THIS VERSION OF THE WORMHOLE LABS, INC. END USER LICENSE AGREEMENT WILL BECOME EFFECTIVE ON JULY 20, 2020.
Please read this END USER LICENSE AGREEMENT (the “Agreement”)
carefully. It is a legal document that explains your rights and
obligations arising out of and related to your use of Wormhole’s
Software as defined herein, including any Services you access or
purchases you make through the Software.
In particular, we want to highlight some important terms, policies, and procedures in this Agreement. By accepting this Agreement :
1.You are also agreeing to any other Wormhole rules and policies that are expressly incorporated into this Agreement.
2.You grant Wormhole a license to use whatever content you create using the Service. You can find more information concerning this license in Section 2 below.
3.You and Wormhole agree to resolve disputes between us in individual arbitration.
PLEASE NOTE THAT SECTION 19 BELOW CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
TO ENTER INTO THIS LICENSE AGREEMENT, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS TO YOUR ACCOUNT. YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THIS AGREEMENT (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THIS AGREEMENT. IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION AND YOUR PARENT OR LEGAL GUARDIAN CONSENTS TO THIS AGREEMENT AND YOUR USE AND/OR DOWNLOAD OF THE SOFTWARE, YOU MUST BE THIRTEEN YEARS OR OLDER TO USE OR DOWNLOAD THIS SOFTWARE. THIS SOFTWARE IS NOT INTENDED FOR INDIVIDUALS UNDER THE AGE OF THIRTEEN.
Certain words or phrases are defined to have certain meanings when used in this Agreement, and those words and phrases apply throughout this Agreement to have the meanings defined below.
As used in this Agreement, the following capitalized words have the following meanings:
“Unauthorized Use Detection Software” means functionality intended to identify Unauthorized Use of Wormhole Services.
“Unauthorized Use” means programs, methods, or other processes which may allow a user to make unauthorized changes to Wormhole’s Services and any associated functionalities, such as those tied to third-party services.
“Confidential Information” means any non-public information comprised in and related to the Software, including without limitation information related to gameplay or other content, Wormhole Currency, Content, the Services, your own feedback and comments, and the feedback or comments of any other licensee of the Software or any Wormhole representative.
“Content” means any copyrightable material and individual elements thereof, whether copyrightable or registrable with the United States Copyright Office; digital and virtual elements and interfaces; virtual items and environments; augmented reality elements and environments; virtual graphical effects; augmented reality graphical effects; and any other content that Wormhole makes available for you to access or download through or in connection with the Software or Wormhole’s Services, and expressly includes Licensed Music, and User Generated Content that has been licensed to Wormhole by our users.
“User Generated Content” or “UGC” means any and all data that is prepared or generated on or in connection with the Software or Wormhole’s Services, and any and all data 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.
“Wormhole” means, Wormhole Labs, Inc., a California Corporation, having a principal place of business at 5901 Engineer Dr., Huntington Beach, CA 92649, USA.
“Feedback” means any feedback, responses, impressions, or suggestions that you provide to Wormhole regarding the Software, Services, or other Wormhole Services, whether solicited from you by Wormhole, and includes but is not limited to, comments, ideas, and all other types of information, including software and code, that you provide, publish, or otherwise communicate directly or indirectly (including by your employees, agents, contractors, or representatives) to Wormhole or its agents that relates to the Services or Software.
“Products” means any hardware products and or extensions created, produced, manufactured, sold, leased, or licensed by Wormhole.
“Services” means any and all services, whether paid or unpaid, made available to you through the: (a) websites and social media accounts that are owned and/or operated by Wormhole, including the virtual reality universe and platform provided to you by Wormhole; and (b) Software, including but not limited to services to acquire, maintain, access, and use a Wormhole Account Balance, Wormhole Currency, Content, Additional Software; and (c) Beta Testing .
