Welcome to Winksite. Following are the Terms of Service that govern your use of the Winksite Service. We would ask that if you are between 14 and 18 years old that you check with your parents or guardians before you agree to the Terms of Service, and you get them to explain anything in this document that you might not understand.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY IN ORDER TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS AS A VISITOR OR USER OF THE WINKSITE SERVICE. BY ENTERING OR USING WINKSITE, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS OF SERVICE.
Engagelogic Corp. provides the Winksite Service to you, subject to the following Terms of Service ("TOS"), which may be updated by Engagelogic Corp. from time to time without notice to you. In addition, when using particular Winksite Services, you and Winksite shall be subject to any guidelines and rules applicable to such services which may be posted by Winksite from time to time. All such guides and rules are hereby incorporated by reference into the TOS. In most cases the guides and rules are specific to a particular part of the Service and will assist you in applying the TOS to that part, but to the extent of any inconsistency between the TOS and any guide or rule, the TOS will prevail.
Winksite may also offer services from time to time that are governed by other Terms of Service. In such cases the other Terms of Service will be posted on the relevant service to which they apply.
1. DESCRIPTION OF SERVICE
Winksite currently provides individuals and non-profit organizations with access to an on-line community sponsored and maintained by Winksite that includes a wide variety of services, tools, products and other resources to assist you in the creation and operation of mobile web sites and communities for non-commercial use as well as a rich collection of online and wireless resources, including, various communications tools, online and wireless forums, chats, shopping services, personalized content and branded programming through its network of properties (the "Service").
You acknowledge and agree that the Service and the information, products and services associated with it are provided to you on an "AS IS", "AS AVAILABLE" basis and that Winksite and Engagelogic Corp. assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. Unless expressly otherwise stated, any new features that augment or enhance the existing services available through the Winksite Service shall be subject to these TOS.
These TOS do not grant to you or any other user any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of Engagelogic Corp. or any other party.
In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service and/or telephony fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem, web-enabled mobile phone or PDA, or other access device. Please be aware that Winksite has created certain areas on the Service that contain adult or mature content. You must be at least 18 years of age to access and view such areas.
2. YOUR REGISTRATION OBLIGATIONS AND SUPERVISING CHILDREN
In consideration of your use of the Service, you agree to:
(a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Account Information /Registration Data") and
(b) maintain and promptly update the Account Information/Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Winksite has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Winksite has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Winksite is concerned about the safety and privacy of all its users, particularly children. For this reason, parents who wish to allow their children access to the Service should assist them in setting up any relevant accounts and supervise their access to the Service. By allowing your child access to the Service, they will be able to access all of the Services including, email, SMS, MMS, message boards, clubs, instant messages, alerts, M-Cards (profiles), mobile sites (Winksites), and chat (among others). Please remember that the Service is designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether any of the Services and/or Content (as defined in Section 5 below) are appropriate for your child.
3. WINKSITE PRIVACY POLICY
Account Information/Registration Data and certain other information about you is subject to our Privacy Policy. For more information, please see our full Privacy Policy.
4. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a confirmed password and account designation of your choosing upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to:
(a) immediately notify Winksite of any unauthorized use of your password or account and any other breach of security, and
(b) ensure that you exit from your account at the end of each session. Engagelogic Corp. cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.
5. MEMBER/USER CONDUCT
You acknowledge that all information, data, text, software, music, sound, tones, photographs, graphics, video, messages and other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Winksite or Engagelogic Corp are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Service. Winksite does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You acknowledge that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Engagelogic Corp. be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Service.
You agree to not use the Service to:
(a) upload, post, email or otherwise transmit or link to any Content that is unlawful, harmful, threatening, abusive, pornographic, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Engagelogic Corp. or Winksite official, officer, employee, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post, email or otherwise transmit any Content that you do not have a right to transmit 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);
(f) upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
(g) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(h) upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
(j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(k) intentionally or unintentionally violate any applicable law or regulation including, but not limited to, regulations promulgated by any securities exchange;
(l) "stalk" or otherwise harass another; or
(m) harvest or otherwise collect or store personal data about other users.
