Winnow Terms Of Service
Last Update: August 1, 2020
The following terms of service ("Terms" or "Terms of Service") govern your access to and use of the Winnow website ("Website" or "Site"). The Website is operated by Winnow Digital Services. Throughout the Site, the terms "Winnow", "we", "us," and "our" refer to Winnow Digital Services. Any term defined in the singular also refers to the plural and vice versa. Winnow Digital Services offers this Website, including all information, tools and services available from this Site to you, the user, conditioned upon your acceptance of all Terms, conditions, policies and notices stated here. These Terms of Service constitute a legal agreement between Winnow and you, the user (referred to herein as "you", "your" or "user").
By visiting our Site and/ or using our services, either gratuitously provided or in exchange for payment, you engage in our "Service" or "Services" and agree to be bound by the following Terms of Service, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the Site, including without limitation, users who are browsers, vendors, customers, clients, third-party suppliers, third-party platform providers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our Website. By accessing or using any part of the Site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions listed in the Terms of Service, then you may not access the Website or use any of the Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools that are added to the current Website shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. Winnow reserves the right to change any of the terms and conditions contained in these Terms of Service or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to these Terms of Service will be posted on the Site for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. Your continued use of this site and the services following winnow's posting of any changes will constitute your acceptance of such changes or modifications. If you do not agree to any changes to these terms of service, do not continue to use the services or the site.
These Terms of Service apply only to our Website and do not apply to any other site, page, or platform that we link you to. Our Service involves running advertising campaigns on third-party platforms ("Third-Party Platforms") including, but not limited to, Facebook and Google AdWords. You should familiarize yourself with the Terms of Service of these Third-Party Platforms to ensure you are in compliance with them. We do not take responsibility for ensuring your compliance with the terms of service of Third-Party Platforms.
Winnow is a sales and marketing campaign management utility that automates the process of strategizing, comparing, publishing, and analyzing advertising campaigns across mobile, social, video, display, and search (collectively the "Service" or "Services" referenced above).
Each individual order for our Services is an advertising campaign ("Campaign"). The Campaign will run via Third-Party Platforms such as Facebook and Google AdWords; other platforms may be used and the listing of specific platforms herein is to provide examples and not a limitation.
Any costs payable to third parties associated with each Campaign are your responsibility. Winnow will not be responsible for any costs associated with creating advertising or placing advertisements on Third-party Platforms. No Campaigns will be run until you provide the Third Party Platform with a valid credit card account (or other acceptable form of payment).
Specifics related to each Campaign, such as location of advertisements, Third-Party Platforms used to advertise on, frequency of advertising, length of the Campaign, daily advertising budget, monthly advertising budget, and other various components of the Campaign will be determined at the time of your initial order ("Order"). Should changes be made, increased costs may be incurred and those increased costs are the sole responsibility of you, the user.
Your Order will specify a budget for each day and for each month of your Campaign. You are advised and accept that your daily budget may be exceeded on any given day. The Third-Party Platforms run algorithms to ensure that your advertisement has maximum exposure, thus on certain days the Third-Party Platform may run your advertisement in excess of your budget.
We take no responsibility to ensure the validity of any content provided by you for the Campaign ("Content"). It is your responsibility to ensure that any Content provided does not infringe upon or violate the rights of any third-party, including but not limited to: intellectual property rights, copyright, trademark, privacy, personality or other personal or proprietary right. You further agree your Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service, the Website, Third-party Platforms, or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. Should the Content infringe upon or violate the rights of any third-party, the liability is solely upon you and you must indemnify Winnow in relation to any losses it may suffer. If you are in violation of any of the Content requirements listed in this section your Winnow account may be suspended or terminated, at our sole discretion.
If you choose to cancel the Service, any Content you have submitted to Winnow via the Website will be retained by Winnow for sixty (60) days. During this time, if you choose to subscribe to the Service again, your Content will be available for your use. If, at the end of the 60 day period, you have not subscribed to the Service again, Winnow may delete any content you provided to it; nothing in this section affects Winnow’s rights pursuant to section 20 of these Terms.
The Third-Party Platforms have their own rules, requirements and limitations regarding content that may be published on their platforms. You should familiarize yourself with the content rules of these Third-Party Platforms. If the Content you provide is in violation of the Third-Party Platform’s rules, your Campaign may be rejected and/or your account on the Third-Party Platform may be suspended and/or cancelled. These rules can be found on the Third Party Platform’s website.