“Software” means the proprietary software application(s) offered to you by, and associated with, Wormhole Labs, Inc., and any patches, updates, and upgrades to the application offered to you by, and associated with Wormhole, and all related content and documentation made available to you by Wormhole under this Agreement. Software includes but is not limited to all software code, copyrightable material embodied in such software code, titles, themes, objects, characters, names, dialogue, virtual elements, augmented reality elements, physical locations, virtual locations, augmented reality locations, stories, artwork, animation, concepts, sounds, audio-visual effects, methods of operation, scripts and text, and musical compositions that are comprised in or related to the application, and any copies of any of the foregoing, which are offered or provided to you by Wormhole and its Partners. Software specifically includes all Wormhole Currency and Content for which you have paid the associated fee set by Wormhole or its Partners, or to which you have otherwise acquired a license under Section 2.
This Agreement is entered into between you and Wormhole Labs, Inc., and the foregoing is expressly incorporated into this Agreement as if fully set forth below
1. Software and Services.
Your Wormhole Account
To use the Software or Services, you must register a Wormhole account (the “Account”). Creation and use of an Account are subject to the following terms and conditions:
2. Grant of License
If you accept and comply with the terms of this Agreement, Wormhole will grant, and you will receive, a limited, revocable, non-exclusive, non-transferable, non-sublicensable limited license to use the Software on compatible devices under your legitimate control for your personal entertainment purposes (the “License”), subject to the terms of this Agreement. The grant of this License is expressly conditioned on your compliance with this Agreement and the License Limitations set forth in Section 3, “License Limitations,” below.
This License becomes effective on the date you accept this Agreement. This License does not grant you any rights beyond those expressly stated herein, nor does this License grant any title or ownership interest in the Software or any portions thereof.
3. License Limitations
You may not do, or attempt to do, any of the following:
4. Updates and Patches
Wormhole may provide patches, updates, or upgrades to the Software that must be installed in order for you to continue to use the Software or Services. Wormhole may update the Software remotely without notifying you, and you hereby consent to Wormhole applying patches, updates, and upgrades. Wormhole may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software or Services at any time. You acknowledge that your use of the Software or Services does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Software or Services, including but not limited to (where applicable) any rewards, trophies, achievements, user status, Wormhole Currency, Wormhole Content, third-party Currency, and third- party Content. You also acknowledge that any avatar data, user data, user progress, graphical customization, or other data related to your use of the Software or Services may cease to be available to you at any time without notice from Wormhole, including without limitation after a patch, update, or upgrade is applied by Wormhole. Wormhole does not have any maintenance or support obligations with respect to the Software or Services.
5. Wormhole Currency and Content
Wormhole may offer you the ability participate in the Wormhole Account Balance service (“Wormhole Account Balance”) to acquire licenses to use (a) in-service currency that may be purchased in denominations set by Wormhole for fee amounts set by Wormhole, for use in the course of using the Software and/or Wormhole’s Services (“Wormhole Currency”), or (b) specific, additional Content, through a variety of means, including but not limited to: (i) purchase of a limited license to use Wormhole Currency or additional Content; (ii) earning a limited license to use Wormhole Currency or such additional Content by performing or accomplishing specific tasks through use of the Software or Wormhole’s Services; or through (iii) exchanging such Wormhole Currency for a limited license to use or access certain Content. Wormhole may facilitate the exchanges through the Software, in some cases for a fee. You may only use such Wormhole Currency or Content if you pay the associated fee(s) (if any).
When you earn or pay the associated fee(s) to access Wormhole Currency or Content, or otherwise exchange Wormhole Currency for Content, your use of such Purchased Wormhole Currency is explicitly subject to the terms and conditions of this Agreement. In particular, your use of Wormhole Currency and any such additional Content is explicitly limited by the License Limitations set forth in Section 3 herein. Regardless of any references Wormhole may make outside this Agreement to purchasing, selling, or exchanging Wormhole Currency or Content, your permission to use Wormhole Currency and Content is provided under the License identified in Section 1 herein, which remains subject to all applicable limitations of use set by Wormhole concerning Wormhole Account Balance. Your use of Wormhole Account Balance is subject to Wormhole’s Terms of Service and the terms of this Agreement. Wormhole reserves the right to reduce, liquidate, deactivate, suspend, or terminate your Wormhole Account Balance if Wormhole determines, in its sole discretion, after investigation, that you have violated this Agreement or any of the License Limitations set forth in Section 3 herein.
