1. The Software.
- You must register an account with Wallet Guard (“Account”) to download the Software. To become a registered user, you may sign up on the Site. You must be at least eighteen (18) years of age to register to use the Site and/or the Software (collectively, “Services”). In registering an Account, you agree to provide truthful and accurate information and you shall update such information as necessary through your Account.
- The Services offers a web3 native security solution for your crypto wallet of choice, which, with respect to the Software, is accessed in a Google Chrome browser from Supported Devices. A “Supported Device” is a combination of a Google Chrome-enabled device model and relevant Google Chrome and Gmail software version(s) that is/are supported by the Software and owned or controlled by the user. With respect to updates to the Software that Wallet Guard may make available for download, this Agreement allows you to download such Software updates to update or restore the Software on any Supported Device.
- The Software, including software embedded in the Software, is licensed, not sold, to you by Wallet Guard only under the terms of this Agreement; and Wallet Guard reserves all rights not expressly granted under this Agreement. Wallet Guard does not own the media or device on which the Software is recorded or stored, but Wallet Guard retains ownership of the Software itself. No rights are granted with respect to Software under, and the Software is not licensed or otherwise provided under, any master subscription agreement or other agreement between Wallet Guard and you or any Wallet Guard customer with which you are employed, affiliated or associated.
- Wallet Guard may do any of the following at any time, with or without notice or cause, and without any liability to you: (a) change, suspend, or terminate any features or functionality of the Services; (b) impose limits on certain features or functionality of the Services; or (c) terminate this Agreement. Upon any such termination, you shall no longer be permitted to access and/or use the Services, and shall delete or destroy all copies of the Software in your possession. Modification, suspension, or termination of the Services (or any part thereof) or this Agreement shall not entitle you to any refund, credit, or other compensation from Wallet Guard under this Agreement or any other agreement or from any third party.
2. Ownership Rights and License.
As between you and Wallet Guard,the Software, and all content contained within the Software are and shallremain the sole property of Wallet Guard and are subject to protection underU.S. and foreign copyright and other laws. All trademarks, service marksand trade names displayed on the Software are proprietary to Wallet Guard orits affiliates and/or third party licensors. Wallet Guard hereby grantsyou a personal, revocable, limited, royalty-free, non-transferable license touse the Software for your personal, non-commercial purposes. Any rights notexpressly granted herein are reserved.
You may not:
- sell, resell, rent, lease, lend, redistribute, sublicense, or otherwise make the Software, or any part thereof, available;
- copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or Software updates, or any part thereof.
- use the Software to submit or link to any content that, in Wallet Guard’s sole discretion:
i. Infringes or violates the intellectual property or other rights ofany person or entity;
ii. Intentionally interferes with the operation of the Software or WalletGuard’s communities or events;
iii. Violates anyone’s privacy or publicity rights;
iv. Breaches any duty of confidentiality that you owe to any person orentity;
v. Is vulgar, offensive, inappropriate, harassing, defamatory,abusive, lewd, pornographic, obscene or otherwise objectionable;
vi. Contains or installs any viruses, worms, bugs, Trojan horses,malware or other code, files or programs designed or having the capability todisrupt, damage or limit the functionality of any software or hardware;
vii. Contains false or deceptive language or comparative claimsregarding Wallet Guard’s or third parties’ products, advertising, commercialreferrals, spam, chain letters, or any other solicitation, includingsolicitation of lawsuits; or,
viii. any other objectionable context, as determined by Wallet Guard inits sole discretion.
4. Terms Required by Google, Inc. with respect to the Software.
- This Agreement constitutes an end user license agreement (EULA) in lieu of any license grant provided by Google to use the Software with Google Chrome or a Supported Device. This Agreement is between you and Wallet Guard only, and not with Google. Wallet Guard is solely responsible for the Software.
- The Google Chrome Web Store is owned and operated by Google. Your use of the Google Chrome Web Store is governed by a legal agreement between you and Google consisting of the Google Chrome Web Store Terms of Service (found at https://ssl.gstatic.com/chrome/webstore/intl/en/gallery_tos.html), and the Google Chrome Terms of Service (found at https://www.google.com/chrome/privacy/eula_text.html). In addition, your use of the Google Chrome Web Store is subject to the Google Chrome Web Store Program Policies (found at https://developer.chrome.com/webstore/program_policies).
