May 9, 2023
Please read this agreement carefully; this is a binding contract.
Table of contents
- Basic Information
- ToU Updates
- Provision of the service
- Discontinuation of service
- Accounts and Security
- Apps Use Requirements
- License, Restrictions and Conditions of Use
- Intellectual Property
- Submitted Content
- Disclaimer of Warranties
- Limitation of Liability; Sole and Exclusive Remedy
- Governing Law; Jurisdiction
- Dispute Resolution; Arbitration
- General Terms
- Utilizing Your Computer or Other Devices
- Questions? Contact Us
1. Basic Information
1.2 You may compile the open source software that we make available from time to time to develop your own mobile, desktop or web application. We refer to that application as an “Independent App”. This ToU does not apply to any Independent App and you are free to utilize and exploit your Independent App in any manner in which you determine and that is permitted by the license under which the source code was published. However, if you desire to cause your Independent App to utilize and connect to our servers for any purposes, then, as a condition to your use of our servers and network infrastructure, your Independent App must comply with and may only be used in accordance with this ToU. Any reference in this ToU to an “App” includes any Independent App that connects to our servers for any purposes.
1.3 You must agree to this ToU in order to use the Apps, the Site and/or the Service. If you (i) use the Apps, the Site and/or the Service, (ii) purchase a subscription to the secure messaging for businesses service, (iii) create a group of users that may access your account (a “Team”), (iv) invite users or permitted guests to that Team (“Team Members”) and/or (v) sign in or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and the acceptance by you on behalf of your Team Members and your and their respective agreement to all of its terms and conditions. By accepting this ToU or using the Apps, the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you are minor and are 16 years of age or older, you must have parental consent to create an account or access the Service. If you do not accept this ToU, then you may not use the Apps, the Site and/or the Service. If you are using the Apps, the Site and/or the Service on behalf of your employer or another entity (whether as a Team Admin or Team Member or otherwise), you represent and warrant that you have full legal authority to bind your employer or such other entity to this ToU. If you do not have such authority, then you may not use the Apps, the Site and/or the Service on behalf of your employer and you must discontinue all use of the Apps, the Site and/or the Service immediately.
1.4 Each Team will have a designated team administrator (“Team Admin”) who will be responsible for the management of the Team and the accounts linked to the Team. Each Team Admin acknowledges and agrees that this ToU governs your use and the use by your Team Members of the Apps, Site and/or the Service. To the extent you are a Team Member and have been invited to create an account by a Team Admin, you acknowledge and agree that your use of the Apps, Site and/or the Service are governed by this ToU and you hereby represent and warrant that you have been authorized by your Team Admin to use the
Apps, the Site and/or the Service on the terms set forth herein. Unless the context otherwise requires, any reference to “you”, “your” or “yourself” in this ToU includes each respective organization utilizing the Apps, the Site and/or the Service, each respective Team Admin and each respective Team Member.
1.5 THIS TOU IS GOVERNED BY THE LAWS SET FORTH IN SECTION 15, DEPENDING ON THE TERRITORY IN WHICH YOU USE THE SERVICE. IF YOU ARE IN THE UNITED STATES, YOU AGREE THAT DISPUTES WILL BE RESOLVED BY BINDING ARBITRATION AS SET FORTH IN SECTION 16 AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. ToU Updates
The Company may update and amend this ToU at any time and the Company will make the updated ToU available through the Apps and post the updated version of this ToU on the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use the Apps, the Site and/or the Service after the updated ToU is made available to you. If at any point you do not agree to any portion of the ToU then in effect, you should immediately stop using the Apps, the Site and/or the Service.
3. Provision of the service
You are solely responsible for all data, SMS and mobile carrier charges in connection with the mobile phones on which you have installed the Mobile App. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service or using the Desktop App and/or the Web App. You acknowledge and agree that the Company may make changes to the Apps, the Site and/or the Service at any time without notifying you in advance.
4. Discontinuation of service
The Company reserves the right to deny service to any person or entity at the Company’s sole and absolute discretion. You acknowledge and agree that the Company may stop providing the Apps, the Site and/or the Service or restrict your use of the Apps, the Site and/or the Service any time, without notifying you in advance, for any reason or no reason including, without limitation, for any violation of this ToU and/or if the Company suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If the Company disables your access to your account, you may be prevented from accessing the Service, your account details or any materials contained in your account.
