Terms of Service
Last Updated: August 31, 2015
Welcome! Please read these Terms of Service (the “Terms”) carefully because they govern your use of Wrap Media, LLC’s website located at www.wrap.co (the “Site”), our web-based authoring tool and analytics dashboard (“Authoring Platform”) for building and managing app-like messages that are delivered as card-based, swipe-able content by way of an html link and viewable in the mobile browser (“Wraps”), and our Wraps. To make these Terms easier to read, the Site, the Authoring Platform, and our Wraps are collectively called the “Services.”
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you’ll have to have an account (“Account”). You can create an Account via the Site, or you can login to an existing Account created by your employer. You’ll be able to create or login to your Account, as applicable, through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create or log you into your Account, as applicable, by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
Using the Services
The Authoring Platform
If you are an employee of an enterprise customer that has paid for a subscription to use the Authoring Platform, you’ll be able to use the Authoring Platform through your employer’s Account and on behalf of your employer to create Wraps, publish and distribute them to audiences and platforms of your choice, and view analytics data regarding the performance of and interactions with your Wraps. For access to the Professional version of the Authoring Platform, your company must have no more than $2 million in annual revenue or 20 employees. For access to the Small Business version of the Authoring Platform, your company must have no more than $20 million in annual revenue. Additional terms may apply if your employer has entered into a separate enterprise agreement with us for use of the Authoring Platform.
Individual users may also access the Authoring Platform, either for free or on a paid subscription basis (the “Free Version” and the “Paid Version”, respectively), for their individual consumer use, via their personal Account created via the Site. Individual users will not be able to access the full functionality of the Authoring Platform, which is reserved for enterprise customers. If you choose to use the Free Version, you’ll be able to access and use only certain limited features of the Authoring Platform, and only for personal, non-commercial purposes (e.g. to create, publish, and distribute Wraps to your friends). If you choose to use the Paid Version, you’ll be able to use additional functionality of the Authoring Platform not available to users of the Free Version, to create Wraps, publish and distribute them to audiences and platforms of your choice, and view analytics data regarding the performance of and interactions with your Wraps. Wrap provides for a one-time 30 consecutive calendar day trial period (“Trial Period”) during which a user can utilize the Paid Version free of charge (“Trial License”). Upon the expiration of the Trial Period, your free access to the Paid Version will automatically cease, and if you want to continue to use all the functions of the Paid Version, you’ll need to pay the applicable subscription fee. Notwithstanding the foregoing, we reserve the right to charge a fee for access to and use of the Authoring Platform (and any versions thereof) at any time.
Interacting with Wraps and the Site
If you are an end-user that has received a Wrap via an html link (via email, SMS, social platform post, or ad network), you’ll be able to view the contents of such Wrap, interact with the pages within such Wrap, and share a link to the Wrap via email, SMS, or posting to a social platform (such as Facebook or Twitter). Additionally, such end-users can create an Account with us through the Site, which will enable them to save Wraps to their Account. These Terms also govern your general use of and interaction with the Site.
To the extent any portion of the Services is made available to you for a fee, you will be required to select a payment plan and provide Wrap with accurate information regarding your credit card or other payment instrument. You will promptly update your Account information with any changes in your payment information. You agree to pay Wrap the amount that is specified in the applicable payment plan in accordance with these Terms and any other terms associated with such payment plan, and you authorize Wrap to bill your payment instrument on a periodic basis in accordance with such terms. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If we do change prices, we will provide notice of the change on the Site and through the Services and in an email to you at least 30 days before the change is to take effect. Your continued use of the Services after the price change goes into effect constitutes your agreement to pay the changed amount. Wrap may choose to bill through an invoice, in which case, full payment for invoices issued must be received by the specified date or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If you dispute any charges, you must notify Wrap within thirty (30) days after the date Wrap invoices you or bills your payment instrument, as applicable. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Wrap’s net income. Notwithstanding the foregoing, payment obligations with respect to enterprise customers that have entered into a separate enterprise agreement with us for use of the Authoring Platform will be as set forth in such separate enterprise agreement.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that users (including you) provide to be made available through the Services. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Wrap Media, LLC does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Wrap Media, LLC and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Wrap Media, LLC a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Wrap Media, LLC on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. For purposes of clarity, the representations and warranties regarding User Content in this paragraph apply to any and all User Content used by you in connection with your creation of Wraps using the Authoring Platform.
