Last Revised and Effective September 15, 2020
This Terms of Service is a legally binding agreement (the “Terms”) between you, as a user of the Software and Wormhole Service (referred to as “you” or “your”) and Wormhole Labs Inc. (referred to as “Wormhole” “we” or “us”) regarding the use of the Wormhole software program (the “Software”) that you are installing on your device and the services available through the Software or the “Wormhole Service”.
PLEASE NOTE THAT SECTION 25 BELOW CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. Description of the Software and Wormhole Service. The terms “Software” and “Wormhole Service”, include, but are not limited to, any product, service, software, application, website, social media account, platform, content, or data, whether paid or unpaid, Wormhole provides or makes available to you, and any patches, updates, modifications, changes and upgrades thereto, as such terms are more fully defined in the Wormhole End User License Agreement (https://www.wormholelabs.com/end-user-license-agreement).
2. Accepting the Terms of Service. BY DOWNLOADING THE SOFTWARE OR USING THE WORMHOLE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES OR POLICIES REFERRED TO IN THESE TERMS, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE TERMS). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, YOU MUST IMMEDIATELY TERMINATE YOUR USE OF THE SOFTWARE AND WORMHOLE SERVICE. THE SOFTWARE AND THE WORMHOLE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE THE SOFTWARE OR SERVICE. FURTHER, IF YOU OVER 13 BUT ARE UNDER THE AGE OF CONSENT WHERE YOU LIVE, THEN YOU MUST GET THE CONSENT OF YOUR PARENTS BEFORE USING THE SOFTWARE OR SERVICE.
4. Modification of Terms. Wormhole reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time. We will use commercially reasonable efforts to generally notify all users of any material changes to these Terms, such as through a notice on the Wormhole Service, however, you should look at the Terms regularly to check for such changes. We will also update the “Effective Date” at the top of these Terms, which reflects the date of such Terms is effective. Your continued use of the Software or Wormhole Service after the posting of changes constitutes your binding acceptance of such changes. If you do not agree to the new Terms, you must stop using the Software and the Wormhole Service.
5. Ownership. The Wormhole Service and Software are owned and operated by Wormhole Labs, Inc. or its Affiliates and its licensors. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Software or Wormhole Service that are provided by Wormhole (the “Wormhole Materials”) are the property of Wormhole, its Affiliates, and/or third-party licensors and are protected by the United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. For purposes of this Agreement, an Affiliate shall be defined as an entity that controls, is controlled by, or is under common control with Wormhole. Except as expressly authorized by Wormhole, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Wormhole Service, Software or Wormhole Materials. Wormhole reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the Wormhole Service, Software, or Wormhole Materials, except for the limited rights set forth in this Agreement. Wormhole Materials do not include user-generated content (as defined below) or any other content owned by and submitted by users of the Software or Wormhole Service.
6. Limited License to Use. Subject to the terms and conditions herein, Wormhole grants you permission to use the Software and the Wormhole Service as set forth in these Terms, provided that (i) you use the Software and Wormhole Service solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the Software or Wormhole Service in any medium without prior written authorization; (iii) you do not alter or modify any part of the Software or Wormhole Service other than as may be reasonably necessary to use the Software or Wormhole Service for its intended purposes; (iv) you do not use the Software or the Wormhole Service in any manner that Wormhole, in its sole discretion, deems a violation of these Terms or the Wormhole End User Lice Agreement (https://www.wormholelabs.com/end-user-license-agreement) that is hereby incorporated into these Terms by reference; and (v) you otherwise fully comply with these Terms.
Except as expressly permitted in these Terms or the Wormhole End User License Agreement, any use of any portion of the Software or Wormhole Services without the prior written permission of the Wormhole is strictly prohibited and will terminate the license granted herein. Any such unauthorized use may also violate applicable laws, including copyright, patent and trademark laws, and other applicable laws. Nothing in these Terms shall be construed as selling, assigning, or transferring any Wormhole intellectual property rights, whether by estoppel, implication, or otherwise. The limited license provided by Wormhole is revocable at any time, for any reason or no reason at all.
7. Your Use of Wormhole. As a condition of your use of the Software or Wormhole Service, you represent and warrant that you will not use the Software or the Wormhole Service for any purpose that is unlawful or prohibited by these Terms. Access to the Wormhole Materials, the Software, or the Wormhole Service from territories where their access or use thereof is illegal is strictly prohibited. Wormhole Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.
