End User License Agreement and Terms of Use

Effective Date: May 16, 2016

I.              Introduction and Eligibility

Please read this End User License Agreement and Terms of Use (ŌTermsĶ) carefully before using the Service.

These Terms include Re:groupÕdÕs getwinq.com/privacy-policy.html, which is incorporated by reference into these Terms.  We have included several annotations in boxes to help explain or emphasize key sections.  These annotations are for convenience only and have no legal or contractual effect.

 

These Terms create a legally binding contract.  It may change as the Service changes, and you agree you will review it and any updates regularly.

Binding Agreement.  These Terms constitute a binding agreement between you, a User (as defined below) and Re:groupÕd Media, Inc. and its affiliates and subsidiaries (ŌRe:groupÕd,Ķ Ōwe,Ķ ŌusĶ).  ŌYouĶ and ŌUsersĶ will mean all visitors to the Service.  You accept these Terms each time you access the Service.  If you do not accept these Terms, you must not use the Service.

Revisions to Terms.  We may revise these Terms at any time by posting an updated version.  Revisions to the Terms are effective upon Posting; provided that we will endeavor to provide you with prior notice of any material changes.  The Terms will be identified as of the most recent date of revision.  You should visit this page periodically to review the most current Terms, because you are bound by them.  Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms.  Notwithstanding the preceding sentences of this paragraph, no revisions to these Terms will apply to any dispute between you and us that arose prior to the date of such revision.

The terms ŌpostĶ and ŌpostingĶ as used in these Terms will mean the act of submitting, uploading, publishing, displaying, or similar action on the Service.

II.            The Service

The ŌServiceĶ means any website, mobile application, or Internet service under Re:groupÕdÕs control, whether partial or otherwise, in connection with providing the services provided by Re:groupÕd, including Winq.  The Service provides an online platform that enables Users to post questions or polls and solicit and compare answers from other Users.  The Service will likely change over time and we reserve the right to make any changes to the Service in our sole discretion.  You agree to these Terms in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge.

III.         Eligibility to Use the Service

Children.  No part of the Service is directed to persons under the age of 13.  IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The Service AT ANY TIME OR IN ANY MANNER.  By using the Service, you represent and warrant you are at least 18 years of age.  If you are under 18 years of age, then you affirm that you possess the legal consent of your parent or guardian to access and use the Service.

Agent of a Company, Entity, or Organization.  If you are using the Service on behalf of a company, entity, or organization (collectively ŌOrganizationĶ), then you represent and warrant that you:

1.     are an authorized representative of that Organization;

2.     have the authority to bind that Organization to these Terms; and

3.     agree to be bound by these Terms on behalf of that Organization.

IV.          Your Account

 

If you create an account, then you are responsible for your log-in credentials and for keeping your information accurate.

You are responsible for any activity resulting from the use of your log-in credentials on the Service.

You represent and warrant that the information you provide to Re:groupÕd upon the licensing of the Service and at all other times will be true, accurate, current, and complete.

Your Log-In Credentials.  To use the Service, you will be required to provide certain information to create an account, including your phone number, first name and last name (the combination of your first and last name is referred to herein as your ŌusernameĶ).  When registering, you are prohibited from selecting or using as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name that is subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene.  You represent and warrant that the information you provide to us upon registration and at all other times will be true, accurate, current, and complete. We reserve the right to reject any username or to terminate your username and give such username to another user of the Service in our sole discretion, and without any liability to you.  We also reserve the right to create verified User accounts and to require additional information from you in order to provide you with a verified User account.  You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. 

Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party.  As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service. 

You agree to notify us immediately of any breach in secrecy of your log-in information.  If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Re:groupÕd by e-mail to legal@getwinq.com You will be solely responsible for the losses incurred by Re:groupÕd and others due to any unauthorized use of your account.

V.             Communications

 

We may communicate with you by text message, email or posting notice on the Service.  You may request that we provide notice of security breaches in writing.

            You agree to receive text messages or email from us at the phone number or email address you provided to us for customer service-related purposes.