Rights in Content Granted by Wrap Media, LLC
Subject to your compliance with these Terms, Wrap Media, LLC grants you a limited, non-exclusive, non-transferable, non-sublicensable license to view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and noncommercial purposes.
General Prohibitions and Wrap Media, LLC’s Enforcement Rights
You agree not to do any of the following:
· Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
· Use, display, mirror or frame the Services or any individual element within the Services, Wrap Media, LLC’s name, any Wrap Media, LLC trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Wrap Media, LLC’s express written consent;
· Access, tamper with, or use non-public areas of the Services, Wrap Media, LLC’s computer systems, or the technical delivery systems of Wrap Media, LLC’s providers;
· Attempt to probe, scan or test the vulnerability of any Wrap Media, LLC system or network or breach any security or authentication measures;
· Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Wrap Media, LLC or any of Wrap Media, LLC’s providers or any other third party (including another user) to protect the Services or Content;
· Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Wrap Media, LLC or other generally available third-party web browsers;
· Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
· Use any meta tags or other hidden text or metadata utilizing a Wrap Media, LLC trademark, logo URL or product name without Wrap Media, LLC’s express written consent;
· Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
· Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
· Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
· Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
· Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
· Impersonate or misrepresent your affiliation with any person or entity;
· Violate any applicable law or regulation; or
· Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Wrap Media, LLC respects copyright law and expects its users to do the same. It is Wrap Media, LLC’s policy to terminate in appropriate circumstances access to the Services for those users who repeatedly infringe or the rights of copyright holders. Please see Wrap Media, LLC’s Copyright Policy, for further information.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of Services or your access thereto, the following provisions of these Terms will survive: Feedback; the first paragraph of Content Ownership, Responsibility and Removal regarding Wrap Media, LLC’s ownership of the Content and Services; Termination; Confidentiality; Warranty Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
You understand that Wrap may need to disclose certain non-public information relating to Wrap’s business that is marked or identified as “confidential” at the time of disclosure (“Proprietary Information”) in connection with the use and/or performance of the Services. Proprietary Information of Wrap includes non-public information regarding features, functionality and performance of the Services. You agree to: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Wrap agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that you can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from Wrap, or (c) was rightfully disclosed to you without restriction by a third party, or (d) was independently developed without use of or reference to any Proprietary Information of Wrap. You may disclose Proprietary Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case you will promptly notify Wrap and cooperate with Wrap if Wrap chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. Wrap shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, and (b) all worldwide intellectual property rights related to any of the foregoing. Wrap may collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning User Content and data derived therefrom), and Wrap will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Wrap offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Wrap Media, LLC and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
Limitation of Liability
NEITHER Wrap Media, LLC NOR ANY OTHER party involved in creating, producing, or delivering the services or content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS or CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not WRAP has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will Wrap Media, LLC’S total liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the ServiceS or content EXCEED THE AMOUNTS YOU HAVE PAID TO WRAP MEDIA, LLC FOR USE OF THE SERVICES OR content OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO WRAP MEDIA, LLC, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WRAP MEDIA, LLC AND YOU.
NOTWITHSTANDING THE FOREGOING, IF YOU ARE USING A BETA VERSION OF THE SERVICES IN NO EVENT WILL WRAP MEDIA, LLC BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES OR FOR ANY ERROR OR DEFECT IN THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WRAP MEDIA, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Wrap Media, LLC agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Wrap Media, LLC are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Wrap Media, LLC otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Wrap Media, LLC otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Wrap Media, LLC submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorney’s’ fees and expenses, to the extent provided under applicable law. Wrap Media, LLC will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Wrap Media, LLC will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Wrap Media, LLC changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Wrap Media, LLC’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Wrap Media, LLC in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Wrap Media, LLC and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Wrap Media, LLC and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Wrap Media, LLC’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Wrap Media, LLC may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Wrap Media, LLC under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Wrap Media, LLC’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Wrap Media, LLC. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Wrap Media, LLC at firstname.lastname@example.org or at 275 Sacramento Street, San Francisco, CA 94111.