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terms

Terms of Service

Our Terms of Service govern your use of the services, merchandise and products Winston Brands, Inc. its affiliates or brands provides or makes available through its web and mobile sites, including the winstonbrands.com site (“Sites”), or offline such as via telephone, direct mail and traditional mail catalogues that link to or reference these Terms of Service ("Services"). Please read our full Terms of Service below.

Terms of service highlights

Acceptance of These Terms
Each time you use the Services, you agree to these Terms and any additional terms that may apply for the Services you select. More info

You Agree to Our Billing Terms
You agree to pay all fees and other charges at the prices then in effect for the Services you select including any applicable taxes, and you authorize us to charge your payment provider accordingly. More info

Binding Arbitration of Disputes; No Class Relief
Any disputes under these Terms will be resolved on an individual basis through binding arbitration. You waive participation in class actions. More info

Privacy
Please see how we use, share and collect your information as outlined in our Privacy Policy.

Services are Provided "As Is"
We provide the Services "As Is" and we make no representations for quality, effectiveness and availability of the Services. More Info

Limitation of Liability
Our liability to you is limited. More info

Contacting Us
Questions about our Terms of Service may be sent to us by email at: customerservice@winstonbrands.com or by any means provided in this policy. More info

Winston Brands Terms of Service

Effective Date: February 3, 2017
These Terms of Service and any other policies referenced in these terms or provided to you in conjunction with the Services (“Terms”) offered by Winston Brands, Inc., its affiliates or brands ("Winston Brands", "our", "we" or "us") govern your use of the Services.

1. ACCEPTANCE OF TERMS OF SERVICE

Binding Terms

You agree to be bound by these Terms each time you use the Services. If you do not agree to these Terms, do not use our Services. Additionally, policies or terms and conditions of certain offers may be posted on the Sites or Services or otherwise disclosed to you from time to time. If there is a conflict among and terms, you agree that Winston Brands will determine which Terms apply to which Services.

Updates to Terms

We reserve the right to update or change these Terms at any time by posting the most current version on the Services with a new effective date. All changes to the Terms take effect on the new effective date. Your continued use of the Services after we post new Terms indicates your agreement to any changes. If you do not agree to modifications of the Terms, your exclusive remedy is to discontinue your use of the Services. Any new features, tools, products and/or services that change, augment, enhance or upgrade the Services will be subject to these Terms.

Electronic Communications

By using the Services, you consent to having these Terms provided to you in electronic form. You have the right to receive these Terms in non-electronic form. Please send a letter and self-addressed stamped envelope with “Request for Winston Brands Terms of Service” written on the back to: Winston Brands, 2521 Busse Rd., Elk Grove Village IL 60007.

Eligibility

You must be the older of 18 years old or the age of majority in your state or country of residence to use the Services. The Services are void where prohibited by applicable law.

2. HOW TO USE THE SERVICES

Creating an Account/Registering for the Services

Certain Services are available only to registered users. If you wish to become a registered user and create an account, you must complete the registration procedures. During the account registration process, you will be prompted to provide personal information that allows us to know who you are, such as your full name, age, street address, email address and phone number (collectively, "Registration Information"). You authorize Winston Brands to make any inquiries, either directly or through third parties, to validate your Registration Information. Please see how we use, share and collect your information as outlined in our Privacy Policy. Winston Brands may or may not accept registrations for accounts for any reason.

Registration

By registering, you must provide accurate and complete information about yourself and your organization. You are responsible for promptly updating your registration information to keep it accurate and complete. To update your account, please visit "My Account" section of the Sites or contact us at customerservice@winstonbrands.com. We reserve the right to suspend or terminate your account and use of the Services, if your information is not complete or accurate.

Security of Username and Password

You are responsible for maintaining the confidentiality of your password and other account information. You agree to notify Winston Brands immediately of any unauthorized use or theft of your account. We will not be liable for any loss you incur as a result of someone else using your password or account, with or without your knowledge. You are liable for losses incurred by Winston Brands or another party due to someone else using your account or password. You may not use anyone else’s account at any time.

