Wisper – End User License Agreement

Table of Contents

Section 1.    Scope of the Agreement 

Section 2.    Provision of Services.

Section 3.    Use of Services.

Section 4.    Proprietary Rights.

Section 5.    Free Use.

Section 6.    Beta Program..

Section 7.    Data Protection and Security.

Section 8.    Limitation of Liability.

Section 9.    Term and Termination.

Section 10.  No Right of Withdrawal for Consumers.

Section 11.  Export Controls.

Section 12.  Mandatory Information under Telecommunications Law.

Section 13.  Unilateral Changes to the Agreement

Section 14.  General Provisions.

Wisper Mandatory Information under the European Electronic Communications Code

 Contract Summary

Section 1.      Scope of the Agreement

1.1 Parties

1.1.1 Contracting parties are exclusively We and the User. Users may be consumers as well as entrepreneurs. 

a) A consumer is any natural person who enters into a legal transaction for purposes which are predominantly outside the consumer’s trade, business or profession. 

b) An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her trade, business or profession; a partnership with legal capacity is a partnership endowed with the capacity to acquire rights and incur liabilities.

1.1.2 If the User is a natural person, it is a precondition for the conclusion of the Agreement with Us that the User is at least 13 years old.

1.2 Subject Matter

1.2.1 Subject matter of the Agreement is the provision of Wisper by Us to the User.

1.2.2 “Wisper” is a quantum-resisitant application for secure communication between individuals and groups of Users (e.g. by text messages, video or audio meetings, exchange of media content and documents).

1.2.3 For the purposes of the Contract, ”quantum-resisitant” is defined as using Our proprietary Key Distribution (KD) protocol to establish and maintain secure User authentication via quantum keys and encryption of data, which are generated using Our Quantum Random Number Generators (QRNGs) and delivered via an encrypted key container to establish User authentication. The User must refresh the authentication and encryption of data of the User on a regular basis to access the application.

1.2.3 If We offer Users to participate in the beta program, Section 6 shall apply.

1.3 Conclusion of the Agreement

1.3.1 Users enter into a binding contract with Us for the use of Wisper by ticking the box to agree to this EULA and clicking the button labeled ”create an account” or “login” if the account credentials were provided to the User. We shall immediately confirm the conclusion of the Agreement to the User by sending a short message (hereinafter: “SMS”) to the phone number provided by the User.

1.3.2 The respective current EULA can be retrieved and saved on our website https://wisperapp.com/terms.

1.3.3 The conclusion of contracts and the communication for the fulfilment of contractual obligations between Us and the User shall be in English (Contract Language).

Section 2.      Provision of Services

2.1 Authorization to Use Wisper

2.1.1 Users require authorization to use Wisper. The authorization to use Wisper may be derived from a third party (e.g. the User's employer or the User's client).

2.1.2 Users who enter into the Contract for the use of Wisper as entrepreneurs or as consumers for purposes of a third party which acts in the exercise of his or her trade, business or profession may obtain authorization to use Wisper through

a) a Wisper – User Agreement with Us, which permits the respective User to use Wisper. Either the User or a third party may enter into the Wisper – User Agreement with Us. We may offer different subscriptions for the Wisper – User Agreement which differ in the scope of performance and service and the number of authorized end users. The subsciptions of the Wisper – User Agreement generally are subject to a fee.

b) an agreement for a Test Access within the meaning of Section 6, which permits the respective User to use Wisper. Either the User or a third party may enter into an agreement for a Test Access with Us.

2.1.3 We may offer Users who are consumers and enter into the Contract for the use of Wisper for their own purposes which are predominantly outside the User’s trade, business or profession – i.e. excluding consumers who enter into the Contract for the use of Wisper for purposes of a third party which acts in the exercise of his or her trade, business or profession – to obtain authorization to use Wisper free of charge. If this option is available, further information will be displayed during the account creation process. It is at Our sole discretion to offer Users to obtain authorization to use Wisper free of charge.

2.1.4 The User shall ensure that it has effective authorization to use Wisper upon commencement and for the entire period of use of Wisper.

2.1.5 We are entitled to take technical measures (e.g. an invitation requirement) to ensure that the user has authorization to use Wisper.