Use of the Site and Services is limited to parties that are at least eighteen (18) years of age and can lawfully enter into and form contracts under applicable law. To register, you must provide your name, the legal name under which your business is registered, address, phone number, e-mail address, and valid credit card information. You represent and warrant that you have all requisite right, power and authority to enter into and accept the Terms of Service and perform your obligations hereunder.
4. Modification of these Terms
You agree to abide by the procedures and guidelines contained in these Terms of Service. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Website or the Services. Material modifications are effective upon your acceptance of such modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect at the time the dispute arose.
5. Payment For Service
Winnow may charge a flat monthly service fee ("Fee"). The Fee is non-refundable. Should you choose to cancel your Order with Winnow after paying the Fee, your Service will be terminated but you will not receive a refund for the Fee paid.
The Service will automatically renew on a monthly basis until you contact us at email@example.com and notify us that you wish to terminate the Service. You must advise us no later than seventy-two (72) hours prior to the start of the next billing period that you wish to terminate the Service. If you fail to provide us with 72 hours notice, you will be billed for the proceeding month.
6. Modifications to the Service and the Prices
Prices for our Services are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
Winnow is also not liable to you or to any third-party for any modification, price change, suspension, or discontinuance of service by a Third-Party Platform.
We are not responsible for any transactions between you and the Third-Party Platform, including ad placement, Campaign strategy, etc. after termination of the Service.
7. Winnow Reservation of Rights
Winnow, retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services, including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Service and any element, aspect, portion or feature thereof, from time to time.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any content on the Website through which the Service is provided, without express written permission by us.
8. Password Security
Your password may be used only to access the Site, and use the Services. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised, you must change your password.
9. Third Party Links
Certain content, products and services available via our Service may include materials from third parties.
Third-party links on this Site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products and/or services should be directed to the third-party.
10. User Comments, Feedback, and Other Submissions
If, at our request or without our request, you send submissions, creative ideas, suggestions, proposals, plans, advertising materials, or other materials, whether online, by email, by postal mail, or otherwise (collectively, "Comments"), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.
11. Errors, Inaccuracies, and Omissions
Occasionally there may be information on our Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to Service descriptions, pricing, promotions, offers, timelines in providing the Service, and availability of a Service from us or from a third-party provider or from Third Party Platform. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice, including after you have submitted your Order.
We undertake no obligation to update, amend or clarify information in the Service, on the Website or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service, the Website, or on any related website, should be taken to indicate that all information in the Service, Website, or on any related website has been modified or updated.
12. Illegal Activity
a. Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized credit card. You may not impersonate another Winnow user or use another Winnow user’s password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and Winnow will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
b. Investigation. Winnow has the right, but not the obligation, to monitor any activity and Content associated with this Site and investigate, as we deem appropriate. Winnow also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site, including Content. Winnow reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
c. Disclosure of Information. Winnow also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Winnow's systems and customers, or to ensure the integrity and operation of Winnow's business and systems, Winnow may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
13. Acceptable Use
You agree not to misuse the Website or the Services. For example, you must not do or attempt to do the following:
a. breach or otherwise circumvent any security or authentication measures, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that such activity is expressly permitted by applicable law;
b. access, tamper with, or use non-public areas or parts of the Website, or shared areas of the Website you haven't been invited to;
c. interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Website;
d. send unsolicited communications, promotions or advertisements, or spam;
e. send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
f. promote or advertise products or services other than your own without appropriate authorization;
g. abuse the Website and/or Services to manipulate third party hosting services linked to the Website;
h. use automated or other means to create accounts in bulk or to access the Service other than by using our official interface;
i. interfere with the operation of the Website and/or Services or any user’s enjoyment of the Website and/or Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Services, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
j. perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Winnow accounts of others without permission, or falsifying your age or date of birth;
k. publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred;
l. violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights; or
m. violate the law or use the Services for any illegal purpose in any way including storing, publishing or sharing material that's fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.
