Subject to Your acceptance of and compliance with these Terms and with the applicable payment requirements for the Services, Winit hereby grants you a limited, non-exclusive, non-transferable, non-sub-licensable, revocable right and license to access and use our Platform, solely in accordance with these Terms. Our Platform is designed to help you and other users to: (i) challenge parking violation tickets before the relevant parking violations bureau (the “Bureau”), as well as in any other cities in which Winit may operate, from time to time (collectively, the “Parking Services”); (ii) quickly and easily connect and communicate with attorneys or law firms with relevant legal expertise in traffic violations (collectively, “attorneys”) to challenge traffic violations tickets (collectively, the “Traffic Services”, and together with the Parking Services, the “Services”), and (iii) process payments for both.
To access our Platform, you will be asked to register and maintain an active user account (your “Account”), which includes, among other things, your credit card information and/or other valid payment method, and those license plate number(s) you choose to link to your Account (your “Plate Number(s)”).
You hereby acknowledge, understand and agree that your use of our Platform and Services is intended for Your personal, non-commercial use, unless otherwise previously authorized by us in writing.
Notwithstanding the obligations to which attorneys may be required to follow in verifying the identify of those users who engage their services, Winit shall undertake commercially reasonable efforts to verify the identity of a user at the time he/she submits either a parking or traffic ticket (based upon the policies and procedures that Winit shall implement from time to time), but disclaims any responsibility for doing so and and/or for any errors made during such verification processes (whether such errors have arisen, directly or indirectly, from your acts or omissions). Accordingly, Winit shall not be accountable to any third party for any fees, penalties or fines arising from the use of our Platform, where such use is the direct or indirect result of any identify theft or similarly situated violations of applicable law.
Any attorney-client relationship formed by you and any Service Provider (as defined below) pursuant to the Services, including without limitation the Traffic Services, is between you and such Service Provider and not between Winit and you. Winit is designed to facilitate communications between its users and Service Providers but does not endorse any particular attorney or other Service Provider and shall not be held responsible for the quality or accuracy of any legal services provided by any attorney or other Service Provider. If you choose to initiate a relationship with an attorney or other Service Provider via our Platform, you do so at your sole discretion. Winit does not assume, nor will Winit have, any liability or responsibility to you or any other person in connection thereto. Any attorney or other Service Provider retained by you through our Platform will only be obligated to provide legal representation in connection with the parking or traffic violation ticket(s) specifically provided by you (whether or not via our Platform).
Territorial Scope. Services provisioned through our Platform to process parking tickets are not limited to New York City tickets. As we expand our services to other cities and jurisdictions, we reserve the right to amend these Terms accordingly.
Submitting your Parking Tickets. We recommend you submit your parking ticket through our Platform as soon after receipt thereof as possible, as different municipalities and states impose specific pleading/response deadlines for parking violations. If you fail to submit the tickets through our Platform at least seven (7) business days prior to such deadline, you, and not Winit, shall be solely responsible for any additional costs, including late fees, incurred as a result of your delay.
Service Providers. The Parking Services are made available by Winit, via its partners, affiliates, contractors, representatives and agents (collectively, our “Service Providers”). By using the Parking Services, you authorize our Service Providers to represent you at the relevant Bureau and any other applicable municipal, governmental or other authority on all matters concerning any parking tickets you submitted via our Platform, or those parking tickets received by us through our Auto-Dispute Program (as defined below).
Standstill Provision. Once a parking ticket is submitted through our Platform, you hereby expressly, unconditionally and irrevocably agree: (i) not to take any course of action that will directly or indirectly disrupt, intervene, or circumvent our Service Providers’ and our efforts on your behalf, (ii) not to take any action related to any of your parking tickets without our prior written consent, until Winit notifies you of either: (1) its decision not to dispute Your parking ticket(s), in which case you shall be solely responsible to dispute it or pay the underlying fine, or (2) the corresponding Bureau's (or other applicable authority’s) decision with respect to your parking ticket(s). Any violation of this provision shall subject you to a cancellation fee of Five Dollars ($5.00), which may be imposed in our sole discretion; and (ii) that our Service Providers and we are entitled to take any action reasonably deemed necessary or appropriate in the course of disputing your parking ticket.