- You agree not to access or use the Software or Wormhole Service if you are not fully able and legally competent to agree to these Terms
- You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Software or the Wormhole Service, use of the Software or Wormhole Service, access to the Software or Wormhole Service, or Content obtained through the Software or Wormhole Service, for any purpose other than as the Software or Wormhole Service is offered by Wormhole.
- You agree not to intentionally interfere with or damage, impair or disable the operation of the Software or Wormhole Service or any Users enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
- You agree not to remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Software or Wormhole Service, features that prevent or restrict the use or copying of any content accessible through the Software or Wormhole Service, or features that enforce limitations on the use of the Software or Wormhole Service.
- You agree not to attempt to gain unauthorized access to the Software or Wormhole Service, or any part of it, other accounts, computer systems or networks connected to the Software or Wormhole Service, or any part of it, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Software or Wormhole Service or any activities conducted on the Software or Wormhole Service.
- You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Software or Wormhole Service. You agree neither to modify the Software or Wormhole Service in any manner or form nor to use modified versions of the Software or Wormhole Service, including (without limitation) for the purpose of obtaining unauthorized access to the Software or Wormhole Service.
- You agree that you will not use any robot, spider, scraper, or other automated means to access the Wormhole Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Software or Wormhole Service.
- You agree not to use any Wormhole Materials without our express written consent.
- You agree not to make unsolicited offers, advertisements, proposals, or send spam to other Users of the Software or Wormhole Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
- You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software or Wormhole Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- You agree not to modify, adapt, translate or create derivative works based upon the Software or Wormhole Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Software or Wormhole Service, or collect, or attempt to collect, personal information about Users or third parties without their consent.
- You agree not to impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from Wormhole.
- You agree not to use the Software or Wormhole Service to upload, transmit, distribute, store or otherwise make available in any way: files that contain viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful; any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation.
- You agree not to expose or make public any private information of any third party, including addresses, phone numbers, email addresses, social security numbers, or credit card numbers.
- You agree not to use the Software or Wormhole Service in any way that would constitute, encourage or provide instructions for a criminal offense, dangerous activities, or self-harm.
- You agree not to use the Software or Wormhole Service in any way that is intended to provoke or antagonize people, especially trolling and bullying; that is intended to harass, harm, hurt, scare, distress, embarrass, or upset people; that contains a threat of any kind, including threats of physical violence, or; that is racist or discriminatory, including discrimination based on someone’s race, religion, age, gender, disability, sexuality or sexual orientation.
If Wormhole determines, in its sole discretion, that you have violated any of the above Wormhole may suspend or permanently disable access to your account
8. User-Generated Content. The Software or Wormhole Service may now or in the future permit the submission and posting or linking of text, chat logs, pictures, media, audio, and video recordings, commentary, or any other content submitted by you and other users (Wormhole Submissions), and the linking, hosting, sharing, and/or publishing of such Wormhole Submissions. User-generated content (”UGC”) means any content that is prepared or generated by users on or in connection with the Software or the Wormhole Service, and all content that is uploaded or incorporated into the Software or Wormhole’s Services by users of the Software or Services, and includes, but is not limited to, any one or more of the following: virtual structures and spaces; real-world structures and spaces; posts; user data; avatar data; avatar customization; environment data; environment customization; virtual constructions; video content; audiovisual content; graphical content; scripts; text; programs; gameplay; experiences; interactive elements; sounds; sound recordings; audiovisual recordings; musical works; animated works; and other types of works, whether copyrightable or not.
10. User License to Wormhole. By supplying your UGC you hereby grant Wormhole and its affiliates a worldwide, non-exclusive, fully paid-up, perpetual, royalty-free, sub-licensable, and transferable license to (1) use, copy, sublicense, adapt, transmit, publicly perform, or display any such UGC; and (2) sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the material including without limitation for promoting and redistributing part or all of the UGC (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. The foregoing includes, inter alia, the right to exploit any proprietary rights in such material, including but not limited to rights under copyright, trademark, service mark, and patent laws.