- Google has no obligation to provide any maintenance or support for the Software.
- To the maximum extent permitted by applicable law, Google shall have no warranty obligation whatsoever with respect to the Software, and shall not be liable for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. Wallet Guard shall not be required to provide a refund to you under any circumstances.
- Google shall not be responsible for addressing any claims by you or any third party relating to the Software or your possession and/or use of the Software, including but not limited to (i) product liability claims, (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
- Google shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Software or your possession and/or use of the Software infringes a third party’s intellectual property rights.
- You represent and warrant that (i) the Software shall not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a “terrorist-supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- From time to time, Google Chrome may check with remote servers (hosted by Google or by third parties) for available updates to extensions (including the Software), including but not limited to bug fixes or enhanced functionality. You agree that such updates will be automatically requested, downloaded, and installed without further notice to you.
- From time to time, Google may discover an extension that violates Google developer terms or other legal agreements, laws, regulations or policies. Google Chrome will periodically download a list of such extensions from Google’s servers. You agree that Google may remotely disable or remove any such extension from user systems in its sole discretion.
- Google may, in its sole discretion at any time and without notice, restrict, interrupt or prevent use of the Software, or delete the Software from your Google devices, or require Wallet Guard to do any of the foregoing, without entitling you to any refund, credit or other compensation from Wallet Guard or any third party (including, but not limited to, Google or your network connectivity provider).
- Google and its affiliates are third-party beneficiaries of this Agreement, and have the right (and shall be deemed to have accepted the right) to enforce this Agreement against you.
- Wallet Guard Inc.’s address is 1209 Orange Street Wilmington, DE 19801 US.
5. Fees and Subscription Terms.
- While we make available a free version of the Software, we may charge for certain tools or features and functionality of a premium version of the Software. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Wallet Guard with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), as a condition to signing up for a premium version of the Software for which we charge. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Wallet Guard with your credit card number and associated payment information, you agree that Wallet Guard is authorized to immediately invoice your Account for all fees and charges due and payable to Wallet Guard hereunder and that no additional notice or consent is required. You agree to immediately notify Wallet Guard of any change in your billing address or the credit card used for payment hereunder. Wallet Guard reserves the right at any time to change its prices and billing methods, either immediately upon posting through the Services.
- As a user of the Services, you will be responsible for payment of the applicable fee for any premium version of the Software (the “Service Subscription Fee”) at the time you purchase such premium version (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable.
- Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Wallet Guard’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Wallet Guard that your subscription will be automatically renewed, you will have thirty days from the date of the Wallet Guard notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Wallet Guard at firstname.lastname@example.org or log in and go to the “Change/Cancel Subscription” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Wallet Guard to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Wallet Guard does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Wallet Guard may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
- If payment for the Services under this Agreement is subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Wallet Guard, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Wallet Guard for any liability or expense Wallet Guard may incur in connection with such Sales Taxes. Upon Wallet Guard’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- You agree to make all payments of fees to Wallet Guard free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Wallet Guard will be your sole responsibility, and you will provide Wallet Guard with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
6. Third-Party Components and Services.
7. Use of Data.
If you provide or otherwise makeavailable to Wallet Guard any suggestions, enhancement requests,recommendations, corrections or other feedback (“Feedback”), whether related to the Services or otherwise, then (a)you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Wallet Guard under any fiduciary or other obligation; and (b) you hereby grant to Wallet Guard, to the maximum extent permitted under applicable law, a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable(through multiple tiers) license, without additional consideration to you orany third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Feedback, in any format or media now known or hereafter developed, and for any purpose (including marketing or promotional purposes or testimonials).
9. Your Representations and Warranties.
You represent and warrant that in connection with your use of the Services, you shall supply truthful and accurate information to Wallet Guard and you shall comply with all applicable laws.