Auto Dispute Program; Ticket Fetcher. You may, either upon initial establishment of your Account, or at any time thereafter, choose at your sole discretion, to opt-in to our “Auto Dispute Program,” whereby you authorize Winit and our Service Providers to periodically search various Bureau databases for parking tickets linked to your Plate Number(s) and automatically dispute any future parking tickets found, which are linked to your Plate Number(s). All such auto-disputes shall be undertaken in accordance with these Terms. You have the right, at any time, to opt-out of our Auto Dispute Program by selecting the option to turn off “Auto Dispute” under your Account settings. You hereby acknowledge and agree that it is your sole responsibility to turn off the “Auto Dispute Program” option if you are not interested in such service, and in such case, we shall not dispute future parking tickets linked to your Plate Number without your prior approval (which shall be made either via submission of a specific parking ticket or via your opt-in to our Auto Dispute Program).
Winit processes a considerable amount of parking tickets through our Platform that are being handled by our Service Providers before various Bureaus at any given time. Responding to individual requests regarding the status and the details of any one specific case is prohibitive. Therefore, Winit will not respond to individual inquiries regarding the details or specifics regarding any particular parking ticket, hearings or decisions related thereto. The “Ticket Fetcher” feature on our Platform enables you to manually scan an approved Bureau's database to check the status of your pending parking tickets or to verify whether a new parking ticket has been issued to your Plate Number(s). We recommend all users of our Platform to periodically, independently check various relevant Bureau databases for new parking tickets associated with your Plate Number(s) and follow up on the status of their pending tickets with those Bureaus directly.
Please note that the Auto Dispute Program (which includes, without limitation, our plate monitoring program) and Ticket Fetcher features are available solely for your convenience and neither Winit nor our Service Providers can guaranty that all parking tickets linked to your Plate Number(s) shall be accurately and fully obtained or displayed via our Platform. If you participate in the Auto Dispute Program and/or utilize our Ticket Fetcher service, Winit reserves the right to notify you of new tickets that have been issued to you via any means, which may include email, SMS or by phone. WINIT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE COMPLETENESS OR ACCURACY OF THE INFORMATION OBTAINED USING OUR PLATFORM OR ANY RELATED FEATURES OR PROGRAMS.
Cancellation Policy. Once a parking ticket is submitted through our Platform, you may not cancel or reverse your request for the Parking Services in connection with such parking ticket without our prior written consent. If you submit a parking ticket in error, please notify our customer support by email as early as possible, but in no case later than six (6) hours after your submission thereof. Your failure to notify us within this timeframe will be deemed acceptance by our Platform of your intent to submit your parking ticket(s).
Submitting your Traffic Violation Tickets. We recommend you submit your traffic violation ticket through our Platform as soon after receipt thereof as possible, as most municipalities impose specific pleading/response deadlines for such violations. If you submit a traffic violation ticket to our Platform with an expired (or imminent) hearing date, you increase the risk that your driver’s license will be suspended. Failure to submit traffic violations to our Platform in a timely manner will render you, and not Winit, solely responsible for any additional costs, including late fees, incurred as a result of your delay. In addition, Winit reserves the right to reject any traffic ticket that you submit if Winit, in its sole discretion, determines that it cannot process your ticket in a timely manner and/or if the available attorneys on our Platform refuse any engagement in regards to your traffic ticket. In such instance, you shall neither rely on Winit nor any of Winit’s participating attorneys to manage the processing of your ticket and/or to represent you, as applicable, in connection with your traffic ticket.
General. You hereby agree to maintain current, valid and accepted methods of payment on your Account throughout the term of your use of our Platform. All fees payable by you hereunder are exclusive of applicable taxes and duties. By establishing your Account and using our Platform, you authorize Winit to automatically charge your Account for all applicable charges incurred in connection with the Services. At all times, you remain solely responsible for all charges incurred under your Account, regardless of whether or not you were aware of such charges or their respective amounts at the time they were incurred (for example, under the Auto Dispute Program).
Parking Services. Winit collects payment for the Parking Services only upon successfully resolving your parking ticket in your favor. In the event that the Parking Services lead to a successful dismissal of your parking ticket or reduction in the amount of the fine, you hereby expressly authorize Winit to charge your Account in an amount equal to fifty percent (50%) of the difference between the amount you originally owed on your parking ticket (including any applied late fee charges and penalties) and the final amount of the fine owed following the provision of the Parking Services.
