Effective: February 11, 2020
Welcome to Wink!
Thank you for signing up to use our products, including the Wink application(the “Wink Platform”), website (the “Site”), and services, features, content, applications and widgets offered on the Wink Platform and Site (together, we’ll call these the “Services”). The Services are provided by 9 Count Inc. (“Wink” or “we”). The term “you” or “User” refers to the person or entity accessing or otherwise using our Services.
These Terms of Service (or “Terms” for short) describe the rules of Wink’s relationship with you and apply to your use of the Services. They are a legal agreement, so please read them carefully.
The Wink Platform is a mobile application that enables people to meet new friends. It is not a dating app and is not intended to be used as a matchmaking service.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND WINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 15)
1. Who Can Use the Wink Platform.
You may browse the Site and view content without registering, but as a condition to using certain aspects of the Services, you are required to register with Wink and represent, warrant and covenant that you provide Wink with accurate and complete registration information (including, but not limited to Snapchat Bitmoji and display name, user name (“User Name”), e-mail address and/or mobile telephone number, profile name, picture and a password you will use to access the Services) and to keep your registration information accurate and up-to-date. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your Wink account. We recommend, but do not require, that you use your own name as your User Name so your friends can recognize you more easily.
Wink will have the right to use your registration information in connection with servicing and operating the Wink Platform. You agree (i) to restrict access by any other person or entity to your password or other login information, (ii) to not knowingly use the name or email of any other person without authorization, (iii) to not use an email or profile name that is profane, offensive or otherwise inappropriate, (iv) to not allow any third party to use your login information, registration information or User account, and (v) to notify Wink of any breach of security by promptly sending Wink an e-mail to email@example.com. You agree that you will be liable for all activities that occur under your User account, even if such activities were not committed by you. Wink is not responsible for any loss or damage as a result of someone else using your User account, registration information or password with or without your knowledge. You acknowledge and agree that certain User account information (such as your account profile name and/or picture) that you provide in connection with the registration of your account will be publicly viewable by all Users of the Wink Platform.
We want our Service to be as open and inclusive as possible, but we also want it to be safe, secure, and in accordance with the law. So, we need you to commit to a few restrictions in order to be part of the Wink community.
THE SERVICES ARE NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICES BY WINK. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICES AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Services, you affirm that either you are at least 18 years of age or have been authorized to use the Services by your parent or legal guardian who is at least 18 years of age and entered into these Terms on your behalf. If you are using the Services on behalf of an entity, then you represent and warrant that you have the authority to bind that entity or organization to these Terms and you agree to be bound by these Terms on behalf of that entity or organization.
In addition, you must not be prohibited from receiving any aspect of our Services under applicable laws or engaging in payments related to the Services. For example, you must not be a convicted sex offender or on an applicable denied party listing.
Wink complies with all applicable laws, including those pertaining to the protection of minors. We do not permit the Wink app to be used to publish, submit/receive, upload/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography or content otherwise depicting child exploitation.
We have zero tolerance for predatory behavior on Wink, and we will report any discovered violation of the prohibition on child pornography or other instances of child exploitation to the National Center for Missing and Exploited Children, who works with global law enforcement agencies to investigate such unlawful behavior. We will also take steps to remove child pornography or content otherwise depicting child exploitation (or otherwise block access to the content determined to contain child pornography or exploitation) from the Wink Platform. Suspected violations of this prohibition may be reported to Wink at the following e-mail address: firstname.lastname@example.org. For more information about online safety, visit www.ncmec.org.
Finally, we must not have previously disabled your account for violation of law or any of our policies.
2. Your Rights to Use the Services.
As between any User and Wink, Wink retains all right, title and interest in and to the Wink Platform, throughout the world, in perpetuity, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the Wink Platform, (iii) all other materials and content uploaded or incorporated into the Wink Platform, including, without limitation, all Wink Platform content (but excluding User Content (defined below), which is owned by the applicable User subject to the User Content license granted to Wink pursuant to these Terms), (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world; and (v) the coordination, selection, arrangement and enhancement of such intellectual property as a Collective Work under the United States Copyright Act, as amended (collectively, “Wink Platform IP”), and nothing contained herein shall be construed as creating or granting to any User any right, title or interest in and to such Wink Platform IP other than the express license granted therein pursuant to these Terms. Wink Platform IP is protected in all forms, media and technologies now known or hereinafter developed as well as by the domestic and international laws of copyright, trademarks, patents, and other proprietary rights and laws.
You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions and usage data, and except as specifically permitted by us in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you (i) have no right to receive any income or other consideration from any User Content or your use of any musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Services or on any third party service ( e.g. , you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).
