Commonly Used Terms and their Definitions
All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meaning listed below:
“Intellectual Property Rights” means any writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, trade secret or similar laws.
“Person” means any individual, trust or legal entity.
“Personally Identifiable Information” means information that can be reasonably linked to a specific User.
“Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.
“Site Content” means all information on the Site and available through any associated service Wink provides, including without limitation designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format, and their selection and arrangement.
“User” is anyone that accesses the Site other than the Company.
Site Changes and Interruptions
Wink reserves the right to interrupt the Site with or without prior notice for any reason or no reason. You agree that Wink will not be liable for any interruption of the Site, delay or failure to perform. Wink has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site as it sees fit in its sole discretion.
Certain features or services offered by Wink on or through the Site may require you to open an account. In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data and any other information you provide to Company, and keep it accurate, current and complete; and (d) notify Wink immediately of any unauthorized use of your Registration Data, or any other breach of security. You may be held liable for losses incurred by Wink or any other User of the Site due to someone else using your Registration Data or account information as a result of your failing to keep your Registration Data secure and confidential.
You may not use anyone else’s Registration Data at any time without the express permission and consent of the holder of that Registration Data. Wink cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
Proprietary Rights in Site Content; Limited License
“WINK” and other product names, brands, graphics, logos, designs, page headers, button icons, scripts and service names used by Wink to identify the Services, Site and/or other services and/or products owned by Wink or its affiliated companies are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Wink and its affiliated companies in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Wink and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Conduct by Users; Prohibited Conduct
You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Site any content that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) impersonate any Person without their consent, including, but not limited to, a Wink employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the Site any content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Site any content as determined by Wink at its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the Site any content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personally Identifiable Information; (vi) take any action or upload, post, email or otherwise transmit to or via the Site any content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt any Wink service or servers or networks connected to the any Wink service, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (ix) attempt to gain access to any other User’s Personally Identifiable Information; or (x) “stalk”, abuse or attempt to abuse, or otherwise harass another user; (xi) charge any third party for use of the Siteor any Wink service; or (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Site or any of its algorithms that are utilized to operate the Site or any Wink service. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension from accessing the Site.
All Data on the Company’s Servers is subject to Deletion, Alteration or Transfer
When using the Site, you may accumulate Site Content, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA RESIDING ON WINK’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN WINK’S SOLE DISCRETION.
YOU UNDERSTAND AND AGREE THAT WINK HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY SITE CONTENTIN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.
Wink’s liability to you is expressly limited, to the extent allowable under applicable law.
IN NO EVENT SHALL WINK OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICES OR THE SITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL WINK’S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Wink shall not be held responsible or liable for anything that occurs or results from accessing the Site or participating in the Services.
Site Content is Provided “As-Is”
WINK DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS”AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. WINK CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU MAY DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. WINK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WINK DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY WINK SERVICES. YOU ASSUME TOTAL RESPONSIBILTY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST WINK FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
You hereby agree to defend, indemnify and hold harmless Wink, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns and other Users, from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any breach of this Agreement by you, or from your use of the Site. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors, successors and assigns from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any claims by third parties that your activity on the Site infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.
COLLECTION AND USES OF YOUR PERSONAL INFORMATION
Personally Identifiable Information is data that can be used to identify or contact a single person.
If you do provide Personally Identifiable Information, you acknowledge and agree that Wink, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Services. Except as otherwise provided herein, the Personally Identifiable Information you provide to us is used for the Company’s internal purposes only. Wink uses the information it collects to learn what you like and to improve the Services.
Depending on what Services you use on the Site, Wink may request Personally Identifiable Information from you, including but not limited to your full name, a valid email address and username and/or password, billing address, credit card information, proof of identification and physical mailing address.
You agree that Wink may communicate with you via email and any similar technology for any purpose relating to the Services.
CONTROLLING AND ACCESSING YOUR PERSONAL INFORMATION
Your personal information is only private to the extent that keep it private. Should you post personal information on the Site, Wink does not have any control over how another party might use that information. You can access and update your personal information at any time by emailing Wink at firstname.lastname@example.org.
SHARING YOUR PERSONAL INFORMATION
Wink will not give any of your Personally Identifiable Information to any third party or otherwise disclose your Personally Identifiable Information without your express approval except: as reasonably necessary to fulfill your service request or purchase order, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to learn what you like and to improve the Services; to communicate with you regarding the Services and the Company’s business; to comply with tax and other applicable law; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; in connection with a merger, sale, reorganization, dissolution or liquidation of Wink businesses, to prospective or actual acquirers of Wink assets; or as otherwise necessary to protect the Company, its agents and other users of the Services. Wink can (and you authorize Wink to) disclose any information about you to private entities, law enforcement agencies or government officials, as Wink, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. The Company may share general, demographic, or aggregated information with third parties about its Users and their Content and Services usage, but that information will not include or be linked to any Personally Identifiable Information without your consent.
SECURITY OF YOUR PERSONAL INFORMATION
Wink takes the security of your Personally Identifiable Information very seriously, and follows generally accepted industry standards for the protection of the Personally Identifiable Information that you submit, both during transmission and after receipt. However, no method of transmission over the Internet or via mobile device, or method of electronic storage, is 100% secure. Therefore, although we strive to use commercially acceptable means to protect your Personally Identifiable Information, we do not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties.