For example, let’s say your parking ticket fine is $100, but you submitted it to our Platform late and your parking ticket had incurred a $10 late fee charge (so the total balance is $110):
Payment Processing. In the event that Winit is unsuccessful in its efforts to have your parking ticket completely dismissed, you may, at your election, pay your parking ticket through our Platform using our Pay Now feature (found on our Platform), whereupon Winit pays the applicable Bureau directly on your behalf. An additional processing fee will be charged to your Account for each payment you make over Pay Now. The amount of such fee will vary from territory to territory, and in all cases will be disclosed by Winit on the summary of charges page immediately prior to your payment (collectively, the “Processing Fee”). Payments processed by us via our Pay Now feature are non-refundable under any circumstances, as we automatically pay on your behalf (after your election to use the feature) all related parking tickets and any related Processing Fees (as described in the “Fees” Section below). All Fees are subject to change in Winit’s sole discretion.
Traffic Services; Usage Fees. With respect to the Traffic Services, all registered users of our Services are required to pay a one-time Platform usage fee per ticket, which fee may be modified from time to time in our sole discretion. The Platform usage fee will be processed by Winit following the submission of your ticket onto our Platform and only after we have received confirmation of your engagement of an attorney. If you choose not to engage an attorney on the Platform to handle your traffic ticket, you will not be charged. The purpose of this fee is solely to cover a small portion of Winit’s Platform operating costs and expenses.
Attorney’s Fees. Moreover, once you choose the attorney with whom you wish to work from all available, participating attorneys on our Platform, you will enter into a direct agreement with such attorney to effectuate the engagement. The fixed legal fees you pay through our Platform in connection with your legal representation are passed through to the attorney in full once you appoint him/her. Accordingly, you understand, acknowledge and agree that once you appoint an attorney through our Platform, you will be charged, through the payment method on the Account, the applicable legal fees and any other payments as may be instructed by you or your attorney. One hundred (100%) percent of the fee you pay the attorney via our Platform is retained by that attorney – Winit does not share in any of those fees.
Bond. Please note that if you missed your court date or otherwise fail to appear on the scheduled date you may be required to post a bond (usually $40 per ticket) to reschedule you trial, and you hereby authorize Winit to automatically charge any such amount upon your attorney’s instructions to do so. At the completion of your trial you will receive the bond money back if you are found not guilty or the bond will be applied toward any fines you owe if you are found guilty.
Intermediary. Although a transaction with the attorney is processed on your behalf through our Platform, Winit is simply an intermediary party in such transaction. Winit has no liability, either primarily or secondarily, for paying the attorney or any third party, other than through our Platform on your behalf. In other words, you will still be required to pay the Attorney the applicable legal fees that you owe him/her, even if such payment cannot be processed via our Platform.
Payment Failure. In the event that Winit is unable to process a payment fee or payment is canceled, Winit shall charge you a Five Dollar ($5.00) service fee per each failed payment attempt, all in accordance with applicable laws and regulations. Any delinquent or late payments shall also incur an interest at a rate of one and a half (1.5%) per month as of due date, or the maximum lesser amount permitted by applicable law. You will also be solely liable for any related “insufficient fund” charges or other penalties which may be imposed by your bank. If we are unable to process payment, the Services will immediately cease unless we notify you otherwise, and you will be responsible to pay for both your ticket and our service fees directly. In addition to the amount(s) due Winit, delinquent accounts and/or chargebacks will be charged with fees and/or charges that are incidental to the collection of delinquent accounts and/or chargebacks, including without limitation, collection fees, convenience fees and/or other third party charges. Without limiting the generality of the foregoing, Winit reserves the right to charge interest at an annualized rate of 18% or the maximum rate permitted by applicable law, whichever is higher. You hereby expressly agree that all communications in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Winit by you. Such communications may be made by Winit or by any third party on its behalf, including without limitation, a third party collection agent. The remedies stipulated in this Section 5 shall not derogate from any other right or remedy available to us by law or under these Terms.