2.2 Modifications of Wisper

We shall be entitled to modify, supplement and further develop Wisper including the User interface at Our own discretion, provided that the contractual functional scope of Wisper is essentially maintained and the modification is reasonable for the User for a contractually typical and intended use of Wisper. The right to change Wisper also includes the right to remove functions that are not or no longer essential for the contractual use of Wisper, insofar as this is reasonable for the User in accordance with sentence 1.

2.3 Codes of Conduct

We are not subject to any codes of conduct.

Section 3.      Use of Services

3.1 Download and Installation

In order to use Wisper, the User must first download it (e.g. via the Apple App Store or via the Google Play Store for mobile applications, and/or via an authorized website for a web or desktop application or for a Software Development Kit (SDK)) and install it on a supported device.

3.2 User Account

3.2.1 In addition, the use of Wisper requires a user account. 

3.2.2 Depending on the User's authorization to use Wisper according to Section 2.1, the user account creation may require the creation or the prior set up by a third party who has entered into an Agreement with Us, which permits the respective User to use Wisper.

3.2.3 Subject to deviations in the process, in particular with respect to the authorization to use Wisper being derived from a third party, to create a user account the User must first correctly provide the required information (e.g., phone number), then validate the phone number’s authenticity by entering a valid one-time passcode (hereinafter: “OTP”) delivered via short message (SMS) to the phone number. The User must then create a password to be used for authentication into the application. The User completes the account creation process by entering at least the information marked as required on the profile page prompt (e.g., first name). Optionally, the User can choose to enable biometric authentication into the application.

3.3 Contractual Use of Wisper

3.1.1 The User shall fulfil all duties and obligations, in particular cooperation, which are necessary in its contractual area of responsibility for the performance of this Contract. The User shall in particular but not limited to at his own expense 

a) treat access data (e.g. passwords) confidentially and protect them to a reasonable extent against unauthorized third parties gaining knowledge thereof;

b) not allow unauthorized third parties to use Wisper;

c) obtain the required consent of the respective data subject, insofar as the User collects, processes or uses personal data when using Wisper and no statutory permissible circumstance intervenes, and, if necessary, fulfill its duties to inform the data subjects;

e) immediately inform the Provider, e.g. via the contact details indicated within this Contract or on the website of Wisper, of any violation of this Section 3.3 by the User or other Users of which the User becomes aware; and 

f) immediately inform Us of any defects, malfunctions or damage of Wisper.

3.3.2 The User may access or use Wisper only for lawful purposes. The User shall not use or assist any third party in using Wisper in a manner that 

a) violates Our, other Users’ or third parties’ rights (including data protection rights, publication rights, intellectual property rights or other proprietary rights);

b) is unlawful, obscene, abusive, threatening, intimidating, harassing, hateful, racially or ethnically offensive, or incites or encourages conduct that would be illegal or otherwise inappropriate, including glorifying violent crime, endangering or exploiting children or others, or coordinating the infliction of suffering;

c) involves the publication of falsehoods, misrepresentations or misleading statements;

d) involves the sending of illegal or unauthorized communications such as mass messaging, auto-messaging, auto-dialing and the like; or 

e) involves use that is not covered by a possible Wisper User Agreement and/or subsciption, that authorizes the User to use Wisper.

3.3.3 The User shall not, directly or indirectly, by automated or other methods or in any unauthorized manner, burden, impair or harm Us, Wisper, systems, Users or others, use, copy, adapt, modify, distribute, license, sublicense, transmit, display, perform or otherwise exploit or access Wisper or prepare derivative works based on Wisper (or assist others to do so). This includes that the User may not do the following, either directly or through automated methods:

a) reverse engineer, alter, modify, create derivative versions of, decompile or extract any code from Wisper;

b) send or transmit viruses or other harmful computer code via Wisper or store such code on Wisper;

c) generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements, or other solicitations on or with;

d) mine or otherwise create crypto currency or similar items relying on block chain or similar technologies with;

e) gain or attempt to gain unauthorized access to Wisper;

f) interfere with or disrupt the integrity or performance of Wisper; 

g) create accounts for Wisper through unauthorized means;