10. DISCLAIMER OF WARRANTY.
- NEITHER WALLET GUARD NOR ITS THIRD PARTY PROVIDERS WARRANT THE SERVICES WILL PERFORM IN ACCORDANCE WITH ANY SPECIFICATIONS, DOCUMENTATION, OR OTHER STANDARDS, PERFORM IN AN UNINTERRUPTED CAPACITY, BE ERROR-FREE OR BUG-FREE, PROVIDE COMPLETE OR ACCURATE DATA, NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES. USE OF THE SERVICES AND RELIANCE THEREON IS AT YOUR SOLE RISK. NEITHER WALLET GUARD NOR ITS THIRD PARTY PROVIDERS SHALL IN ANY WAY BE LIABLE TO YOU OR ANY OTHER ENTITY OR PERSON FOR THEIR INABILITY TO USE THE SERVICES, OR FOR ANY INACCURACIES, ERRORS, OMISSIONS, DELAYS, COMPUTER VIRUSES OR OTHER INFIRMITY OR CORRUPTION, DAMAGES, CLAIMS, LIABILITIES OR LOSSES, REGARDLESS OF CAUSE, IN OR ARISING FROM THE USE OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND WITHOUT WARRANTY OR ANY SUPPORT OR MAINTENANCE OF ANY KIND. NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR OF ANY OTHER TYPE IS PROVIDED HEREUNDER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WALLET GUARD OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE DISCLAIMER, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- FROM TIME TO TIME, WALLET GUARD MAY OFFER NEW “BETA” FEATURES OR TOOLS RELATING TO THE SERVICES WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT WALLET GUARD’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCE SHALL WALLETGUARD, ITS AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU ON ACCOUNT OF YOURUSE OR MISUSE OF, OR RELIANCE ON, THE SERVICES. TO THE MAXIMUM EXTENT PERMITTEDBY APPLICABLE LAW, IN NO EVENT SHALL WALLET GUARD, ITS AGENTS, LICENSORS, ORSUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST SAVINGS,COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR OTHER DAMAGESARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES EVEN IF ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WALLET GUARD’S OR ITSAFFILIATES’, AGENTS’ OR LICENSORS’ AND ALL OF THEIR RESPECTIVE OFFICERS’,DIRECTORS’, SHAREHOLDERS’, EMPLOYEES’ OR CONTRACTORS’ AGGREGATE CUMULATIVELIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATIONNEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (I) THE TOTAL AMOUNT FEES PAIDBY YOU TO WALLET GUARD UNDER THIS AGREEMENT (IF ANY) OR (II) THE AMOUNT OF ONEHUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THEABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND FORM AN ESSENTIAL BASISOF THE AGREEMENT BETWEEN THE PARTIES HERETO. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITYFOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR HAVE LEGISLATION THAT RESTRICTS THELIMITATION OR EXCLUSION OF CERTAIN LIABILITY, SO THE ABOVE LIMITATIONS MAY NOTAPPLY TO YOU.
You hereby agree to indemnify,defend, release, and hold harmless Wallet Guard, its partners, licensors,affiliates, contractors, officers, directors, employees, and agents from alldamages, losses and expenses arising directly or indirectly from (a) anynegligent acts, omissions or willful misconduct by you, (b) any breach of thisAgreement by you, (c) any content or data stored on your Supported Devicesand/or computers or devices through which you access the Software, and/or (c)your violation of any laws, rules, or regulation or any violation of any rightsof any third party.
13. Governing Law.
This Agreement and any actionrelated thereto will be governed and interpreted by and under the laws of theState of Delaware, consistent with the Federal Arbitration Act, without givingeffect to any principles that provide for the application of the law of anotherjurisdiction. The United NationsConvention on Contracts for the International Sale of Goods does not apply tothis Agreement.
14. Dispute Resolution.
Please read the following arbitration agreement in this section(“Arbitration Agreement”) carefully. It requires that you and WalletGuard arbitrate disputes against one another. PLEASE BE AWARE THAT THIS SECTION 14 CONTAINS PROVISIONSGOVERNING HOW DISPUTES THAT YOU AND WALLET GUARD HAVE AGAINST EACH OTHER WILLBE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14 INCLUDES AN AGREEMENTTO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEENYOU AND WALLET GUARD BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 14 ALSO CONTAINS A CLASS ACTIONAND JURY TRIAL WAIVER. PLEASE READ THISSECTION 14 CAREFULLY.
- Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Wallet Guard agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Wallet Guard may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Wallet Guard may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
- Informal Dispute Resolution. There might be instances when a Dispute arises between you and Wallet Guard. If that occurs, Wallet Guard is committed to working with you to reach a reasonable resolution. You and Wallet Guard agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Wallet Guard therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Disputemust give notice to the other party in writing of its intent to initiate an InformalDispute Resolution Conference (“Notice”), which shall occur within 45days after the other party receives such Notice, unless an extension ismutually agreed upon by the parties. Notice to Wallet Guard that you intend toinitiate an Informal Dispute Resolution Conference should be sent by email to email@example.com regular mail to our offices located at 1209 Orange Street Wilmington, DE19801 US. The Notice must include: (1) your name, telephone number, mailingaddress, email address associated with your account (if you have one); (2) thename, telephone number, mailing address and e‐mail address of your counsel, ifany; and (3) a description of your Dispute.
The Informal Dispute ResolutionConference shall be individualized such that a separate conference must be heldeach time either party initiates a Dispute, even if the same law firm or groupof law firms represents multiple users in similar cases, unless all partiesagree; multiple individuals initiating a Dispute cannot participate in the sameInformal Dispute Resolution Conference unless all parties agree. In the timebetween a party receiving the Notice and the Informal Dispute ResolutionConference, nothing in this Arbitration Agreement shall prohibit the partiesfrom engaging in informal communications to resolve the initiating party’sDispute. Engaging in the Informal Dispute Resolution Conference is a conditionprecedent and requirement that must be fulfilled before commencing arbitration.The statute of limitations and any filing fee deadlines shall be tolled whilethe parties engage in the Informal Dispute Resolution Conference processrequired by this section.
- Waiver of Jury Trial. YOU AND WALLET GUARD HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Wallet Guard are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. YOU AND WALLET GUARD AGREE THAT, EXCEPT AS SPECIFIED IN the subsection entitled “Batch Arbitration”, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Wallet Guard agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Wallet Guard from participating in a class-wide settlement of claims.
- Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Wallet Guard agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A partywho wishes to initiate arbitration must provide the other party with a requestfor arbitration (the “Request”). TheRequest must include: (1) the name, telephone number, mailing address, e‐mailaddress of the party seeking arbitration and the account username (ifapplicable) as well as the email address associated with any applicableaccount; (2) a statement of the legal claims being asserted and the factualbases of those claims; (3) a description of the remedy sought and an accurate,good‐faith calculation of the amount in controversy in United States Dollars;(4) a statement certifying completion of the Informal Dispute Resolutionprocess as described above; and (5) evidence that the requesting party has paidany necessary filing fees in connection with such arbitration.
If theparty requesting arbitration is represented by counsel, the Request shall alsoinclude counsel’s name, telephone number, mailing address, and email address.Such counsel must also sign the Request. By signing the Request, counselcertifies to the best of counsel’s knowledge, information, and belief, formedafter an inquiry reasonable under the circumstances, that: (1) the Request isnot being presented for any improper purpose, such as to harass, causeunnecessary delay, or needlessly increase the cost of dispute resolution; (2)the claims, defenses and other legal contentions are warranted by existing lawor by a nonfrivolous argument for extending, modifying, or reversing existinglaw or for establishing new law; and (3) the factual and damages contentionshave evidentiary support or, if specifically so identified, will likely haveevidentiary support after a reasonable opportunity for further investigation ordiscovery.
Unlessyou and Wallet Guard otherwise agree, or the Batch Arbitration processdiscussed in the subsection entitled “Batch Arbitration” is triggered, the arbitrationwill be conducted in the county where you reside. Subject to the AAA Rules, thearbitrator may direct a limited and reasonable exchange of information betweenthe parties, consistent with the expedited nature of the arbitration. If theAAA is not available to arbitrate, the parties will select an alternativearbitral forum. Your responsibility to pay any AAA fees and costs will besolely as set forth in the applicable AAA Rules.
You and WalletGuard agree that all materials and documents exchanged during the arbitrationproceedings shall be kept confidential and shall not be shared with anyoneexcept the parties’ attorneys, accountants, or business advisors, and thensubject to the condition that they agree to keep all materials and documentsexchanged during the arbitration proceedings confidential.
- Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the subsection entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
- Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Wallet Guard need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
- Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Wallet Guard agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Wallet Guard by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
Allparties agree that Requests are of a “substantially similar nature” if theyarise out of or relate to the same event or factual scenario and raise the sameor similar legal issues and seek the same or similar relief. To the extent theparties disagree on the application of the Batch Arbitration process, thedisagreeing party shall advise the AAA, and the AAA shall appoint a solestanding arbitrator to determine the applicability of the Batch Arbitrationprocess (“AdministrativeArbitrator”). In an effortto expedite resolution of any such dispute by the Administrative Arbitrator,the parties agree the Administrative Arbitrator may set forth such proceduresas are necessary to resolve any disputes promptly. The AdministrativeArbitrator’s fees shall be paid by Wallet Guard.