Non-Refundable; Money-Back Guarantee. Winit does not guarantee the success of the services that it makes available to its users via the Winit Platform. As such, any and all fees that you pay to Winit are non-refundable unless you qualify for, and have paid for, Winit’s ticket case protection money-back guarantee program. For more information about this program, please visit: Case Protection Terms. Under this program, at the time you input your ticket within the Winit platform, you’ll be notified via the system if your ticket qualifies you for the money-back guarantee offer. If you do not receive a notification, then your ticket does not qualify you for the program, or you are located in a state that prohibits such programs, or Winit, in its sole discretion, has determined that you do not qualify for the money-back guarantee program. If you do receive a notification via the platform and you, in fact, choose to pay the premium offered by Winit for such case protection guarantee, you will receive a full refund of all monies paid (including the attorney retainer fee) only if you fail to receive any reduction of points and/or fine on the ticket found committed for which you’ve paid a premium. Additionally, your participation in our case protection money-back guarantee program in respect of one ticket has no bearing on any other tickets that you may input within Winit. Rather, each ticket is evaluated on an individual basis, and you must pay for the premium on a ticket-by-ticket basis. For clarification purposes, unless you receive an official message sent from the Winit platform following your payment of the premium that expressly confirms a specific ticket which you’ve inputted is covered by the Winit money-back guarantee, the ticket will not be covered. Winit’s case protection money-back guarantee is neither available for all tickets nor in jurisdictions that prohibit such refunds.
Installment Payment Program. Winit may offer its installment payment program (the “Payment Program”) to eligible users in certain markets and for specific categories of traffic tickets. If your ticket qualifies for our Payment Program, you will be prompted to enroll therein at the time of any form of checkout. Winit reserves the right, in its sole discretion, to modify its eligibility and qualification requirements from time to time. Notwithstanding your desire to participate in Winit’s Payment Program, Winit reserves the right to withhold or refuse your participation for any reason or to impose any additional requirements deemed necessary by Winit in its sole discretion, subject to applicable laws and regulations. Any participation in the Payment Program is entirely voluntary and will not invalidate you from being given access to the Platform and/or from retaining a licensed attorney featured on our platform if you elect not to enroll. Winit reserves the right to utilize the services of a third party to manage all or any aspect of the Payment Program, and therefore, you expressly consent to allow Winit to share your enrollment registration, payment and ticket information with such third party, and you may be required to register with such third party for purposes of participating in the Payment Program. Your participation in the Payment Program will require a down payment equal to an amount expressly approved by Winit plus any applicable vendor processing fees, and the balance (together with any other fees and surcharges imposed by Winit) to be paid in the form of monthly installment payments over such period mutually approved by Winit and you, until such time as your fees are paid in full (i.e., your failure to remit the down payment will immediately void your enrollment/participation in the Payment Program). Besides adding a service provider processing charge to your fees, Winit may also charge you a finance fee and a default fee, both of which will be disclosed to you at the time of your enrollment in the Payment program. Winit reserves the right to terminate your participation in the Payment Program if you fail to remit any monthly installment payment in a timely manner, whereupon you will be required to remit all of the remaining fees which are due and owing in full within twenty-four (24) hours from Winit’s email notice of your default, or your right to access the Platform will be terminated (unless waived or otherwise modified by Winit). No modifications to the terms of your Payment Program participation shall be binding unless expressly approved in advance and via email by a Winit authorized representative.
Suspension; Collections. If the balance is not paid in accordance with these Terms, your account will be suspended and may be sent to a Third-Party Collection Agency.If that happens you will be responsible for paying all collection fees assessed by the Third Party Collection Agency. You agree, for Winit to service your account or to collect any amount you may owe, unless otherwise prohibited by applicable law, Winit or a designated Third Party Collection Agency are authorized to (i) contact you by telephone at the telephone number(s) in the contact account information you are providing, including wireless telephone numbers, which could result in charges to you, (ii) contact you by sending emails and/or text messages (message and data rates may apply), using any email or mobile phone number you provide and/or, (iii) employ such methods of contact as Winit deems necessary, which may include using pre-recorded/artificial voice message and/or use of an automatic dialing device, as applicable. The suspension or termination of your account may also result in the termination or suspension of the legal services provided to you by the attorney whom you engaged via the Platform, which may occur at any time in the sole discretion of such attorney and/or Winit. You acknowledge and agree that you will not contest the termination or suspension of legal services arising from your failure to pay the balance due and owing in a timely manner, irrespective of when such termination or suspension may occur.
