This Agreement and all policies posted on the Winq Platforms set out the terms upon which Winq offers you access to and use of our sites, services, applications and tools (collectively “Services”). All policies and related agreements between you and Winq are incorporated into this Agreement. You agree to comply with all the above when using our Services.
We recommend you print out a copy of these terms and conditions for your future reference.
The entity you are contracting with is NaviQuest International, LLC d/b/a Winq (“Winq”), 383 Kingston Avenue, Suite 72, Brooklyn, New York 11213.
Please be advised that this Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an agreement to arbitrate, which will, with limited exceptions, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). Unless you opt-out: (i) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (ii) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
For the avoidance of doubt, the terms: “you,” “your,” “you’re,” “yours,” and any similar verbiage herein refers to you, the user (“User(s)”). The terms, “us,” “our,” “we,” “we’re,” and any similar verbiage herein shall refer to Winq.
What We Collect
When you visit the Winq Platforms, we may collect information from you. Some of it may be Personal Information. This information can include search history, IP address, screen resolution, browser used, operating system and settings, access times and referring URL. If you are using a mobile device, we may also collect data that identifies your device, your settings and your location.
If you book a travel product via the Winq Platforms, we may need additional information from you. This information can include your name (and traveler’s name if different), passport number, email address, telephone number, credit card information, billing address, itinerary, and certain loyalty membership information (i.e., frequent flyer details and the like.). You can also choose to store Personal Information in your user account for future bookings.
If you choose to register, we will collect your email address, password and home airport, and other preference information you provide us.
If you give us personal information, you are telling us that the information is true, accurate, complete and current. You are also telling us that you have the authorization to provide it to us.
Winq is an electronic marketplace that allows consumers to bid on travel and leisure-related services including, without limitation: accommodations at hotels, resorts, inns, and related products and/or services, in a variety of pricing formats and locations. The actual contract for sale is directly between service providers utilizing the Winq Platforms (our “Partner(s)”) and consumers. Winq does not operate as a traditional auctioneer.
While Winq may provide pricing, listing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Winq has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of content and/or listings across the Winq Platforms; the ability of our Partners to offer items; the ability of consumers to pay for items; or that a consumer or Partner will actually complete a transaction or return an item.
You agree to that your use of the Winq Platforms is intended for your personal, non-commercial use unless otherwise provided for a prior express written permission from us. You may only register to utilize the Winq Platforms if you are of sufficient legal age and are capable of entering into legally binding contracts and are not temporarily or indefinitely suspended from utilizing the Winq Platforms.
If you register with us and utilize the Winq Platforms as contemplated under this Agreement, you are responsible for maintaining the confidentiality of your passwords, login and account information (“Your Confidential Info”). You will be responsible for all use of the Winq Platforms by you, anyone using Your Confidential Info (with or without your permission). Your Confidential Info must be accurate and up-to-date at all times. If any of Your Confidential Info changes, you must update it immediately. If you have any reason to suspect that your account is no longer secure (if, for example, you suspect there has been loss, theft or unauthorized disclosure of Your Confidential Info or your computer or mobile device used to access the Winq Platforms), you must promptly change Your Confidential Info that is affected and notify us through the information provided on our Contact Us page.
Your right and ability to use the Winq Platforms extends only to searching for, and bidding on, legitimate travel deals, unless otherwise provided for in a prior express written permission from us. You may not use the Winq Platforms to make any false, fraudulent or speculative reservation or any reservation in anticipation of a rise in demand. You agree not to use the Winq Platforms for any purpose that is unlawful, illegal, or forbidden by these terms. The Winq Platforms are run in the United States. Accordingly, international users must bear in mind that in using the Winq Platforms, you must agree to comply with the applicable laws of the United States and your own country, including any laws that apply to the exportation of technical data.