Neither Wormhole Currency nor Content used, accessed, or obtained through Wormhole Account Balance are redeemable for money or monetary value from Wormhole or any other person, except as otherwise required by applicable law. Wormhole Currency and Content do not have an equivalent value in any real currency and do not act as a substitute for real currency. No Wormhole Currency or Content that may be provided to you has any cash value. Wormhole Account Balance does not accrue interest, is not insured by the Federal Deposit Insurance Corporation (FDIC), and does not confer upon you any personal property right. Neither Wormhole nor any other person or entity has any obligation to exchange Wormhole Currency or Content for anything of value, including, but not limited to, real currency. You acknowledge that Wormhole may engage in actions that may impact the perceived value or purchase price, if applicable, of Wormhole Currency and Content at any time, except as prohibited by applicable law.
All purchases of Purchased Wormhole Currency and Content are final and are not refundable, transferable, or exchangeable under any circumstances, except as otherwise explicitly stated by Wormhole or required by applicable law. Wormhole, in its sole discretion, may impose limits on the amount of Wormhole Currency or Content that may be purchased, earned, accumulated, redeemed or otherwise used by individual and/or collective users of the Software or Wormhole’s Services.
Except as otherwise prohibited by applicable law, Wormhole, in its sole discretion, has the absolute right to manage, modify, substitute, replace, suspend, cancel or eliminate Wormhole Currency or Content, or the Wormhole Account Balance service, including your ability to access or use Wormhole Currency or Content, or Wormhole Account Balance, without notice or liability to you. You may not transfer, sell, gift, exchange, trade, lease, sublicense, or rent Wormhole Currency or Content except within the Software or through Wormhole’s Services as expressly permitted by Wormhole.
Except as otherwise prohibited by applicable law, Wormhole reserves and retains all rights, title, and interest, in and to the Wormhole Currency and Content. You expressly acknowledge that the license to use Wormhole Currency and Content under the License shall terminate upon termination of the License and as otherwise provided herein, or by any additional licenses required to use, access, exchange, or earn licenses to use Wormhole Currency and/or Content.
Wormhole will not send you a statement of itemized transactions for your Wormhole Account Balance. You may review your Wormhole Account Balance or review the Wormhole Account Balance transactions on the Account Management page for your associated account. You are solely responsible for verifying that the correct amount of Wormhole Currency, or specific licensed Content, has been added to or deducted from your Wormhole Account Balance.
When you provide payment information to Wormhole or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you, and you authorize Wormhole to charge such payment method for the full amount of the transaction. Sales tax may apply to your redemption of your Wormhole Account Balance for products or services purchased through Software or Wormhole’s Services in some jurisdictions. The amount of taxes charged depends on several factors, including the type of product or service purchased. You should consult your financial institution concerning questions related to all such taxes applied to such transactions.
You are responsible for all uses of your Wormhole Account Balance. If you suspect that your Wormhole Account Balance has been compromised or used without authorization, you should contact Wormhole Customer Service at [email@example.com] so the matter can be investigated. Wormhole may request or require additional information and/or documentation from you to verify your claim and, upon verification, Wormhole will take actions to freeze your Wormhole account until the matter is, in Wormhole’s sole discretion, resolved. You acknowledge and agree that, regardless of any action taken by you, and any action taken by Wormhole on your behalf, Wormhole has sole discretion in determining the validity of your claim, and if so, the appropriate remedy. Your use of Wormhole Account Balance constitutes your agreement with this Section 4 and the terms and conditions of this Agreement .