You may use our Platform and Services only (i) if you are eighteen (18) years of age or older and are of the age of consent in your jurisdiction, and (ii) for lawful purposes and in accordance and full compliance with any and all applicable international, federal, state, municipal, local or other laws or regulations.
You hereby further undertake not to:
Account Closure. Winit reserves the right at any time, in its sole discretion and without notice to you (subject to the “Pending Tickets” Section below), to terminate your license to use our Platform (and all other rights granted to you herein), and to block or prevent your access to and use of our Platform. You may terminate your license to use our Platform at any time and for your convenience, by notifying us in writing of your decision (or by otherwise following our Account closure procedures which are available on the App); provided, however, that such termination is not permitted and shall not apply to any ticket(s) that you previously submitted through our Platform with respect to which the Services are still provided (collectively “Ongoing Services”).
Pending Tickets. Please note that notwithstanding the parties’ respective termination rights, you will still be bound by these Terms (including any and all payment obligations) in connection with Ongoing Services.
Termination for Breach. Notwithstanding anything hereunder to the contrary, Winit may terminate your account and license to use our Platform if: (i) you violate any of these Terms; (ii) you fail to maintain a valid payment method in your Account; (iii) and/or you are otherwise in default of any payment obligation with respect the Services, including without limitation, failing to make any payment due within twenty-four (24) hours under a Payment Program that you finalize with Winit.
Effect of Termination. Upon termination: (i) all rights granted to you under these Terms will be terminated; (ii) you must cease all use of our Platform and may not submit new tickets; (iii) you will remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services (including in connection with Ongoing Services in accordance with the “Pending Tickets” Section above). For the avoidance of doubt, termination of your use of our Platform and/or our Services will not limit in any way and of Winit’s rights or remedies at law or in equity, all of which are expressly reserved hereby.
Our Platform may display, include or make available third-party content (including information, and other materials) or provide links to third-party websites or services, including through advertising (collectively, “Third Party Materials”). You acknowledge and agree that Winit is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Winit does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
During your usage of the Platform, you expressly authorize Winit to contact you via email, SMS, chat and by direct phone if Winit requires your cooperation regarding any parking or traffic ticket that you’ve uploaded to our Platform or for any other reason that Winit is in need of contacting you regarding your account and/or any promotion. By registering an account and using our Services, you expressly consent to Winit contacting you via any the foregoing methods. Unless you affirmatively consent, Winit will not contact you via SMS to sell you any different products or services that Winit may be offering.
NEITHER WINIT NOR ANY OF ITS SERVICE PROVIDERS MAKES ANY WARRANTY, GUARANTEE OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, QUALITY, SUITABILITY, ACCURACY OR AVAILABILITY OF OUR PLATFORM OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER WINIT NOR ITS SERVICE PROVIDERS REPRESENTS OR WARRANTS RESULTS OF THE USE OF OUR PLATFORM, THAT OUR PLATFORM, ITS CONTENT OR ANY OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT OUR WEBSITE OR APPLICATION ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT OUR PLATFORM OR ANY OF THE SERVICES WILL MEET YOUR EXPECTATIONS. WINIT DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES CONCERNING THE INTEGRITY, COMPETENCE, QUALIFICATIONS, STANDING, STATUS, SUITABILITY, COMPLIANCE WITH PROFESSIONAL RULES, ACCURACY OR LEGALITY OF ADVICE OF ATTORNEYS, OR THE OUTCOME, QUALITY, OR COMPLETION OF THEIR REPRESENTATION. WINIT HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF OUR PLATFORM AND THE SERVICES REMAINS WITH YOU. IN NO EVENT SHALL WINIT OR ANY OF ITS MANAGERS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, AGENTS OR OUR SERVICE PROVIDERS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, INCLUDING ANY LOSS OF PROFITS OR ANTICIPATED SAVINGS, ANY EMOTIONAL DISTRESS, LOSS OF DATA, USE, GOODWILL, OR OTHER MONETARY OR INTANGIBLE LOSSES, RESULTING FROM: (1) YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) OUR PLATFORM OR SERVICES; (2) ANY CONTENT SUBMITTED TO OR ACCESSED THROUGH OUR PLATFORM; (3) ANY SERVICES PROVIDED ON OR OBTAINED THROUGH OUR PLATFORM; OR (4) ANY COMMUNICATIONS OR DEALINGS WITH, OR CONDUCT OF OTHER USERS, OUR SERVICE PROVIDERS AND THE ATTORNEYS.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING DISCLAIMERS AND LIMITATIONS, WE SHALL BE HELD LEGALLY LIABLE FOR LOSS OR DAMAGE, TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF WINIT, (INCLUDING ITS MANAGERS, OFFICERS, MEMBERS, EMPLOYEES, SERVICE PROVIDERS, REPRESENTATIVES OR AGENTS), FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES OR OUR PLATFORM, IS LIMITED TO THE AMOUNT YOU PAID US FOR THE PARKING SERVICES IN THE 12 MONTH PERIOD PRECEDING THE FILING OF SUCH CLAIM (EXCLUDING, FOR THE AVOIDANCE OF ANY DOUBT, ANY AMOUNT PAID TO THE ATTORNEYS THROUGH OUR PLATFORM FOR WHICH WE ACTED SOLELY AS AN INTERMEDIARY PARTY). YOU AGREE THAT LIMITATION AND DISCLAIMERS PROVIDED IN THESE TERMS ARE REASONABLE AND WERE TAKEN INTO CONSIDERATION WHEN USING OUR PLATFORM. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