Electronic Notices.  By using the Service or providing Personal Information (as defined in the Privacy Policy) to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service.  If we learn of a security systemÕs breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you.  You may have a legal right to receive this notice in writing.  To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at legal@getwinq.com

 

You Must Have Permission to Send SMS Text Messages to Others.  You may be able to use the Service to send SMS text messages, which may include marketing content, to  individuals who are not Users of the Service.  For example, you may invite others to use the Service by text message.  You represent and warrant that you will initiate and send text messages using the Service only to those individuals who have expressly agreed to receive SMS text messages, including marketing text messages, from you and us.  You agree that you control the sending of text messages you initiate through the Service and that we are limited to facilitating your text message transmissions.

 

You Consent to Receive SMS Text Messages from Us.  By providing us with your mobile telephone number, you consent to receive text messages at that number as requested for account verification, invitations, and other purposes related to the Service.  While we do not charge a fee for text messages, your carrier may charge standard messaging, data, and other fees. You are responsible for these charges.  We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary.  We are not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.

VI.          Re:groupÕdÕs Content Ownership and Use

The contents of the Service include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other Re:groupÕd content (collectively, ŌRe:groupÕd ContentĶ).  All Re:groupÕd Content and the compilation (meaning the collection, arrangement, and assembly) of all Re:groupÕd Content are the property of Re:groupÕd or its licensors and are protected under copyright, trademark, and other laws.

License to You.  We authorize you, subject to these Terms, to access and use the Service and Re:groupÕd Content solely for the personal use of the Service, at our discretion.  Any other use is expressly prohibited.  This license is revocable at any time without notice and with or without cause.  Unauthorized use of Re:groupÕd Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited.  You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Re:groupÕd Content on any copy you make of Re:groupÕd Content.

            You may not copy, reproduce, republish, upload, post, transmit, or distribute material made available on or through the Service in any way without written permission of the copyright owner.  You may not download or copy materials that we do not make expressly available for download without our prior written permission.  Modification of materials obtained from the Service, including, but not limited to, User Content (as defined below), for any other purpose, including, without limitation, any commercial purpose, is a violation of our copyrights and other proprietary rights or those of our licensors, unless you have obtained express written authorization to the contrary.

Re:groupÕd Marks.  Re:groupÕd Media, the Re:groupÕd logo, and other Re:groupÕd logos and product and service names are or may be trademarks of Re:groupÕd (the ŌRe:groupÕd MarksĶ). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use in any manner the Re:groupÕd Marks.

VII.       Intellectual Property Rights and Your License to Us

 

You, or your licensors, own all of the content you post using the Service.  However, we may use it for any purpose specified in these Terms.  We may also modify your content to ensure it is compatible for use on the Service.

It is very important that you have permission to use other peopleÕs content in your User Content or they may be able to sue you for violating their legal rights.  Non-authorized User Content is not permitted on the Service.

Re:groupÕd Claims No Ownership.  The Service may provide you with the ability to create, post, or share content User ContentĶ).  Re:groupÕd claims no ownership or control over your User Content.  You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the Service.  You are responsible for protecting those rights.

Re:groupÕdÕs Use of Posted Content on the Service.  By creating, posting, or sharing your User Content on or through the Service, and subject to our Privacy Policy, you grant Re:groupÕd a world-wide, non-exclusive, sub-licensable, royalty-free, transferable license to use, modify, remove, publish, transmit, communicate, create derivative works from, display or otherwise use and exploit (ŌUseĶ) your User Content for any purpose and through any media or formats now known or hereafter developed, without compensation to you[, including for the purpose of promoting Re:groupÕd and its services].  You waive any rights you may have regarding your User Content being altered or manipulated in any way that may be objectionable to you.  You further grant Re:groupÕd a royalty-free license to Use your name, image, voice, and likeness made available by or on your behalf through the Service in conjunction with your User Content.  These licenses will continue even after you stop using the Service with respect to any of your User Content posted to the Service that is not deleted by you before you stop using the Service.  Re:groupÕd reserves the right to refuse to accept, post, display, or transmit any User Content in its sole discretion.

You Acquire No Ownership of OthersÕ Content.  You understand and agree that you will not obtain, as a result of your use of the Service, any right, title, or interest in or to such content delivered via the Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in the content.