h) collect information from or about other Users of Wisper in any unauthorized or unauthorized manner;

i) sell, resell, rent, or charge for Wisper or data obtained through Wisper;

j) distribute or make Wisper available over a network where it could be used by multiple devices simultaneously (except in the event that the User is actively and legally using Wisper on multiple channels simultaneously, such as being authenticated on a web or desktop application at the same time as using the mobile app on a phone);

k) develop software or Application Program Interfaces (APIs) that function substantially like Wisper and make them available for use by unauthorized third parties; or

l) abuse any reporting channels, such as by User making fraudulent or unsubstantiated reports or objections.

Section 4.      Proprietary Rights

4.1 Grant of Rights

We grant to the User for the duration of the Agreement and to the extent and as long as the User has a valid authorization to Use Wisper within the meaning of Section 2.1 the non-exclusive, non-transferable and non-sublicensable right to use Wisper within the scope of the purpose of the Agreement and in consideration of the EULA.

4.2.      Retention of Rights

Notwithstanding the rights of use granted above, We retain all rights in particular but not limited to intellectual property rights in Wisper.

Section 5.      Free Use

5.1 The use of Wisper is free of charge. The conclusion of the Agreement for the use of Wisper does not create an obligation to pay fees for the User.

5.2 However, obtaining the authorization to use Wisper according to Section 2.1 may be subject to fees for the User or a third party (e.g. the User’s employer) depending on the type (e.g. free trial or Wisper – User Agreement for a commercial use) and scope (e.g. Subscription selected and number of authorized end users) of authorization. If Users wish to use Wiser beyond the offered Subscriptions or have individual requirements, Users can contact Us for information on an enterprise agreement.

Section 6.      Beta Program

If We offer Users to participate in the beta program, the following shall apply: 

6.1 Provision of Services During the Beta Program

6.1.1 We may offer the User to participate in a closed beta program for a restricted group of Users before the general availability of Wisper. It is at Our sole discretion to offer a User the participation in the beta program.

6.1.2 During the beta program, We enable the User to use Wisper and test available features. We reserve the right to limit the availability of Wisper as a whole or individual functions of Wisper at any time during the beta program. The User has no claim that Wisper as a whole or individual functions of Wisper will be available during the beta program.

6.1.3 We inform the User that during the beta program, Wisper has not yet been finally tested and will likely contain errors and bugs. In particular but not limited to Wisper is therefore not suitable for use in productive operation during the beta program.

6.1.4 The beta program has an indefinite term. We reserve the right to terminate the beta program at any time. We also have the right to terminate the beta program if Wisper never becomes generally available or is not generally available immediately after the end of the beta program. We aim to announce the end of the beta program to the User in time but are not obligated to do so.

6.2. Grant of Rights During the Beta Program

We grant to the User for the duration of the beta program the revocable, non-exclusive, non-transferable and non-sublicensable right to use Wisper within the scope of the purpose of the beta program and in consideration of this EULA.

Section 7.      Data Protection and Security

7.1 Privacy Policies

The User can find information on how We handle and protect its personal data in our privacy policies.

7.2 IT Security

We maintain the IT security of Wisper as well as the security of the transmitted communication within Our area of responsibility. We protect the transmitted communication with encryption methods against unauthorized knowledge and modification. 

Section 8.      Limitation of Liability

8.1 Liability without Contractual Limitations

We shall be liable without any contractual limitation according to the statutory provisions

a) for damages as far as they are based on the absence of a quality for which We have assumed a guarantee;

b) for intent;

c) for damages as far as they are based on the fact that We have fraudulently concealed a defect;

d) for damages resulting from injury to life, body or health which are based on an intentional or negligent breach of duty by Us or otherwise on intentional or negligent conduct of Our legal representative or vicarious agent;

e) for damages other than those listed in Section 8.1 d) of this EULA which are based on an intentional or grossly negligent breach of duty by Us or otherwise on intentional or grossly negligent conduct of Our legal representative or vicarious agent;

f) under the German Product Liability Act (Produkthaftungsgesetz), the General Data Protection Regulation and the German Federal Data Protection Act (Bundesdatenschutzgesetz).