3. ORDERS AND RETURN POLICY

Orders

We reserve the right at any time to accept or decline any order or partial order, or not to ship to particular addresses, even after you have received an order confirmation. We reserve the right at any time to limit the quantities of merchandise, products and/or services ordered. All orders are for personal use only and orders for resale are prohibited without prior written approval. All features, specifications, products and prices of the merchandise described on the Service are subject to change at any time without notice. We try to display the image of the products available on our Sites, including colors, as accurately as possible but they may vary and the actual colors you see depend upon your device display. We will add shipping and handling fees and applicable sales/use tax in accordance with our then-current policies. Products displayed on this Site are available only while supplies last. There may be information on the Service that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, colors, pricing, and availability. We make no representation as to whether information on the Service is current or the completeness or accuracy of any information on the Service. We reserve the right to correct or make changes in such information without notice and cancel orders placed for merchandise listed incorrectly or at the wrong price. If we have cancelled your order after charging your account we will issue a credit for the amount charged. The risk of loss and title for all products purchased by you and shipped by us pass to you upon our delivery to the carrier for shipment. The risk of loss and title for all products purchased by you and shipped directly by one of our vendors pass from such vendor to you upon such vendor's delivery to the carrier for shipment.

Return Policy

Click here to view our return policy.

4. BILLING INFORMATION

You provide Winston Brands and its third party payment processor express authorization to charge the amounts indicated on your order. Failure to provide accurate billing information or falsifying billing information may result in termination of your order or termination of your right to use the Services. Winston Brands reserves the right to update your information from available third party sources. The terms of your Payment Method may be determined by agreements between you and the financial institution, debit/credit card issuer or other provider of your chosen Payment Method (the "Payment Provider"). If Winston Brands does not receive payment from your Payment Provider, you agree to pay all amounts due on your account upon demand. All prices are in US Dollars, unless otherwise indicated and do not include Internet service provider, telephone, or other connection charges, if any, that are billed by third parties. Depending upon your credit card's currency and the issuing country, your credit card provider may impose foreign exchange and other fees in accordance with your arrangements with that credit card provider. We reserve the right to cancel your order or request payment on demand if we do not receive payment from your Payment Provider.

You agree to pay your account balance on time. You are responsible and liable for any costs and expenses, including attorney and collection fees that Winston Brands may incur to collect balances due. This paragraph does not limit any other remedies available to Winston Brands. For assistance with billing-related issues, please email us at customerservice@winstonbrands.com or call us at (866) 584-8010.

5. PROPRIETARY RIGHTS

Winston Brands Content

The Services, and all material published on or accessible through Services (excluding User Content), including, but not limited to trademarks, logos, service marks, trade names, and trade dress appearing on the Services such as Collections Etc.®, Taylor Gifts® and Better Senior Living® ("Winston Brands Marks"). Winston Brands Marks are proprietary to Winston Brands and may not be used in any manner including as part of a link without express written permission from us. Winston Brands Marks, text, tests, photographs, video, graphics, music, images, animations, audio, software, plug-ins, “applets” incorporated into the software, data, sounds, messages, comments, and other materials on the Services (together “Winston Brands Content”) are owned by Winston Brands or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. Winston Brands owns a copyright in the selection, coordination, arrangement and enhancement of such Winston Brands Content and its Services.

Third Party Content

The Sites and the Services contain content provided by third parties (“Third Party Content”). Third Party Content has not been evaluated or endorsed by Winston Brands. Winston Brands does not assume any responsibility or liability for the Third Party Content, or actions, products, or services of such third parties. Before you follow the instructions, advice, or information embodied in such Third Party Content or purchase goods or services from a third party, you should make an independent evaluation of the Third Party Content.

Rights Granted to Winston Brands Content

Subject to these Terms, Winston Brands hereby grants you a limited, non-sublicensable and revocable license to display the Winston Brands Content and the Third-Party Content located on or available through our Services (excluding any software code therein) solely for your single, personal, non-transferable and non-commercial use in connection with viewing our Sites and using the applicable Services. Further, subject to these Terms, you are granted the nonexclusive, revocable and limited license to share on social media channels for non-commercial purposes the Winston Brands Content we make publicly available, without any modification whatsoever. All such use is subject to the terms and conditions set forth in these Terms and any unauthorized use may result on termination of the Services.

