WinnComm, LLC Terms of Service
Last Updated: Friday, January 14, 2016
WinnComm, LLC has not commercially released the Service to the general public, and the Service has not yet been tested like other commercially released software and services that you may use. Therefore, it is likely that the Service will contain errors, including errors that may cause the Service or your systems to malfunction or cause a loss of data. If you do not wish to accept the risk of errors in the Service, please do not install or use the Service. Furthermore, WinnComm, LLC is not obligated to correct errors or correct the effects of errors (e.g., recover lost data).
These Terms provide that all disputes between you and WinnComm, LLC will be resolved by BINDING ARBITRATION. 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, and your claims cannot be brought as a class action. Please review Section 21 below, titled “Dispute Resolution and Arbitration” for the details regarding your agreement to arbitrate any disputes with WinnComm, LLC.
1. WinnComm, LLC Service Overview. The Service provides a suite of automated marketing functions based on the keywords and options you choose in the Service, including information about prospective customers for your business (“Leads“). WinnComm, LLC also makes available services to help you implement the Service on your website.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
WinnComm, LLC changes the fees for the Service, including by adding additional fees or charges, WinnComm, LLC will provide you advance notice of those changes. If you do not accept the changes, WinnComm, LLC has the right to discontinue providing the Service to you. WinnComm, LLC will charge the payment method you specify at the time of purchase. You authorize WinnComm, LLC to charge all sums as described in these Terms to that payment method. If you pay any fees with a credit card, WinnComm, LLC may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize WinnComm, LLC to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums, except as provided below. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect. If you terminate your account and this Agreement, WinnComm, LLC will refund to you the monthly payment you made for the final month of your subscription.
There will be a 30 day cancellation policy. Once you submit a cancellation, it will take effect the date we receive this and 30 days thereafter. Your billing for any of the services we provide will be prorated accordingly.
6.1User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages about their products and services, keywords, coupons, photos, video, images, folders, data, text, and other types of works (“User Content“) and to publish User Content on or through the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
6.2Limited License Grant to WinnComm, LLC. By posting or publishing User Content, you grant WinnComm, LLC a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You also grant WinnComm, LLC the right to post your User Content on third party services and syndicate your User Content in accordance with the settings you choose in the Service.
6.3User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize WinnComm, LLC and the third party services that you choose in the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in these Terms and in the manner contemplated by WinnComm, LLC, the Service, and these Terms; and
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause WinnComm, LLC to violate any law or regulation.
6.4User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. WinnComm, LLC may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against WinnComm, LLC with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, WinnComm, LLC does not permit copyright-infringing activities on the Service.
7.1DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
PO Box 3173 Renton, WA 98056
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
f. 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.
8.1use the Service for any illegal purpose or in violation of any local, state, national, or international law;
8.2violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
8.3post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
8.4interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
8.5interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
8.6perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
8.7sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 14 ) or any right or ability to view, access, or use any Material; or
8.8attempt to do any of the acts described in this Section 8 , or assist or permit any person in engaging in any of the acts described in this Section 8 .
9. Third-Party Services and Linked Websites. WinnComm, LLC may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on WinnComm, LLC with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
If you are using our mobile applications on an iOS device, the terms of this Section 10 apply. You acknowledge that these Terms are between you and WinnComm, LLC only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails 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 Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 10 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 this Section 10 of these Terms against you. 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.
. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, WinnComm, LLC may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by using the termination functionality in the Service or by contacting customer service at firstname.lastname@example.org. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service, except as otherwise provided in these Terms. Following termination of these Terms or your account, you must destroy or delete all software code provided to you by WinnComm, LLC within three (3) business days.
12.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms“), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 13 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
. The Service is owned and operated by WinnComm, LLC. The visual interfaces, graphics, design, compilation, information, data, Leads, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials“) provided by WinnComm, LLC are protected by intellectual property and other laws. All Materials contained in the Service are the property of WinnComm, LLC or our third-party licensors. Except as expressly authorized by WinnComm, LLC, you may not make use of the Materials. WinnComm, LLC reserves all rights to the Materials not granted expressly in these Terms.
15. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback“), then you hereby grant WinnComm, LLC an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
16. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify WinnComm, LLC and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “WinnComm, LLC Entities“) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
17. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE WINNCOMM, LLC ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE WINNCOMM, LLC ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, ACCURATE OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
WINNCOMM, LLC MAKES NO GUARANTEE ABOUT THE QUALITY OR EFFECTIVENESS OF THE SERVICE AND DISCLAIMS ALL RESPONSIBILITY FOR ANY IMPACT THAT THE SERVICE MAY OR MAY NOT HAVE ON THE MARKET FOR YOUR BUSINESS, GOODS, or SERVICES. WinnComm, LLC is not responsible for the results of any interaction between you and ANY current or prospective customer on or through the service, FOR any dispute between you and ANY current or prosepctive customers, or FOR any loss, damage or liability arising from ThOSE interactions or disputes.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING ANY STATEMENT IN THE SERVICE REGARDING THE POSSIBLE IMPACT OF THE SERVICE ON YOUR BUSINESS, WILL CREATE ANY WARRANTY REGARDING ANY OF THE WINNCOMM, LLC ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, YOUR DEALING WITH ANY CUSTOMER OR POTENTIAL CUSTOMER, YOUR DEALING WITH ANY THIRD PARTY CUSTOMER SERVICE PROVIDER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITE OR SERVICE, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL ANY WINNCOMM, LLC ENTITY BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY WINNCOMM, LLC ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT EXCEPT AS OTHERWISE SET FORTH IN SECTION 21.4 (iii), THE AGGREGATE LIABILITY OF THE WINNCOMM, LLC ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO WINNCOMM, LLC FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and WinnComm, LLC agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating any dispute. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
20. General. These Terms, together with any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and WinnComm, LLC regarding your use of the Service. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 2 and 5 through 22 .
21.2 Exceptions. Despite the provisions of Section 21.1 , 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.
21.3 Arbitrator. Any arbitration between you and WinnComm, LLC will be governed by conducted by the Judicial and Mediation Services (“JAMS“) pursuant to the then-applicable commercial arbitration rules of JAMS, (collectively, “JAMS Rules“), as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling JAMS at 1-800-352-5267, or by contacting WinnComm, LLC.
21.5 Fees. If you commence arbitration in accordance with these Terms, WinnComm, LLC 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 JAMS Rules. Any arbitration hearing will take place at a location to be agreed upon in King County, Washington, but if the claim is for $10,000 or less, unless the arbitrator rules otherwise, 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 JAMS 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 JAMS Rules. In that case, you agree to reimburse WinnComm, LLC for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS 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.
21.7 Modifications. If WinnComm, LLC makes any future change to this arbitration provision (other than a change to the address for Notice of WinnComm, LLC), you may reject the change by sending us written notice within 30 days of the change to the address for Notice of WinnComm, LLC, in which case your account with WinnComm, LLC will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
21.8 Enforceability. If Section 21.6 is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.