5. Accounts and Security
5.1 Account. To access the Service, you must have an account linked to a Team. You can create an account by completing the registration process, which requires you to enter personal information, such as your name, phone number or email address. You will also have the option of uploading a profile picture and other information. You agree to submit information that belongs to you for service provisioning of your account. You agree that if you give the Apps permission to access your address book, anonymized phone numbers and emails from the address book will be uploaded to the Service for the purpose of connecting users. On certain platforms, it might be necessary to grant such permission in order to install the Apps, but this permission can be revoked after installation.
a. You agree to pay all applicable fees and taxes incurred by you, the Team, the Team Members or anyone using the account or the accounts linked to your Team or Team Admin, including, without limitation, fees relating to transactions processed by your account or the accounts of your Team Members. Unless otherwise noted, all currency references are in Euros. All initial fees and charges are payable in accordance with the payment terms agreed to by you when establishing your account and all fees and charges for any subscription renewal will increase by up to 7% above the initial applicable fees in the prior term, unless the Company provides you with notice of different fees and pricing at least 90 days prior to the beginning of the applicable renewal term. Except as expressly provided when establishing your account, renewal of any promotional or one-time priced subscriptions will be priced at the applicable list price in effect at the time of the subscription renewal. We may, from time to time, modify, amend, or supplement our rates, payment terms and billing procedures, and such changes shall be effective immediately upon posting a link to an update of this ToU or posting such changes elsewhere on the Site or the Apps. If there is a dispute regarding your payment of fees, or the Service, we shall have the right to terminate your account without prior notice. We also may apply interest and late fees for any amounts paid following the date when due, and we may terminate or suspend your account for any failure to timely pay any amounts or maintain up-to-date payment method information within your account.
b. Charges are billed to the payment method you registered when initiating your account. When you register a credit or debit card for a new account, you authorize us to place a pending charge to the credit or debit card to verify your billing address and the validity of your credit or debit card, which pending charges are temporary and will not be converted into an actual charge. Pending charges, while pending, will, however, reduce the available amount of credit on your credit card or funds available to your debit card. You are solely responsible for any and all fees charged to your credit or debit card by the issuer, bank, or financial institution, including fees for membership, any overdraft or other insufficient funds, or for exceeding any applicable credit limit. Once your account is authenticated, the payment method that you registered with your account will be charged pursuant to the subscription that you initiated. You agree that the issuer of any credit or debit card registered with your account will accept this ToU as your authorization and pay all amounts billed in connection with your use of your account without us submitting a signed receipt, and failure to receive a bill, including a paper bill does not release you from your payment obligations under this ToU.
c. Unless you cancel your service at least 90 days prior to the end of your subscription period, your subscription will automatically be renewed for an additional 12 months and we will automatically bill you on the anniversary of the date on which you first commenced payment for your subscription. Subscriptions are fully earned upon payment. Although we endeavor to bill you as described in this paragraph, we reserve the right to change the timing of our billing as necessary, from time to time, and at any time. We may authorize your payment method in anticipation of account or service-related charges. As used in this ToU, “billing” shall indicate a charge, debit, or other payment clearance, as applicable, against your registered credit or debit card information.
d. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE BY COMPANY IN WHOLE OR IN PART UNLESS SPECIFIED OTHERWISE. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES. THE COMPANY SHALL NOT BE RESPONSIBLE FOR YOUR FAILURE TO CANCEL YOUR SUBSCRIPTION AT LEAST 90 DAYS PRIOR TO THE END OF YOUR CURRENT SUBSCRIPTION PERIOD.
e. Notwithstanding the foregoing, in some cases, you may be provided a free trial to use the Service for a limited period of time free of charge, as may be set forth on the Site. In the case of any free trial, you will not be charged during the free trial period. Free trials may be subject to various limitations, including, without limitation, a limited number of Team Members and/or a limited time period for the free trial. When you agree to a free trial for the Service, you may be asked to authorize, and by accepting this ToU, you hereby expressly authorize us to charge the applicable fees for the Service to your designated billing payment method upon the expiration of the free trial, in each case, as set forth on the Site. For clarity, you must notify us of your determination to terminate a free trial on or before the last day of the free trial. Unless otherwise set forth on the Site, upon the expiration of a free trial, you will not be able to utilize the Service without subscribing.
5.3 Account Sharing or Transfers. Accounts are registered to a Team for a set number of Team Members and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. Team Admins and Team Members should not share accounts with, or disclose their passwords to, anyone else. If you are a Team Member, you acknowledge and agree that a Team Admin will have administrative controls over your account, including, without limitation, the ability to manage your access to the account and the Apps as a Team Member.