6. User Generated Content
Wormhole may provide features through the Software or the Services that allow you to create, develop, modify, or contribute User Generated Content (“UGC”) and to make available UGC to some or all users of the Software or Services. These features may also allow you to interact with, manipulate, and partially or wholly change UGC. Wormhole may modify, limit, or discontinue certain features of the Service without notice or liability to you..
Subject to the rights and licenses you grant in this Agreement, you retain whatever rights that you may have in your UGC. Your rights in UGC only extend to the new, original content you create as part of your UGC and does not extend to or grant any rights to the Services, Software, Content created or made available by third-parties, or Content made available by Wormhole through the Software or Services
License to Wormhole.
You hereby grant Wormhole a perpetual, irrevocable, worldwide, fully paid up, non-exclusive, sublicensable, right and license to exploit any and all of your UGC and all elements thereof, in any and all media, formats and forms, known now or hereafter devised. Wormhole shall have the unlimited right to copy, reproduce, fix, modify, adapt, translate, reformat, prepare derivative works from, add to and delete from, rearrange and transpose, manufacture, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, provide access to, broadcast, and practice such UGC and all modified and derivative works thereof and any and all elements contained therein, and use or incorporate a portion or portions of the UGC, or the elements thereof, in conjunction with or into any other material
In the event you upload or otherwise transmit to Wormhole any concepts, ideas, or Feedback relating to the Software or Services, you shall not be entitled to any compensation for any such submission, unless expressly agreed between you and Wormhole, and Wormhole may freely use any such submission in any manner it deems appropriate. Any such submission by you shall not create any contractual relationship between you and Wormhole. Except to the extent that any such waiver is prohibited by law, you hereby waive the benefit of any provision of law known as “moral rights” or “droit moral” or any similar law in any country of the world. You represent and warrant that the UGC does not infringe upon the copyright, trademark, trade dress, patent, trade secret, or other intellectual property rights of any third party.
The rights you grant to Wormhole in this Section are provided on a through-to-the-audience basis, which means the owners or operators of third-party services will not have any separate liability to you or any other third-party for UGC provided to or used on such third-party services via Wormhole’s Software or Services. Wormhole needs these permissions in order to make your UGC available to players as part of the Services (e.g., augmented reality platform, virtual reality platform, hybrid platforms), and to make it available to users off of the Services (e.g., for use on other platforms). These rights need to be irrevocable because UGC is distributed by us and others across many platforms.
You understand that you are not entitled to receive any compensation, fees, consideration, or other remuneration in connection with your UGC for any reason, including Wormhole’s exercise of the rights You grant to Wormhole in this Section. Wormhole is not obligated to exercise the rights you grant.
Wormhole may, in its sole discretion, choose to make available sound recordings and the musical works embodied in the sound recordings, which have been submitted by other users to Wormhole in the form of UGC (“Licensed Music”). If Wormhole makes available Licensed Music for users in the course of providing the Services, subject to your agreement to the terms and conditions of this Agreement, Wormhole will grant you a non-exclusive, personal, limited, revocable, non-transferable license to: (a) synchronize the Licensed Music into UGC during the period of time that the Licensed Music is made available through the Services, and (b) play, listen, and interact with musical UGC comprising to any extent Licensed Music solely through the Services. You may not use or attempt to use the Licensed Music in any way except as explicitly authorized by Wormhole.
Your modifications (e.g., edits, use of a portion of) the Licensed Music, which you may synchronize into UGC, are considered derivative works included in the definition of Licensed Music, the rights to which are retained by Wormhole and its licensors.
Special Rules for Recording Artists
If you are a composer or author of a musical work and are (a) affiliated with or a member of a performing-rights organization (“PRO”), (b) under contract with a record label, or (c) have assigned your rights to a music publisher or any other person or entity, then you must notify the interested party of the royalty-free license you grant through this Agreement to Wormhole. You are solely responsible for ensuring your compliance with the relevant party’s reporting or contractual obligations, and (if applicable) obtaining the consent of that party to grant the royalty-free license(s) in this Agreement, including if you create any new recordings through the Service that your label may attempt to claim.