No Other License Granted

Except for allowing you to use the Services as set forth in these Terms, when you use the Services you are not receiving any other rights from us, including intellectual property or other proprietary rights of Winston Brands or its third party licensors, or to Winston Brands Content. We reserve all rights not expressly granted in these Terms.

6. USE OF OUR SERVICES

Personal Use

The Services are intended for individual, personal, and noncommercial use in accordance with these Terms. You may not copy, store, modify, translate, publish, broadcast, transmit, distribute, perform, display, or make available any Winston Brands Content or Third Party Content for commercial or trade purposes.

Prohibited Uses

In addition, you agree that you may not use the Services in order to (i) sell, buy, license or transfer access to your account (ii) copy, reproduce, publish, transmit, distribute, perform, sell, and create derivative works of, or in any way exploit, the Services or any of the Winston Brands Content, except as permitted in these Terms (iii) use any automated software or devices, such as spiders, robots or data mining techniques such as scraping, spidering, crawling or any other techniques to download, store, distribute or otherwise reproduce the Winston Brands Content or to manipulate the Services or security features; (iii) use or copy the Winston Brands Content, any data or other content you view on and/or obtain from the Services to provide any product or service that is competitive to Winston Brands; (iv) interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment; (v) use the Services in any manner that could damage, disable, overburden, or impair any Winston Brands server, or networks connected to any Winston Brands server, or interfere with any other party’s use and enjoyment of the Services; (vii) gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Winston Brands server or to any of the Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means; (viii) reverse engineer, decompile or disassemble any software accessed through the Services, including any proprietary communications protocol used by us; (ix) exploit, distribute or publicly communicate any error, miscue or bug which gives an unintended advantage; (x) frame or utilize framing techniques to enclose any Winston Brands Content (including images, text, page layout, or form) nor use any meta tags or any other “hidden text” utilizing Winston Brands Content, including Winston Brands Marks without our prior express written consent. Further, you may not abuse or harass any individual, or upload any advertising or promotional materials or materials that may be obscene, defamatory, vulgar, threatening or malicious.

User Content

The Services may enable you to communicate with others or provide your own content, such as posts, videos, photos, etc. You agree that all content you submit, post, upload, embed, display or communicate (“User Content”) will comply with these Terms. You acknowledge and agree that your User Content is public and that you have no expectation of privacy concerning your User Content. Therefore, exercise caution as any User Content that you communicate may be seen and used by others and could result in unsolicited communications or other unwanted activity. All comments, feedback or materials submitted by you to us, including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas are considered your User Content, and is treated by us on a non-confidential and unrestricted basis. YOU ARE SOLELY RESPONSIBLE FOR, AND WE WILL HAVE NO LIABILITY IN CONNECTION WITH YOUR USER CONTENT OR ANY OTHER USER CONTENT YOU ACCESS THROUGH THE SERVICES.

License to User Content

You retain ownership to your User Content to the extent that you have such rights under applicable law. You automatically grant to Winston Brands, its licensees, affiliates and their respective successors in business and assigns, and other users of the Services, a worldwide, sublicenseable, assignable, perpetual, irrevocable, non-exclusive, royalty-free, unlimited right and license to use, reproduce, publish, distribute, publicly display and perform, reformat, adapt, modify and delete your User Content for any purpose whatsoever, including advertising and trade purposes to the extent permitted by law without your prior approval or the payment of any compensation and without notice. This includes the right to filter, share, modify or adapt your User Content in order to transmit, display or distribute it over any media and to allow other users/third parties to access and distribute User Content, as provided in these Terms. You waive all moral rights with respect to the User Content.

Your Representation of Rights

You represent and warrant that (i) you own all your User Content, or otherwise have the rights necessary from any third party to grant us the rights set forth in these Terms; (ii) the User Content is accurate; (iii) your User Content does not contain any confidential information and (iv) the distribution, submission, transmission, posting and use of your User Content is not in violation of any applicable laws or contractual restrictions or other third party rights (including, without limitation, privacy, publicity, and intellectual property rights).

