Terms Of Use

WinkClique Terms of Use


These are the Terms of Use (the “Terms of Use”) that govern your access and use of the services and features on the sites owned and operated by WinkClique, LLC and its affiliates (collectively, “WinkClique,” “us,” or “we”), including https://www.winkclique.com and such other sites as may be added from time to time (collectively, the “Site”). Our Privacy Policy, as well as any other terms, conditions, guidelines, and policies which you may find throughout the Site in connection with certain features, promotions, contests, and functionalities, are also deemed a part of and included in these Terms of Use. These Terms of Use apply, regardless of whether you are accessing or using the Site from a computer, mobile phone, or other device.  


By accessing or using the services and features of the Site, you agree to be bound by these Terms of Use, as well as any amendments in effect as the time you access the Site. By accessing the Site, you understand these Terms of Use and that you consent to be bound by them.  If you do not agree with these Terms of Use, you should not access or use the Site. WinkClique reserves the right to change, modify, add, or remove any part of these Terms of Use and to discontinue or revise any or all aspects of the Site, in its sole discretion, at any time and without prior notice. You should check this page regularly for any modifications to these Terms of Use. Any changes will be effective as of the date they are posted. Your continued use of the Site following the posting of any changes will mean that you understand and have accepted such changes. 


  1. Privacy Policy  

Please review our Privacy Policy for a better understanding of how we collect, use, disclose, and protect your information. Our Privacy Policy is deemed a part of, and is hereby incorporated by reference into, these Terms of Use.   


  1. General Use of the WinkClique Site

WinkClique grants you a personal, non-commercial, non-exclusive, limited, revocable, non- transferable license to access and use the Site, conditioned upon your continued acceptance of, and compliance with, these Terms of Use. Your access and use of the Site is solely at your own risk and is subject to all applicable local, state, national, and international laws and regulations. Except as expressly permitted in these Terms of Use, you may not use, reproduce, distribute, reverse engineer, modify, copy, publish, display, transmit, adapt, frame, link, sell, license, or in any way exploit the content of the Site. WinkClique does not guarantee the confidentiality or security of any communication or other material transmitted to or from the Site over the Internet or other communications networks. 

You must be 18 years old or the age of majority in your jurisdiction, whichever is greater, to purchase products through the Site. If you are less than 18 years old, or less than the age of majority in your jurisdiction, whichever is greater, you may not purchase products through the Site. The Site is not intended for children less than 16 years old. If you are less than 16 years old, you may browse the Site; however, you may not make any purchases on the Site or provide your information to us.     


You represent and warrant to WinkClique that (i) you are at least 18 years old or the age of majority in your jurisdiction, whichever is greater; (ii) you have the power and authority to enter into and perform your obligations under these Terms of Use and, in doing so, will not violate any other agreement to which you are a party; (iii) all information provided by you to WinkClique, including without limitation in connection with any product purchase, is truthful, accurate, current, and complete; (iv) you are the authorized signatory of any debit or credit card or other payment method provided to WinkClique to pay any fees or charges incurred in connection with any product purchase or other use of the Site; (v) you shall comply with all provisions of these Terms of Use, including without limitation the provisions set forth in Section 14, “Disclaimer of Warranties,” Section 15, “Limitation of Liability,” and Section 16, “Indemnification”; (vi) you have not previously been suspended or removed from the Site; and (vii) you do not have more than one (1) account at any given time for the Site.  


You understand and agree that you may not (i) interfere or attempt to interfere with the proper working of the Site; (ii) bypass any measures we may use to prevent or restrict access to the Site or accounts associated with the Site; (iii) collect or store information about Site users without authorization, including for purposes of transmitting or helping others transmit unsolicited marketing or other electronic communications; (iv) run any form of auto-responder or “spam” on the Site; or (v) use manual or automated software, devices, or other processes to “spider” or “crawl,” the Site or to collect or scrape any content or information from the Site. 