5.4 Cancellation. You may cancel your subscription at any time. The Company does not provide refunds or credits for any partial subscription periods. Team Admins may cancel Team Member accounts by following the cancel instructions in the Apps. Once you cancel a Team Member account, the Team Member’s personal information will no longer be viewable by other users. However, information previously shared by the cancelled Team Member with other Team Members will remain viewable by those Team Members until they delete such information. Once a Team account is cancelled all associated Team Member accounts will be cancelled as well and you may no longer have access to the content shared among the Team Members.
5.5 Removing Accounts. We reserve the right to remove inactive accounts. Accounts are considered to be inactive when they are no longer paid for.
5.6 Account Disabling by the Company. The Company may at any time disable your account (including any Team Admin or Team Member account) if: a. The Company determines that you are (i) in breach of or otherwise acting inconsistently with this ToU, or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to the Company; b. The Company determines it is required by law to disable your account; or c. The Company decides to stop providing the Service or critical portions of the Service in the country where you reside, use the Apps, access the Site or use the Service or the Company determines that it is no longer in its business interests to continue providing the Service or critical portions of the Service. The Company’s disabling of your account may result in the deletion of certain content on the Service and you may no longer have access to certain content; however, some content, such as your chat conversations with other Team Members and/or users, will remain viewable by those Team Members and/or users.
5.7 Effect of Account Disabling or Cancellation. Accounts disabled by the Company, including for any type of abuse (including without limitation a violation of this ToU), may not be able to be reactivated. If you voluntarily cancel your account, you may reactivate that account by contacting us through Customer Support. Notwithstanding the disabling or termination of your account, the terms of this ToU will survive and continue to apply to you.
6. Apps Use Requirements
6.1 Installation. To use the Apps, you will be required to install the Mobile App on one or more mobile devices that you or your organization own or control and/or install the Desktop App on one or more computers that you or your organization own or control and that meet the minimum specifications provided by the Company. The Web App can be used in all supported browsers, no installation is required.
6.2 Updates. The Company may require that you download and install updates to the Apps from time to time. You acknowledge and agree that the Company may update the Apps with or without notifying you and add or remove features or functions to the Apps at any time in its sole discretion. You acknowledge and agree that the Company has no obligation to make any subsequent versions of the Apps available to you. You acknowledge that features may change during your use of the Apps.
6.3 Agreements. You acknowledge that you may only use the Apps in connection with the Service provided through the Apps in accordance with this Agreement. The requirements hereunder and this Agreement may change as the Apps and/or Service evolve.
6.4 Independent Apps. If you desire to cause your Independent App to utilize and connect to our servers for any purposes, then, as a condition to your use of our servers and network infrastructure, your Independent App must comply with and may only be used in accordance with this ToU. Additionally, certain additional restrictions apply to any such App, as follows: a. You agree not to change the way the Independent App connects and interacts with our servers; b. You agree not to weaken any of the security features of the Independent App; c. You agree not to use our servers to store data for purposes other than the intended and original functionality of our source code underlying your Independent App; d. You acknowledge that you are solely responsible for any and all updates to your Independent App. For clarity, if you compile the open source software that we make available from time to time to develop your own mobile, desktop or web application, and do not cause that application to connect to our servers for any purposes, then that Independent App will not be limited under this ToU and this ToU will not apply to that application.
7. License, Restrictions and Conditions of Use
7.1 License for Team Use. Subject to the terms and conditions of this Agreement, the Company hereby grants you or your organization, as applicable, and to each of your Team Admin and Team Members, a limited, non-exclusive, revocable, non-sublicenseable, non-transferable license to (i) install the Mobile App on one or more mobile devices which are owned by you or your organization which is a subscriber of the secure messaging for businesses service, or under your or your organization’s control and which meet the Company’s minimum specifications; (ii) install the Desktop App on one or more computers which are owned by you or your organization which is a subscriber of the secure messaging for businesses service, or under your or your organization’s control and which meet the Company’s minimum specifications; and (iii) view, review and utilize the Apps and any related information provided to you by the Company, in all events, for the sole purpose of using the Service within your organization or in connection with your organization’s bona fide business activities.
7.2 Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the Site or the Apps. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, unauthorized third-party apps, spiders or web crawlers).
7.3 No Violation of Laws. You agree that you will not, in connection with your use of the Apps, the Site and/or the Service, violate any applicable law, ordinance, rule, regulation or treaty.