Rejection and/or Removal of User Content

Winston Brands reserves the right to pre-screen User Content but does not have any obligation to do so. Winston Brands may, in its sole discretion, pre-screen, edit, refuse, and/or remove any User Content, or portion thereof, reason, including but not limited to its determination that any such User Content is not appropriate, or for no reason. If you become aware of misuse of the Sites and/or the Services by any person, please contact us.

Third-Party Links

The Services may contain links to other sites which are not under the control of Winston Brands and are not endorsed by us. Winston Brands makes no warranties or representations, and disclaims all liability, relating to the content contained in or any other aspect of any linked sites.

7. TERMINATION OF YOUR ACCOUNT BY US

Violating the Terms

Your participation in the Services is subject to and conditioned upon your continued adherence to these Terms. Failure to abide by our terms may result in immediate termination of your account and of access to our Services, with or without prior notification.

Terminating or Cancelling Access to our Services

Winston Brands reserves the right to terminate any of our Services, without further notice and in our sole discretion. You agree that we will not be liable to you or any third party as a result of such actions.

Investigations

Winston Brands has no obligation, but reserves the right to investigate suspected violations of these Terms, including without limitation any violation arising from any User Content you make or send through the Services. Winston Brands may seek to gather information from the user who is suspected of violating these Terms, and from any other user. Winston Brands may suspend any user whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If Winston Brands believes, in its sole discretion, that a violation of these Terms has occurred, it may cancel postings, warn users, suspend users and passwords, terminate accounts or take other corrective action it deems appropriate. BY ACCEPTING THESE TERMS YOU WAIVE AND HOLD HARMLESS WINSTON BRANDS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY WINSTON BRANDS AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY ANOTHER USER OR LAW ENFORCEMENT AUTHORITIES.

8. DIGITAL MILLENNIUM COPYRIGHT ACT

Filing a Complaint

Winston Brands has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. We reserve the right to terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content which allegedly infringes another person’s copyright. It is our policy to terminate the access of repeat infringers. We are under no obligation to, and do not, scan content posted for any violations of third party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on Services. If you believe any materials on the Services infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by regular mail only, which includes:

  • Identification of the Service and 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;
  • Your name, address, telephone number and email address (if available);
  • A statement that the complaining party has 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;
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
  • The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.

Filing a Counter-Notice

If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by regular mail only, (“DMCA Counter-Notice”) that at a minimum includes:

  • Identification of the copyrighted work (or works) that was removed by Winston Brands and the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
  • Your name, address, telephone number and email address (if available);
  • A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or New Jersey if your address is outside of the United States;
  • A statement that you will accept service of process from the person (or an agent of such person) that provided the DMCA Takedown Notice to us;
  • A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  • A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down.

When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.

Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:

WINSTON BRANDS, INC.
2521 Busse Rd.
Elk Grove Village IL 60007
Attn: Susan Connor - DMCA

9. LEGAL NOTICES

No Endorsement

The content on the Sites and the products and services available on the Sites are not intended to be a substitute for professional, medical or other advice, diagnosis, or treatment. Winston Brands does not recommend or endorse the products, services or any other information on its Sites or Services. Always seek the advice of a physician or other qualified health or professional provider with any questions you may have regarding a medical or other important personal condition you have. RELIANCE ON ANY INFORMATION ON THE SITES OR SERVICES IS AT YOUR OWN RISK. WINSTON BRANDS IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS, DRUG AND DEVICE APPLICATION OR OTHER INFORMATION, SERVICES, OR PRODUCTS THAT YOU OBTAIN ON OR THROUGH THE SITES OR SERVICES, UNLESS PROHIBITED BY APPLICABLE LAW.

Waiver of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WINSTON BRANDS, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO ANY CLAIMS IN CONNECTION WITH YOUR USE OF THE SERVICES INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO ANY DEVICE YOU USE TO ACCESS OUR SERVICES, OR BODILY INJURY OR EMOTIONAL DISTRESS.