In addition to applicable disclaimers identified above, our incomplete performance or failure to perform our duties under these Terms will not be considered a breach of these Terms and shall be fully excused in the event of interruption and/or delay due to causes beyond our reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, natural disasters (including without limitation, the elements, fire, and earthquake), explosion, acts of terrorism, power failures, equipment failure, industrial or labor disputes, acts of third party information providers, third party software errors or failures or communications interruptions or failures and all other events beyond our reasonable control.
You agree to defend, indemnify and hold harmless Winit, our affiliates, independent contractors, Service Providers and consultants, and each of their respective officers, employees, agents, affiliates, successors and assigns, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (i) your use of or inability to use our Platform and/or the Services; (ii) your breach of violation of these Terms, any applicable law or the rights of any third party; and/or (iii) your gross negligence, fraud and/or willful misconduct.
Winit, at its sole discretion, may make available promotions with different features to any users or prospective users. Winit reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Winit determines that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms. From time to time, Winit may offer you incentives to refer new users to our Platform (the “Referral Program”). Your participation in the Referral Program is subject to these Terms and any additional Referral Program terms and conditions that Winit shall adopt and implement from time to time.
Our Platform, and the information and material therein, including our Platform’s features, functionality and content are the exclusive property of Winit, its licensor and/or providers of Third Party Materials and are protected by copyright or other intellectual property laws. Using our Platform and/or the Services does not give you ownership of any intellectual property rights in our Platform or the content you access. In the event you elect to communicate to us suggestions for improvements in connection with our Platform or the Services, Winit shall own all right, title, and interest in and to the same, and shall be entitled to use them without restriction.
We respect the rights of owners of intellectual property and expect our users to conduct themselves accordingly. If you believe that any information or material violates these Terms, infringes upon your copyrights or otherwise should be removed, you may submit a notification pursuant to the Digital Millennium Copyright Act (”DMCA”), please immediately notify us by email (Subject line: “DMCA Takedown Request”) or by mail at the address specified below and include the following information (see 17 U.S.C 512(c)(3) for further detail): (i) Identification of the copyrighted work(s) or material claimed to have been infringed or to be the subject of infringing activity and that is to be removed (provide information reasonably sufficient to permit us to locate the material); (ii) A physical or electronic signature of the person authorized to act on behalf of the owner of the right that is allegedly infringed; (iii) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; (iv) 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 (v) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You acknowledge that if you fail to comply with all of the requirements of this paragraph, your DMCA notice may not be valid.
If you believe that any content provided by you was improperly removed (or to which access was disabled) and is not infringing, or that you have the authorization from the copyright owner or its agent, or by law, to post and use such content, you may send us a counter-notice containing the following information: (i) Your name, address, telephone number, and e-mail address and your physical or electronic signature; (ii) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (iii) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (iv) a statement that you consent to the jurisdiction of the federal court in New York, New York, and that you will accept service of process from the person who provided notification of the alleged infringement. We have the right but not the obligation to send a copy of such counter-notice to the original complaining party informing them that we may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of such counter-notice, at our sole discretion.