Winksite does not actively monitor or review the Information uploaded, posted, transmitted or made available on or through the Service. Winksite and Engagelogic Corp. shall not be responsible in any way for any such Information and does not guarantee the accuracy, integrity or quality of such Information. You understand that by using the Service you may be exposed to Information that is offensive, indecent or otherwise objectionable. Winksite and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Winksite and its designees shall have the right to remove any Content, including usernames and site names, that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Winksite or submitted to Winksite including without limitation information in Winksite Message Boards, Winksite Clubs and Communities, and in all other parts of the Service.
You acknowledge and agree that Winksite may preserve Content and may also disclose Content:
(a) to its affiliated companies worldwide for the purpose of providing the Content to you in an efficient manner,
(b) for the purpose of properly administering your account in accordance with the standard operating procedures of Engagelogic Corp., Winksite or its affiliated companies; and/or
(c) if required to do so by law or in the good faith belief that any such preservation or disclosure is reasonably necessary to:
(d) comply with legal process;
(e) enforce the TOS;
(f) respond to claims that any Content violates the rights of third-parties; or
(g) protect the rights, property, or personal safety of Winksite, its users and the public.
You acknowledge that the technical processing and transmission of the Service, including your Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Winksite reserves the right to terminate your access to some or all parts of its Service if you withdraw your consent in this paragraph at any time.
6. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside (if different from the aforementioned).
7. PUBLIC CONTENT POSTED TO WINKSITE
(a) For purposes of the TOS, "publicly accessible areas" of the Service are those accessible by the general public. By way of example, a publicly accessible area of the Service would include public Winksite Mobile Sites, Clubs and Communities, User-to-User Directory, Live Chat Areas, and Winksite Message Boards/Forums, but would not include private Winksite, Mobile Site, Clubs and Communities, or private Winksite communication Services such as a private password protected Winksite Mobile Site.
(b) With respect to Content you elect to post for inclusion in publicly accessible areas of Winksite Mobile Sites, Clubs or Communities or that consists of photos or other graphics you elect to post to any other publicly accessible area of the Service, you grant Engagelogic Corp. a world-wide, royalty free and non-exclusive license to reproduce, modify, adapt and publish such Content on the Service solely for the purpose of displaying, distributing and promoting the specific Winksite Mobile Site, Club or Community to which such Content was submitted, or, in the case of photos or graphics, solely for the purpose for which such photo or graphic was submitted to the Service. This license exists only for as long as you elect to continue to include such Content on the Service and shall be terminated at the time you delete such Content from the Service.
(c) With respect to all other Content you elect to post to other publicly accessible areas of the Service, you grant Engagelogic Corp. the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
By transmitting, uploading, posting or submitting any Information to the Winksite Site you:
(a) declare such Information is not confidential, secret or proprietary information;
(b) warrant that no other party has rights to the Information and that your transmission, posting, uploading or submission of such Information and Content, including usernames and site names deemed to be owned by someone else, to the Service does not violate any copyright or other laws; and
(c) irrevocably grant to Engagelogic Corp. a worldwide, royalty-free, non-exclusive, perpetual license to use, display, perform, distribute, modify, reproduce and publish the Information in any form anywhere.
Certain areas of the Service contain information supplied by visitors and others. Engagelogic Corp. also licenses from third parties the right to publish on the Winksite Web Site various articles and editorials dealing with topics related to mobile site creation and operation. Engagelogic Corp. is not responsible for comments, advice, information or any other posting made by users, visitors, licensors of Engagelogic Corp. or others in these public areas.Engagelogic Corp. reserves the right, but without any obligation, to review materials posted in these public areas and to delete or edit them at any time for any reason or for no reason.
8. DEALINGS WITH ADVERTISERS AND MERCHANTS
Your correspondence or business dealings with, or participation in promotions of, advertisers and merchants found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or merchant. To the fullest extent permitted by applicable law, you agree that:
(a) Winksite shall not be responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such advertisers and merchants on the Service, and
(b) any orders placed by you on, and any product specifications and product availability appearing on, the Service (including, without limitation, Winksite Shopping) are subject to confirmation by, and the terms and conditions of business of, the relevant Merchant.
(c) from time to time we may run competitions, free prize draws and promotions on the Website. These will be subject to additional terms that will be made available at the time of such competitions.
9. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
10. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Winksite and Engagelogic Corp. may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that email messages, SMS messages, MMS messages, notes, comments, chat room postings, message board postings or other uploaded Content will be retained by the Service, the maximum number of "messages" that may be sent from or received by an account on the Service, the maximum size of any "message" that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Winksite's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Engagelogic Corp. has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that Winksite. reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Engagelogic Corp. reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
11. MODIFICATIONS TO SERVICE
Winksite reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Winksite and Engagelogic Corp. shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
12. TERMINATION
You agree that Winksite and Engagelogic Corp. in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if Winksite believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Engagelogic Corp. may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be affected without prior notice, and acknowledge and agree that Winksite may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Winksite shall not be liable to you or any third-party for any termination of your access to the Service.
13. LINKS
The Service may provide, or third parties may provide, links to other World Wide Web sites, mobile/wireless internet sites, or resources. Because Winksite and Engagelogic Corp. has no control over such sites and resources, you acknowledge and agree that Engagelogic Corp. is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. The inclusion of any link on the Service does not imply endorsement by Engagelogic Corp. of the linked site or its sponsoring organization. Your linking to any off-site Web pages or other Web sites is at your own risk. Engagelogic Corp. reserves the exclusive right in its sole discretion to add, decline or remove, without notice, any icon or link to any other Web site. You further acknowledge and agree that Engagelogic Corp. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
14. WINKSITE'S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
Except as expressly authorized by Engagelogic Corp. or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
Engagelogic Corp. grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. The foregoing is subject to applicable statute and other express laws. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Engagelogic Corp. for use in accessing the Service.
15. TRANSCODING SERVICES & CONTENT ADAPTION ENGINES
You may not unless expressly permitted (by a separate license on the
Site or otherwise):
A.) Copy, remove, modify, transcode, adapt, change or alter presentation, markup code, interfere with, obscure, reformat, reverse engineer or decompile, transfer or otherwise make available the Services or the Content or any information learned by You whilst using or accessing the Site, Winksite.com and/or Winkiste.mobi domains, or any software used to operate the Site or provide the Services (except to the extent expressly permitted by applicable law), or use any means to monitor the Site, or adapt, transcode, or transform content or add a wrapper comprised of any combination of header, footer, sidebars, navigation or advertising around mobile pages.
B.) Remove, obscure or change any copyright, trade mark or other
intellectual property right notices displayed on the Site or displayed
on any material copied or printed from the Site.
16. DISCLAIMERS
ENGAGELOGIC CORP. AND ALL OTHER PARTIES INVOLVED IN THE CREATION, PRODUCTION, MAINTENANCE OR DELIVERY OF THE SERVICE DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICES AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ENGAGELOGIC CORP. ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH YOUR ACCESS TO, USE OF, OR BROWSING THE SERVICE OR YOUR DOWNLOADING OF ANY INFORMATION FROM THE SERVICE.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENGAGELOGIC CORP. EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED TERM OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY TERM AS TO THE PROVISION OF SERVICES TO A STANDARD OF REASONABLE CARE AND SKILL OR AS TO NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
2. ENGAGELOGIC CORP. MAKES NO WARRANTY OR REPRESENTATION 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 PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND
(v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(vi) ANY INFORMATION AVAILABLE ON OR THROUGH THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING DESTRUCTIVE PROPERTIES;
(vii) THE INFORMATION AVAILABLE ON OR THROUGH THE SERVICE WILL NOT CONTAIN ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR
(viii) THE FUNCTIONS OR SERVICES PERFORMED BY THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. WINK INTERACTIVE LLC MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THE INFORMATION AVAILABLE OR WITH RESPECT TO ITS LEGITIMACY, LEGALITY, VALIDITY, QUALITY, STABILITY, COMPLETENESS, ACCURACY OR RELIABILITY. ENGAGELOGIC CORP. DOES NOT ENDORSE, VERIFY OR OTHERWISE CERTIFY THE CONTENT OF ANY SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSIONS, AS TO IMPLIED WARRANTIES, MAY NOT APPLY TO YOU.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WINKSITE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THE TOS.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ENGAGELOGIC CORP. SHALL NOT BE LIABLE 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 ENGAGELOGIC CORP. 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 GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
(iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
(v) ANY OTHER MATTER RELATING TO THE SERVICE.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE OF THESE TOS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
18. INDEMNIFICATION
You expressly agree to indemnify and hold Engagelogic Corp. and its subsidiaries, affiliates, officers, agents, co-branders and other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post to or transmit through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
You expressly agree that Engagelogic Corp. shall not be responsible or liable for the accuracy, usefulness or availability of any Information transmitted, uploaded, posted or made available on or through the Service. You must evaluate, and bear the risk associated with, the accuracy, completeness or usefulness of any such Information. Engagelogic Corp. shall not be obligated to actively monitor or review the Information which users or other third parties post, upload or transmit through the Service. However, Engagelogic Corp. reserves the right, in the exercise of its sole discretion but without any obligation, to refuse or remove any Information available on or through the Service that violates these TOS or is otherwise objectionable in the sole opinion of Engagelogic Corp..