Disclaimer of Warranties

ALL SERVICES, WINSTON BRANDS CONTENT, INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY CONTENT INCLUDED IN OR ACCESSIBLE FROM THE SERVICES) ARE PROVIDED ON AN “AS IS” BASIS. WINSTON BRANDS MAKES NO WARRANTY AS TO QUALITY, ACCURACY, COMPLETENESS OR VALIDITY OF THE SERVICES OR WINSTON BRANDS OR THIRD PARTY CONTENT OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR OTHERWISE MEET YOUR REQUIRMENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE DISCLAIMED. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OF THE DISCLAIMERS SET FORTH IN THIS DOCUMENT. WINSTON BRANDS DOES NOT ENDORSE NOR DO WE ASSUME RESPONSIBILITY FOR, THE QUALITY, QUANTITY, SIZE, CHARACTER, FITNESS FOR A PARTICULAR PURPOSE, SPECIFICATIONS, FEATURES, FUNCTIONALITY, SAFETY, OR LEGALITY OF MERCHANDISE ON OUR SERVICES, THE TRUTH OR ACCURACY OF THE DESCRIPTIONS, OR THE ABILITY OF THE SELLERS TO SELL, SHIP, OR OTHERWISE PROVIDE SUCH MERCHANDISE. WE MAY CHANGE OR DELETE MERCHANDISE AVAILABLE, CONTENT OR FEATURES OF OUR SERVICES. YOUR SOLE RECOURSE IS DESCRIBED IN OUR RETURN POLICY.

Liability Limitation

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WINSTON BRANDS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BASED ON A CLAIM OF UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, , OR INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICES, EVEN IF WINSTON BRANDS HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. WE AND OUR LICENSORS, ARE NOT REPONSIBLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN WINSTON BRANDS’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES SHALL NOT EXCEED WHAT YOU PAID FOR OUR SERVICES.

WINSTON BRANDS’S LICENSORS AND AGENTS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS AND LIMITATION OF LIABILITY.

Indemnity/Release

You understand that you are personally responsible for your behavior while using the Services and agree to indemnify and hold harmless Winston Brands, including its officers, directors, employees, agents and licensors (collectively, “Indemnitees”) from and against claims of any kind that Indemnitees may incur in connection with a third party claim or otherwise, arising out of or related to your unauthorized use of the Services, your User Content, your violation of these Terms, applicable law or the rights of any third party. To the extent permitted under applicable laws, you hereby release Indemnitees from any and all claims or liability related to your unauthorized use of the Services.

SPECIAL STATE DISCLOSURES

NEW JERSEY RESIDENTS

The following are modifications to the provisions in Section 9 Legal Notices and apply only to consumers who are residents of New Jersey. Except as modified below, the provisions in Section 9 above remain unchanged and applicable to N.J. residents:

Winston Brands’ disclaimers and waiver of liability for damages incurred by you for any interruption, malfunction, impossibility of access, or poor conditions of the Services or for any other reason will not apply to damages directly caused by Winston Brands’ gross negligence or willful misconduct. In addition, Winston Brands’ disclaimer of warranty as to the quality, accuracy, completeness or validity of the Services and all Winston Brands Content (excluding third party content or information) is not applicable. However, Winston Brands does not guarantee that the use of the Services will meet your requirements.

Winston Brands’ limitation of liability does not apply to you for damages arising out personal injury, property damage, negligence or willful misconduct or any other cause of action arising from the acts of Winston Brands but does apply to the acts or omissions of third parties. Winston Brands’ aggregate liability for all claims under any circumstances will not exceed the lesser of $1,000.00 or your actual, out of pocket costs and damages. For the avoidance of doubt, in no event will Winston Brands be liable for special, incidental, consequential, incidental or similar damages as stated in these Terms.

CALIFORNIA RESIDENTS

If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

10. RESOLUTION OF DISPUTES

Governing Law

These Terms shall be governed by and construed in accordance with the laws of the State of New Jersey without application of conflict of laws rules, except that the arbitration provision shall be governed by the Federal Arbitration Act (“FAA”).