You and WalletGuard agree to cooperate in good faith with the AAA to implement the BatchArbitration process including the payment of single filing and administrativefees for batches of Requests, as well as any steps to minimize the time andcosts of arbitration, which may include: (1) the appointment of a discoveryspecial master to assist the arbitrator in the resolution of discoverydisputes; and (2) the adoption of an expedited calendar of the arbitrationproceedings.
ThisBatch Arbitration provision shall in no way be interpreted as authorizing aclass, collective and/or mass arbitration or action of any kind, or arbitrationinvolving joint or consolidated claims under any circumstances, except asexpressly set forth in this provision.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 1209 Orange Street Wilmington, DE 19801 US, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Wallet Guard as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Wallet Guard makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Wallet Guard at 1209 Orange Street Wilmington, DE 19801 US, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to Agreement) remain in full force and effect. Wallet Guard will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
15. Exclusive Venue.
To the extent the parties are permitted under thisAgreement to initiate litigation in a court, both you and Wallet Guard agreethat all claims and disputes arising out of or relating to the Agreement willbe litigated exclusively in the state or federal courts located in the State ofDelaware.
16. Waiver and Severability.
Wallet Guard’s waiver of anybreach under this Agreement will not be considered a waiver of any earlier orlater breach. No failure or delay by Wallet Guard in exercising any right underthis Agreement will constitute a waiver of that right. If any provision of thisAgreement is held by a court of competent jurisdiction to be contrary to lawand/or not enforceable, that provision will be deemed null and void, and theremaining provisions of this Agreement will remain in effect.
You may not assign or transfer anyof your rights or obligations under this Agreement, whether by operation of lawor otherwise. Wallet Guard may assign, transfer or sublicense any or all of itsrights or obligations under this agreement without restriction.
The Services may be subject toU.S. export control laws and may be subject to export or import regulations inother countries. You agree not to export, reexport, or transfer, directly orindirectly, any U.S. technical data acquired from Wallet Guard, or any productsutilizing such data, in violation of the United States export laws orregulations.
19. Electronic Communications.
The communications between you and Wallet Guard use electronic means,whether you use the Services or send us emails, or whether Wallet Guard postsnotices through the Services or communicates with you via email. Forcontractual purposes, you (a) consent to receive communications from WalletGuard in an electronic form; and (b) agree that all terms and conditions,agreements, notices, disclosures, and other communications that Wallet Guardprovides to you electronically satisfy any legal requirement that suchcommunications would satisfy if it were be in a hardcopy writing. The foregoingdoes not affect your non-waivable rights.
Where Wallet Guard requires thatyou provide an e-mail address, you are responsible for providing Wallet Guardwith your most current e-mail address. In the event that the last e-mail address you provided to Wallet Guardis not valid, or for any reason is not capable of delivering to you any noticesrequired or permitted by this Agreement, Wallet Guard’s dispatch of the e-mailcontaining such notice will nonetheless constitute effective notice. You may give notice to Wallet Guard at thefollowing address: 1209 Orange Street Wilmington, DE 19801 US. Such notice shall be deemed given whenreceived by Wallet Guard by letter delivered by nationally recognized overnightdelivery service or first class postage prepaid mail at the above address.
21. Force Majeure.
Wallet Guard shall not be liable for any delay or failure to performresulting from causes outside its reasonable control, including, but notlimited to, acts of God, war, terrorism, riots, embargos, acts of civil ormilitary authorities, fire, floods, accidents, strikes or shortages oftransportation facilities, fuel, energy, labor or materials.
22. Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to theSoftware, please contact us at firstname.lastname@example.org. We will do our best toaddress your concerns. If you feel thatyour concerns have been addressed incompletely, we invite you to let us knowfor further investigation.
23. Consumer Complaints.
In accordance with California Civil Code §1789.3, if you are a ConsumerUser, you may report complaints to the Complaint Assistance Unit of theDivision of Consumer Services of the California Department of Consumer Affairsby contacting them in writing at 400 R Street, Sacramento, CA 95814, or bytelephone at (800) 952-5210.