THE INFORMATION ON THE SERVICE MAY INCLUDE INAPPROPRIATE MATERIAL. BY ENTERING OR USING THE SERVICE YOU UNDERTAKE FULL RESPONSIBILITY TO:
(A) DETERMINE WHETHER THE INFORMATION COMPLIES WITH YOUR NEEDS;
(B) DETERMINE WHETHER YOU HAVE ADEQUATE LEGAL RIGHTS TO STORE, REPRODUCE OR OTHERWISE USE THE INFORMATION IN ANY MANNER CONTEMPLATED BY YOU; AND
(C) COMPLY WITH ANY AND ALL LEGAL OBLIGATIONS, INCLUDING WITHOUT LIMITATION OBLIGATIONS IMPOSED BY COPYRIGHT, TRADE SECRET, DEFAMATION, INDECENCY, ONLINE CONDUCT AND ACCEPTABLE CONTENT, PRIVACY AND EXPORT LAWS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ENTER OR USE THE SERVICE.
19. EXCLUSIONS AND LIMITATIONS
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 OF SECTIONS 15 AND 16 MAY NOT APPLY TO YOU.
IN PARTICULAR, NOTHING IN THESE TOS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THE NEGLIGENCE OR FRAUD OF ENGAGELOGIC CORP.
20. SPECIAL ADMONITION FOR SERVICES RELATING TO FINANCIAL MATTERS
If you intend to create or join any service, receive or request any news, messages, alerts or other information from the Service concerning companies, stock quotes, investments or securities, please read the above Sections 15 and 16 again. They go doubly for you. In addition, for this type of information particularly, the phrase "Let the investor beware" is apt. The Service is provided for informational purposes only, and no Content included in the Service is intended for trading or investing purposes. Engagelogic Corp. shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted via the Service, and shall not be responsible or liable for any trading or investment decisions made based on such information.
21. NOTICE
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service.
22. TRADEMARK INFORMATION
Winksite, WINKsite, The Mobile Site Builder, Wireless Ink, mStorefront, The Mobile Store Builder, the Winksite logo, Winksite in Chinese Characters, mStorefront in Chinese Characters, the Winksite design, and other Winksite or mStorefront logos and product and service names are trademarks of Engagelogic Corp. (the "Winksite Marks"). Without Engagelogic Corp.'s prior permission, you agree not to display or use in any manner the Winksite Marks.
23. COPYRIGHTS and COPYRIGHT AGENTS
Engagelogic Corp. respects the intellectual property of others, and we ask our users to do the same. Engagelogic Corp. may, in appropriate circumstances and at its discretion, terminate the accounts of users who infringe the intellectual property rights of others.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Winksite's Copyright contact with the following information:
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY IN ORDER TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS AS A VISITOR OR USER OF THE WINKSITE SERVICE. BY ENTERING OR USING WINKSITE, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS OF SERVICE.
Engagelogic Corp. provides the Winksite Service to you, subject to the following Terms of Service ("TOS"), which may be updated by Engagelogic Corp. from time to time without notice to you. In addition, when using particular Winksite Services, you and Winksite shall be subject to any guidelines and rules applicable to such services which may be posted by Winksite from time to time. All such guides and rules are hereby incorporated by reference into the TOS. In most cases the guides and rules are specific to a particular part of the Service and will assist you in applying the TOS to that part, but to the extent of any inconsistency between the TOS and any guide or rule, the TOS will prevail.
Winksite may also offer services from time to time that are governed by other Terms of Service. In such cases the other Terms of Service will be posted on the relevant service to which they apply.
1. DESCRIPTION OF SERVICE
Winksite currently provides individuals and non-profit organizations with access to an on-line community sponsored and maintained by Winksite that includes a wide variety of services, tools, products and other resources to assist you in the creation and operation of mobile web sites and communities for non-commercial use as well as a rich collection of online and wireless resources, including, various communications tools, online and wireless forums, chats, shopping services, personalized content and branded programming through its network of properties (the "Service").