Resolution of Any Dispute

In the event a dispute arises between you and Winston Brands, we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly by contacting our customer care department at (866) 584-8010 or e-mail us at customerservice@winstonbrands.com. We also participate in the Better Business Bureau's BBBOnLine Program. This means that we have committed to cooperating with BBB efforts to resolve disputes that may arise under this contract. Upon your request, we will agree to participate in a BBB dispute resolution process to resolve these disputes. There are limits as to the kinds of claims that the BBB will handle. Go to http://www.bbb.org/us/Dispute-Resolution-Services/ for more information. If, however, there is an issue that is unresolved, these Terms describe how both of us will proceed:

Binding Arbitration

YOU AND WINSTON BRANDS AGREE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THAT THE EXCLUSIVE MEANS OF RESOLVING ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES IS BINDING ARBITRATION. INSTEAD OF SUING IN COURT, YOU AND WINSTON BRANDS EACH AGREE TO ARBITRATE DISPUTES ON A BILATERAL (INDIVIDUAL) BASIS PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO WINSTON BRANDS’S INTELLECTUAL PROPERTY RIGHTS; STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE; INDEMNIFICATION; CONTRIBUTION; INTERPLEADER; OR INJUNCTIVE RELIEF ARISING OUT OF A CLAIM. These terms to arbitrate are intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claims”). The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.

Jury Trial Waiver

WE EACH AGREE TO WAIVE THE RIGHT TO GO TO COURT OR HAVE A TRIAL BY JURY.

Class Action Waiver

All arbitrations under these Terms shall be conducted by a single arbitrator who shall have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibits you from commencing any legal proceedings as a representative of others or joining in any arbitration proceedings brought by any other person, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).

Arbitration Procedures

A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought. All notices to Winston Brands shall be sent to the following address: Winston Brands, 2521 Busse Rd. Elk Grove Village IL 60007. All notices to you will be sent to the email provided in your account. Upon receipt of such notice, the other party shall have a sixty (60) day period in which it may satisfy the Claim against it by fully curing the Claim and/or providing all the relief requested in the notice, and/or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or Winston Brands may commence an arbitration proceeding. Unless otherwise agreed to by you and Winston Brands in writing, the arbitration of any Claim under these Terms shall be referred to JAMS under its rules and procedures, be decided before a single arbitrator with substantial experience in the internet industry, and will follow substantive law in adjudicating the dispute, except that this section will be construed as a written agreement to arbitrate pursuant to the FAA. You and Winston Brands agree that this section satisfies the writing requirement of the FAA. The JAMS rules are available on its site at www.jamsadr.com. The arbitration of any Claim shall be conducted in the State of New Jersey, and for any non-frivolous Claim that do not exceed $10,000 Winston Brands will: (1) pay all costs of the arbitration; (2) if you prefer will conduct the arbitration by telephone, and (3) will not seek attorneys’ fees in the event Winston Brands prevails. Each party shall pay the fees and costs of its own counsel, experts and witnesses. To the extent this dispute resolution section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard will control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms is void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.

Exception

All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, shall be resolved by binding arbitration, with the exception of any Claim or action for indemnification, contribution, interpleader, or injunctive relief arising out of a Claim, which Claims or actions shall not be subject to arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.

Choice of Law

Any proceeding to enforce this arbitration agreement may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Winston Brands (except for small claims actions) may be commenced only in the federal or state courts of New Jersey. You hereby consent to the jurisdiction of those courts for such purposes.

11. RESOLUTION OF DISPUTES FOR NON-US RESIDENTS

If any controversy, allegation, or Claim (including any non-contractual Claim) arises out of or relates to the Services or Terms and you are a non-U.S. resident, then you and we agree to send a written notice to the other providing a reasonable description of the dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to Winston Brands, 2521 Busse Rd., Elk Grove Village IL 60007, United States. For a period of sixty (60) days from the date of receipt of notice from the other party, Winston Brands and you will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or Winston Brands to resolve the dispute on terms either you or Winston Brands, in each of our sole discretion, are unsatisfactory. Nothing in this section will prevent a party from pursuing their Claims in court or another complaint process.