7.4 Restrictions. You shall not connect to or use the Apps, the Site and/or the Service in any way that is not expressly permitted by this ToU.
a. You may not: (a) remove any proprietary notices from the Service or any copy of software provided to you by the Company (“Software”); (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Apps, the Service or any Software; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the Apps, the Service or any Software, including, without limitation, through sublicense, to any other person or entity without the prior written consent of the Company; or (d) make any false, misleading or deceptive statement or representation regarding the Company and/or the Apps, the Site or the Service.
b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Apps, the Site and/or the Service (or any servers, systems or networks connected to the Apps, the Site and/or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Apps, the Site and/or the Service or any other person’s or entity’s use of the Apps, the Site and/or the Service (or any servers, systems or networks connected to the Apps, the Site and/or the Service); (ii) attempt to gain unauthorized access to the Apps, the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the Apps, the Site and/or the Service, (iii) charge any person, or receive any compensation for, the use of the Apps, the Site and/or the Service, unless you are specifically authorized to do so in a separate written agreement with the Company; (iv) use the Apps, the Site and/or the Service to (a) develop, generate, transmit or store information that is unlawful or illegal, defamatory, harmful, abusive, hateful, racially or ethnically offensive that encourages conduct that would be considered a criminal offence; or (b) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (a) constitutes harassment or a violation of privacy or threatens other people or groups of people; (b) is harmful to children in any manner; (c) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (d) violates any applicable law, ordinance, rule, regulation or treaty.
c. Without limiting the foregoing, you agree that you will not (i) charge any person, or receive any compensation, for the use of the Service, or (ii) use the Service in any manner not permitted by the licenses granted herein; or (iii) use the Service to conduct any unlawful, prohibited, abnormal or unusual activity as the Company may determine, in the Company’s sole discretion.
d. No licenses, express or implied, are granted under this ToU except as expressly set forth herein. The Company reserves all rights in and to the Apps, the Site and/or the Service that are not expressly granted in this ToU.
7.5 No Data Mining or Harmful Code. You agree that you will not (i) obtain or attempt to obtain any information from the Service, including without limitation email addresses or phone numbers of other account holders or other software data; or (ii) intercept, examine or otherwise observe any communications, conversations or chats between other account holders without the prior consent of those account holders; or (iii) use any type of software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Apps, the Site and/or the Service.
7.6 No Access to Emergency Services. The Service is not intended to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any other kind of services that connect a user to emergency services personnel or public safety answering points (“Emergency Services”). There are important differences between traditional telephone services and the Services. You acknowledge and agree that: (i) the Company is not required to offer access to Emergency Services under any applicable local and/or national rules, regulations or law; (ii) it is your responsibility to purchase, separately from the Services, traditional wireless (mobile) or fixed line telephone services that offer access to Emergency Services, and (iii) the Service is not a replacement for your primary telephone service.
7.7 Violation of this ToU. You acknowledge and agree that you are solely responsible, and the Company has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. The Company may, at its option, terminate its relationship with you or your organization, or may disable your account (or that of your organization) immediately if it determines you are using the Service contrary to the restrictions found in this Section 7 or any other terms of this ToU.
8.1 Links from the Service. The Service may contain links to websites operated by other parties. The Company provides these links to other websites as a convenience, and use of these websites is at your own risk. The linked websites are not under the control of the Company, and the Company is not responsible for the content available on the other websites. Such links do not imply the Company’s endorsement of information or material on any other website and the Company disclaims all liability with regard to your access to and use of such linked websites.
8.2 Links to the Site. Unless otherwise set forth in a written agreement between you and the Company, you must adhere to the Company’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with the Company’s names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with the Company, and (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site. The Company reserves the right to revoke its consent to the link at any time and in its sole discretion.
9. Intellectual Property
9.1 Trademarks. Wire™ and its associated logos are trademarks used under license by Wire Swiss GmbH. All rights reserved. Unless permitted in a separate written agreement with the Company, you do not have the right to use any of the Company’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
9.2. Ownership. You acknowledge and agree that the Company owns all rights, title and interest in and to the Apps, the Site and the Service (but not any Independent App), including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Apps, the Site and the Service are protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that the Company has designated as confidential and you agree not to disclose such information without the Company’s prior written consent.