You acknowledge and agree that the Service and the information, products and services associated with it are provided to you on an "AS IS", "AS AVAILABLE" basis and that Winksite and Engagelogic Corp. assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. Unless expressly otherwise stated, any new features that augment or enhance the existing services available through the Winksite Service shall be subject to these TOS.
These TOS do not grant to you or any other user any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of Engagelogic Corp. or any other party.
In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service and/or telephony fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem, web-enabled mobile phone or PDA, or other access device. Please be aware that Winksite has created certain areas on the Service that contain adult or mature content. You must be at least 18 years of age to access and view such areas.
2. YOUR REGISTRATION OBLIGATIONS AND SUPERVISING CHILDREN
In consideration of your use of the Service, you agree to:
(a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Account Information /Registration Data") and
(b) maintain and promptly update the Account Information/Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Winksite has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Winksite has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Winksite is concerned about the safety and privacy of all its users, particularly children. For this reason, parents who wish to allow their children access to the Service should assist them in setting up any relevant accounts and supervise their access to the Service. By allowing your child access to the Service, they will be able to access all of the Services including, email, SMS, MMS, message boards, clubs, instant messages, alerts, M-Cards (profiles), mobile sites (Winksites), and chat (among others). Please remember that the Service is designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether any of the Services and/or Content (as defined in Section 5 below) are appropriate for your child.
3. WINKSITE PRIVACY POLICY
Account Information/Registration Data and certain other information about you is subject to our Privacy Policy. For more information, please see our full Privacy Policy.
4. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a confirmed password and account designation of your choosing upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to:
(a) immediately notify Winksite of any unauthorized use of your password or account and any other breach of security, and
(b) ensure that you exit from your account at the end of each session. Engagelogic Corp. cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.
5. MEMBER/USER CONDUCT
You acknowledge that all information, data, text, software, music, sound, tones, photographs, graphics, video, messages and other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Winksite or Engagelogic Corp are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Service. Winksite does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You acknowledge that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Engagelogic Corp. be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Service.
You agree to not use the Service to:
(a) upload, post, email or otherwise transmit or link to any Content that is unlawful, harmful, threatening, abusive, pornographic, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Engagelogic Corp. or Winksite official, officer, employee, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post, email or otherwise transmit any Content that you do not have a right to transmit 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);
(f) upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
(g) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(h) upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
(j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(k) intentionally or unintentionally violate any applicable law or regulation including, but not limited to, regulations promulgated by any securities exchange;
(l) "stalk" or otherwise harass another; or
(m) harvest or otherwise collect or store personal data about other users.
Winksite does not actively monitor or review the Information uploaded, posted, transmitted or made available on or through the Service. Winksite and Engagelogic Corp. shall not be responsible in any way for any such Information and does not guarantee the accuracy, integrity or quality of such Information. You understand that by using the Service you may be exposed to Information that is offensive, indecent or otherwise objectionable. Winksite and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Winksite and its designees shall have the right to remove any Content, including usernames and site names, that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Winksite or submitted to Winksite including without limitation information in Winksite Message Boards, Winksite Clubs and Communities, and in all other parts of the Service.
Chat Room Terms of Use
You acknowledge that by using chat rooms powered by Winksite, you agree to be bound by Winksite's Member/User conduct located under Winksite's general Terms of Service. Winksite cannot and does not screen the content included in chat rooms, nor do we endorse or take responsibility for any opinions expressed by you or for any content that may be considered objectionable to the user. We will not be liable for any loss or damage incurred by you due to your use of Winksite Chat. You are solely responsible for your activities while using Winksite Chat and indemnify us against any claim resulting from your use of Winksite Chat which breach our terms. We ask you to please respect the wishes of the individual(s) who set-up this chat room for your use.
Restricted Content Warning
Chat rooms may contain content that is inappropriate for viewers under 18 years of age.
By proceeding into a Winksite powered Chat Room you acknowledge that you are at least 18 years and older or if less than 18 years of age specifically authorized by a parent or guardian to access this content. You also acknowledge that you are not in an environment that restricts adult material, and wish to view the chat content.