You represent and warrant that any UGC that comprises to any extent Licensed Music is not subject to the payment of royalties to a third party, and that Wormhole has no obligation to pay royalties to any third party, including but not limited to a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO (e.g., ASCAP, BMI, SESAC, etc.), a sound recording PRO, any unions or guilds, or other third parties.
Wormhole does not allow any activities through the Software or the Services that constitute or assist in the infringement of any individual or entity’s intellectual property. You may not create, generate, or make available through the Software or the Services any UGC to which you do not have the right to grant Wormhole the licenses stated herein with respect to all of the elements (including the Licensed Music) of the UGC, whether copyrightable under the laws of any jurisdiction.
If you do choose to create, generate, or make available your UGC through the Software or Services, You are solely responsible for your UGC and represent and warrant that:
(a) you are the creator and owner of such UGC, or that you have all the necessary licenses and rights to use and authorize Wormhole to use and exploit the license granted herein;
(b) your UGC, and Wormhole’s use of any UGC provided to Wormhole by you as contemplated under this Agreement, does not infringe or violate any third-party rights, including but not limited to copyright, trademark, patent, trade secret, trade dress, moral rights, or the rights of privacy or publicity;
(c)Wormhole does not need to obtain any further licenses, provide attribution, or pay royalties or other compensation to any third parties to use the UGC in the manner contemplated by this Agreement; and
(d) Wormhole’s use of your UGC will not violate any third-party contract or cause Wormhole to violate any applicable laws or regulations.
To the fullest extent permitted by law, You waive and agree to waive all rights of authorship, paternity, attribution, integrity, disclosure, withdrawal, and any other rights that are known or referred to as “moral rights”, “artist’s rights”, “droit moral”, or other similar rights, recognized under any legal or equitable theory of any country or under any treaty, regardless of whether that right is referred to as a “moral right” (collectively “Moral Rights”) in and to your UGC. You further knowingly and irrevocably agree to not exercise any Moral Rights in and to your UGC that you have not waived in any manner that interferes with any exercise of granted rights, or which imposes liability on Wormhole. You waive and agree not to assert your Moral Rights even if your UGC is altered or changed in a manner not agreeable to you.
7. Global Services
If you provide Wormhole any Feedback through any means, you hereby grant Wormhole a perpetual, irrevocable, non-exclusive, fully paid up, royalty-free, worldwide, sublicensable, transferable, and assignable license to use, reproduce, distribute, modify, adapt, prepare derivative works from, publicly perform, publicly display, sell, offer to sell, import, and otherwise exploit any and all such Feedback for any purpose, for all current and future methods and forms of exploitation. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert any such rights. You understand and agree that Wormhole is not required to make any use of any Feedback that you provide. You agree that if Wormhole makes use of your Feedback, Wormhole is not required to credit or compensate you for the use of your Feedback in any of the ways described or contemplated herein. You represent and warrant that you have sufficient rights in any and all Feedback that you provide to Wormhole to grant Wormhole and other affected parties the rights described herein. This includes but is not limited to intellectual- property rights and other proprietary and/or personal rights that may apply.
Wormhole and its licensors own all right, title, and interest in the Intellectual Property, Software, and Services, including all in-service features authored, created, produced, and developed by Wormhole. Features may be made available to you via the Software and Services that provide prefabricated templates or in-walkabout reality items to use in connection with your UGC. Your use of a template does not give you any copyrights or other ownership rights in the template or elements or components thereof, whether such elements or components are registrable with the Copyright Office or any other governing office worldwide.
The Software and Services may comprise materials licensed by third parties to Wormhole, and these third parties may enforce their ownership rights against you in the event you commit acts in violation of this Agreement which infringe or violate the rights of such third parties.