8.2 Limitation

In cases other than those listed in Section 8.1 of this EULA, Our liability shall be limited to the compensation of the foreseeable damage typical for this type of Agreement, as far as the damage is based on a negligent breach of essential obligations by Us or by Our legal representative or vicarious agent. Material obligations are obligations the fulfillment of which is essential for the proper performance of the Agreement and on the fulfillment of which the User regularly relies and may rely.

8.3 Exclusions

8.3.1 In cases other than those listed in Sections 8.1 and 8.2 of this EULA, Our liability, Our legal representatives and Our vicarious agents due to negligence shall be excluded.

8.3.2 The objection of contributory negligence shall remain unaffected.

8.4 Scope of Limitations and Exclusions

The above provisions in Section 8 of this EULA shall apply to all contractual and non-contractual claims for damages irrespective of their legal basis and accordingly also to the liability for reimbursement of futile expenses.

Section 9.      Term and Termination

9.1 Term

The Agreement shall commence upon conclusion of the Agreement. It shall be concluded for an indefinite period.

9.2 Termination

9.2.1 Either party may terminate the Agreement by giving notice of at least two weeks to the end of any calendar month.

9.2.2 The right to terminate the Agreement for good cause shall remain unaffected.

Section 10.    No Right of Withdrawal for Consumers

10.1 The use of Wisper is free of charge for consumers.

10.2 The User has no right of withdrawal, even if he or she is a consumer.

Section 11.    Export Controls

The User shall comply with all export controls and trade sanctions applicable to the User.

Section 12.    Mandatory Information under Telecommunications Law

12.1 Contract Summary

The “Contract summary”, available at https://wisperapp.com/terms provides the main elements of Wisper as a service offered, as required by EU law. It helps to make a comparison between service offers. Complete information about Wisper is presented in this EULA and the referenced documents.

12.2 Supplementary Information under Telecommunications Law

Supplementary information required under the European Electronic Communications Code (Directive (EU) 2018/1972) can be found in the “Wisper Mandatory Information under the European Electronic Communications Code”, available at https://wisperapp.com/terms.

Section 13.    Unilateral Changes to the Agreement

13.1 Our Right to Change the Agreement

13.1.1 We shall be entitled to amend contractual provisions at its reasonable discretion and subject to the further contractual conditions in accordance with the following procedure. We shall be entitled to offer the User a legally binding amendment of the contract in accordance with sentence 1 for the purpose of amending the contractual provisions (Notice).

13.1.2 In case of an amendment of contractual provisions, no provisions may be amended which change the equivalence ratio of performance and consideration to Our benefit or the amendment of which is unreasonable for the User for other reasons.

13.2 Contents of Notice

The Notice shall in particular contain the following information:

a) the content of the offered amendment of the Agreement;
b) the date of the amendment (i.e. the date on which the amendment to the Agreement is to take effect);
c) the authorization of the User to object to Us within a period of four weeks from receipt of the Notice;
d) the requirement of the text form of the objection by the User;
e) the legal consequence of the User's failure to object.

13.3 User’s Consent or Objection

13.3.1 The User's consent to this offer to amend the Agreement in accordance with the Notice shall be deemed to have been given,

a) if there is a period of at least four weeks between the receipt of the Notice by the User and the date specified by Us in the Notice for the amendment to become effective and
b) if the User has not objected to the amendment pursuant to the Notice in text form within four weeks after receipt of the Notice although We have specifically informed about the legal consequence of failure to object in the Notice.

13.3.2 In the event of an objection in due form and time, the contractual provisions shall remain unchanged. In this case, however, We may be entitled to good cause for extraordinary termination, in particular if We are no longer able or if it is no longer reasonable to provide the services until the next possible termination of the Agreement.

Section 14.    General Provisions

14.1 Governing Law

14.1.1 This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and excluding any recourse or further reference. 

14.1.2 However, the choice of law shall not apply to the extent that the User as a consumer would be deprived of the protection afforded to him by those provisions which, under the law of the country in which the User as a consumer has his habitual residence, may not be derogated from by agreement.