Subject to your compliance with these Terms, and any other policies we make available to you from time to time, Wink grants you a personal, worldwide, royalty-free, non- transferable, non-exclusive, revocable, non-sublicensable license to: (a) access and use the Services for your non-commercial use or internal business use, solely as permitted by the tools, products, services, functionalities and/or features of the Wink Platform, subject in all respects to these Terms, and not for redistribution of any kind; (b) download, install and use the Wink Platform on one or more mobile device(s) (e.g. cell phone or tablet), which natively executes an operating system supported by Wink, and that you own or control for your non-commercial use or internal business use; and (c) use products or services offered within the Wink Platform or Site.
You agree that any software that we provide you, including the Wink Platform, may automatically download and install upgrades, updates or other new features and regularly send log information to our servers. You may be able to adjust these automatic downloads through your mobile device settings. These updates and upgrades are designed to improve and enhance our Services and can include bug fixes, enhancements and new modules. You consent to the installation of such software, including updates and upgrades (and authorize us to deliver such software to you) as part of your use of our Services. You may withdraw consent by ceasing to use the Services.
You may not sell, rent, lease, assign, distribute, copy, modify or host any part of our Services. As well, you may not adapt, merge, make adaptations, translations or derivative works of, disassemble, decompile, reverse compile, attempt to discover the source code or reverse engineer any part of the Services, except to the extent these restrictions are expressly prohibited by applicable law.
3. Rights You Give Us.
We do not claim ownership of your content, but you grant us a license to use it.
Some of our Services assist you with creating, uploading, posting, sending, receiving and storing images (such as your profile photo), videos, messages, and other information (“User Content”).
Nothing is changing about your rights in your content. We do not claim ownership of the User Content that you post on or through the Services.
Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos) on or in connection with our Services, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, adapt, modify, run, copy, publicly perform or display, publish, translate, and create derivative works of your content (consistent with your privacy and application settings) and to authorize other users of the Services and other third-parties to view, access, use, download, adapt, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented. You further grant us a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content; provided, however, that your ability to provide an image, voice, and likeness may be subject to limitations due to age restrictions.
For the avoidance of doubt, the rights granted in the preceding paragraphs of this paragraph include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (a “PRO”), a sound recording PRO, any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
All of the rights you grant in your User Content in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third party services will not have any separate liability to you or any other third party for User Content posted or used on such third party service via the Services.
Waiver of Rights to User Content.
By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you post to or through the Services.
Notwithstanding any other provision in these Terms, you represent and warrant that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any User Content, including that you will (i) make only accurate statements that represent your genuine experience with any product, good or service and (ii) make all required disclosures pursuant to the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such guides may be amended from time-to-time by the FTC. Follow this link for further information on complying with the FTC’s guidance: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf.
Permission to use your username and profile picture with accounts, ads, and sponsored content.
You give us permission to show your username, Snapchat Bitmoji (profile photo), and information about your actions (such as messages) next to or in connection with accounts, ads, offers, and other sponsored content that you follow or engage with that are displayed on Wink products, without any compensation to you. As with actions on other content and follows of other accounts, actions on sponsored content and follows of sponsored accounts can be seen only by people who have permission to see that content or follow.
While we aren’t required to, we may review, screen and delete your User Content and/or user account at any time if we think it may violate these Terms. You are responsible for the User Content that you send through the Services, including for back up of such content.
If you select a username or similar identifier for your account, we may change it if we believe it is appropriate or necessary (for example, if it infringes someone's intellectual property or impersonates another user).
We’re always happy to hear from you but if you volunteer any feedback or suggestions about Wink or the Services, you agree that you will not submit to us any feedback or suggestions that you consider to be confidential or proprietary and that we can use your feedback and suggestions in any manner we deem is appropriate without compensating you.