If WinkClique believes or suspects any information you provide to WinkClique is not true, accurate, current, or complete or that you have otherwise violated these Terms of Use, WinkClique may terminate your account or deny or terminate your access to the services and features on the Site (or any portion thereof) at any time. 


  1. Account Information

In order to access certain features on the Site or create a customer account, you must first log in by creating an account using an email address and password of your choice. You agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the applicable registration form, and (ii) maintain and promptly update such information to make sure it is true, accurate, current, and complete.  


You are responsible for maintaining the confidentiality of your account and password. You agree to (a) not allow any third party to use your account or password under any circumstances; (b) immediately notify WinkClique of any unauthorized use of your account or password or any other breach of security; (c) make sure that you exit from your account at the end of each session; and (d) not store your account information on public or third-party computers, mobile phones, or other devices. You understand and acknowledge that you are fully responsible and liable for all activities and charges, including, but not limited to, product purchases, which occur under your account or password. You understand and agree that WinkClique will not be responsible or liable for any loss or damage arising from or in connection with your failure to comply with these requirements or any theft, misappropriation, disclosure, or unauthorized use of your login information.





Without limiting any rights WinkClique may otherwise have, WinkClique reserves the right to take any action we deem reasonable or necessary to protect the security of your account, including, but not limited to, asking you to change your password, requesting additional information in order to authorize any purchases or other actions under your account, or terminating your account.  


  1. Fraud Prevention

WinkClique may, but is not obligated to, review product orders for fraud or other illegal or unauthorized activity. WinkClique reserves the right to cancel product orders or refuse to ship to certain addresses due to suspected fraud or illegal or unauthorized activity.    


  1. Consent to Receive Electronic Communications

By accessing and using the Site and its services and features and/or creating a WinkClique account, you consent to receive any communications and data related to these Terms of Use, your WinkClique account, and your use of the Site (collectively, “Notices”) via electronic mail. If you do not wish to receive such Notices from us via electronic mail, you must notify us to this effect and discontinue your use of the Site. Please note that your consent to receive such Notices is separate from any elections you may make to receive marketing and other promotional communications from WinkClique, which elections are governed by our Privacy Policy.  


  1. Intellectual Property Rights

All trademarks, service marks, logos, trade dress, trade names, copyrights, information, content, data, images, photographs, audio and video material, artwork, text, graphics, multimedia content, compilations, and other material that you see or read on the Site and all related code and material of any kind or nature (collectively, the “WinkClique Materials”), but not including any Submitted Materials (as defined below in these Terms of Use), are owned by WinkClique or are being used by WinkClique with permission. The WinkClique Materials are protected by international, federal, and state laws and regulations, including but not limited to copyright, trademark, trade secret, trade dress, and other laws and regulations.  You may not modify, reuse, or re-post the WinkClique Materials or use the WinkClique Materials for public or commercial purposes without WinkClique’s prior written permission. 


  1. 7. Trademarks

The Site contains valuable trademarks owned and used by WinkClique. WinkClique uses these trademarks to distinguish its goods and services from those of others. The Site may also contain references to other entities’ trademarks and service marks. Such references are for identification purposes only and are used with permission of their respective owners. WinkClique does not claim ownership in, or any affiliation with, any third-party trademarks or service marks appearing on the Site. You agree not to use or display trademarks without the prior written consent of WinkClique or the owner of such mark. 


  1. Product Information

All materials and information, as well as any products, services, tools, applications, features, and functionalities, provided by WinkClique on or through the Site are for informational purposes only and are not in any way intended to provide medical or business advice or training. Nothing on the Site is intended to be used, and as a result should not be used, for medical diagnosis or treatment, or to take the place of the advice of a physician or other qualified health provider. Any product recommendations provided on the Site or generated through any interactive tools available on or through the Site are general recommendations only based on general factors and are not intended to be, and do not take the place of, a medical diagnosis or individual consultation. Individual results from the use of WinkClique products will vary depending on the individual, and WinkClique makes no guarantee regarding the results you may experience from using these products. 