You grant Wormhole and its affiliates and sub-licensees the right to use the name that you submit in connection with such UGC if they choose. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your UGC. You also hereby grant to each user of the Software or Wormhole Service a non-exclusive license to access your UGC through the Software or Wormhole Service and to use, reproduce, distribute, display, and perform such UGC, in each case as permitted by the functionality of the Software or Wormhole Service and these Terms.
You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Wormhole Submissions. You also hereby grant to each user of the Software or the Wormhole Service a non-exclusive license to access your UGC through the Software or the Wormhole Service and to use, reproduce, distribute, display, and perform such UGC, in each case, as permitted by the functionality of the Software or Wormhole Service and these Terms.
11. Disclaimer For Other User UGC. You understand that when using the Software or Wormhole Service, you will be exposed to UGC from other users and other content from a variety of sources, and that Wormhole is not responsible for the acceptability, accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such UGC. You further understand and acknowledge that you may be exposed to UGC or other content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Wormhole with respect thereto. Wormhole does not endorse any UGC or other Content or any opinion, recommendation, or advice expressed therein. You agree that you must evaluate, and bear all risks associated with the use of any UGC or other content, including any reliance on the accuracy, completeness, usefulness, or legality of such UGC or other content. Under no circumstances will Wormhole be liable in any way for or in connection with your use, exposure, or reliance UGC or other content, including, but not limited to, for any inaccuracies, errors, or omissions in any UGC or other content, any intellectual property infringement with regard to any UGC or other content, or any loss or damage of any kind incurred as a result of the use, exposure or reliance of any UGC posted, emailed or otherwise displayed or transmitted via the Software or Wormhole Service.
12. Other Social Software Terms and Privacy Policies. By using the Software and Wormhole Service you also agree to be bound by the terms of service and privacy policies of other social Software. You can learn more about each social Software’s respective terms of service and privacy policies via the links below:
YouTube Terms of Service: https://www.youtube.com/t/terms
Google Terms of Service: https://www.google.com/intl/en/policies/terms/
Facebook Terms and Policies:https://www.facebook.com/policies
13. Account Information. You agree that the information you provide or authorize third parties to provide to Wormhole upon registration and, at all other times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
14. Account Security. You will be responsible for all activities that occur under your username and password. You should keep your password confidential. You are solely responsible for maintaining the security confidentiality of your account password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you must immediately notify Wormhole at firstname.lastname@example.org. You may be liable for the losses incurred by Wormhole or others due to any unauthorized use of your account.
15. Account Termination. Wormhole may terminate or suspend your access to your account and the Software and Wormhole Service and remove and discard all or any part of your UGC at any time, immediately, without prior notice or liability, for any reason or no reason. Upon termination of your account, the license granted to you and your right to use the Software and Wormhole Service will immediately cease. If you want to terminate your account, you may simply discontinue using the Software and Wormhole Service and/ or by sending an email to email@example.com. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and the like.
16. Disagreements Between Users. You are solely responsible for your involvement with other users. If you have a dispute with one or more users, you release Wormhole (and Wormhole’s parent, subsidiaries, affiliates, officers, directors, agents, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. You may report any user activity that you believe violates these Terms, including any prohibited or illegal activity by notifying Wormhole at firstname.lastname@example.org and Wormhole may, but is under no obligation, take any action it deems appropriate concerning such notice.
17. Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Software or Wormhole Service are solely between you and such advertiser.
YOU AGREE THAT WORMHOLE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SOFTWARE OR SERVICE.
18. Third-Party Compliance. Your use of the Software or Wormhole Service must comply with applicable third-party terms of agreement when you are using the Software and/or Wormhole Service.
19. Third-Party Software. The Software may be distributed alongside certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third-Party Software in conjunction with the Software in a manner consistent with these Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third-Party Software.
20. Links and Third-Party Services. Wormhole or third parties may provide links or functionality in the Software or Wormhole Service to other services, sites, or content (Third Party Services). Wormhole has no control over such Third Party Services or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Third Party Services or content linked to by the Software or Wormhole Service. Wormhole provides links to you only as a convenience, and the inclusion of any link on the Software or Wormhole Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein.
ACCESS AND USE OF THIRD-PARTY SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD-PARTY SERVICES OR AVAILABLE THROUGH THIRD-PARTY SERVICES, IS SOLELY AT YOUR OWN RISK.
When you leave the Software or Wormhole Service, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Services.