In connection with using or accessing the Winq Platforms and Services you specifically agree not to do any of the following without our prior express written permission:
Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your account status;
- Access our Services with any manual or automated process for any purpose other than your personal use or for inclusion of Winq pages in a search index;
- Violate the restrictions in any robot exclusion hears on the Winq Platforms or bypass or circumvent other measures employed to prevent or limit access to the Winq Platforms;
Deep-link to any portion of the Winq Platforms (including, without limitation, the purchase path for any travel services) for any purpose;
- Take any action that may undermine the Winq Platforms and Services, our computers, systems or the like;
- Fail to pay for items purchased by you, unless you have a valid reason as set out by Winq policy, for example, the Partner has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the Partner;
Fail to deliver services or items auctioned by you, unless you have a valid reason as set out by Winq policy, for example, the buyer fails to follow the posted terms or you cannot contact the buyer;
- Manipulate the price of any item or interfere with any other User’s listings;
- Post false, inaccurate, misleading, defamatory, or libelous content;
- Transfer your Winq account and user ID to another party without our consent;
- Distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
- Reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to Winq, or that comes from the Services and belongs to another User, Partner or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of Winq and/or any other party holding the right to license such use;
- Commercialize any Winq application or any information or software associated with such application;
- Harvest or otherwise collect information about users without their consent;
- Circumvent any technical measures we use to provide the Services; or
If we believe you are abusing Winq in any way, we may, at any time and without advance notice or liability, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to the Winq Platforms and Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using the Winq Platforms and Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our discretion.
When a provider or seller issue arises we may consider the User’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both our Partners and/or Users.
When bidding on any listing, you agree that:
- You are responsible for reading the full item listing before making a bid or commitment to buy;
- You enter into a legally binding contract with a Partner to purchase an item or service when you commit to buy the item or service, or if you have the winning bid (or your bid is otherwise accepted);
- If you purchase that item on a Winq Platform other than Winq.com, you are subject to the agreement of that other Winq Platform with respect to that particular purchase.
International Transactions; Translation
Winq Services may be accessible to international Partners, Users and consumers now or at anytime in the future. We may offer certain programs, tools, and site experiences of particular interest to international Partners, Users and consumers, such as estimated local currency conversion, language translation, and international shipping calculation tools. The accuracy and availability of any estimated local currency conversion, language translation and international shipping calculation tools are not guaranteed and you should should endeavor at all times to verify their accuracy.
We, along with our Partners, own the Winq Platforms and all of the text, images, software, trademarks, service marks or other material contained on the Winq Platforms (the “Proprietary Information”). You will not copy or transmit any Proprietary Information, except for your personal, non-commercial use on your computer or mobile device.
If you use the Winq Platforms you are solely responsible for the travel information, photos, reviews, and other content that you upload, transmit or share with us or others on or through the Winq Platforms.
When providing Winq with content or causing content to be posted on any Winq Platform using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.
You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph:
- Your provision of content to us;
- Your causing content to be posted using the Services; and,
- Use of any such content (including of works derived from it) by us, our Users, or others in contract with us that is done in connection with the Services and in compliance with this Agreement.
If you provide use with testimonials, feedback, suggestions, comments, ideas, ratings, reviews, bug reports or any similar or related information (“Testimonials”), you agree that:
- We own the Testimonials and any intellectual property rights associated with the testimonials;
- We can use and share the Testimonials without your consent;
- We do not have to pay you for the Testimonials; and,
- We may already be contemplating the same or similar ideas as presented in your Testimonials. If you do not agree with these terms pertaining to Testimonials, or are desire to maintain ownership of any intellectual property contained in the specific Testimonial, your exclusive recourse is to not submit the Testimonial.
You represent that you understand Winq does not control, and is under no obligation to review, User-submitted Testimonials. Nevertheless, we reserve the right to review, edit and/or delete any Testimonials submitted at any time.
We may offer catalogs including stock images, descriptions and product specifications that are provided by third parties (including Providers and users). You may use catalog content solely in connection with your Winq listings. That permission is subject to modification or revocation at any time at Winq’s sole discretion.