You Must Have Rights to the Content You Post.  You represent and warrant that: (i) you either are the sole and exclusive owner of all of your User Content that you post to or through the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to Re:groupÕd the rights in your User Content as contemplated under these Terms, and (ii) neither the User Content you post to or through the Service nor your creation of, accessing, posting, submission or transmission of User Content will (A) infringe, misappropriate or violate the rights of any party or entity, including a third partyÕs patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Re:groupÕd to obtain any licenses from or make any payments in any amounts to any third party throughout the world.

Prohibition on Uploading Objectionable Content.  You agree not to post any User Content that is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promoting discrimination, bigotry, racism, or hatred, as determined by Re:groupÕd in its sole discretion.

The Service contains content from users and other Re:groupÕd licensors.  Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Service.

VIII.     Intellectual Property Policy

Re:groupÕd respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our Users to do the same.  Infringing activity will not be tolerated on or through the Service.

Our intellectual property policy is to (i) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content posted to the Service by Ōrepeat infringers.Ķ  We consider a Ōrepeat infringerĶ to be any User that has uploaded User Content to the Service and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. ¤ 512(c) with respect to such User Content.  We have discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.

The Digital Millennium Copyright Act of 1998 (the ŌDMCAĶ) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you (or your agent) may send Re:groupÕd a ŌNotification of Claimed InfringementĶ requesting that the material be removed, or access to it blocked.  The notice must include the following information:

1.     A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;

2.     Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);

3.     Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Re:groupÕd to locate the material on the Service;

4.     Your name, address, telephone number, and email address (if available);

5.     A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

6.     A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Re:groupÕd a counter-notice.

Counter Notification.  If you receive a notification from us that User Content you made available on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a ŌCounter Notification  To be effective, a Counter Notification must be in writing, provided to our Designated Agent through one of the methods identified in this Article VIII , and include substantially the following information

1.     A physical or electronic signature of the subscriber;

2.     Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

3.     A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

4.     The subscriberÕs name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriberÕs address is outside of the United States, for any judicial district in which we may be found, and that the subscriber will accept service of process from the person who provided notification under this Article VIII or an agent of such person.

 

A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. ¤ 512 to confirm the partyÕs obligations to provide a valid counter notification under the Copyright Act.

False Notifications of Claimed Infringement or Counter Notifications.  The Copyright Act provides that:

 

[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. ¤ 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneysÕ fees, incurred by the alleged infringer, by any copyright owner or copyright ownerÕs authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [our] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

 

17 U.S.C. ¤ 512(f).

 

We reserve the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.

Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details.  Notices and counter-notices with respect to the Service should be sent to

[designated agentÕs mailing address]

or ([company email address]). 

Consult your legal advisor and see 17 U.S.C. ¤ 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.

IX.          Suggestions and Submissions

We appreciate hearing from our users and welcome your comments regarding the Service.  Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (Ōcreative ideasĶ), we will:

1.     own, exclusively, all now known or later discovered rights to the creative ideas;

2.     not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any creative ideas; and 

3.     be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.

X.            User Content Disclaimers, Limitations, and Prohibitions

We do not represent or guarantee the truthfulness, accuracy, or reliability of User Content.  You accept that any reliance on material posted by other users or third-party service providers will be at your own risk.  By using the Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.

You are solely responsible for your User Content on the Service.  Re:groupÕd does not endorse any, nor is it responsible for, User Content on the Service.  You assume all risks associated with your User Content, including anyoneÕs reliance on its quality, accuracy, or reliability.  You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation. 

You agree to use the Service only for its intended purpose.  You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws.  The following uses of the Service are prohibited.  You may not:

1.     access the Service for any purpose other than entertainment and informational purposes, or as intended through the provided functionality of the Service or as permitted under these Terms;

2.     use the Service for any commercial purpose without Re:groupÕdÕs express written consent, including communicating or facilitating any commercial advertisement or solicitation;

3.     alter, modify, create derivative works of, sell, license, or in any way exploit any part of the Service or any Re:groupÕd Content;

4.     reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service or Re:groupÕd Content without Re:groupÕdÕs prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Re:groupÕdÕs express written consent: altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and using any trademarks, service marks, design marks, logos, photographs or other content belonging to Re:groupÕd or obtained from the Service.