12. GENERAL

Modification/Interruption to Services

Winston Brands has the right to modify its Services and Winston Brands Content at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or our policies or practices in providing the Services is to stop using our Services and deactivate your account. Winston Brands may at any time for any no reason interrupt availability of some or all aspects of the Services, or modify, replace, refuse access to, or discontinue any Services, in our sole discretion. Any changes to the Services, prices or fees are effective when posted on the Services or when communicated to you directly. Winston Brands is not liable for any interruption of Services, or delay or failure to perform.

Winston Brands has the right to modify its Services and Winston Brands Content at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or our policies or practices in providing the Services is to stop using our Services and deactivate your account. Winston Brands may at any time for any no reason interrupt availability of some or all aspects of the Services, or modify, replace, refuse access to, or discontinue any Services, in our sole discretion. Any changes to the Services, prices or fees are effective when posted on the Services or when communicated to you directly. Winston Brands is not liable for any interruption of Services, or delay or failure to perform.

Survival

If these Terms expire or are terminated for any reason, the provisions which by their nature should continue after termination such as Winston Brands’ Rights, Legal Notices, Resolution of Disputes and General.

Severability

If any provision of these Terms is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.

No Third Party Beneficiaries

You agree that, except as otherwise expressly provided in these Terms, there aren’t any third party beneficiaries to these Terms.

U.S. Export Controls

Software from our Services shall be not be exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

Permission to Contact You

When you provide us with contact information such as an email address or telephone number in connection with our Services or login to the Services, you agree that this action establishes a business relationship giving us permission to communicate with you using your contact information. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, push notification, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving, in accordance with applicable law. You expressly authorize us and our service providers to communicate with you about our Services using the information you provided to us. You attest that you have the legal authority to provide us and/or third parties with the authorization to contact you. If you wish to learn more visit our privacy policy.

No Liability for Accumulated Content

When using the Services, you may accumulate content that resides as data on our servers. This data, and any other data residing on our servers, may be deleted, in whole or in part, altered, moved or transferred at any time for any reason in our sole discretion with or without notice and with no liability of any kind. You acknowledge that, notwithstanding any rights you may have with respect to User Content, you have no ownership rights in your account and, if your account is terminated or deactivated, all your account information may be deleted. WINSTON BRANDS DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY ACCOUNT INFORMATION RESIDING ON WINSTON BRANDS’S SERVERS AND HAS THE RIGHT TO DELETE SUCH ACCOUNT INFORMATION AT ANY TIME FOR ANY REASON.

International Users

The Services can be accessed from locations around the world. Winston Brands makes no representations that Services, or content are appropriate for use outside the United States. Use of the Services from jurisdictions where the Services or any of its content is illegal is prohibited. If you access the Services from a location outside the United States, you are responsible for compliance with all local and international laws.

Data Collection Policy

No party unaffiliated with us may collect or use, or direct, authorize or assist other persons or entities to collect or use any data from a user, or a computer or device operated by a user, while accessing our Services without our prior express written permission.

Entire Agreement

These Terms, and policies referenced herein, are the entire agreement between you and Winston Brands. They supersede any and all agreements between you and Winston Brands relating to your use of the Services. Winston Brands may assign these Terms, in whole or in part, at any time. Headings in the Terms are for convenience of reference only and will not affect the interpretation or construction of these Terms. The failure of Winston Brands to partially or fully exercise any rights under these Terms, will not prevent a subsequent exercise of such right by Winston Brands or be deemed a waiver by Winston Brands of the right to asset any violation of these Terms. The rights and remedies of Winston Brands under these Terms and any other applicable agreement between you and Winston Brands shall be cumulative. If any provision of these Terms is declared or found to be unlawful, unenforceable, or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions shall remain fully enforceable.

13. CONTACTING US

If you have any questions, comments or concerns about these Terms email us at customerservice@winstonbrands.com, call customer service at (866) 584-8010 or write to us at: Winston Brands, Inc., 2521 Busse Rd, Elk Grove Village, IL 60007.

Copyright © 2017 Winston Brands, Inc. All rights reserved.