While we try to offer reliable data, we cannot promise that the catalogs will always be accurate and up-to-date, and you agree that you will not hold our catalog providers or us responsible for inaccuracies in the catalogs. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings.
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Winq works to ensure that listed items do not infringe upon the copyright, trademark or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us immediately at email@example.com and we will conduct a thorough investigation of the matter.
Authorization to Contact You; Recording Calls
You consent to receive autodialed or prerecorded calls and text messages from Winq at any telephone number that you have provided us or that we have otherwise obtained. We may place such calls and texts to:
- Notify you regarding your account;
- Troubleshoot problems with your account;
- Resolve a dispute;
- Collect a debt;
- Poll your opinions through surveys or questionnaires;
- Contact you with offers and promotions; or
- As otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Standard telephone minute and text charges may apply.
Winq may share your telephone numbers with our agents (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under this Agreement, our policies, applicable law, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.
Winq may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Winq or its agents for quality control and training purposes or for its own protection.
Privacy of Others; Marketing
If we provide you with information about another User you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific User to do so.
Promotions and Programs
WinqBid may, in its discretion, create promotional codes redeemable for discounts on bookings, subject to any additional terms established for any respective promotional code or instrument (each, a “Promo Code”). Use of Promo Codes, including without limitation, WinqBid’s “First Time Bookers” promotional code, or any similar Promo Codes advertised by WinqBid and/or its affiliates, only apply to eligible bookings made on the WinqBid App having a total reservation charge of at least One Hundred and Twenty-Five and 00/100 USD ($125.00) (excluding any applicable taxes and fees), unless otherwise specified in writing. Promo Codes may be available in a limited quantity and exercisable for a specified duration. Expiration dates of Promo Codes cannot be modified or extended. Promo Codes cannot be retroactively applied to prior bookings. Promo Codes are valid for a single use by eligible users and may not be transferred to another user or redeemed for cash or cash equivalent. Promo Codes cannot be combined with any other discount or promotion. WinqBid reserves all rights and remedies, including the right to deny use of any Promo Code or the cancellation of your account or reservations in the event of fraud, tampering, or violations of this Agreement is found to occur. WinqBid reserves the right to withhold, deduct, or revoke any/all credits, Promo Codes and/or suspend or terminate the account, features or benefits of any user it determines or believes has broken any term of any Promo Code, or any term of this Agreement. Additional restrictions may apply.
WinqBid users can earn Promo Codes by inviting friends and family (each, an “Invitee”) to download and utilize the WinqBid services using such user’s personal invite code (the “Invite Code”). After creating a new WinqBid account, users will receive their Invite Code. Upon the activation of a new WinqBid account with the Invite Code by any Invitee, such Invitee will receive up to Fifteen and 00/100 USD ($15.00) off their first eligible booking of at least One Hundred and Twenty-Five and 00/100 USD ($125.00) (excluding any applicable taxes and fees). After the Invitee’s first booking is confirmed, the WinqBid user having provided the Invite Code will receive a Promo Code for up to Fifteen and 00/100 USD ($15.00) to be used on any eligible future booking of at least One Hundred and Twenty-Five and 00/100 USD ($125.00) (excluding any applicable taxes and fees). If the relevant booking is returned or cancelled, the dollar value of the Promo Code will not be refunded or credited back to a user’s account. Promo Codes issued in connection with Invite Codes may be subject to additional terms and restrictions.