5.     undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or Re:groupÕd Content or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Service or Re:groupÕd Content, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Re:groupÕd;

6.     attempt to bypass, circumvent, interfere with, harm, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service, or security or other features of the Service designed to control the manner in which the Service is used;

7.     frame or link to the Service without permission;

8.     use data mining, robots, or other data gathering devices on or through the Service;

9.     access, tamper with, or use non-public areas of the Service, Re:groupÕdÕs (and its hosting companyÕs) computer systems and infrastructure, or the technical delivery systems of Re:groupÕdÕs providers;

10.  post, transmit or otherwise make available, including in any User Content, any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or Re:groupÕd Content or communications equipment and computers connected to the Service;

11.  interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers;

12.  provide incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;

13.  disclose or solicit (or attempt to solicit) personal information about another person or harass, abuse, or post objectionable material;

14.  restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users of the Service;

15.  sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;

16.  post advertising or marketing links or content, except as specifically allowed by these Terms;

17.  harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Re:groupÕd employees;

18.  create a new account on the Service without Re:groupÕdÕs express written consent if Re:groupÕd has previously disabled an account of yours;

19.  use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to Re:groupÕd or others;

20.  access the Service from a jurisdiction where it is illegal or unauthorized.; or

21.  assist or permit any persons to engage in any of the activities described above.

XI.          Consequences of Violating These Terms

We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion.  We reserve the right to refuse to provide the Service to you in the future.

Re:groupÕd may review and remove any User Content at any time for any reason, including activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Service.

You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Service.

XII.       Re:groupÕdÕs Liability

Changes to the Service.  We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.

User Disputes.  We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service.  You assume all risk associated with dealing with third parties.  You agree to resolve disputes directly with the other party.  You release Re:groupÕd of all claims, demands, and damages in disputes among users of the Service.  You also agree not to involve us in such disputes.  Use caution and common sense when using the Service.     

Content Accuracy.  We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service.  Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service.  Use the Service at your own risk. 

Third-Party Websites.  The Service may include links to third party websites and applications.  You are responsible for evaluating whether you want to access or use them.  We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications.  You assume all risk and we disclaim all liability arising from your use of them.

We make no promises and disclaim all liability of specific results from the use of the Service.

Released Parties Defined.  ŌReleased PartiesĶ include Re:groupÕd and its affiliates, officers, employees, agents, partners, and licensors.

A.   DISCLAIMER OF WARRANTIES

 

You use the Service at your own risk.  We make no warranties or guarantees.

            YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN ŌAS ISĶ AND ŌAS AVAILABLEĶ BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS AND, AND (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

B.    LIMITATION OF LIABILITY AND INDEMNIFICATION

 

We are not liable for anything that happens to you that somehow may be connected to your use of the Service.  You may be responsible for our legal fees and costs arising out of your use of the Service.

            YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF RE:GROUPÕD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIESÕ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF RE:GROUPÕD CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.

You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Re:groupÕd Content, or (iii) your breach of these Terms.  We will provide notice to you promptly of any such claim, suit, or proceeding.

XIII.     Term and Termination

Term.  These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you terminate your account or we terminate your account, subject to the survival provision of these Terms.

Termination by Us.  We may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon our sole determination.  You hereby agree to our broad right of termination.  You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, then you will indemnify and hold us harmless from any and all liability that we may incur therefor.  Upon our termination of your use of the Service, we may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you. 

Termination by You.  You are free to terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service.  If you wish to terminate your account on the Service, then you may do so by sending an e-mail to legal@getwinq.com or using any other account termination functionality that may be offered through the Service.  For example, we may develop a functionality that permits you to click on a termination button in your account settings.  If you terminate your account, then all of your User Content will be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media maintained by or for us.  You hereby grant us a royalty free license to retain such back-up copies of your User Content on storage media maintained by or for us.  If you stop using the Service but keep User Content on the Service, then these Terms will continue to apply in full force and effect for so long as such User Content is available on or through the Service.

XIV.     General Terms

These Terms constitute the entire agreement between you and Re:groupÕd concerning your use of the Service.  Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the partiesÕ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect.

XV.        Arbitration, Class Waiver, and Waiver of Jury Trial

 

Mandatory Arbitration.   Please read this carefully.  It affects your rights.  YOU AND RE:GROUPÕD AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE.  Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts.  Arbitrators can award the same damages and relief that a court can award.  Please visit www.adr.org for more information.