The following elements and components of the Software and/or Services are owned or licensed by Wormhole, however, these elements and components are not an exhaustive list of such elements, and additional elements and components may be identified in this list in future versions of this Agreement:
Wormhole is a trademark of Wormhole Labs, Inc., and its affiliates in the United States of America and elsewhere. All rights granted to you under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.
10. Additional Software
The Software and/or Services may comprise additional software that requires you to agree to additional terms prior to your use, download, and installation thereof (“Additional Software”). You agree that Wormhole may install Additional Software on your hard drive as part of the installation of the Software and to enable your use of certain features of the Services, and from time to time, during the term of this Agreement.
Unless Wormhole grants you a valid license and alphanumeric key to use and activate the Additional Software, you may not access, use, copy, display, distribute, reverse engineer, derive source code or other copyrightable works from, modify, disassemble, decompile, or create derivative works based on the Additional Software. Your use of the Additional Software shall be subject to the terms of this Agreement.
Subject to the terms of this Agreement, you may make one (1) archival copy of the Additional Software, limited to archival purposes only.
11. Consent to Monitor
By downloading, installing, or using the Software and/or Services, or any component thereof, you expressly consent to Wormhole’s use of Unauthorized Use Detection Software to monitor your computer or mobile device’s memory for Unauthorized Use and unauthorized third-party programs running concurrently with the Software and/or Services.
IN THE EVENT THAT WORMHOLE DETECTS AN UNAUTHORIZED THIRD-PARTY PROGRAM OR UNAUTHORIZED USE OF THE SOFTWARE OR SERVICES, OR ANY COMPONENT THEREOF, (a) THE UNAUTHORIZED USE DETECTION SOFTWARE MAY COMMUNICATE INFORMATION BACK TO WORMHOLE, INCLUDING BUT NOT LIMITED TO, YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD-PARTY PROGRAM OR UNAUTHORIZED USE DETECTED, AND THE TIME AND DATE; AND/OR (b) WORMHOLE MAY EXERCISE ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, WITH OR WITHOUT PRIOR NOTICE TO YOU OR ANY OTHER USER .
In addition, the Services may use or provide you a tool that will allow your computer system to forward information to Wormhole in the event that the Software crashes or Services are disrupted, including system and driver data, and by agreeing hereto you consent to Wormhole receiving and/or using this data for any purpose not prohibited by law.
The Software and/or Services may incorporate third-party technology and data that enables advertising within the Services and/or in certain features thereof, which may be temporarily downloaded to your personal computer or electronic device, and which may be replaced, from time to time in the course of your use of the Software or Services. As a part of this process, Wormhole and/or its authorized thirdparty advertisers or Partners may collect standard information that is sent when your personal computer or device is connected to the internet, including your internet protocol address (“IP Address”).
13. Beta Testing of Unreleased Services and Features
Certain unreleased versions of the Software, Services, or features which may be comprised therein may be made available to you through the Services for testing (“Beta Test”). Your participation in a Beta Test will be governed by the terms of this Section 13.
Eligibility. You must be eligible to participate in a Beta Test. To be eligible to participate in a Beta Test, you must meet the following requirements
Whether you meet the eligibility requirements identified herein does not guarantee you will be selected to participate in a Beta Test.
Confidentiality. If a Beta Test is confidential, Wormhole’s invitation to you to participate in the Beta Test will include a notice stating that the Beta Test is confidential. During a confidential Beta Test, the existence of the Beta Test and all elements thereof shall be kept confidential, and you agree to keep secret all information arising out of or in connection with the Beta Test from every person or entity who is not also a Beta Tester participating in the same Beta Test, until Wormhole informs you that the Beta Test is no longer confidential.
After the Beta Test, Wormhole may determine that certain aspects of, or information you receive(d) in connection with, the Beta Test are no longer confidential, however, other information concerning the Beta Test may remain confidential. At such time, only the aspects of the Beta Test or information in connection with the Beta Test that Wormhole communicates to you are no longer confidential may be disclosed by you to parties who are not Beta Testers in the same Beta Test. Further, Wormhole may require that confidential information remain confidential and may not be disclosed to Wormhole’s competitors.