10. Submitted Content
10.1. Content of Communications. The Company is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service. By using the Service, you agree that any content that you submit may be transmitted to the recipient of your communication. The content of communications is entirely the responsibility of the person from whom such content originated. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner; (ii) a falsehood or misrepresentation; (iii) unlawful or illegal, defamatory, harmful, abusive, hateful, racially or ethnically offensive that encourages conduct that would be considered a criminal offence; (iv) an advertisement or solicitation of business; or (v) impersonating another person. The Company may in its sole discretion terminate this ToU and disable your or your organization’s account if you use any content that is in breach of these Terms.
10.2 The Company does not claim ownership of any communications or materials you submit or make available through the Apps, the Site and/or the Service (“Submitted Content“) via any function on the Site, the Apps and/or Service which allows you to post, upload, edit, and/or share content. With respect to such Submitted Content, you grant the Company a worldwide, royalty-free, fully paid-up and non-exclusive license to use and transmit such Submitted Content or any part of such Submitted Content solely on the Apps, the Site and/or the Service for the sole purpose of making available and operating the Apps, the Site and/or the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 10.2. You acknowledge and agree that: (i) by using the Apps, the Site and/or Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and the Company has no responsibility to you or any third-party for any Submitted Content that you create, submit, post or publish on the Apps, the Site, and/or Service; and (iii) the Company is not responsible for any Submitted Content that you may have access to through your use of the Apps, the Site and/or Services and all Submitted Content are the responsibility of the person from whom such Submitted Content originated. We reserve the right to disable your or your organization’s account and/or your respective access to the Apps, the Site and/or Services if you violate this ToU. You acknowledge and agree that (i) the Company has no control over and is not responsible for the use of Submitted Content by a user, including any user that has uploaded such Submitted Content to such user’s personal device; and (ii) the Company may not be able to remove certain Submitted Content that is uploaded onto another user’s device. The Company does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
10.3 You acknowledge that the Submitted Content is your sole responsibility. You are entirely responsible for the Submitted Content and agree, under no circumstance, will the Company be liable in any way for Submitted Content, including, but not limited to, for any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service. In addition to and without limiting any portion of this Section 10, if you are a Team Admin, you acknowledge and agree that you and/or your organization are solely responsible for any and all Submitted Content made available by you or any of your Team Members.
The Apps, the Site and the Service are not directed toward children under 16 years of age nor does the Company knowingly collect information from children under 16 or allow them to create an account or access account features. If you are minor and are 16 years of age or older, you must have parental consent to create an account or access the Service. We take children’s privacy seriously, and encourage parents to play an active role in their children’s online experience at all times.
12. Disclaimer of Warranties
The following section is a disclaimer of our warranties. Please read it carefully.
12.1 You understand and agree that your use of the Apps, the Site and/or the Service is at your sole risk and that the Apps, the Site and/or the Service are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied.
12.2 To the maximum extent permitted by applicable law, the Company expressly disclaims all warranties and conditions including, without limitation, warranties and conditions of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and those arising from course of dealing or usage of trade.
12.3 The Company makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through, or the performance of, the Apps, the Site and/or the Service.
12.4 The Company does not represent or warrant that (a) you will be able to access or use the Apps, the Site and/or the Service at the times or locations of your choosing; (b) that operation of the Apps, the Site and/or the Service will be uninterrupted, timely, error-free; (c) your use of the Apps, the Site and/or the Service will meet your requirements; (d) defects in the operation of the Apps, the Site and/or the Service will be corrected; or (e) the Apps, the Site and/or the Service is free of viruses or other harmful components.
12.5 You acknowledge and agree that any material downloaded or otherwise obtained through the use of the Apps, the Site and/or the Service is at your own risk and that you will be solely responsible for any damage to your computer, mobile phone or other device or any loss of data resulting from downloading or obtaining such material.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
13. Limitation of Liability; Sole and Exclusive Remedy
The following section limits our liability. Please read it carefully.
13.1 To the maximum extent permitted by applicable law, the Company, its affiliates, licensors and business partners (collectively, the “Related Parties”) shall not be liable to you, under any contract, tort (including negligence), strict liability or other legal or equitable theory, for:
a. Any direct, indirect, incidental, consequential, special or exemplary damages, including loss of profits, use, data or goodwill, arising out of or in any way connected with access to or use of the Apps, the Site and/or the Service, even if the Company and/or the Related Parties have been advised or should have been aware of the possibility of any such losses or damages;
b. The cost of procurement of substitute goods, services or technology; or
c. The deletion of, corruption of, or failure to store any materials, information or data maintained by or through your use of the Apps, the Site and/or the Service.