21. Indemnification; Hold Harmless. You agree to indemnify and hold harmless Wormhole, and its parent, subsidiaries, Affiliates, its suppliers, licensors and partners, and the officers, directors, employees, agents, and representatives of any of them from all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney fees) arising out of (i) your use or misuse of the Software or Wormhole Service; (ii) your Wormhole Submissions, including Wormholes use, display or other exercise of its license rights granted herein with respect to your UGC; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights; and (v) your breach of the foregoing representations, warranties, and covenants. Wormhole 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. You agree not to settle any matter without the prior written consent of Wormhole. Wormhole will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
22. Exclusion of Warranties
NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO AS A CONSUMER.
THE SOFTWARE AND WORMHOLE SERVICE ARE PROVIDED “AS IS”, WITH ALL FAULTS, AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN PARTICULAR, WE DO NOT REPRESENT OR WARRANT TO YOU THAT:
- YOUR USE OF THE SOFTWARE AND WORMHOLE SERVICE WILL MEET YOUR REQUIREMENTS;
- YOUR USE OF THE SOFTWARE AND WORMHOLE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED, FREE FROM ERROR, OR FREE FROM VIRUSES OR OTHER HARMFUL OR MALICIOUS COMPONENTS;
- ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SOFTWARE AND WORMHOLE SERVICE WILL BE CORRECT, ACCURATE OR RELIABLE; AND
- DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE AND WORMHOLE SERVICE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
NO CONDITIONS, WARRANTIES OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SOFTWARE AND WORMHOLE SERVICE EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS.
WE MAY CHANGE, SUSPEND, WITHDRAW OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE SOFTWARE AND WORMHOLE SERVICE FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE
23. Limitation of Liability; Damages
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WORMHOLE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE WORMHOLE MATERIALS AND WORMHOLE SUBMISSIONS ON THE SOFTWARE OR WORMHOLE SERVICE OR ANY THIRD PARTY SERVICES, THE SOFTWARE OR WORMHOLE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH WORMHOLE, EVEN IF WORMHOLE OR A WORMHOLE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL WORMHOLE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SOFTWARE OR WORMHOLE SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID WORMHOLE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SERVICES OR OTHERWISE BY THIRD PARTIES OTHER THAN WORMHOLE AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SOFTWARE OR WORMHOLE SERVICE OR RECEIVED BY YOU THROUGH ANY THIRD-PARTY SERVICES.
24. Governing Law and Jurisdiction
This Agreement is entered into in the State of California, U.S.A., and shall be governed by, and construed in accordance with, the laws of the United States of America and the laws of the State of California, without regard to choice of law principles.
To the extent any Dispute, claim, case or controversy is not subject to arbitration as stated in below, you and Wormhole agree to submit exclusively to the jurisdictions of the Superior Court of California for the County of Orange, and the United States District Court for the Central District of California. You and Wormhole agree to waive any jurisdictional, venue, or inconvenient forum (forum nonconveniens) objections and affirmative defenses to such courts (without affecting either party’s rights to remove a case to federal court if permissible).
The Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement and shall not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement. Users who use or access the Software and/or Services or any portion thereof are responsible for compliance with all local laws.
This Section will be interpreted as broadly as applicable law permits.
25. Binding Individual Arbitration; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY.
IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Arbitration is an alternative dispute resolution procedure that allows us to resolve issues without the costs and formalities of formal court proceedings. Any Dispute (as defined below) between you and Wormhole that cannot be resolved by the procedures described herein is submitted to a neutral arbitrator.
25.1. “Dispute” as used herein means any dispute, claim, case or controversy, between you and Wormhole that relates to or arises out of or in connection with:
- Your use or attempted use of the Software, Wormhole Service, or any portion thereof (including your Wormhole Account Balance, and any transactions concerning Wormhole Currency or Content);
- Your participation in a Beta Test;
- Your use or attempted use of Additional Software or any portion thereof;
- Claims alleging violations of rights of privacy or publicity;
- All of Wormhole’s products and services generally; and
- This Agreement, including but not limited to, the validity, enforceability, or scope of the arbitration provisions of this Section.
25.2. Informal Resolution Before Arbitration.
If you have an issue or Dispute that our customer support cannot resolve and that is subject to arbitration as stated in herein, prior to instituting or filing a claim arising out of your Dispute in arbitration, you and Wormhole agree to attempt to resolve the Dispute informally in the interest of helping control costs for both parties, subject to the exclusions from arbitration below.
