By using the Sites, you affirm that you are both a legal resident of the United States and you are thirteen (13) years of age or older. If you are under 18 years old, you must obtain your parents’ consent before using the Sites. The Sites are not directed to children under the age of 13, and it is our policy not to collect personal information on any person under the age of 13.
1. License Grant: Winston Products grants you a limited license to access and use the Sites for personal, noncommercial use subject to these Terms. You may not download or modify the Sites, or any portion of them, except with our express written consent. The Sites may not be reproduced, duplicated, copied, sold, resold, published, displayed, or otherwise accessed for any commercial purpose without our express written consent. Winston Products reserves all rights not expressly granted herein. For the sake of clarity, you are not granted any rights to collect or use any of our product listings, descriptions, or pricing information; to make derivative works of the Sites or its Materials (defined below); to resell any of the Sites or Materials; to download, copy, or use the Sites or Materials for the benefit of another merchant; or to use data mining, robots, or similar data gathering and extraction tools relating to the Sites or the Materials.
2. Winston Products Intellectual Property:
a. Materials and Copyrights: All content included on the Sites, including but not limited to HTML code, scripts, text, graphics, logos, button icons, images, video, audio or any other media or software relating to the Sites (collectively, the “Materials”), is our property or the property of our content suppliers. Winston Products and/or its licensors own all intellectual property rights in the Materials, and the Materials are protected by United States and international laws and treaties, including but not limited to copyright laws. Any unauthorized use of the Materials is expressly prohibited.
b. Winston Products Trademarks: Winston Products retains all rights in and to its trademarks, trade names, brand names, logos, and trade dress (collectively, the “Marks”), including those displayed on the Sites. The Marks and all associated logos or images are registered and/or common law trademarks of Winston Products, and they are protected by U.S. and international laws and treaties. No license, express or implied, to use the Marks is granted to you under these Terms or by your use of the Sites. You are prohibited to use our Marks in metatag keywords, page text, hidden text or in any other manner to increase search rankings. And such use constitutes a violation of United States and/or international law, including trademark and/or unfair competition laws. You may not link to any web page on the Sites or use the Marks and/or Materials with advertisements and/or other information not originating from the Sites. Any unauthorized use of the Marks is expressly prohibited.
Unauthorized use will terminate the limited license granted under these Terms, and Winston Products may revoke this limited license at any time for any or no reason. In addition, Winston Products reserves the right to seek all remedies available by law and in equity for violation of these Terms. Winston Products expressly reserves the right, in its sole discretion, to deny access to the Sites, at any time and for any or no reason. Winston Products will enforce its intellectual property rights to the fullest extent of the law, including the seeking of civil remedies and/or criminal prosecution.
3. Restrictions: You may use the Sites only for lawful purposes and in accordance with these Terms. You acknowledge and agree that Winston Products, in its sole discretion, and without notice or any obligation to you, may temporarily or permanently terminate your access to the Sites. You further agree that you will not: (a) resell or make commercial use of the Sites or Materials; (b) modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, or sell, in whole or in part, the Sites or Materials; (c) use any data mining, robots, or similar data gathering and extraction methods from the Sites; (d) attempt to probe, scan, or test the vulnerability of any system or network related in any way to the Sites; (e) other than for your use of the Sites in accord with these Terms, access or attempt to access any systems or servers on which the Sites are hosted or modify or alter the Sites in any way; (f) forge headers, create a false identity, or otherwise falsify the origin of any materials or information transmitted to or via the Sites, (g) introduce to the Sites any viruses, Trojan horses, worms, logic bombs, or other computer code, scripts, files, program or material designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or take other actions which are malicious or harmful to the Sites or Winston Products; or (h) use the Sites in any manner that, in the judgment of Winston Products, restricts, impairs, interferes, or inhibits any other user from using or enjoying the Sites.