Information that is confidential during a Beta Test includes, but is not limited to:
Beta Test Acknowledgements. You acknowledge that:
Beta Test Termination. By participating in a Beta Test, you acknowledge and agree:
14. Disclaimers and Limitation of Liability
NOTHING IN THIS AGREEMENT WILL PREJUDICE THE STATUTORY RIGHTS THAT YOU MAY HAVE AS A CONSUMER OF THE SOFTWARE OR SERVICES. SOME COUNTRIES, STATES, PROVINCES, OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY AS STATED IN THIS SECTION, AND IN SUCH CASE, THE BELOW TERMS MAY NOT FULLY APPLY TO YOU. INSTEAD, IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIMITATIONS BELOW SHALL APPLY ONLY TO THE EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTIONS.
THE SOFTWARE (INCLUDING ANY WORMHOLE CURRENCY AND CONTENT) AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. WORMHOLE, ITS LICENSORS, AND ITS AND THEIR AFFILIATES DISCLAIM ALL WARRANTIES, CONDITIONS, COMMON LAW DUTIES, AND REPRESENTATIONS (EXPRESS, IMPLIED, ORAL, AND WRITTEN) WITH RESPECT TO THE SOFTWARE AND SERVICES, INCLUDING WITHOUT LIMITATION ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS OF ANY KIND, SUCH AS TITLE, NON- INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR SERVICES, AUTHORITY, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER WORMHOLE KNOWS OR HAS REASON TO KNOW OF ANY SUCH PURPOSE), SYSTEM INTEGRATION, ACCURACY OR COMPLETENESS, RESULTS, REASONABLE CARE, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, AND LACK OF VIRUSES, WHETHER ALLEGED TO ARISE UNDER LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
WITHOUT LIMITING THE GENERALITY AND SCOPE OF THE FOREGOING, WORMHOLE, ITS LICENSORS, AND ITS AND THEIR AFFILIATES MAKE NO WARRANTY THAT (1) THE SOFTWARE OR SERVICES WILL OPERATE PROPERLY, (2) THAT THE SOFTWARE OR SERVICES WILL MEET YOUR SYSTEM OR PERSONAL REQUIREMENTS, (3) THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, BUG FREE, OR ERROR FREE IN ANY OR ALL CIRCUMSTANCES, OR (4) THAT ANY DEFECTS IN THE SOFTWARE OR SERVICES CAN OR WILL BE CORRECTED . ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE OR IN ANY OTHER COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED. WORMHOLE, ITS LICENSORS, AND ITS AND THEIR AFFILIATES DO NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE, OR SECURE OPERATION OF OR ACCESS TO THE SOFTWARE OR SERVICES OR ANY PORTION THEREOF. THIS PARAGRAPH WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW .
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WORMHOLE, NOR ITS LICENSORS, NOR ITS OR THEIR AFFILIATES, NOR ANY OF WORMHOLE’S SERVICE PROVIDERS (COLLECTIVELY, THE “WORMHOLE PARTIES”), SHALL BE LIABLE IN ANY WAY FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE (INCLUDING ANY WORMHOLE CURRENCY OR CONTENT), SERVICES, OR ANY PORTION THEREOF, OR ANY DELAY IN, LACK OF FUNCTIONALITY OF, OR YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, EVEN IN THE EVENT OF A WORMHOLE PARTY’S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE, AND EVEN IF A WORMHOLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE WORMHOLE PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE (INCLUDING ANY WORMHOLE CURRENCY OR CONTENT) OR SERVICES WILL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) TO WORMHOLE FOR THE SOFTWARE (INCLUDING ANY WORMHOLE CURRENCY OR CONTENT) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY .
This section applies to the extent permitted by applicable law. If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.
