Updated as of: April 7, 2021
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.
By registering for and/or using the Services in any manner, including but
not limited to phone number, name, and user name, you agree to all of the terms and conditions
contained in these Terms, which also incorporate Wink’s Privacy Policy, Community Guidelines and
all other operating rules, policies and procedures that may be published
from time to time on the Wink Platform by Wink, each of which may be updated
by Wink from time to time without notice to you in accordance with the terms
set out under the "Updates to These Terms" section below. In addition, some
services offered through the Services may be subject to additional terms and
conditions specified by Wink from time to time; your use of such services is
subject to those additional terms and conditions, which are incorporated
into these Terms by reference. These Terms apply to all users of the
Services, including, without limitation, users who are contributors of
content, information, and other materials or services on the Site,
individual users of the Services, venues that access the Services, and users
that have a page on the Services. IF YOU DO NOT AGREE WITH THESE TERMS,
PLEASE DO NOT USE THESE SERVICES.
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 16)
1. Who Can Use the Wink Platform.
You may browse the Site and view content without registering or purchasing a subscription, 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 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
support@getwinkapp.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:
legal@getwinkapp.com. 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. Subscriptions
You may also purchase a Wink subscription, which will entitle you to various perks and
benefits. A Wink subscription may be purchased in various packages, such as one-month,
three-month, or six-month subscriptions. For all mobile subscriptions, payment will be
charged to your iTunes or Google account when you confirm your purchase. Your
subscription will renew automatically for the same amount of time as your original
subscription unless you switch off the auto-renew feature at least 24 hours before the end of
your current subscription. This is because your account may be charged for renewal within
24 hours prior to the end of your current subscription period. You can manage your
subscription and switch off auto-renewal by accessing your iTunes or Google account
settings. You may not cancel your current subscription during the subscription period,
although you may cancel automatic renewal at any time.
Both Apple and Google facilitate “free trials” of subscription products (such as Wink) for
first-time users and we take advantage of that ability. For example, from time to time we
may offer a free initial week to first-time Wink subscribers. Eligibility for any such trial is
limited to users who have not previously subscribed to Wink, through either a current or
prior Wink account. If you are a previous Wink subscriber and try to claim a free trial, you
should be aware that Apple or Google may recognize your ineligibility. If so, you may not
receive a free trial, but instead may be charged immediately for your first subscription
month. This is a feature controlled by the Apple App Store or the Google Play Store,
depending on which platform you use for Wink.
Purchases of Subscriptions are non-refundable and non-transferable, even if they expire or
are discontinued. We may change the purchase price for Subscriptions at any time, as well
as the features included in Subscriptions. We reserve the right to stop issuing Subscriptions
at any time and to set expiration dates for Subscriptions. Subscriptions may not be
redeemed for any sum of money or monetary value. If you delete your account or your
account is terminated for any reason, you will lose all unused Subscription time without
refund or other compensation.
3. 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.
4. 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.
You can end these licenses anytime by deleting your content or account.
However, content will continue to appear if you shared it with others and
they have not deleted it. Furthermore, you grant us a non-exclusive,
royalty-free and fully paid, irrevocable, worldwide license, with the right
to grant sublicenses, to: (1) generate anonymized or de-identified
information (“Aggregated Statistical Information”); and (2) using your User
Content as described in the Privacy Policy.
Through-To-The-Audience Rights.
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.
To learn more about how we use information, and how to control or delete
your content, review the Privacy Policy at
www.getwinkapp.com/privacy. You also represent and warrant that you have all necessary rights to
perform the foregoing activities in respect of the User Content (including
in respect of User Content that contains personal information), having
provided all notices and disclosures, obtained all applicable consents and
permissions, or otherwise have all authority, in each case as required by
applicable laws, to enable us to perform the Services. If you only own the
rights in and to a sound recording, but not to the underlying musical works
embodied in such sound recordings, then you must not post such sound
recordings to the Wink Platform unless you have all permissions, clearances
from, or are authorized by, the owner of any part of the content to submit
it to the Wink Platform.
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, 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.
5. Gems
You may purchase Wink's in-app virtual currency ("Gems") that may be used solely to acquire eligible services and merchandise as in-app purchases on Wink, such as various consumables, powerups, and cosmetics. In addition, in order to reward Users for certain activities, Wink may give you the
opportunity to earn, and use credits in gems. 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. We may change the purchase price for Gems at any time, as well as the ways you can use Gems. 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 via purchases or other means 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. Privacy
Your privacy matters to us. You can learn more about how we handle your
information when you use our Services by reading our Privacy Policy at
www.getwinkapp.com/privacy. We encourage you to read it carefully because by using our Services you
agree that Wink can collect, use and share your information in the ways
described in that policy.
7. 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 Wink Community Guidelines, at www.getwinkapp.com/community, as well as 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.
8. 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
support@getwinkapp.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
support@getwinkapp.com, 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.
9. 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.
10. Ownership
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.
11. Copyright
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:
support@getwinkapp.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.
12. 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 logging in with Google (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.
13. 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), 6 (Privacy), 7 (Safety and Respecting the Rights of
Others), 10 (Ownership), 11 (Copyright), 12 (Third Party Services), 13
(Modifying the Services and Termination), 13 (Additional Terms for Specific
Services), 15 (Who is Responsible if Something Happens), 16 (How We Handle
Disputes), 17 (Severability), 18 (Final Terms) and 19 (Updating These
Terms).
California subscribers: You may cancel your subscription, without penalty or obligation, at
any time prior to midnight of the third business day following the date you subscribed. If you
subscribed using an external service (e.g., Apple ID, Google Play), you must cancel through
your external service. If you subscribed through your Apple ID, refunds are handled by
Apple, not Wink. You can request a refund from Apple through your Apple ID account on
your phone or at https://getsupport.apple.com. All other users may request a refund by
contacting Wink’s member services at support@getwinkapp.com , or by mailing or delivering
a signed and dated notice that states that you, the buyer, are canceling this agreement, or
words of similar effect. Please also include your name and the email address, phone
number, or other unique identifier you used to sign up for your account. This notice shall be
sent to: support@getwinkapp.com , Attn: Cancellations. You may have these terms of use e-
mailed to you by sending a request to Wink’s Terms Inquiries, at support@getwinkapp.com .
In accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint
Assistance Unit of the Division of Consumer Services of the California Department of
Consumer Affairs by contacting them in writing at Consumer Information Division, 1625
North Market Blvd., Suite N112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
14. 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.
15. 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.
16. 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 this Section 16,
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 16, 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 18. 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.
17. Severability
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.
18. Final Terms
The laws of the State of California, to the extent not preempted by or
inconsistent with federal law, will exclusively govern these Terms and any claim, without regard to conflict of law
provisions. To the extent that Wink receives an Opt-Out Notice under Section 16, the
parties consent to the exclusive jurisdiction and venue of the state courts located in and
serving Los Angeles County, California and the federal courts in the Central District of
California in connection with any dispute arising hereunder. You agree that regardless of any law to the contrary, any claim or cause of action arising out of or related to Wink, the
Services and/or these Terms must be filed within one (1) year after such claim or cause of
action arose or be forever barred.
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.
19. 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.
20. Notice Regarding Apple
This Section 20 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.
Contact Us
Wink welcomes your comments, complaints, claims, questions and suggestions.
Please send us feedback at
support@getwinkapp.com.
9 Count Inc. is located in the State of California, United States of America
in:
Venice, CA 90291.