4. Submissions: You acknowledge that you are responsible for the information, profiles, goals, opinions, messages, reviews, comments, photos, videos, product or services feedback, or ideas and any other content or material that you submit, upload, post, or otherwise make available on or through the Sites (collectively, the “Submissions”) and through the services available in connection with the Sites. You, not Winston Products, have full responsibility for all Submissions you submit. You further acknowledge and agree that Winston Products has no obligation to allow Submissions and may, for any or no reason, disable any function that allows for the submission of Submissions.
Winston Products does not control Submissions and does not have any obligation to monitor, edit, or screen Submissions for any purpose. Although these Terms prohibit certain conduct, we take no responsibility or liability for any Submissions or other material you may encounter through the use of this Property.
You hereby grant to Winston Products a perpetual, nonexclusive, worldwide, transferable, royalty-free license, with the right to sublicense, to all Submissions, including, but not limited to, Winston Products’ right to link to, utilize, use, publicly perform, publicly display, reproduce, distribute, edit, adapt, modify, and prepare derivative works of any Submissions.
You represent and warrant that (a) you have all rights necessary to grant the license to Winston Products herein; (b) you own all Submissions submitted by you on or through the Sites; (c) your Submissions are accurate and not misleading; (d) your Submissions do not violate, misappropriate, and/or infringe the privacy rights, publicity rights, trademark rights, copyrights, patent rights, trade secrets, contract rights or any other rights of any person or entity; (e) all Submissions do not violate any applicable law, rule, regulation, or order. You agree to pay for all royalties, fees, damages, and any other monies owing as a result of your Submissions, and you agree to indemnify Winston Products in the event of any claim arising from your Submissions.
When submitting Submissions or otherwise using the Sites, you agree not to:
- access the Sites or use any technology to access the sites in a manner that is not expressly authorized by Winston Products;
- use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of your Submissions;
- take any action that imposes an unreasonable, destructive, or disproportionately large load on Winton Products systems;
- attempt to gain unauthorized access to the information, systems, and/or accounts of Winston Products or any user of the Sites;
- encourage, discuss, or engage in any conduct that would constitute a criminal offense or that gives rise to civil liability;
- fail to comply with applicable third party terms;
- defame, abuse, harass, stalk, threaten, or otherwise violate the personal legal rights of others;
- use racially, ethnically, or otherwise offensive language;
- use explicit/obscene language or solicit/post sexually explicit images of any kind;
- post anything that exploits children or minors;
- post any copyrighted, trade-secret, proprietary, patented proprietary, or trademarked materials without the express permission from the owner of such rights;
- post any names, likenesses, voices, personal or biographical information, or otherwise violate a person’s publicity or personal rights without the express permission of that person (or if that person is a minor, from that person’s parent or legal guardian);
- disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation;
- engage in political campaigning;
- use any robot, spider, scraper or other automated means to access the Sites; or
- alter the Submissions of others on the Sites.
This list of prohibitions provides examples and is not complete or exclusive. Winston Products takes no responsibility and assumes no liability for any Submissions posted or uploaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.
5. Termination of Access: Winston Products reserves the right in its sole discretion to (a) terminate your access to the Sites or any user account you create; (b) terminate your ability to post to the Sites, and (c) refuse, delete, modify, edit, or remove any Materials and/or Submissions, with or without cause and with or without notice, for any reason or no reason, or for any action that Winston Products determines to be inappropriate, disruptive, or offensive. Winston Products may report any actions that may be illegal to law enforcement, including any reports it receives of misconduct. Further, Winston Products will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Sites or the Internet.
6. Suggestions and Submissions. It is Winston Products policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and under specific terms, conditions, and/or requirements as appropriate. These limitations are specifically designed to avoid misunderstandings if your ideas are similar to those we have developed or are developing independently. As such, Winston Products does not accept unsolicited materials, product or marking ideas, or invention disclosures, including through the Sites. Winston Products takes no responsibility for any materials or ideas so transmitted to us through the Sites. If you choose to send us content, information, ideas, suggestions, or other materials, you further agree that Winston Products is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability, payment, the need for a license or other transfer, or attribution of any kind to you.