You and Wormhole agree to negotiate and attempt to resolve in good faith any Dispute between the parties that is subject to arbitration for at least thirty (30) calendar days (“Informal Resolution”), before filing a claim based on such a Dispute for arbitration.
25.3. Initiation of Informal Resolution
You agree that to initiate Informal Resolution with Wormhole, you must send to Wormhole an initial correspondence concerning your Dispute to the following physical mailing and email addresses and provide in that initial correspondence the additional information specified in this Section 9:
Wormhole Labs, Inc., 5901 Engineer Dr.
Huntington Beach, CA 92649 United States of America
You agree that to initiate Informal Resolution, you must include in your initial correspondence: your name; all account names associated with the Wormhole account(s) associated with or operated by you; your address; your current contact information (including email and phone number) so we may get in contact with you; the nature of the Dispute, claim, issue, or problem; and a proposed solution to the Dispute, claim, issue, or problem. You agree that your failure to provide any of the information required of you by this Section results in a failure to initiate the Informal Resolution process and Wormhole is not obligated to respond to your correspondence under this Section. Notice of your correspondence initiating Informal Resolution with Wormhole is effective upon receipt by Wormhole.
If Wormhole initiates Informal Resolution with you, Wormhole will send correspondence initiating the Informal Resolution process to your registered email address and any billing address you have provided us. Notice of this initial Informal Resolution correspondence sent to you by Wormhole is effective upon actual receipt by you or within one (1) business day of transmission of the email correspondence, whichever is earlier. Your failure to respond to our Informal Resolution correspondence does not preclude Wormhole from filing a claim with the arbitrator thirty (30) calendar days from the effective date of the initial Informal Resolution correspondence sent by Wormhole to you.
25.4. Subsequent Notices
You agree that all subsequent communications and notices sent by you to Wormhole in the course of the Informal Resolution process will be sent to the address specified in this Section, above unless otherwise specified during the Informal Resolution process. Notice of any communications from you to Wormhole is effective upon receipt by Wormhole.
After the Informal Resolution process has been initiated by you or Wormhole, Wormhole will send all communications and notices to your registered email address and any billing address you have provided us, unless you specify other, more current contact information for yourself in written correspondence sent to Wormhole in accordance with the requirements of this Section 9. Notice of any communications sent to you by Wormhole is effective upon actual receipt by you or within one (1) business day of transmission of the email correspondence, whichever is earlier.
25.5. European Union Online Dispute Resolution Platform
If you reside in the European Union (“EU”), you may also be entitled to submit your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. The ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.
25.6. Binding Agreement to Arbitrate Certain Disputes
Subject to the exclusions stated below in this Section 9, you and Wormhole agree to submit all Disputes between you and Wormhole, which cannot be resolved by Informal Resolution, to individual binding arbitration, regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
You and Wormhole further understand that, in some instances, the costs of arbitration could exceed the costs of litigation. The parties understand that the right to discovery may be more limited in arbitration than in court. However, both parties to the arbitration will be permitted discovery sufficient to allow them a fair opportunity to present or defend their claims. To that end, after arbitration is initiated, the parties will work together in good faith the determine and agree on the appropriate number of discovery requests and depositions that will be allowed during the discovery phase of the arbitration.
25.7. Disputes Excluded from Informal Resolution and Arbitration. Disputes expressly excluded from Informal Resolution, and which you and Wormhole expressly agree may not be submitted to arbitration under the provisions of this Section are as follows:
- Individual actions within the jurisdictional limits of the small claims courts;
- Enforcement actions through a government agency as permitted by law;
- A complaint or remedy sought under the EU General Data Protection Regulation;
- An action to compel or uphold any prior arbitration decision;
- Actions for injunctive relief in a court of law to preserve the status quo while an arbitration proceeds;
- Disputes related to or arising out of claims of piracy or the creation, distribution, or promotion of products, services, or software that enable or attempt to enable the Unauthorized Use of Wormhole’s Software, Services, or any portion thereof;
- Disputes related to or arising out of claims of tortious interference with Wormhole’s business
- Any claim to enforce or protect, or concerning the validity of Wormhole’s Intellectual Property rights, and any claim related thereto or arising therefrom.