HOW WE USE YOUR PERSONAL INFORMATION
The Personally Identifiable Information we collect allows us to keep you posted on Wink’s latest product announcements, software updates, new features, and upcoming events. If you do not wish to receive promotional emails from Wink, you can opt out anytime by updating your preferences.
We also use Personally Identifiable Information to help us create, develop, operate, deliver, and improve our products, services, content and advertising, and for loss prevention and anti-fraud purposes.
We may use your Personally Identifiable Information, including date of birth, to verify identity, assist with identification of users, and to determine appropriate services. For example, we may use your date of birth to determine your eligibility to make a purchase on the Site or to use Wink services.
From time to time, we may use your Personally Identifiable Information to send important notices about Wink, such as communications about purchases, changes to our terms and conditions, or Wink service-related issues. Because this information is important to your interaction with Wink and the Wink service, you may not opt out of receiving these communications.
We may also use Personally Identifiable Information for internal purposes, such as data analysis, understanding our user base, auditing, and research to improve Wink’s products, services and customer relations.
COLLECTION AND USE OF NON-PERSONAL INFORMATION
We also collect data that is not Personally Identifiable Information. That is, data that is in a form that does not, on its own, permit direct association with any specific individual. We may collect, use, transfer and disclose non-personal information for any purpose. The following are some examples of non-personal information that we collect and how we may use it:
We may collect information such as occupation, language, zip code, area code, unique device identifier, location, and time zone where you access the Wink app so that we can better understand customer behavior and improve our products, services and advertising.
We may collect and store details of how you use our services. This information may be used to improve our services, and provide additional services.
RETENTION OF YOUR PERSONAL INFORMATION
Wink uses third-party advertising services to serve Wink ads when you visit the Site and sites upon which we advertise (often referred to as “online network advertising”). This advertising technology uses information about your visits to this Site and the sites upon which we advertise (not including your Personally Identifiable Information) to serve Wink ads to you. In the course of serving Wink advertisements to you, a unique third-party cookie may be placed or recognized on your browser.
In some of our email messages, we use a “click-through URL” linked to content on the Wink website. When customers click on of these URL’s, they pass through a separate web server before arriving at the destination page on our website. We track this click-through data to help us determine interest in particular topics and measure the effectiveness of our customer communications. If you prefer not to be tracked in this manner, you should not click text or graphic links in the email messages.
Pixel tags enable use to send email messages in a format customers can read, and they tell us whether mail has been opened. We may use this information to reduce or eliminate messages sent to customers, or to determine what messages are most effective.
LINKED WEBSITES, SERVICES
The Services may contain links to websites other than the Site, and redirection or pass-through to, or integration of, services other than the Services. Except as set forth herein, Wink does not share your Personally Identifiable Information with these websites and services, nor is Wink responsible for the privacy practices of these websites and services. Wink makes no representations or warranties concerning such websites and services, nor shall Wink have any liability concerning such websites and services.
REVIEW SECTIONS OF SITE
The review sections of pages associated with the Site are public. The information that you provide in such portions of the Site is publicly available to others, and can be read, collected and/or used by others, potentially outside the Site. The opinions expressed by each review section participant (who is not an employee of Wink) are his/her own and do not represent the views of Wink.
You agree to grant to Company a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise any copyright, publicity, and database rights you may have in User Content you provide in the reviews sections of the Site (including without limitation, your name, voice, image, likeness, and representations made by you), in any media now known or not currently known (including, without limitation, television, print, radio and the Internet), world-wide, for the purposes of advertising, promoting, reporting and disseminating information about the Company or the Company’s business, services and products.
The Site is not directed to or intended to be used by children under the age of 13. Wink does not knowingly collect Personally Identifiable Information from children under the age of 13. If Wink learns that it has collected Personally Identifiable Information of a child under the age of 13 without parental consent, we will delete that data from our systems. If you become aware that a child has provided Wink with Personally Identifiable Information without parental consent, please contact Wink at email@example.com.
Dispute Resolution; Governing Law; Venue and Jurisdiction
YOU AND THE COMPANY AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SERVICES (INCLUDING YOUR VISIT TO OR USE OF THE SERVICES) SHALL BE FINAL AND BINDING ARBITRATION, except that Wink may seek injunctive relief in state or federal court located in New York County, New York concerning violation by a User of any of the User conduct rules set forth above, and in such case, the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes (the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
Void Where Prohibited
The Site is controlled and operated by Wink from its offices within the United States of America. The Company makes no representation that any aspect of the Services is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Services from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Services and its use. Although the Site is accessible worldwide, not all features, products, or services discussed, referenced, provided for or offered through or on the Site are available to all persons or in all geographic locations, or appropriate for use outside the United States. Wink reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
You may not use or export or re-export any Site content or any copy or adaptation of such content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export control laws and regulations.
The Company’s failure to act with respect to a breach by you or others does not waive Wink’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Wink under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Wink’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Services in a merger, acquisition or sale of all or substantially all of ’s assets. You may not assign or transfer this Agreement or any or all of your rights or obligations hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Wink shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Wink.
This Agreement sets forth the entire understanding and agreement between you and Wink with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
Wink may give notice to you by means of a general notice through the Services, by electronic mail to your e-mail address in our records, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record. All notices given by you or required under this Agreement shall be mailed to us at firstname.lastname@example.org unless otherwise provided in this Agreement.