7. Infringement Notices: Winston Products respects others’ intellectual property rights and does not permit infringing activities on the Sites. We may remove any content of any kind, including if we are properly informed that the content infringes upon another’s intellectual property rights. We may also terminate your ability to submit content if we determine you to be a repeat infringer. If you are a copyright owner or an agent thereof and believe that any content on the Sites infringes upon your copyrights, you may notify us by providing the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
- The location of the original or an authorized copy of the copyrighted work;
- The material that is claimed to be infringing and a description of the infringing activity reasonably sufficient to permit us to locate the alleged infringement;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized; and
- A sworn statement, under penalty of perjury, that the information submitted is accurate and the person submitting the information is authorized to act on behalf of the owner of the applicable copyrights.
Our agent for notice of claims of copyright infringement can be reached as follows:
Tucker Ellis, LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Attn: Patrick Clunk
You acknowledge that if you fail to comply with all of the requirements above, your notice may not be valid.
8. Product Descriptions: We attempt to be as accurate as possible regarding product descriptions, pricing, and availability. Unless specifically stated otherwise in writing on the Sites, however, we do not warrant that product descriptions or other content on the Sites are accurate, complete, reliable, current, or error-free. From time to time there may be information on the Sites that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to make changes in information about appearance, price, description, or availability without notice. We have made every effort to display our products on the Sites as accurately as possible; however, the actual characteristics you see (e.g., color) depend on many factors, including the devices used to access the Sites, and we cannot guarantee that your devices will display all items accurately. The inclusion of any products on the Sites does not imply or warrant that these products will be available at any particular time or in any particular place.
9. Third Party Sites: Links may be established from the Sites to one or more external websites or resources operated by third parties (the “Third Party Sites”). In addition, certain Third Party Sites also may provide links to the Sites. These links do not imply that Winston Products endorses such Third Party Sites or any content therein. Winston Products does not control and is not responsible or liable for any Third Party Sites or their content, advertising, products, or other materials. You agree that Winston Products shall have no liability arising out of or related to Third Party Sites and/or their content or for any damages or loss caused or alleged to be caused by or in connection with any purchase, use of, or reliance on any such content, goods, or services available on or through any such Third Party Sites. Access to any Third Party Sites is at your own risk.
10. Applicable Law: By visiting the Sites, you agree that the laws of the State of Ohio, United States of America, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between us.
You acknowledge and agree that both you and Winston Products are waiving the right to a trial by jury or to participate as a plaintiff or class representative or class member in any purported class action or representative proceeding. Further, unless we both otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive termination of these Terms.
The parties agree that (i) these Terms memorialize a transaction in interstate commerce; (ii) the Federal Arbitration Act (9 U.S.C. §§ 1, et seq.) governs the interpretation and enforcement of this section; and (iii) this section will survive termination of these Terms.
The arbitration will be administered and governed by the Comprehensive or Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS), whichever is appropriate and in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at http://www.jamsadr.com or by calling 1-800-352-5267.
The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only.
Prior to initiating an arbitration proceeding, you must first send Winston Products a written statement setting forth your name, address, and telephone number, the facts giving rise to the Dispute, and the relief requested (“Dispute Statement”). The Dispute Statement to Winston Products must be emailed to firstname.lastname@example.org. If we are unable to resolve your claim within thirty (30) days, then either party that desires to initiate an arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Procedures.
An arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is an IP Protection Action.
Unless the parties otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then (i) the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary; and (ii) if there is a hearing, you may choose whether to participate in person or by telephone. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Procedures. Subject to the JAMS Procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator’s decision will include the essential findings and conclusions of law upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having competent jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer of Warranties,” and “Limitations of Liability” sections above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory and injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Winston Products will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
We will pay or (if applicable) reimburse you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or Winston Products pursuant to the terms of this section.
The parties agree that any cause of action either may have with respect to the Site or our products, services, and Content must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you have to bring a claim. This means that if you wait longer than one (1) year to initiate arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute. The terms of this Dispute Resolution section survive any termination of these Terms.