None of the WinkClique products is intended to diagnose, treat, cure, mitigate, or prevent any disease or eye or skin disorder. All products should be used strictly in accordance with their instructions, warnings, and guidelines. WinkClique cannot account for individual sensitivities. We recommend that you carefully review any ingredient list for each product before purchase and consult with your physician or other qualified health provider before use, especially if you have any eye or skin conditions or sensitivities.   


WinkClique strives to be as accurate as possible in describing its products and services on the Site, but makes no warranty that product descriptions, colors, or other information contained on the Site is accurate, complete, current, or error-free. Colors in particular may vary, depending on your individual monitor settings. Additionally, the Site may contain typographical errors, inaccuracies, or omissions. WinkClique reserves the right to correct any such errors, inaccuracies, or omissions at any time without prior notice, including with respect to product pricing and availability. To the extent product orders are placed based on incorrect pricing or availability, WinkClique reserves the right to cancel such orders.   


  1. Third-Party Links

The Site may contain links to pages on other sites, and those sites may offer products, services, or other resources. WinkClique does not make any representation with respect to the quality, non- infringement, accuracy, completeness, timeliness, or reliability of any materials, information, services, or products offered on such sites. Because WinkClique has no control over such sites and resources, you acknowledge and agree that WinkClique has no responsibility for the accuracy of information provided by, or available via, other sites. Links to external sites do not constitute an endorsement by WinkClique of the sponsors of such sites or the content, products, advertising, or other materials presented on those sites. You further acknowledge and agree that WinkClique is not responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with use of or reliance on any such content, goods, or services available on these other sites or resources. 


  1. User Conduct and User Submissions

WinkClique may permit users to submit material for posting on the Site, including, without limitation, photographs, videos, information, ideas, comments, blogs, audio, suggestions, or other materials (collectively, the “Submitted Materials”). WinkClique does not warrant or make any representation whatsoever, and does not make any guarantee regarding, the quality, non-infringement, accuracy, completeness, timeliness, reliability, or any other attribute of the Submitted Materials. The Submitted Materials are the sole responsibility of the party posting such Submitted Materials. 


You are entirely responsible for everything you upload, post, email, or otherwise make available on the Site. By uploading, posting, emailing, or otherwise making available any Submitted Materials on the Site you hereby: (i) grant to WinkClique a non-exclusive, royalty-free, transferable, perpetual, worldwide license to copy, distribute, publish, retain, improve, prepare derivative works of, and commercialize the Submitted Materials; and (ii) release WinkClique from any claims related to defamation, invasion of privacy, rights of publicity, copyright, or any other legal or financial responsibility that may arise regarding the use of any image, name, voice, and likeness embodied in the Submitted Materials.  


With respect to any and all Submitted Materials and any other information or material submitted by you, you hereby warrant and represent that such Submitted Materials: (a) are true, accurate, authorized, and complete; (b) are not unlawful, obscene, fraudulent, indecent; do not defame, abuse, harass, or threaten others; and are not hateful or racially, ethnically, or otherwise objectionable; (c) do not contain any software viruses, Trojan Horses, worms, bombs, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (d) do not advocate or encourage any illegal activity; (e) do not infringe the copyright, patent, trademark, trade secret, right of publicity, or other intellectual property, proprietary, contractual, personal, or other right of any third party; (f) do not violate the privacy of individuals, including other users of the Site, and do not impersonate any other person or entity; and (g) do not violate any applicable local, state, national, or international law.  


  1. Disclaimer of Content

WinkClique, in its sole discretion, may at any time refuse or delete Submitted Materials it deems inappropriate, illegal, or harmful to others. WinkClique does not undertake any obligation to monitor the Site for such material. The views, opinions, and accuracy of information posted on the Site are the responsibility of the poster. WinkClique does not control, verify, or endorse any Submitted Materials or any other information or content not originating from WinkClique or WinkClique’s licensors. WinkClique is not responsible for any person’s misuse or misappropriation of any WinkClique Materials, Submitted Materials, or any other information contained on the Site or linked from the Site.   