You acknowledge and agree that Wink may establish general practices and limits concerning use of the Wink Platform, including without limitation the maximum number of days that User Content posted to the Wink Platform will be retained by, or made available through, the Wink Platform, and the maximum storage space that will be allotted on Wink’s servers on your behalf. You agree that Wink has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the Wink Platform. You further acknowledge that Wink reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
In order to reward Users for certain activities, Wink may give you the opportunity to earn, and use credits in Wink’s in-app virtual currency (“Gems”) that may be used to acquire virtual goods and services solely with the Services. Gems are not real money, do not have monetary value, and may never be redeemed for “real world” money, or other items of monetary value from outside the Services without our written permission. While we may use terms like “earn”, “trade-in”, or “cash-out” in reference to the Gems, we do so only for convenience and such terms in no way indicate that Gems have monetary value or are real money. You acknowledge that Gems are not real currency and are not redeemable for any sum of money from us at any time. We make no guarantee as to the nature, quality, or value of the features of the Services or any third-party good or services that will be accessible through the use of Gems, or the availability or supply of Gems. Gems obtained via the Services are provided to you under a limited, personal, revocable, non-transferable, non-sublicenseable license to use within the Services. Gems may not be transferred to other accounts or resold in any manner, including, without limitation, by means of any direct sale or auction service. You have no property interest, right or title in or to any Gems appearing or originating in the Services or any other attributes associated with use of the Services. Any “virtual currency” balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
All Gems are forfeited if your account or access to the Services is terminated or suspended for any reason, in our sole and absolute discretion, or if we discontinue availability of some or all of the Services. We may at any time expire free or promotional Gems given to you.
We have no liability for hacking or loss of your Gems or any goods or services obtained using Gems. We have no obligation to, and will not, reimburse you for any Gems that are lost due to your violation of these Terms. We reserve the right, without prior notification, to limit the quantity of Gems and to refuse to provide you with any Gems. Price, exchangeability and availability of Gems are determined by us in our sole discretion and are subject to change without notice. You agree that we have the absolute right to manage, distribute, regulate, control, modify, or eliminate Gems as we see fit in our sole discretion, and that we will have no liability for exercising such right.
You agree that under no circumstances are we liable to you for any damages or claims that may arise from the loss or use of your Gems regardless of the circumstances. You absolve us of any responsibility to maintain or update your account Gems balance. However, if there is a loss of Gems in your account due to technical or operational problems with the Services, we will refund the lost Gems once the loss has been verified. Without limiting any of the foregoing, our maximum liability or responsibility to you is to refund the Gems lost.
You may from time to time be presented with opportunities to redeem Gems. We will, in our sole discretion, determine and communicate the availability and exchange rate for any Gems, which may be modified at any time. We reserve the right to cancel, restrict or terminate Gems at any time for any reason. All redemptions are subject to these Terms and all limitations and requirements stated via the Services. All acquisitions and redemptions of Gems are final. Once Gems have been lost or spent, they will be subtracted from your account and cannot be refunded or returned, except in our sole discretion.
6. Safety and Respecting the Rights of Others
Providing a safe and open service for a broad community requires that we all do our part. Accordingly, when using the Services, you agree to the following:
● You can't impersonate others or provide inaccurate information. You must provide us with accurate and up to date information (including registration information). Also, you may not impersonate someone you aren't, and you can't create an account for someone else unless you have their express permission.
● You can't do anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose.
● You can't violate (or help or encourage others to violate) these Terms or our policies. Learn how to report conduct or content in our help center.
● You can't do anything to interfere with or impair the intended operation of the Services.
● You can't attempt to create accounts or access or collect information in unauthorized ways. This includes creating accounts or collecting information in an automated way without our express permission.
● You can't attempt to buy, sell, or transfer any aspect of your account (including your username) or solicit, collect, or use login credentials or badges of other users.
● You can't post private or confidential information or do anything that violates someone else's rights, including intellectual property. Learn more, including how to report content that you think infringes your intellectual property rights, at clause 9 of these Terms.
● You can't use a domain name or URL in your username without our prior written consent.
● You can’t decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application or widget), except to the limited extent applicable laws specifically prohibit such restriction.
Without limitation to the foregoing, you may not upload, post, send, comment on or store content that:
● violates or infringes any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
● promotes an illegal activity or that impersonates any other person or entity, including Wink;
● is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
● is harmful to minors in any way or targeted at persons under the age of 13 (or such other age as determined by us at our sole discretion, taking into account factors such as the jurisdiction in which you are a resident);
● spams or solicits Wink users to purchase anything;
● requests any form of identification or illegal content from Wink users; or
● interferes with the positive experience of other users of the Wink Platform, in Wink’s discretion.
You agree not to use the Services to:
● upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
● collect information or data regarding other users, including email addresses or usernames, without their consent (e.g. using harvesting bots, robots, spiders, or scrapers);
● disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Services (e.g. a denial of service attack);
● attempt to gain unauthorized access to the Services or servers or networks connected to the Services (e.g. through password mining); or
● interfere with another user’s use and enjoyment of the Services.