You agree to indemnify, pay the defense costs of, and hold Wormhole, its licensors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by you of this Agreement or negligence by you in connection with this Agreement, the Software, Services, or any portion thereof, (b) any act or omission by you in using the Software (including any Wormhole Currency or Content) Services, or any portion thereof, or (c) any claim of infringement or violation of any third-party intellectual property rights arising from Wormhole’s use of your UGC or Feedback as provided under Section 11 of this Agreement. You agree to reimburse Wormhole on demand for any costs incurred by Wormhole and any payments made or loss suffered by Wormhole, whether in a court judgment or settlement, based on any matter covered by this Section 9.
16. Term and Termination
(a) Term. This Agreement is effective upon your creation of a Wormhole account, and shall remain in effect until it is terminated or superseded by a new or amended Agreement, or, if neither of the foregoing events occur, as long as you continue using the Software and/or Services, or any portion thereof. In the event Wormhole chooses to cease providing the Services, or license to a third party the right to provide the Services, Wormhole shall provide you with no less than thirty (30) calendar days prior notice. Neither the Software nor Services, nor Wormhole’s agreement to provide access to the Services shall be considered a rental or lease of time on the capacity of Wormhole’s servers or other technology .
17. 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 Section 19 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 non conveniens) 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 17 will be interpreted as broadly as applicable law permits.
18. 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 between you and Wormhole that cannot be resolved by the procedures described herein is submitted to a neutral arbitrator.
19.1 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 Section 19 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 in Section 19.3.2 below.
You and Wormhole agree to negotiate and attempt to resolve in good faith any Dispute between the parties that is subject to arbitration as stated in Section 19, between us for at least thirty (30) calendar days (“Informal Resolution”), before filing a claim based on such a Dispute with the arbitrator.
“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:
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:
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.
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 are 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 19. 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.
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. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.
19.3.1 Binding Agreement to Arbitrate Certain Disputes
Subject to the exclusions stated in this Section 19, 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.
19.3.2 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 19, are as follows:
19.3.2 Arbitration Procedures
You and Wormhole agree that Disputes submitted to arbitration will be conducted by the JudicialArbitration 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 effective July 1, 2020 (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 Streamlined Arbitration Rules.
19.3.5 Continuation in Effect.
This Section 19 survives termination of this Agreement or Wormhole’s provision of the Services, or any other products or services to you .
19.4 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
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.
You and Wormhole agree that if any provision of this Agreement, or portion thereof, is found invalid, unenforceable, or illegal, such portion shall be severed and the remainder of this Agreement shall remain in full force and effect.
21. Amendments to this Agreement
24. Additional Terms
The terms and conditions of this Section 24 apply with respect to Software available for use on any Apple, Inc. (“Apple”) iPhone or iPad devices that you own or control:
You acknowledge that your agreement is not with Apple. Wormhole, not Apple, is solely responsible for the Software and the content thereof.
Your use of the Software shall be subject to the terms of this Agreement and as permitted by the Usage Rules set forth in the App Store Terms and Conditions as of the date you download or first use the Software. By downloading the Software on your Apple iPhone or iPad device, you acknowledge you have reviewed, understood, and agree to the Apple App Store Terms and Conditions .
You agree that Apple has no maintenance or support obligations with respect to the Software or Services.
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Software or Services. If you are legally entitled to a warranty in your country or other jurisdiction, then in the event of any failure of the Software or Services to conform to such required warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid by you to Apple for the Software. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software or Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to such required warranty will be Wormhole’s sole responsibility. However, you understand and agree that in accordance with this Agreement, Wormhole has disclaimed all warranties of any kind with respect to the Software and Services, and therefore, there are no warranties applicable to the Software or Services, except those required by law .
As between Apple and Wormhole, Wormhole, not Apple, is responsible for addressing your or any third party’s claims relating to the Software or Services or your possession and/or use of the Software or Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Software or Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Software or Services or your possession and use of the Software or Services infringes that third party’s intellectual property rights, Wormhole, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim (if and to the extent required under this Agreement).
You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated. Notwithstanding the foregoing, Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
Any end-user questions, complaints or claims with respect to the Software should be directed to