You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter to Winston Products at Attn: Dispute Resolution Team, 30339 Diamond Parkway, Suite 105, Cleveland, OH 44139, within thirty (30) days of your first visit to and use of the Site that specifies your (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions of these Terms will continue to apply. If you do not so opt-out, then the terms of this section will apply.
Notwithstanding the provisions of the “General Terms” section below, if Winston Products changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted subsequent changes to the Terms), you may reject any such change by sending Winston Products written notice (including by email to email@example.com) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Winston Products in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
12. Disclaimer of Warranties and Limitation of Liability: The Sites, Material, and all related information made available to you through the Sites are provided on an “as is” and “as available” basis, unless otherwise specified in writing. We make no representations or warranties of any kind, express or implied, as to the operation of the Sites, Material, and all related information unless otherwise specified in writing. You expressly agree that your use of the Sites is at your sole risk. We do not warrant that the Sites, Material, or any other information made available to you through Winston Products’ Sites, servers, or email are free of viruses or other harmful components. With respect to products displayed on the Sites, our express warranties are limited to those specified with each product. To the full extent permissible by applicable law, we disclaim all implied warranties, including without limitation implied warranties of merchantability and fitness for a particular purpose. You acknowledge and agree that we are not liable to any party for any damages of any kind arising from the use of the Sites or from any information, content, software, or services included on or otherwise made available to you through the Sites, including without limitation direct, indirect, incidental, punitive, and consequential damages, lost profits or revenues, costs of replacement, business interruptions, attorneys’ fees, loss of data or damages resulting from use of the Sites or the information they contain, even if Winston Products is expressly advised about the possibility of such damages. Please be advised that some state laws do not allow limitations on implied warranties or the exclusion or limitation of particular damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
14. New Jersey Residents: Under the New Jersey Truth-in-Consumer Contract, Warranty and Notice ACT (“TCCWNA”), N.J.S.A. 56:12-14 et seq., consumers may not be offered any written contract which includes any provision that violates any clearly established legal right of a consumer, or responsibility of a seller, as established by state or federal law. Under the TCCWNA, no consumer contract may state that any of its provisions are or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable in New Jersey. Therefore, the following provisions of these Terms shall not be applicable to New Jersey residents: (a) in Section 13, the provision concerning limiting our liability for any loss or damage is not applicable to New Jersey residents to the extent we were negligent or have breached our obligation to you and the provision concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages, loss of data, and loss of or damage to property; (b) provisions concerning indemnification by you (e.g., Sections 4 and 14) may not apply to New Jersey residents unless you were negligent or have breached these Terms; and (c) in Section 11, the provisions which limit the time within which claims against us must be brought and the provision concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents, at least with respect to punitive damages.
15. Indemnification: You hereby agree to indemnify and hold harmless Winston Products and its affiliates, officers, members, directors, employees, shareholders, information providers, suppliers, contractors and licensees (collectively, “Indemnified Parties”) from and against any and all liability and costs, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach, or alleged breach, of any of the Terms by you.
16. Parental Controls: Pursuant to Title 47, United States Code, Section 230(d) as amended, Winston Products notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available which may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from OnGuard Online (http://onguardonline.gov/). Winston Products does not endorse any of the products or services identified on the aforementioned third party website.
18. Mobile Applications: In addition to all the remaining Terms herein, if we offer a mobile application and you download such mobile application, you understand and agree that we have no obligation to maintain, support, upgrade, or update any mobile applications that we provide. It is also possible that as you download a mobile application, you may be asked to agree to terms in addition to these Terms regarding collection of information, including location information or warranties. If there is a conflict between these Terms and the terms you agree to at the time of downloading, the download terms will control. You understand and acknowledge that the terms of agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the downloaded mobile application. As a result, you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing the mobile application and you accept responsibility for any such charges. You acknowledge that if you are downloading a mobile application through Apple® iTunes or Google® Play, neither Apple® nor Google® have an obligation to provide any support or maintenance services in relation to our mobile applications.
If any provision in these Terms shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. New Jersey residents, however, are subject to the provisions contained in Section 13.
Effective as of: October 16, 2017