14.2 Jurisdiction and Mandatory Venue

The exclusive place of jurisdiction for all disputes arising out of or in connection with the Agreement between Us and a Users who are merchants, legal entities under public law or special funds under public law shall be Munich, Germany. The agreement on the place of jurisdiction shall not apply if an exclusive place of jurisdiction for the action or the respective proceedings is established by law or if an agreement on the place of jurisdiction is inadmissible for other reasons.

19.5     Dispute Resolution

19.5.1    The European Commission has to provide a European platform for online dispute resolution (ODR platform). The ODR platform is available on the Internet at http://ec.europa.eu/consumers/odr/. 

19.5.2    We are neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board within the meaning of the German Consumer Dispute Resolution Act (“Verbraucherstreitbeilegungsgesetz”).

14.3 Amendments

Amendments or supplements to the Agreement must be made in writing to be effective. This shall also apply to the amendment or cancellation of this clause. Deviating individual contractual agreements shall prevail.

14.4 Written Form

Insofar as the parties have agreed or will agree in the future that a declaration must be made in writing in order to be effective, transmission by telecommunication by means of telefax or an email which meets the requirements of text form shall be sufficient to comply with this and, in the case of the conclusion of a Contract, the exchange of declarations which comply with the written form.

14.5 Language

Insofar as the Agreement and/or this EULA are executed not only in English but also in another language, the English version shall prevail in the event of any discrepancies between the English version and the version in the other language.

14.6 Severability

If a provision of the Agreement does not become part of the Agreement in whole or in part or is or becomes invalid or unenforceable, the remainder of the Agreement shall remain valid. The invalid or unenforceable provision shall be replaced by way of interpretation or, in the alternative, reinterpretation or, in the alternative, a separate agreement, by the valid and enforceable provision which corresponds or comes closest to the meaning and purpose of the invalid or unenforceable provision, insofar as the content of the Agreement is not substantially changed thereby. The same shall apply to loopholes in the Agreement.

Wisper Mandatory Information under the European Electronic Communications Code

Last updated: November 30, 2023

The European Electronic Communications Code (Directive (EU) 2018/1972) (hereinafter: "ECC") provides that Wisper GmbH (c/o Mercandor AG), Unter Altstadt 28, 6300 Zug, Switzerland, phone: +41 (0) 41 710 2628, email: info@wisperapp.com (hereinafter: "We", “Us”, or “Our”) as provider of Wisper, as an electronic communication service, provides the following mandatory information to the respective users. This information supplements the “Wisper – End User License Agreement”, available at https://wisperapp.com/terms and summarizes the mandatory information already partially contained therein. 

The respective users include microenterprises, small enterprises or non-profit organizations, unless they have expressly agreed to the waiver of all or parts of the provisions. 

For purposes of documentation, future reference and unmodified reproduction, the user may download or print a copy of this document.

1. Service Quality

We make every effort to provide the best possible service, but cannot guarantee a minimum quality of service or that the services provided will function at all times without interruption, delay or error. In addition, a number of factors outside of Our control may affect the user experience and result in disruption of the communications of the user with other users. Disruptions may occur to the local network, firewall, ISP, public Internet, and the power supply to the user, among others.

2. Security

We strive to protect the security and integrity of Wisper by taking appropriate action against individuals who commit abuse and abusive activities that violate the “Wisper – End User License Agreement”, available at https://wisperapp.com/terms. We strive to prohibit misuse of the services provided, especially harmful conduct towards others. We operate systems to enhance its ability to detect incidents, threats or vulnerabilities that may compromise the security of the Services. If We learn of such activities, We will take appropriate action such as removing such activities or contacting the authorities.

3. Costs

The conclusion of the Contract for the use of Wisper does not create an obligation to pay fees. However, obtaining the authorization to use Wisper may be subject to fees depending on the type (e.g. free trial or Wisper User Agreement for a commercial use) and scope (e.g. Subscription selected and number of authorized end users) of authorization.

4. Duration, Renewal and Termination

We and the user may terminate the Contract for the use of Wisper with a notice period of two weeks to the end of each calendar month. We and the user may terminate the Contract for the use of Wisper immediately without a notice period if the other party breaches any obligation under the Contract. This is especially the case if the user uses Wisper in a way that contradicts the “Wisper – End User License Agreement,” available at https://wisperapp.com/terms.