  1. Intellectual Property Infringement Complaints - Digital Millennium Copyright Act Notice 

WinkClique respects others’ intellectual property rights and has made every effort to secure appropriate clearances for all content that WinkClique directly makes available on the Site, and asks its users to do the same. WinkClique may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who it suspects to be infringers of intellectual property. Pursuant to the Digital Millennium Copyright Act (“DMCA”), WinkClique has a designated agent to receive intellectual property infringement claims.  If you believe any material on the Site is infringing and has been posted by WinkClique, our users, or any other party, you may notify WinkClique of the alleged infringement by contacting WinkClique’s designated DMCA Agent at:  


DMCA Agent 

WinkClique, LLC

[3884 South River Road Building B Unit 3, Saint George UT 84790]

[hello@winkclique.com]


Please include the following information in your notice: 

 

(i)   Identification of the work(s) claimed to have been infringed and a statement of ownership to such work(s); 


(ii)   Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; 


(iii)  Information reasonably sufficient to permit us to contact you, such as an address,
telephone number, and e-mail address at which you may be reached; 


(iv)  A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; 


(v)   A statement, under penalty of perjury, that the information in the notification is
accurate and that you are authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed; and 

(vi)  Your physical or electronic signature. 


  1. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:  


(i) YOUR USE OF THE SITE IS AT YOUR SOLE RISK. ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. WINKCLIQUE DOES NOT WARRANT THAT THE FUNCTIONS ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OR ON THE SITE WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;  


(ii) TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WINKCLIQUE AND ITS OWNERS, MEMBERS, PARENTS, SUBSIDIARIES, AFFILIATES, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, AND LICENSORS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT;  


(iii) ANY WINKCLIQUE MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. UNDER NO CIRCUMSTANCES WILL WINKCLIQUE BE LIABLE IN ANY WAY FOR ANY WINKCLIQUE MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE MISUSE OF ANY MATERIAL POSTED, EMAILED, OR OTHERWISE TRANSMITTED VIA THE SITE;  


(iv) THE SITE AND WINKCLIQUE MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY. YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO THE USE OF SITE MATERIALS TO ACHIEVE YOUR INTENDED RESULTS. YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS OR ADVICE MADE OR GIVEN AS A RESULT OF THE USE OR APPLICATION OF ANY SITE MATERIALS, INCLUDING ADVICE YOU GIVE TO ANY THIRD PARTY; AND    


(v)  IF YOU FIND ANY MATERIAL ON THE SITE OBJECTIONABLE, YOU SHOULD NOT USE THE SITE. 


  1. LIMITATION OF LIABILITY

(i)  YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL WINKCLIQUE OR WINKCLIQUE’S PARENTS, SUBSIDIARIES, OR AFFILIATES, ANY OF THEIR RESPECTIVE SPONSORS, CONTRACTORS, VENDORS, SUCCESSORS, ASSIGNS, OR LICENSEES, OR ANY OF THEIR RESPECTIVE OWNERS, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (COLLECTIVELY, THE WINKCLIQUE RELEASED PARTIES”) BE RESPONSIBLE OR LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, THE USE OR THE INABILITY TO USE THE SITE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, THE MATERIALS AVAILABLE ON THE SITE, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE SITE, OR ANY OTHER MATTER RELATING TO THE SITE OR INFORMATION CONTAINED WITHIN THE SITE, EVEN IF ANY OF THESE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES. 


(ii) YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR SITE-RELATED MATERIALS IS TO STOP USING THE SITE. YOU AGREE THAT THIS LIMITATION OF LIABILITY AND RELEASE IS MADE WITH THE KNOWING INTENT OF RELEASING ALL KNOWN AND UNKNOWN CURRENT AND FUTURE CLAIMS AND WITH THE INTENT OF WAIVING ALL RIGHTS UNDER UTAH LAWS OR OTHER LAWS REQUIRING SIMILAR WAIVERS TO BE KNOWN. 