PLEASE BE AWARE: Upload of pornography and sexually explicit content is not permitted. Sex chat with minors is an offense. Winksite will work with relevant authorities to identify abusers.
You acknowledge and agree that Winksite may preserve Content and may also disclose Content:
(a) to its affiliated companies worldwide for the purpose of providing the Content to you in an efficient manner,
(b) for the purpose of properly administering your account in accordance with the standard operating procedures of Engagelogic Corp., Winksite or its affiliated companies; and/or
(c) if required to do so by law or in the good faith belief that any such preservation or disclosure is reasonably necessary to:
(d) comply with legal process;
(e) enforce the TOS;
(f) respond to claims that any Content violates the rights of third-parties; or
(g) protect the rights, property, or personal safety of Winksite, its users and the public.
You acknowledge that the technical processing and transmission of the Service, including your Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Winksite reserves the right to terminate your access to some or all parts of its Service if you withdraw your consent in this paragraph at any time.
6. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside (if different from the aforementioned).
7. PUBLIC CONTENT POSTED TO WINKSITE
(a) For purposes of the TOS, "publicly accessible areas" of the Service are those accessible by the general public. By way of example, a publicly accessible area of the Service would include public Winksite Mobile Sites, Clubs and Communities, User-to-User Directory, Live Chat Areas, and Winksite Message Boards/Forums, but would not include private Winksite, Mobile Site, Clubs and Communities, or private Winksite communication Services such as a private password protected Winksite Mobile Site.
(b) With respect to Content you elect to post for inclusion in publicly accessible areas of Winksite Mobile Sites, Clubs or Communities or that consists of photos or other graphics you elect to post to any other publicly accessible area of the Service, you grant Engagelogic Corp. a world-wide, royalty free and non-exclusive license to reproduce, modify, adapt and publish such Content on the Service solely for the purpose of displaying, distributing and promoting the specific Winksite Mobile Site, Club or Community to which such Content was submitted, or, in the case of photos or graphics, solely for the purpose for which such photo or graphic was submitted to the Service. This license exists only for as long as you elect to continue to include such Content on the Service and shall be terminated at the time you delete such Content from the Service.
(c) With respect to all other Content you elect to post to other publicly accessible areas of the Service, you grant Engagelogic Corp. the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
By transmitting, uploading, posting or submitting any Information to the Winksite Site you:
(a) declare such Information is not confidential, secret or proprietary information;
(b) warrant that no other party has rights to the Information and that your transmission, posting, uploading or submission of such Information and Content, including usernames and site names deemed to be owned by someone else, to the Service does not violate any copyright or other laws; and
(c) irrevocably grant to Engagelogic Corp. a worldwide, royalty-free, non-exclusive, perpetual license to use, display, perform, distribute, modify, reproduce and publish the Information in any form anywhere.
Certain areas of the Service contain information supplied by visitors and others. Engagelogic Corp. also licenses from third parties the right to publish on the Winksite Web Site various articles and editorials dealing with topics related to mobile site creation and operation. Engagelogic Corp. is not responsible for comments, advice, information or any other posting made by users, visitors, licensors of Engagelogic Corp. or others in these public areas.Engagelogic Corp. reserves the right, but without any obligation, to review materials posted in these public areas and to delete or edit them at any time for any reason or for no reason.
8. DEALINGS WITH ADVERTISERS AND MERCHANTS
Your correspondence or business dealings with, or participation in promotions of, advertisers and merchants found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or merchant. To the fullest extent permitted by applicable law, you agree that:
(a) Winksite shall not be responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such advertisers and merchants on the Service, and
(b) any orders placed by you on, and any product specifications and product availability appearing on, the Service (including, without limitation, Winksite Shopping) are subject to confirmation by, and the terms and conditions of business of, the relevant Merchant.
(c) from time to time we may run competitions, free prize draws and promotions on the Website. These will be subject to additional terms that will be made available at the time of such competitions.
9. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
10. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Winksite and Engagelogic Corp. may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that email messages, SMS messages, MMS messages, notes, comments, chat room postings, message board postings or other uploaded Content will be retained by the Service, the maximum number of "messages" that may be sent from or received by an account on the Service, the maximum size of any "message" that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Winksite's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Engagelogic Corp. has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that Winksite. reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Engagelogic Corp. reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
11. MODIFICATIONS TO SERVICE
Winksite reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Winksite and Engagelogic Corp. shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
12. TERMINATION
You agree that Winksite and Engagelogic Corp. in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if Winksite believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Engagelogic Corp. may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be affected without prior notice, and acknowledge and agree that Winksite may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Winksite shall not be liable to you or any third-party for any termination of your access to the Service.
