or allow others to: (a) use the Service for any illegal or fraudulent activity; (b) use the Service to violate the rights of others; (c) use the Service to engage in the targeted harassment of others; (d) use the Service to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm; (e) use the Service for any content or activity that promotes child sexual exploitation or abuse; (f) use the Service in any manner that breaches any applicable third party terms; (g) 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; (h) 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; (i) use the Service to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (or “spam”); (j) use the Service to impersonate others in a manner that does or is intended to mislead, confuse, or deceive others; (k) use the Service to disseminate any virus, worm, malicious code, or other program designed to interrupt, damage, or limit any software, hardware, or data; (l) 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; (m) 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; (n) use the Service to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device; (o) modify, reproduce, copy, adapt, alter, improve, translate, or create derivative works from the Service; (p) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; (q) merge the Service with other software; (r) sublicense, lease, rent, loan, transfer, or otherwise make available the Service to any third party; (s) use the Service to develop a product that is similar to the Service or to operate a service bureau; (t) publish or disclose any results of any benchmark tests run on the Service or any component thereof; (u) commercialize Customer’s use of the Service; or (v) 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; Refund.

5.1. Fees, Payment and Taxes. Customer agrees to pay to Wickr the Fees quoted when the Service was purchased. Fees will be due after the initial month of Trial Service has concluded. The billing commencement date will be one day after the first month of Trial Service. The Fees will be based on the total number of Users in your network during such month with the Fees prorated to reflect the number of days during the first month of Service for new Users who joined mid-cycle. If an individual is invited to join your network as a User, but fails to register, that individual will not be included in the calculation of fees. You are also responsible for all applicable taxes and we will charge taxes when required to do so. 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 via its website.

5.2. Refunds. In the event of early termination of the Service prior to the conclusion of the Term, Customer shall not be entitled to a refund of any prepaid fees.

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 Doc
umentation. 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. Indemnity.

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. Your Service will continue until you terminate the Service. Customer may terminate this ToS at any time by logging into its admin console and electing such option or by emailing support@wickr.com. 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; (c) Customer must promptly cease using the Service and ensure that all End Users cease using the Service and (d) Wickr will discontinue billing Customer, unless Customer has an unpaid balance due for 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. Miscellaneous.

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 wickr-legal@amazon.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 gov
ernmental 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, typically to better reflect changes to the law, new regulatory requirements or changes to our Service. The updated ToS will be posted here at https://www.wickr.com/terms/. 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.

10.16. Reporting Abuse

To report violations of these Terms, contact us via email at wickr-abuse@amazon.com.