13.2 Other than in connection with a party’s indemnification obligations hereunder, in no event will either your or your organization’s on the one hand, or Company’s on the other, aggregate liability arising out of or related to this Agreement exceed the total amount paid by you or your organization hereunder in the twelve (12) months preceding the last event giving rise to liability.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of the Company and its Related Parties shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold the Company and the Related Parties harmless from any and all claims, demands, damages or other losses, including without limitation reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Apps, the Site and/or the Service, (ii) the Submitted Content, (iii) your inability to use the Service, including your inability to contact Emergency Services or any interaction with Emergency Services, or (iv) your breach of this ToU or any other policies that the Company may issue for the Apps, the Site and/or the Service from time to time.
15. Governing Law; Jurisdiction
15.1 If you are using the Service in any country within the European Union or otherwise outside of the United States the following applies: The laws applicable to the interpretation of these Terms of Service shall be the laws of Switzerland, without regard to any conflicts of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 16 below (and claims proceeding in any small claims court), you irrevocably submit to the personal and exclusive jurisdiction of the courts located within the Canton of Zug, Switzerland for all disputes arising out of or related to your use of any of the Service.
15.2 If you are using the Service in the United States the following applies: These Terms of Service will be is governed by, and will be construed under, the laws of the United States of America and the laws of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 16 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and you agree to submit to the personal jurisdiction and venue of such courts.
16. Dispute Resolution; Arbitration
If you are using the Service outside the United States, Section 16.1 applies to you. If you are using the Service in the United States, Sections 16.2, 16.3, 16.4, 16.5, 16.6 and 16.7 apply to you.
16.1 Dispute Resolution Procedure. You agree that, in the event any dispute or claim arises out of or relates to your use of the Apps, Site or the Service such dispute or claim shall be resolved in accordance with the following escalation procedure:
a. you and the Company will attempt in good faith to negotiate a written resolution of the matter directly between the parties;
b. if the parties are unable to resolve the dispute in accordance with Section 16.1(a) above, then they shall be free to pursue their respective remedies in accordance with applicable law or these ToU.
16.2 Arbitration Procedures. You and the Company agree that, except as provided in Section 16.5 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 16 and the JAMS Rules, the terms in this Section 16 will control and prevail.
Except as otherwise set forth in Section 16.5, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and the Company will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and the Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND THE COMPANY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
16.3 Location. The arbitration will be conducted in the County of San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.
16.4 Limitations. You and the Company agree that any arbitration shall be limited to the Claim between the Company and you individually. YOU AND THE COMPANY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
16.5 Exceptions to Arbitration. You and the Company agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or the Company’s intellectual property rights; or (b) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
16.6 Arbitration Fees; Attorneys Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation or arbitration.
16.7 Severability. You and the Company agree that if any portion this Section 16 is found illegal or unenforceable (except any portion of Section 16.5), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 16.5 is found to be illegal or unenforceable then neither you nor the Company will elect to arbitrate any Claim falling within that portion of Section 16.5 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of San Francisco, State of California, United States of America, and you and the Company agree to submit to the personal jurisdiction of that court.
17. General Terms
17.1 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you or your organization and the Company as a result of this ToU or your use of the Apps, the Site and/or the Service.
17.2 Assignment. The Company may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without the Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
17.3 Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
17.4 No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by the Company of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
17.5 Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Wire Swiss GmbH, Untermüli 9, 6300 Zug, Switzerland, ATTN: Legal Department.
17.6 Import and Export Administration. You must comply with all import and export laws and regulations of Switzerland and the United States (“Import and Export Controls”) and you shall not import, export, direct or transfer any portion of the Apps, Site and/or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Import and Export Controls.
17.7 U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this ToU.
17.8 Equitable Remedies. You acknowledge and agree that the Company would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
17.9 Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and the Company with respect to the Apps, the Site and/or the Service and supersedes any and all prior agreements between you and the Company relating to the Apps, the Site and/or the Service.
18. Utilizing Your Computer or Other Devices
In an effort to enhance the performance of the Service, the Service may access usage information on your computer or other applicable device, such as usage data and/or data transmission including crash reports sent to third parties. Such information is anonymized. You can grant permission for the Service to monitor such anonymized information and to communicate information, including, without limitation, your account information, to the Company’s servers for the purposes of analyzing your device’s performance during use of the Service. You can revoke this permission at any time. Additionally, the Service will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Service. All computer and/or device information will be anonymized and will not be personally identifiable with you. You can opt out of providing this information at any time by changing your settings / preferences within the App.