 

1.     Commencing Arbitration.  A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a ŌNoticeĶ), or, in the absence of a mailing address provided by you to Re:groupÕd, to you via any other method available to Re:groupÕd, including via e-mail.  The Notice to Re:groupÕd should be addressed to legal@getwinq.com Attn: Re:groupÕd Media Inc (the ŌArbitration Notice AddressĶ).  The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the ŌDemandĶ).  If you and Re:groupÕd do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Re:groupÕd may commence an arbitration proceeding as set forth below or file a claim in small claims court.  THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (ŌAAAĶ) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE ŌRulesĶ), AS MODIFIED BY THIS AGREEMENT.  The Rules and AAA forms are available online at www.adr.org.  If you are required to pay a filing fee to commence an arbitration against Re:groupÕd, then Re:groupÕd will promptly reimburse you for your confirmed payment of the filing fee upon Re:groupÕdÕs receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee. 

 

2.     Arbitration Proceeding.  The arbitration will be conducted in English.  A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein.  You and Re:groupÕd agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

 

3.     No Class Actions.  YOU AND RE:GROUPÕD AGREE THAT YOU AND RE:GROUPÕD 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSONÕS CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.

 

4.     Decision of the Arbitrator.  Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed.  The arbitrator may extend this time limit for an additional 30 days in the interests of justice.  All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.  The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim.  The arbitrator will apply the laws of the state of New York in conducting the arbitration.  You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce.  The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.

 

Equitable Relief.  The foregoing provisions of this Article do not apply to any claim in which Re:groupÕd seeks equitable relief of any kind.  You acknowledge that, in the event of a breach of these Terms by Re:groupÕd or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Re:groupÕd, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.

 

Claims.  You and Re:groupÕd agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues.  Otherwise, such cause of action is permanently barred.

 

Improperly Filed Claims.  All claims you bring against Re:groupÕd must be resolved in accordance with this Article XV.  All claims filed or brought contrary to this Article will be considered improperly filed.  Should you file a claim contrary to this Article, Re:groupÕd may recover attorneysÕ fees and costs up to $5,000, provided that Re:groupÕd has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

 

Modifications.  If Re:groupÕd makes any future change to the Mandatory Arbitration provision (other than a change to Re:groupÕdÕs Arbitration Notice Address), then you may reject any such change by sending us written notice within 30 days of the change to Re:groupÕdÕs Arbitration Notice Address, in which case your account with Re:groupÕd and your license to use the Service will terminate immediately, and this Article, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.

 

Enforceability.  If only Section XV(3) or all of this Article XV is found to be unenforceable, then all of this Article XV will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue will be the courts of the state of New York.

 

XVI.         Miscellaneous.

 

1.     Governing Law.  The laws of the state of New York, excluding its conflicts of law rules, govern these Terms and your use of the Service.  Your use of the Service may also be subject to other local, state, national, or international laws.  To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.

 

2.     Assignment.  You may not assign these Terms or any of the rights or licenses granted hereunder, directly or indirectly, without the prior written consent of Re:groupÕd.  Re:groupÕd may assign these Terms, including all its rights hereunder, without restriction.

 

3.     Survival.  The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms.

 

4.     Miscellaneous.  These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Re:groupÕd regarding your use of and access to the Service, and, except as expressly permitted above, may be amended only by a written agreement signed by you and an authorized representatives of Re:groupÕd.  The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of these Terms or any provision of these Terms constitute 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 particular provisions.  In the event that 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.  You agree that no joint venture, partnership, employment, or agency relationship exists between you and Re:groupÕd as a result of these Terms or use of the Service.

XVII.         Contact Information

 

Re:groupÕd Media, Inc.

120 E 23rd St

5th Floor

NY, NY 10010

Legal@getwinq.com

 

NOTICE REGARDING APPLE.  You acknowledge that these Terms are between you and Re:groupÕd only, not with Apple, and Apple is not responsible for the Service or the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.  In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.  Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to:  (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) 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 Service or your possession and use of the Service infringes that third partyÕs intellectual property rights.  You agree to comply with any applicable third party terms, when using the Service.  Apple, and AppleÕs 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 Ōterrorist supportingĶ country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.   If Re:groupÕd provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.