25.8. Arbitration Procedures
You and Wormhole agree that Disputes submitted to arbitration will be conducted by the Judicial Arbitration Mediation Services, Inc. (“JAMS”) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) as modified by this Agreement.
The arbitration will be conducted by a single arbitrator having substantial experience in resolving intellectual property and commercial contract disputes. You and Wormhole agree that the arbitration will be conducted in the English language.
Unless you and Wormhole agree otherwise in a writing signed by both parties, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions. Any decision or award may be enforced as a final judgment by any court of competent jurisdiction.
Your arbitration fees and your share of the arbitrator compensation shall be governed by the JAMS Rules.
25.9. Continuation in Effect.
The parties agree that this Section, and the obligation to arbitrate, will survive the termination of this Agreement or Wormhole’s provision of the Software or Wormhole Services, or any other products or services to you.
25.10. Class Action Waiver.
You and Wormhole agree that any arbitration or court proceeding shall be limited to the Dispute between you and Wormhole individually.
YOU ACKNOWLEDGE AND AGREE THAT:
A CLAIM BY OR ON BEHALF OF OTHER PERSONS, WILL NOT BE CONSIDERED IN, JOINED WITH, OR CONSOLIDATED WITH, THE ARBITRATION PROCEEDINGS OR ANY COURT PROCEEDINGS BETWEEN YOU AND WORMHOLE; YOU WILL NOT SEEK TO BRING, JOIN, OR PARTICIPATE IN ANY CLASS OR REPRESENTATIVE ACTION, COLLECTIVE OR CLASS-WIDE ARBITRATION, OR ANY OTHER ACTION WHERE ANOTHER INDIVIDUAL OR ENTITY ACTS IN A REPRESENTATIVE CAPACITY (E.G., PRIVATE ATTORNEY GENERAL ACTIONS) AGAINST WORMHOLE; UNDER THIS AGREEMENT, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED, ADJUDICATED, OR RESOLVED THROUGH COURT PROCEEDINGS ON A CLASS ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND YOU WILL NOT HAVE, AND TO THE EXTENT AN EXPRESS WRITTEN WAIVER IS REQUIRED, YOU WAIVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR AS A MEMBER OF ANY CLASS OF CLAIMANTS FOR ANY DISPUTE SUBJECT TO ARBITRATION OR ANY DISPUTE BROUGHT IN COURT AGAINST WORMHOLE.
If for any reason, this class and collective action waiver is deemed unenforceable by a court or arbitrator, you and Wormhole agree that the parties’ agreement to arbitrate Disputes herein is then void, and any ongoing or future Dispute will be submitted to a court of competent jurisdiction within the as specified herein, to the exclusion of arbitration. Any Dispute at that time in arbitration will be dismissed without prejudice and refiled in an appropriate court. Under no circumstances do you or Wormhole agree to class or collective procedures in arbitration or court proceedings, or the joinder of claims in arbitration or court proceedings.
26. New Versions of the Software. Wormhole, in its sole discretion, reserves the right to add additional features or functions, or to modify or provide programming fixes, updates, and upgrades, to the Software or Wormhole Service. Wormhole has no obligation to make available to you any modifications, updates, support, maintenance, or subsequent versions of the Software or Wormhole Service. You may have to agree to a renewed version of this Terms of Service if you want to download, install, or use any modifications, updates, or new versions of the Software. You acknowledge that Wormhole may automatically issue any modifications, updates, or upgraded versions of the Software and, accordingly, may modify, update or upgrade the version of the Software that you are using or have installed on your device. You hereby agree that your device may automatically request and receive such modifications, upgrades, or updates.
- Notice. Wormhole may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Software or Wormhole Service. Notice will be deemed given twenty-four hours after the email is sent unless Wormhole is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Software or Wormhole Service. In such case, notice will be deemed given three days after the date of mailing.
- Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
- Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Wormhole to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
- Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
- Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Wormhole as a result of these Terms or your use of the Software or Wormhole Service. You further acknowledge that by submitting UGC or other content, no confidential, fiduciary, contractually implied or other relationship is created between you and Wormhole other than according to these Terms.
- Survival. The Sections entitled Ownership; Proprietary Rights, Wormhole Submissions, Disclaimers; No Warranties, Indemnification; Hold Harmless, Limitation of Liability and Damages, and Miscellaneous will survive any termination of these Terms.
- Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
- Entire Agreement. This is the entire agreement between you and Wormhole relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the said subject matter.
28. Notice to California Residents
Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
29. Supplemental Terms – App Stores
To the extent permitted by applicable law, the following supplemental terms shall apply when accessing the Software through specific devices:
Notice regarding Apple.
- These Terms are between Wormhole and you; Apple is not a party to these Terms.
- The license granted to you hereunder is limited to a personal, limited, non-exclusive, non-transferable right to install the Software on the Apple device(s) authorized by Apple that you own or control for personal, non-commercial use, subject to the Usage Rules set forth in Apple’s App Store Terms of Services.
- Apple is not responsible for the Software or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the Software.
- In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software.
- Apple is not responsible for addressing any claims by you or a third party relating to the Software or your possession or use of the Software, including without limitation (a) product liability claims; (b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Software or your possession and use of the Software infringe such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement, or discharge of such intellectual property infringement claim.
- You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Apple and its subsidiaries are third-party beneficiaries of these Terms and upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof.
- Wormhole expressly authorizes the use of the Software by multiple users through the Family Sharing or any similar functionality provided by Apple.
Microsoft Store. By downloading the Software from the Microsoft Store (or its successors) operated by Microsoft, Inc. or its affiliates, you specifically acknowledge and agree that:
- You may install and use one copy of the Software on up to five (5) Windows Phone enabled devices that are affiliated with the Microsoft account you use to access the Windows Phone Store. Beyond that, we reserve the right to apply additional conditions or charge additional fees.
- You acknowledge that Microsoft Corporation, your phone manufacturer, and network operator have no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
Amazon Appstore. By downloading the Software from the Amazon Appstore (or its successors) operated by Amazon Digital Services, Inc. or affiliates (“Amazon”), you specifically acknowledge and agree that:
- Amazon does not have any responsibility or liability related to compliance or non-compliance by Wormhole or you (or any other user) under these Terms or the Amazon Appstore EULA Terms.
Google Play. By downloading the Software from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”), you specifically acknowledge and agree that:
- to the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of the Software that you download from Google Play, and
- you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Wormhole or you (or any other user) under these Terms or the Google Play Terms.
30. Digital Millennium Copyright Act (“DMCA”) Notices
Submitting a DMCA Notice.
It is our policy to respond to all notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof, and you believe that any content hosted on our web site or Wormhole Service infringes your copyrights, then you may submit a Notice pursuant to the Digital Millennium Copyright Act (“DMCA”).
For your Notice to be valid under the DMCA. you must provide the following information in writing:
- Identification of your copyrighted material that you claim has been infringed.
- Identification of the material that is claimed to be infringing and where it is located on the Wormhole website or Wormhole Service.
- Information reasonably sufficient to permit Wormhole’s Designated Copyright Agent to contact you such as your name, address, telephone number, and e-mail address.
- A statement that you have a good faith belief that use of the material, in the manner complained of, is not authorized by the copyright owner, its agent, or law.
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
- Your electronic or physical signature.
Please note that under Section 512(f) of the DMCA, any person who knowingly and materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notice to Restore Content Removed
If you believe that your material has been removed by mistake or misidentification, you may provide a written Counter Notice containing the following information.
- Your name, address, telephone number, and email address.
- A description of the material that was removed and the location on the web site or Wormhole Service where it appeared.
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
- A statement that you consent to the jurisdiction of the Federal District court tor the judicial district in which your address is located, or if your address is outside of the United States, any jurisdiction in which you may be properly served, and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person\
- Your electronic or physical signature.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly and materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Wormhole’s Designated Copyright Agent
Our designated agent to receive DMCA notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, 36 Clyde Street, San Francisco, CA 94107, or by email at copyright@Wormhole.com.
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice or counter-notice may not be valid.
The Software and Wormhole Service are offered by Wormhole Labs Inc. For all questions, inquires, or complaints in regards to these Terms you can contact us by mail at Wormhole Labs Inc., 11878 La Grange 2nd Floor, Los Angeles CA 90025, or by email at email@example.com. Any other feedback, comments, requests for technical support, or other communications should be directed to Wormhole customer service through firstname.lastname@example.org.