Terms of Service
Updated: February 21, 2023
TERMS OF SERVICE AGREEMENT
THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN CUSTOMER’S USE OF THE WINMO PLATFORM.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF THE PLATFORM, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT BY: (I) CLICKING AN ELECTRONIC BUTTON OR BOX INDICATING ACCEPTANCE; OR (II) EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT IT HAS THE PROPER AUTHORITY TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT.
This Agreement is between Winmo, LLC (“Winmo”) and the customer agreeing to the terms of this Agreement (“Customer”), and it is effective as of the date of Customer’s acceptance of this Agreement.
- Platform. This Agreement and the applicable quote/order (“Order”) govern Winmo’s provision of and Customer’s access to and use of Winmo’s Internet based platform, including, without limitation, its features, functions, user interface, data/information, and underlying software (“Platform”). Subject to the terms of this Agreement and the Order, Winmo grants Customer a license to access, download and print data/information within the Platform solely for Customer’s internal business operations and subject to applicable law.
- Customer Responsibilities. Customer agrees that it: (a) keeps its Platform passwords confidential; (b) is responsible for access rights to its account in the Platform, and for the acts and omissions of its users; (c) must promptly notify Winmo of any unauthorized access to its account in the Platform of which it is aware; and (d) only uses the Platform in accordance with applicable law.
- Payment. Customer must pay all fees specified on the Order upon signing the Order, unless otherwise agreed to by the parties in the Order. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for the payment of such taxes at the rate and in the manner prescribed by applicable law. Any fees not paid as outlined in the Order may be subject to the following: Winmo may suspend the Customer’s access to and use of the Platform at its discretion until the delinquent amount is paid in full, and Winmo may charge a $500 fee to reinstate suspended accounts.
- WARRANTY DISCLAIMER. THE PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY. WINMO DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WINMO DOES NOT GUARANTEE THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR INVULNERABLE.
- Term and Termination.
- Term of This Agreement. This Agreement continues until the expiration of all Orders, unless earlier terminated as provided below.
- Term of Orders. Each Order has a specified term. Either party may terminate the Order at the end of the Order’s term (“Renewal Date”) by notifying the other party at least 30 days prior to the Renewal Date. If no such notice is given, then: (i) on the Renewal Date the Order renews for an additional term of the same length as the prior term; and (ii) all Order terms remain the same for the renewal, except that, upon at least 60 days prior written notice to Customer, the total annual price may increase, not to exceed 10% over the prior term’s per unit pricing.
- Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement, together with all Orders, at the end of a 30 day written notice and cure period, if the breach has not been cured.
- Effect of Termination. If this Agreement is terminated for Winmo’s material breach, Winmo will refund fees prepaid by Customer, prorated for the remaining term of the Order, beginning from the date of termination. If this Agreement is terminated for Customer’s material breach, Customer will pay any unpaid fees for the Order. Upon termination or expiration of this Agreement, Customer may no longer use or access the Platform and must destroy any data/information printed or downloaded from the Platform.
- Survival. Upon expiration or termination of this Agreement, the following provisions survive: Warranty Disclaimer, Term and Termination, Confidential Information, Proprietary Rights and Restrictions, Customer Indemnity, Limitation of Liability, Governing Law; Jurisdiction and Venue, Entire Agreement and Other Terms.
- Confidential Information.
- Definition. Confidential Information is defined as all non-public information disclosed orally or in writing by one party (“Discloser”) to the other party (“Recipient”) about, without limitation, its business, finances, customers, operations, products, technology, plans or pricing, that is either designated confidential or should be considered to be confidential given the nature of the information and the circumstances of its disclosure. Winmo’s Confidential Information includes, without limitation, the Platform.
- Protection. Recipient uses the same degree of care that it uses to protect the confidentiality of its own Confidential Information, but in no event less than reasonable care, to (i) only use Discloser’s Confidential Information for purposes consistent with this Agreement, (ii) limit access of Discloser’s Confidential Information to those of Recipient’s employees and contractors (“Representatives”) who need to know the information for purposes contemplated under this Agreement, and with whom Recipient has written obligations of confidentiality which are at least as protective of Discloser’s Confidential Information as those in this Agreement. Recipient is responsible for its Representatives’ compliance with this Agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of a duty owed to Discloser, (ii) was known to Recipient before its disclosure hereunder without breach of a duty owed to Discloser; (iii) is received during the term of this Agreement by Recipient from a third party, without breach of a duty owed to Discloser; or (iv) is independently developed by Recipient without use of or access to Discloser’s Confidential Information.
- Requests for Confidential Information. Recipient may disclose Discloser’s Confidential Information in the event of a government or other third party’s lawful request; provided that Recipient will notify Discloser of such request if Recipient is legally permitted to do so.
- Proprietary Rights and Restrictions.
- Proprietary Rights. Winmo and its licensors are the sole owners of the Platform, including all associated intellectual property rights. Winmo reserves all rights in the Platform not expressly granted to Customer under this Agreement.
- Restrictions. Customer may not: (i) sell, resell, rent or lease the Platform, or use it in a service provider capacity or as a service bureau; (ii) use the Platform to store or transmit material in violation of privacy or intellectual property rights, or applicable law; (iii) use the Platform to store or transmit malware or otherwise attempt to gain unauthorized access to the Platform or interfere with or disrupt the integrity or performance of the Platform; (iv) reverse engineer or decompile the Platform (to the extent such restriction is permitted by law); (v) access the Platform to build a competitive service or product, or modify, copy or create a derivative work of any feature, function or graphic of the Platform for competitive purposes; (vi) use any data mining, robots, screen scraping or similar gathering or extraction tools on the Platform, or frame or mirror any part of the Platform.
- Usage Data. Winmo may collect and use usage and operations data in connection with Customer’s use of the Platform, solely for the purpose of developing, improving, supporting and operating the Platform. Winmo is the sole owner of any usage data that is collected in connection with the Customer’s use of the Platform.
- Feedback. If Customer provides any feedback or suggestions about the Platform, then Winmo may use these without obligation to Customer.
- Customer Indemnity. Customer agrees to indemnify and hold Winmo harmless from and against any claims, allegations, expenses, costs, damages, losses and liabilities arising out of or related to Customer’s acts or omissions under this Agreement.
- Limitation of Liability.
- EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, WINMO IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST REVENUE), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGES.
- TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, WINMO’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IS THE AMOUNT PAID BY CUSTOMER WITHIN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE POTENTIAL LIABILITY.
- Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Georgia and the United States, without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention of the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Fulton County Georgia, and both parties hereby submit to the personal jurisdiction of such courts. Each party agrees that: (i) a breach of its obligations with respect to the other party’s Confidential Information, or (ii) a violation of the other party’s intellectual property rights may cause the other party irreparable harm for which money damages are insufficient, and the harmed party may seek a court order to stop such breach or violation. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.
- Entire Agreement. This Agreement and the Orders constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, both oral and written, related to this Agreement’s subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provisions will be deemed null and void, and the remaining provisions of this Agreement remain in effect. The parties agree that any additional or conflicting terms in a Customer’s purchase order is void. In the event of a conflict between this Agreement and an Order, this Agreement prevails. This Agreement may be modified through an online process provided by Winmo.
- Other Terms.
- Assignment. Customer may not assign or transfer this Agreement or any Order.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, or fiduciary relationship between the parties.
- Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement, if the delay or failure is due to an event beyond the reasonable control of a party, such as a strike, war, terrorism, pandemics, and natural disasters.
- Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.
- Waiver. No failure or delay by either party exercising any right under this Agreement constitutes a waiver of that right.