15. No Warranties
We strive to provide great Services, but there are certain things that we can't guarantee. To the fullest extent permitted by law, winnow makes no warranties, either express or implied, about the website and/or the services. The website and services are provided "As is" and on an "As available" basis, without warranty or condition of any kind, either express or implied. Winnow specifically (but without limitation) disclaims all warranties of any kind, whether express or implied, relating to the website and/or services and all content available through the website and/or service, including but not limited to (I) any implied warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course of dealing, usage, or trade. Winnow does not warrant that the website and/or service or any part of the website and/or service, or any content offered through the website and/or service, will be uninterrupted, secure, or free of errors, viruses, or other harmful components, and do not warrant that any of the foregoing will be corrected. You assume all risk for all damages that may result from your use of or access to the website, service, your dealings with other service users, and any or content available through the service. You understand and agree that you use the service, and you use, access, download, process, or otherwise obtain content through the service, and any associated sites or services at your own discretion and risk, and as between you and winnow, you will be solely responsible for any damage to your property (including your computer system used in connection with the service) or loss of data or any other loss that results from the use of the website and/or service or the download or use of such materials or content. Some jurisdictions may prohibit a disclaimer of warranties and you may have other rights that vary from jurisdiction to jurisdiction.
16. Indemnity/Limitation of Liability
In no event will winnow be liable to you for any indirect, incidental, special, consequential or punitive damages (including, without limitation, damages for loss of profits, goodwill, use, data, or other intangible losses) arising out of or relating to your access to or use of, or your inability to access or use, the website, the service, or any content on the website, whether based on warranty, contract, tort (including negligence), statute or any other legal theory, whether or not winnow has been informed of the possibility of such damage. In no event will winnow’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).
Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. Accordingly, the above limitation may not apply to you.
Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this section 16 will apply even if any limited remedy fails of its essential purpose.
17. General Release
Because winnow is not involved in transactions between you and third party platforms, you release winnow (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
18. Applicable Law
Disputes arising herein will be resolved by binding arbitration, And by accepting these terms, you and Winnow Digital Services are each waiving the right to a trial by jury or to participate in a class action. You agree to give up your right to go to court to assert or defend your rights under these Terms (except for matters that may be taken to small claims court). Your rights will be determined by a Neutral arbitrator and not a judge or jury and your claims cannot be brought as a class action. Below are the details regarding your agreement to arbitrate any disputes with Winnow Digital Services;
a. Before filing a claim against us, you agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Winnow Digital Services may bring a formal proceeding. You agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under 18.a.iii.
Arbitration Procedures. Any arbitration between you and Winnow Digital Services will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Our address for Notice is: Winnow Digital Services, 2350 Mission College Boulevard, Suite 290, Santa Clara, CA, 95054. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Winnow Digital Services may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Winnow Digital Services will pay you: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by us in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.00, whichever is greater.
Arbitration Fees and Incentives. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Winnow Digital Services for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Exceptions to Agreement to Arbitrate. Notwithstanding Section 18.a, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
b. No Class Actions. You and Winnow Digital Services agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Winnow Digital Services agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
c. If Winnow Digital Services makes any future change to this arbitration provision (other than a change to our address for Notice), you may reject any such change by sending us written notice within 30 days of the change, in which case your account with Winnow will immediately be terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
d. Enforceability. If Section 18.a is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
19. Controlling Law
These Terms are governed by the laws of the State of California, USA without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Winnow Digital Services agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that the Service is appropriate or available for use in other locations.
20. Your Grant
By entering into these Terms of Service and placing an Order, you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to Winnow and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Services); provided further, however, that nothing in these Terms of Service will prevent or impair our right to use without your consent the Content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the Content you submit to Winnow, and that the use of such materials by Winnow and its affiliates will not infringe upon or violate the rights of any third party.
Winnow, in its sole discretion, may terminate your access to the Site or the Services immediately without notice, for any reason.
22. General Provisions
b. No Agency; Third-Party Beneficiary: Subject to the paragraph immediately below, you and we are independent contractors and nothing in these Terms of Service will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. Nothing expressed or mentioned in or implied from these Terms of Service is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms. These Terms of Service and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Winnow and you.
c. Severability: If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.
d. No Waiver: We will not be considered to have waived any of our rights or remedies described in these Terms unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Winnow's failure to enforce the strict performance of any provision of these Terms will not constitute a waiver of Winnow’s right to subsequently enforce such provision or any other provisions of these Terms of Service.