  1. Indemnification

You irrevocably agree to defend, indemnify, and hold the WinkClique Released Parties harmless from and against all claims or demands regarding: (i) your misuse of the Site or any WinkClique Materials on the Site; (ii) any violation by you of any term of these Terms of Use; (iii) any breach by you of any representations or warranties made by you under these Terms of Use; (iv) any Submitted Materials; and (v) your violation of any law or the rights of another party. Indemnification under these Terms of Use shall include, but not be limited to, any liability or expenses, losses, damages (actual and consequential), suits, judgments, litigation costs, court costs, and attorney’s fees. This indemnification obligation will survive any termination of these Terms of Use.  


  1. Termination

WinkClique reserves the unrestricted right, in its sole discretion, to restrict, suspend, or terminate your access to or use of the Site and/or to terminate the licenses granted herein at any time for any reason. You understand and agree that any termination of your access or use of the Site may be effected without prior notice to you, and that such termination may result in the forfeiture and destruction of all information and content associated with you and your activities on the Site. 


  1. Dispute Resolution

Most customer concerns can be resolved quickly by contacting WinkClique Support. In the unlikely event that WinkClique Support is unable to resolve your complaint, these Terms of Use will govern dispute resolution between us.   


To the extent permitted by applicable laws, you agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms of Use or your use of the Site must be filed within one (1) year after such claim arose or be forever barred.  

Both you and WinkClique agree that in the event of any dispute between us concerning this Site, your use of the Site, these Terms of Use or any purchase, transaction or advertisement on this Site, the party wishing to address the dispute must first contact the other party in writing or by e-mail, and advise the other party of the dispute in reasonable detail as well as informing the other party of the remedy being sought. All such notices to WinkClique shall be sent to the following address: [3884 South River Road, Building B Unit 3, Saint George, UT 84790]. The parties shall then make a good faith effort  to resolve the dispute before resorting to more formal means of resolution. In the event that the dispute is not resolved within thirty days of receipt of the written notice, the party raising the dispute may proceed to mandatory arbitration as set forth below. 


  1. Mandatory Agreement to Arbitrate Disputes 

YOU AND WINKCLIQUE AGREE THAT DISPUTES SHALL BE RESOLVED THROUGH  BINDING ARBITRATION. WE ARE BOTH WAIVING THE RIGHT TO HAVE DISPUTES  HEARD IN COURT AS DESCRIBED BELOW.

  

Any dispute between us concerning this Site, your use of the Site, these Terms of Use or any purchase, transaction, or advertisement on this Site, other than a request for injunctive relief, shall be resolved through binding and mandatory arbitration or in small claims court. 


What is Arbitration? Arbitration is a method of resolving claims, disputes, and other controversies without filing a lawsuit. By agreeing to arbitrate, the right to go to court is waived, and instead disputes are referred to an arbitrator for final and binding resolution 


EXCEPT AS OTHERWISE PROVIDED HEREIN, ANY AND ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING  ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO  ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL  CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY.  


Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written  submission, an in-person arbitration hearing will be conducted in Washington County, Utah.


Selection of Arbitrator shall be made pursuant to AAA’s Streamlined Arbitration Rules & 
Procedures or AAA’s Comprehensive Arbitration Rules & Procedures, depending on the amount  of the claim as specified herein. 


Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under  AAA’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the 
arbitration shall be conducted under AAA’s Comprehensive Arbitration Rules & Procedures 
Subject to the applicable AAA procedure, the arbitrator shall allow reasonable discovery in the 
forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the  

purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or 
disregard any provision of this section or any other provision of these Terms of Service, except  

as necessary to comply with AAA’s Policy on Consumer Arbitrations Pursuant to Pre-Dispute 
Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing  shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare 
and distribute to the parties written findings of fact and conclusions of law relevant to such 
judgment and award and containing an opinion setting forth the reasons for the giving or denial  of any award. The award of the arbitrator(s) shall be final and binding on the parties, and 
judgment thereon may be entered in a court of competent jurisdiction. 