13. LINKS
The Service may provide, or third parties may provide, links to other World Wide Web sites, mobile/wireless internet sites, or resources. Because Winksite and Engagelogic Corp. has no control over such sites and resources, you acknowledge and agree that Engagelogic Corp. is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. The inclusion of any link on the Service does not imply endorsement by Engagelogic Corp. of the linked site or its sponsoring organization. Your linking to any off-site Web pages or other Web sites is at your own risk. Engagelogic Corp. reserves the exclusive right in its sole discretion to add, decline or remove, without notice, any icon or link to any other Web site. You further acknowledge and agree that Engagelogic Corp. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
14. WINKSITE'S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
Except as expressly authorized by Engagelogic Corp. or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
Engagelogic Corp. grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. The foregoing is subject to applicable statute and other express laws. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Engagelogic Corp. for use in accessing the Service.
15. TRANSCODING SERVICES & CONTENT ADAPTION ENGINES
You may not unless expressly permitted (by a separate license on the
Site or otherwise):
A.) Copy, remove, modify, transcode, adapt, change or alter presentation, markup code, interfere with, obscure, reformat, reverse engineer or decompile, transfer or otherwise make available the Services or the Content or any information learned by You whilst using or accessing the Site, Winksite.com and/or Winkiste.mobi domains, or any software used to operate the Site or provide the Services (except to the extent expressly permitted by applicable law), or use any means to monitor the Site, or adapt, transcode, or transform content or add a wrapper comprised of any combination of header, footer, sidebars, navigation or advertising around mobile pages.
B.) Remove, obscure or change any copyright, trade mark or other
intellectual property right notices displayed on the Site or displayed
on any material copied or printed from the Site.
16. DISCLAIMERS
ENGAGELOGIC CORP. AND ALL OTHER PARTIES INVOLVED IN THE CREATION, PRODUCTION, MAINTENANCE OR DELIVERY OF THE SERVICE DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICES AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ENGAGELOGIC CORP. ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH YOUR ACCESS TO, USE OF, OR BROWSING THE SERVICE OR YOUR DOWNLOADING OF ANY INFORMATION FROM THE SERVICE.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENGAGELOGIC CORP. EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED TERM OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY TERM AS TO THE PROVISION OF SERVICES TO A STANDARD OF REASONABLE CARE AND SKILL OR AS TO NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
2. ENGAGELOGIC CORP. MAKES NO WARRANTY OR REPRESENTATION 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 PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND
(v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(vi) ANY INFORMATION AVAILABLE ON OR THROUGH THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING DESTRUCTIVE PROPERTIES;
(vii) THE INFORMATION AVAILABLE ON OR THROUGH THE SERVICE WILL NOT CONTAIN ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR
(viii) THE FUNCTIONS OR SERVICES PERFORMED BY THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. WINK INTERACTIVE LLC MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THE INFORMATION AVAILABLE OR WITH RESPECT TO ITS LEGITIMACY, LEGALITY, VALIDITY, QUALITY, STABILITY, COMPLETENESS, ACCURACY OR RELIABILITY. ENGAGELOGIC CORP. DOES NOT ENDORSE, VERIFY OR OTHERWISE CERTIFY THE CONTENT OF ANY SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSIONS, AS TO IMPLIED WARRANTIES, MAY NOT APPLY TO YOU.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WINKSITE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THE TOS.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ENGAGELOGIC CORP. SHALL NOT BE LIABLE 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 ENGAGELOGIC CORP. 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 GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
(iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
(v) ANY OTHER MATTER RELATING TO THE SERVICE.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE OF THESE TOS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
18. INDEMNIFICATION
You expressly agree to indemnify and hold Engagelogic Corp. and its subsidiaries, affiliates, officers, agents, co-branders and other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post to or transmit through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
You expressly agree that Engagelogic Corp. shall not be responsible or liable for the accuracy, usefulness or availability of any Information transmitted, uploaded, posted or made available on or through the Service. You must evaluate, and bear the risk associated with, the accuracy, completeness or usefulness of any such Information. Engagelogic Corp. shall not be obligated to actively monitor or review the Information which users or other third parties post, upload or transmit through the Service. However, Engagelogic Corp. reserves the right, in the exercise of its sole discretion but without any obligation, to refuse or remove any Information available on or through the Service that violates these TOS or is otherwise objectionable in the sole opinion of Engagelogic Corp..