The Wink Platform enables Users to communicate and interact with other Users, including, without limitation, sending messaging between Users. You are solely responsible for all of your interactions with the Wink Platform and other Users/User Content on or through the Wink Platform. In your interactions with other Users/User Content, you agree to conduct yourself professionally, civilly and respectfully at all times. You acknowledge and agree that Wink will not be responsible for the actions of any Users with respect to any other User or User Content, and that Wink does not actively monitor or police the specific interactions between Users of the Wink Platform and other Users or User Content (and has no obligation to do so). You hereby release, disclaim and hold Wink harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User or User Content (whether online or offline). Notwithstanding the foregoing, Wink reserves the right to determine, in its sole discretion, what constitutes harassment, mischief, or unacceptable conduct with or towards other Users or User Content, and where that has occurred, and may in its sole discretion, partially or completely deny, suspend or terminate access to the Wink Platform to any User that it determines has engaged in such behavior.
7. Your Account
You are responsible for anything that happens in your account, so please keep it secure. You agree that the registration information you give to Wink is true and that you’ll keep it up to date.
Also, you agree that you will not:
● create another account if we’ve disabled one you had unless you have our written permission first;
● buy, sell, rent or lease access to your Wink account or username unless you have our written permission first;
● share your account sign in information with anyone;
● log in or try to log in to access the Services through unauthorized third party applications or clients.
If you think someone has gained access to your account, please contact our Trust & Safety team at email@example.com.
If you no longer want to use our Services again, and would like your account deleted, we can take care of this for you. Please contact us via firstname.lastname@example.org, and we will provide you with further assistance and guide you through the process. Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the User Content or information you have added.
8. Data Charges
You are responsible for any mobile charges when you use the Services including data charges for use or the Services and/or updates or upgrades of new versions of the Services. If you’re not sure what those charges may be, please ask your provider before using the Services.
We, or our affiliates and licensors as applicable, retain all ownership and intellectual property rights in and to: (1) the Services; (2) all Aggregated Statistical Information; and (3) all modifications, improvements, customizations, updates, enhancements, derivative works, translations and adaptations to the foregoing.
Our policy allows copyright owners to request removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is using Wink to unlawfully infringe the copyright(s) in a work, and want to have the material removed, please provide the following information in writing to 9 Count Inc. Attn: Copyright Takedown Request, 517 Victoria Ave., Venice, CA 90291, Email: email@example.com.
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:
● an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
● a description of the copyrighted work or other intellectual property that you claim has been infringed;
● a description of the material that you claim is infringing and where it is located on the Services;
● your address, telephone number, and email address;
● a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
● a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Wink will promptly terminate the accounts of users that are determined by Wink to be repeat infringers.
11. Third Party Services
If you use a service, feature or product offered by a third party (including those we jointly offer with a third party), such as linking to Snapchat for Bitmoji to use as your profile picture (all together the “Third Party Services”), that third party's terms will govern their relationship with you. Please read and understand those terms and investigate any features that are important to you before using any Third Party Services. Wink is not responsible or liable for the third party terms or content on Third Party Services or actions taken under the third party's terms. Wink does not necessarily conduct a detailed review of and makes no promises about the Third Party Services. By using any Third Party Services, you agree that Wink may transfer the necessary information to the applicable Third Party Services.
12. Modifying the Services and Termination
We are always improving our Services and creating new ones. We may add or remove features, products or functionality, and we may also suspend or stop the Services at any time without notice.
We can also terminate these Terms or deactivate your Wink account or any group you have created or participated in at any time if we think you’ve violated these Terms or for any reason. We may also reclaim usernames if you’ve been inactive for at least 3 months or have violated these Terms, including by infringing other people’s trademarks.
We can remove any content or information you share on the Services if we believe that it violates these Terms, our policies or we are permitted or required to do so by law, or in response to complaints from other users or third parties, with or without notice and without any liability to you. We have the right to remove, disallow, block or delete any posting you make on our Services if, in our opinion, your message does not comply with the content standards set out in these Terms. We can refuse to provide or stop providing all or part of the Services to you (including terminating or disabling your account) immediately to protect our community or services, or if you create risk or legal exposure for us, violate these Terms or our policies, if you repeatedly infringe other people's intellectual property rights, or where we are permitted or required to do so by law. As a result, we recommend that you save copies of any User Content that you post to the Services on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content. We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content. If you believe your account has been terminated in error, or you want to disable or permanently delete your account, consult our help center.
Content you delete may persist for a limited period of time in backup copies and will still be visible where others have shared it. This paragraph, and the section below called "How We Handle Disputes," will still apply even after your account is terminated or deleted.