Invite Codes may only be used for personal, non-commercial purposes. Invite Codes may be shared with friends and family via, email, social media, personal blogs, and the like, in which the respective WinqBid user is the primary content owner; provided, however, that Invite Codes may not be distributed on platforms in which a user is a contributor but not the primary content owner (e.g., Wikipedia, coupon websites, app stores, and app review websites) and users cannot promote Invite Codes via search engine marketing (e.g., AdWords, Yahoo!, and Bing). No Promo Codes will be tendered in connection with Invite Codes issued to:
- One’s self;
- Anyone using the same credit card as the user issuing the Invite Code; or,
- Anyone using the same mobile device or mobile telephone number as the user issuing the Invite Code. WinqBid reserves the right to withhold, deduct, or revoke any/all credits, Promo Codes and/or suspend or terminate the account, features or benefits of any user it determines or believes has broken any term of any Promo Code or used the referral system outlined herein in error or in a manner fraudulent, illegal or otherwise in violation of this Agreement.
Unless otherwise provided, any Promo Code issued in conjunction with an Invite Code will expire one hundred and twenty (120) days from the date of issuance. Promo Codes issued in connection with Invite Codes cannot be combined with any other Promo Code or discount, and will be applied to bookings in the corresponding currency (e.g., WinqBid Promo Codes stated in USD are only applicable to bookings billed in USD). Promo Codes, however earned or otherwise received, are not redeemable for cash or cash equivalents, except where prohibited, then the cash value is 1/100 cent, and cannot be transferred or applied to prior purchases or bookings. Void where prohibited by vendor or applicable law. Additional or varying restrictions may apply.
Disclaimer of Warranties; Limitation of Liability
We endeavor to keep the Winq Platforms safe, secure, and functioning properly, at all times. However, we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality of the Winq Platforms may not occur in real time. Such functionality is subject to delays beyond our control. Furthermore, Winq makes no warranty, and expressly disclaims any obligation that:
- The Winq Platforms and Services will meet your requirements or will be available on an uninterrupted or error-free basis;
- Content will be complete, comprehensive, or applicable to you;
- Information obtained through the Winq Platforms and Services will be accurate or reliable; or,
- The quality of any services and/or products offered in any listing on the Winq Platforms and Services will meet your expectations.
You agree that you are making use of the Winq Platforms and Services at your own risk and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, Winq excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
- Your use of, or your inability to use, the Winq Platforms and Services;
- Pricing, shipping or other guidance we may provide;
- Delays or disruptions to the Winq Platforms and Services;
- Viruses or other malicious software obtained by accessing or linking to the Winq Platforms and Services;
- Glitches, bugs, errors, or inaccuracies of any kind across the Winq Platforms and Services;
- Damage to your hardware device from the use of any Wing Platform or Service;
- The content, actions, or inactions of our Partners or third parties, including items listed using the Winq Platforms and Services or the destruction of allegedly fake listings;
- A suspension or other action taken with respect to your account activity or breach of the terms of this Agreement or any other agreement between you and Winq;
- The duration or manner in which your listings appear in search results; and
- Your need to modify practices, content, or behavior or your loss of or inability to do business as a result of changes to this Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of:
- Any amounts due up to the price the item sold for on Winq (including any applicable sales tax) and its original shipping costs,
- The amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or
If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree to defend and indemnify Winq (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and/or agents), and hold us harmless from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought
- By you or on behalf of you in excess of the liability described above; or
- By any third parties as a result of:
- Your breach of this Agreement;
- Your violation of any law or the rights of a third party; or,
- Your use of the Winq Platforms or Services in violation of this Agreement or any other agreement validly existing between you and Winq.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND WINQ HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Winq agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Winq Agreement your use of or access to the Winq Platforms and Services, or any products or services sold or purchased through the Winq Platforms and Services will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New York, without regard to principles of conflict of laws, will govern the Agreement and any claim or dispute that has arisen or may arise between you and Winq, except as otherwise stated in the Agreement.
B. Agreement to Arbitrate
You and Winq each agree that any and all disputes or claims that have arisen or may arise between you and Winq relating in any way to or arising out of this or previous versions of the Agreement, your use of or access to Winq’s Services and the Winq Platforms, or any products or services sold, offered, or purchased through the Winq Platforms shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate (the “Agreement to Arbitrate”).
1. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND WINQ 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 ACTION OR PROCEEDING. UNLESS BOTH YOU AND WINQ AGREE OTHERWISE, 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, OR CLASS 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.
2. Arbitration Procedures.
Arbitration is more informal proceeding 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 individual basis that a court can award to an individual. An arbitrator should apply the terms of the Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Subsection 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by JAMS under its ADR Clauses, Rules and Procedures (the “JAMS Rules”) as modified by this Agreement. The JAMS Rules are available online at: http://www.jamsadr.com/rules-clauses or by calling the JAMS at 1-800-352-5267. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration. Rather, the JAMS Rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Winq should be sent to Winq Inc., Attn: Litigation Department, Re: Notice of Dispute, 383 Kingston Avenue, Suite 72, Brooklyn, New York 11213. Winq will send any Notice to you to the physical address we have on file associated with your Winq account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Winq are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Winq may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the JAMS website at www.jamsadr.com the title “Demand for Arbitration Form”. In addition to filing this form with the JAMS in accordance with the JAMS Rules, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Winq at the following address: 383 Kingston Avenue, Suite 72, Brooklyn, New York 11213. In the event Winq 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 Winq account. Any settlement offer made by you or Winq shall be deemed confidential and not be disclosed to the arbitrator.
Any arbitration hearing shall be held in New York, New York. If the value of the relief sought is $10,000 or less, you or Winq may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Winq 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 Winq may attend by telephone, unless the arbitrator requires otherwise.
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 Winq 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.
3.Costs of Arbitration.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, unless otherwise stated in this Agreement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Winq for all fees associated with the arbitration paid by Winq.
With the exception of any of the provisions in Subsection 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this provision is invalid or unenforceable, the other subsections of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Subsection 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement and its Legal Disputes Section will continue to apply.
5. Opt-Out Procedure
IF YOU ARE A NEW WINQ USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO WINQ INC., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 383 KINGSTON AVENUE, SUITE 72, BROOKLYN, NEW YORK, 11213.
Should you desire to submit an Opt-Out Notice to Winq, such Opt-Out Notice must include:
- Your name;
- Your address (including street address, city, state and zip code);
- Your user ID(s); and,
- The email address(es) associated with the Winq account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
6. Future Amendments to the Arbitration Provision
Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Winq prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Winq. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.winqbid.com at least 30 days before the effective date of the amendments and by providing notice through by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Winq must be resolved exclusively by a state or federal court located in New York, New York. You and Winq agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes.
In any such action or any action we may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including, but not limited to, costs, both taxable and non-taxable, and reasonable attorneys’ fees.
All The Rest
Winq expressly reserves the right at any time, in its sole discretion, to change or otherwise modify this Agreement with or without prior notice. Our right to amend the Agreement includes the right to modify, add to, or remove terms in the Agreement. Your continued use and/or access of the Winq Platforms and Services shall be deemed to constitute your acceptance of any updates or modifications that may be made to this Agreement. Please review this Agreement periodically for changes. If you object to any terms and provisions in this Agreement or any subsequent modifications thereof, or become dissatisfied with the Winq Platforms in any respect, your sole recourse is to immediately terminate use of the Winq Platforms. Other terms and conditions may apply to your reservations, bookings, and purchases of travel services through the Winq Platforms, our Partners, and to your use of other portions of the Winq Platforms, including the Service Provider Program. You agree to observe these other terms and conditions in all respects. If we fail to act with respect to your breach or anyone else’s breach on any occasion, such failure to act shall not be deemed a waiver of our right to act with respect to any similar breach or conduct in the future.
Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose whatsoever. You may not assign, delegate or transfer your rights or obligations under this Agreement. We may assign our rights and duties under this Agreement without such assignment being considered a change to the Agreement and without notice to you.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The following Sections of this Agreement survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.
You acknowledge that you have read and understood this Agreement, and that this Agreement has the same force and effect as a signed agreement.