THE INFORMATION ON THE SERVICE MAY INCLUDE INAPPROPRIATE MATERIAL. BY ENTERING OR USING THE SERVICE YOU UNDERTAKE FULL RESPONSIBILITY TO:
(A) DETERMINE WHETHER THE INFORMATION COMPLIES WITH YOUR NEEDS;
(B) DETERMINE WHETHER YOU HAVE ADEQUATE LEGAL RIGHTS TO STORE, REPRODUCE OR OTHERWISE USE THE INFORMATION IN ANY MANNER CONTEMPLATED BY YOU; AND
(C) COMPLY WITH ANY AND ALL LEGAL OBLIGATIONS, INCLUDING WITHOUT LIMITATION OBLIGATIONS IMPOSED BY COPYRIGHT, TRADE SECRET, DEFAMATION, INDECENCY, ONLINE CONDUCT AND ACCEPTABLE CONTENT, PRIVACY AND EXPORT LAWS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ENTER OR USE THE SERVICE.
19. EXCLUSIONS AND LIMITATIONS
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 OF SECTIONS 15 AND 16 MAY NOT APPLY TO YOU.
IN PARTICULAR, NOTHING IN THESE TOS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THE NEGLIGENCE OR FRAUD OF ENGAGELOGIC CORP.
20. SPECIAL ADMONITION FOR SERVICES RELATING TO FINANCIAL MATTERS
If you intend to create or join any service, receive or request any news, messages, alerts or other information from the Service concerning companies, stock quotes, investments or securities, please read the above Sections 15 and 16 again. They go doubly for you. In addition, for this type of information particularly, the phrase "Let the investor beware" is apt. The Service is provided for informational purposes only, and no Content included in the Service is intended for trading or investing purposes. Engagelogic Corp. shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted via the Service, and shall not be responsible or liable for any trading or investment decisions made based on such information.
21. NOTICE
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service.
22. TRADEMARK INFORMATION
Winksite, WINKsite, The Mobile Site Builder, Wireless Ink, mStorefront, The Mobile Store Builder, the Winksite logo, Winksite in Chinese Characters, mStorefront in Chinese Characters, the Winksite design, and other Winksite or mStorefront logos and product and service names are trademarks of Engagelogic Corp. (the "Winksite Marks"). Without Engagelogic Corp.'s prior permission, you agree not to display or use in any manner the Winksite Marks.
23. COPYRIGHTS and COPYRIGHT AGENTS
Engagelogic Corp. respects the intellectual property of others, and we ask our users to do the same. Engagelogic Corp. may, in appropriate circumstances and at its discretion, terminate the accounts of users who infringe the intellectual property rights of others.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Winksite's Copyright contact with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and e-mail address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
- Please contact Winksite's Copyright contact for Notice of Claims of Copyright Infringement as follows:
By mail:
Winksite
c/o Engagelogic Corporation
P.O. Box 265
East Islip, NY 11730-0265
Winksite
c/o Engagelogic Corporation
P.O. Box 265
East Islip, NY 11730-0265
This contact information is only for reporting copyright infringement. Contact information for other matters is provided elsewhere on this site.
24. GENERAL INFORMATION
These TOS (including the guides and rules referred to herein) constitute the entire agreement between you and Engagelogic Corp. and govern your use of the Winksite Service, superseding any prior agreements between you and Engagelogic Corp.. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. You and Engagelogic Corp. agree to submit to the exclusive jurisdiction of the United States courts. The failure by Engagelogic Corp. to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of these TOS is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. Engagelogic Corp.'s failure to act with respect to a breach by any user or others does not waive Engagelogic Corp.'s right to act with respect to subsequent or similar breaches. The section headings and subheadings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. This agreement shall be interpreted in accordance with the laws of the State of New York without regard to conflict of law principles. All claims arising from this agreement must be filed in the State or Federal courts located in New York, New York, USA.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
25. VIOLATIONS
Please report any violations of the TOS to Winksite via post or e-mail at legal@engagelogic.com.
Last Modified: February 14, 2017
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