Winit may, from time to time, in its sole discretion develop and provide mobile application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You shall promptly download and install all Updates and you acknowledge and agree that our Platform or portions thereof may not properly operate should you fail to do so.
In the event our Platform or Services allow you to contribute content, including by uploading data and information, posting messages, sending or sharing files and communicating with others you agree not to post, upload, e-mail, transmit, distribute, or otherwise make available through our Platform or Services any data, text, images, files, links, software, or communications that (i) we consider, in our sole and absolute discretion, to violate any applicable laws, including without limitation the laws of the United States; (ii) restricts or inhibits any other user from using and enjoying our Platform or Services; (iii) is threatening, abusive, harassing, defamatory, obscene, offensive, harmful, obnoxious, pornographic, profane, or indecent; (iv) contains viruses, worms, Trojan horses, harmful code, or any other element or component that has a capacity or potential to interrupt, destroy, interfere with, permit the unauthorized use of, or limit the functionality of any computer software or hardware, any telecommunications equipment, or any communications network; (v) violates or infringes the rights of others, including without limitation rights under copyright, trademark, or patent law; rights of privacy or publicity; rights under defamation law; or rights under any securities or other applicable law; (vi) sells or promotes any product or service; (vii) promotes, solicits, or partakes in any multi-level marketing or pyramid scheme; (viii) posts or transmits any unsolicited advertising, or promotional materials (spam); or (ix) provide a false identity or claim a relationship between you and any business, organization, or person for which you are not authorized or legally permitted to claim such a relationship.
You and Winit each agree that any and all disputes or claims that have arisen, or may arise, between you and Winit (or any related third parties) that relate in any way to or arise out of this or previous versions of these Terms, your use of or access to our Platform and related services, the actions of Winit or its agents, or any services offered through our Platform shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act ("FAA"), and to the extent not inconsistent with the FAA, the laws of the State of New York, without regard to principles of conflict of laws, govern the interpretation and enforcement of this Agreement to Arbitrate within the Terms.
YOU AND WINIT AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND WINIT EXPRESS AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply these Terms as a court would. All issues are for the arbitrator to decide, except those issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of the Prohibition of Class and Representative Actions and Non-Individualized Relief shall be for a court of competent jurisdiction to decide.
The arbitration will be administered by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules and the AAA's Commercial Arbitration Rules, and the AAA's International Centre for Dispute Resolution Rules (as applicable), as modified by this Agreement to Arbitrate. Absent express written agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. The AAA's rules are available at www.adr.org and www.icdr.org.
A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute ("Notice"). The Notice to Winit must be sent to Winit LLC, Attn: Legal, Re: Notice of Dispute, 1239 Broadway, New York, NY 10001. Winit will send any Notice to you to the physical address we have on file associated with your Winit account; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and complete all information on the Notice form, including a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account.
If you and Winit are unable to resolve the claims described in a valid Notice within 30 days after Winit receives that Notice, you or Winit may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Winit at the foregoing address. In the event Winit initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Winit account. Any settlement offer made by you or Winit shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in New York City, or in another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Winit may attend by telephone, unless the arbitrator requires otherwise. The language of the arbitration will be English.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Winit user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
The prevailing party in any arbitration shall be entitled to have its legal fees and disbursements (e.g., the arbitration fee) reimbursed by the other party.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO OUR PLATFORM OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
These Terms constitute the entire agreement between you and Winit with respect to our Platform and the Services, and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. Your access of our Platform or use of the Services shall not be construed as creating a partnership, employment, agency, or joint venture relationship between Winit and you. No failure to nor delay in exercising any right or any power hereunder by either party shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase agreement or other terms, these Terms shall govern. If any provision of these terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect. These Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
Any notices or other communications permitted or required hereunder will be in writing and delivered by Winit to you (i) by email (to the address that you maintain with your Account); or (ii) by posting on our Platform. You are responsible to maintain your email mailbox and agree to check your mailbox frequently. We assume no responsibility for a missed communication or any consequence caused by such missed communication. All notices shall be deemed effective one (1) business day after successful transmission (or posting) thereof. Should you have any questions about these Terms or otherwise need to contact us for any reason, please email us or contact us at: 1239 Broadway, New York, NY 10001.
Last Updated: November 2022