We will not be liable to you for terminating this Agreement, including for termination of your Wink account or deletion of your content. No matter who ends this agreement, you and Wink will continue to be bound by Sections 3 (Rights You Give to Us), 5 (Privacy), 6 (Safety and Respecting the Rights of Others), 9 (Ownership), 10 (Copyright), 11 (Third Party Services), 12 (Modifying the Services and Termination), 13 (Additional Terms for Specific Services), 14 (Who is Responsible if Something Happens), 15 (How We Handle Disputes), 16 (Severability), 17 (Final Terms) and 18 (Updating These Terms).
13. Additional Terms for Specific Services
Since we have a growing number of Services, we sometimes need to describe additional terms for specific Services. Those additional terms and conditions, which are available with the relevant Services, then become part of your agreement with us if you use those Services. For additional information on how our Services work, you can visit our Help site located at getwinkapp.com.
14. Who Is Responsible if Something Happens.
TO THE EXTENT PERMITTED BY LAW, WINK, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “WINK PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICES AND ANY CONTENT OR FEATURES THEREON AVAILABLE ON THE SERVICES, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE WINK PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICES OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICES AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL USER CONTENT YOU UPLOAD TO THE SERVICES.
THE WINK PARTIES DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR FREE, OR THAT THE SERVICES AND ANY CONTENT OR FEATURES THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO WINK PARTY WILL BE RESPONSIBLE FOR THOSE COSTS. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE ALSO DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
IN NO EVENT WILL ANY WINK PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICES AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH WINK PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WINK’S LIABILITY, AND THE LIABILITY OF ANY OTHER WINK PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
We don’t control what people and others do or say, and we aren’t responsible for their (or your) actions or conduct (whether online or offline) or content (including unlawful or objectionable content). We also aren’t responsible for services and features offered by other people or companies, even if you access them through our ServiceS, as noted above under “Third Party Services”.
You agree to defend (at our request), indemnify and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with these Terms or your use of the Services. You will cooperate as required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.
15. How we Handle Disputes
In the interest of resolving disputes between you and Wink in the most expedient and cost effective manner, and except as described in Section 15, you and Wink agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 15, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to 9 Count, Inc., Attention: Legal Department – Arbitration Opt-Out, 517 Victoria Ave., Santa Monica, CA 90291 that specifies: your full legal name, the email address associated with your account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Wink receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved in accordance with Section 17. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Any arbitration between you and Wink will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Wink. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Wink’s address for Notice is: 9 Count, Inc., 517 Victoria Ave., Santa Monica, CA 90291. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Wink may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Wink must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Wink in settlement of the dispute prior to the award, Wink will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
If you commence arbitration in accordance with these Terms, Wink will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, CA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Wink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
YOU AND WINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Wink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If Wink makes any future change to this arbitration provision, other than a change to Wink’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Wink’s address for Notice of Arbitration, in which case your account with Wink will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If this Section 15 is found to be unenforceable, or if Wink receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.
If any part of these Terms is found to be invalid, illegal or unenforceable for any reason, then that provision will be severed from these Terms to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
17. Final Terms
The laws of the State of California, to the extent not preempted by or inconsistent with federal law, will govern these Terms and any claim, without regard to conflict of law provisions.
All rights not granted to you are reserved by Wink and all intellectual property in the Services is owned or licensed by us.
These Terms are the final, complete and exclusive agreement between you and 9 Count Inc. and supersede all prior agreements between us. Except where prohibited by applicable law, we reserve the right to change these Terms at any time without notice. Your continued access to and use of the Services after changes to these Terms indicates your acceptance of such changes. It is your responsibility to review these Terms regularly.
If we don’t enforce a part of these Terms, it will not be considered a waiver. You can’t transfer your rights or obligations under this agreement without our consent. The word “including” means including without limitation. We may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or bankruptcy or other operation of law, without your consent.
If we need to contact you about these Terms, you: (1) agree to receive electronic messages from us; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other messages we send to you electronically satisfy all legal requirements as if they were in writing. We agree that these Terms and all related documents are in English.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
18. Updates to These Terms
We may change our Services and policies, and we may need to make changes to these Terms so that they accurately reflect our Services and policies. Unless otherwise required by law, we will notify you (for example, through our Services) before we make changes to these Terms and give you an opportunity to review them before they go into effect. Then, if you continue to use the Services, you will be bound by the updated Terms. If you do not want to agree to these or any updated Terms, you can delete your account, here.
19. Notice Regarding Apple
This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Wink only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Wink welcomes your comments, complaints, claims, questions and suggestions. Please send us feedback at firstname.lastname@example.org.
9 Count Inc. is located in the State of California, United States of America in:
Venice, CA 90291.