Costs and Fees. You will be subject to a $250 filing fee to initiate the arbitration. To the extent permitted by AAA procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, and we will remain responsible for  our share of costs, expenses and fees plus any costs, expenses and fees required under AAA  procedures. 


Litigation. Either party also may, without waiving any remedy under this Agreement, seek from  any court having jurisdiction any interim or provisional relief that is necessary to protect the  rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or  we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. 


Class-Action Waiver. Both you and WinkClique expressly waive any ability to maintain any class action  proceedings in any forum. Any arbitration, claim or other proceedings by or between you and us  shall be conducted, regardless of venue, on an individual basis and not in any class action, mass  action, or on a consolidated or representative basis. You further agree that the arbitrator shall  have no authority to award class-wide relief or to combine or aggregate similar claims or  unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim  proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. 


Applicable Law, Rules, and Venue.  The Federal Arbitration Act (or “FAA”) shall govern the interpretation and enforcement of this Arbitration Agreement. Subject to the class action waiver and specific procedures described below, any arbitration shall be
administered by the American Arbitration Association (“AAA”), and the arbitration
shall be commenced and proceed pursuant to its AAA Commercial Arbitration Rules, except as modified herein. More information concerning AAA can be found on its WEBSITE, including the AAA Commercial Arbitration Rules   Arbitration shall take place in Washington County in the State of Utah.

 

Arbitrator Award. The arbitrator shall issue a written award in accordance with applicable arbitration rules. The award shall be limited to deciding the obligations and rights in the specific dispute between the parties. The arbitrator may impose equitable relief against a party only if sought by the other party. Judgment upon the award rendered by the arbitrator may be entered in any court located within the applicable venue, as set forth in these terms and conditions, and that judgment shall be final and non-appealable.  


Severability. With the exception of the class action waiver set forth above, if any provision in this Arbitration Agreement is declared to be unenforceable for any reason, the remainder shall remain in effect.  


Fees. The parties will each bear their own costs and expenses and an equal share of the (i) cost of the arbitrator and (ii) administrative fees of arbitration.  


Confidentiality. Except as may be required by law, neither the parties nor the arbitrator may disclose sensitive, confidential, or proprietary information obtained in connection with the arbitration. The arbitrator shall be authorized to issue protective orders relating to the disclosure of such information. 


  1. Governing Law and Venue

The laws of the State of Utah shall govern all matters relating to or arising from these Terms of Use and your use of the Site and any services, features, materials, applications, contests, or functionalities of the Site, without regard to conflict of law principles. Jurisdiction and venue of any matter not subject to arbitration shall reside in the Federal District for the District of Utah or any state court in Washington County, Utah.



  1. Miscellaneous Provisions

Waiver. WinkClique’s failure to assert or enforce any right or term under these Terms of Use shall not constitute a waiver of such right or term or in any way affect its right at a later time to enforce such right or term. No waiver of any right or term shall be deemed to be a continuing waiver of such right or term or any other right or term. 

 

Severability. If any provision of these Terms of Use is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the remainder and shall not affect the validity and enforceability of any remaining provisions, which will remain in force. 


Survival. Even after termination of your account or these Terms of Use for any reason, all rights, obligations, and conditions under these Terms of Use which by their nature should survive will survive, including, without limitation, warranty disclaimers, indemnification obligations, dispute resolution provisions, and limitations of liability. 


NOTICE FOR CALIFORNIA USERS Under California Civil Code Section 1789.3, Residents of California who use this Site are entitled to know that they may file grievances and complaints with the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at dca@dca.ca.gov 


  1. Contact Us

If you have any questions or concerns regarding these Terms of Use, please contact us at WinkClique Support or by regular mail at WinkClique, LLC, Attn: [Customer Support], [3884 South River Road, Building B, Unit 3, St George Utah 84790]. Please note that such communications are not necessarily secure. Accordingly, you should not include credit card information or other sensitive information in your correspondence with WinkClique. 


Last Updated: January, 2023