5. Disputes

If the user has a complaint regarding Our services, the user can submit it by contacting Us at the following email address:

info@wisperapp.com

In addition, the user may write to the following address:

Wisper GmbH 
c/o Mercandor AG
Unter Altstadt 28
6300 Zug, Switzerland

The user may take legal action with respect to any claim arising out of or relating to the services provided. Information on which applicable law and which jurisdiction applies to the claim can be found in section 14.1 of the “Wisper – End User License Agreement”, available at https://wisperapp.com/terms.

The user may also be entitled to refer disputes relating to matters governed by the ECC to an independent body designated in its country for resolution of the dispute. A list of competent independent dispute resolution bodies in EU countries and links to their websites are available on the European Union Online Dispute Resolution website.

6. Emergency Services

Wisper is different from telephone or SMS services on a mobile or landline phone. Wisper does not provide access to emergency services or emergency service providers, including police, fire department or hospitals, nor does Wisper otherwise connect to public emergency call centers. Therefore, the user should ensure that the user can reach the applicable emergency service provider via a cellular, landline or other service.

7. Operating Aids of the Services

Our service is compatible with certain assistive technology, such as voice commands (using speech-to-text capabilities on a native phone). We intend to offer additional features in the future, such as the ability to set different screen options for adjusting contrasts, colors, and text size.

8. Data Provided by the User

In order to use Wisper, the User requires a User account. Depending on the User's authorization to use Wisper, the user account creation may require the creation or the prior set up by a third party who has entered into an Agreement with us, which permits the respective User to use Wisper. We offer different types of User accounts.

Subject to deviations in the process, in particular with respect to the authorization to use Wisper being derived from a third party, to create a regular User account, the User must first correctly provide the required information (e.g., phone number), then validate the phone number’s authenticity by entering a valid one-time passcode (OTP) delivered via short message (SMS) to the phone number. The User must then a password to be used for authentication into the application. The User completes the account creation process by entering at least the information marked as required on the profile page prompt (e.g., first name). Optionally, the User can choose to enable biometric authentication into the application. An Organisation Admin user account can be created by a registrar via the user management tool of Wisper (admin panel) by providing the required information (e.g. phone number, work email address). A Registrar user account needs to be individually created by Us. We provide the User with a Registrar user account, when the User enters into a license agreement whose subscription includes the set up of an organisation.

The “Wisper Privacy Policy”, available at https://wisperapp.com/privacy-policy explains how We handle the personal data of the user and protects its data when the User uses Wisper.

Contract Summary

Last updated: November 30, 2023

Service name:
Wisper

Provider:
Wisper GmbH

Contact:
c/o Mercandor AG
Unter Altstadt 28, 
6300 Zug
Switzerland
+41 (0) 41 710 2628
info@wisperapp.com

Contract summary

• This contract summary provides the main elements of this service offer as required by EU law  ([1]).
• It helps to make a comparison between service offers.
• Complete information about the service is provided in other documents.

Service
Through Wisper you can communicate with other users of Wisper, including companies (so-called "number-independent interpersonal communications service"). This is possible, for example, through text messages, voice and video calls, sending pictures and videos.

Price
We charge you the following costs for the use of Wisper: 
The conclusion of the Contract for the use of Wisper does not create an obligation to pay fees. However, obtaining the authorization to use Wisper may be subject to fees depending on the type (e.g. free trial or Wisper User Agreement (for a commercial use)) and scope (e.g. Subscription selected and number of authorized end users) of authorization.

Duration, renewal and termination
You and we may terminate the Contract for the use of Wisper with a notice period of two weeks to the end of each calendar month. You and we may terminate the contract for the use of Wisper immediately without notice if the other breaches any obligation under the Contract. This is especially the case if you use Wisper in a way that we have excluded in our Wisper – End User License Agreement.

Features for end-users with disabilities
Our service is compatible with certain assistive technology, such as voice commands (using speech-to-text capabilities on a native phone). We intend to offer additional features in the future, such as the ability to set different screen options for adjusting contrasts, colors, and text size.

([1]) Article 102(3) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36).