Terms of Service
Effective Date: January 1, 2023
This Terms of Service (“Terms”) is an agreement between you and Winston Brands, Inc. and its affiliates or brands (“Winston Brands”, "us", "our" or "we") and sets forth the legally binding terms for your use of our websites found at www.collectionsetc.com, www.winstonbrands.com (and any of their sub-domains) or any other site, mobile application, or other online platform which includes a link to these Terms (the "Sites") and sales, marketing, or other services that we offer on our Sites or otherwise (the Sites and any such services being collectively, the “Services”).
These Terms apply to your use of the Services (however accessed and/or used, whether via personal computers, mobile devices or otherwise) or any other means or applications in which you connect with us and your use of our Services.
Certain areas, features, or functionality of the Services may be subject to different or additional terms, rules, guidelines or policies (“Additional Terms”), and we may provide such Additional Terms to you via postings, pop-up notices, links, or other means at the time that you access or use the relevant area, feature or functionality. From time to time, such Additional Terms may conflict with these Terms. In the event of such a conflict, the Additional Terms will control. Any reference to the “Terms” in this agreement includes the Additional Terms.
IMPORTANT NOTICE: PLEASE NOTE THE ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER SET FORTH BELOW, WHICH PROVIDES THAT, EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 16 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
We recommend that you read these Terms in full to ensure you are fully informed. However, to make it easier for you to review those parts of these Terms which apply to you, we have divided up the document into the following sections:
- Who We Are
- Acceptance of Terms
- Account and Contact Information
- Ordering and Payment
- Your Use of the Services
- Proprietary Rights
- Digital Millennium Copyright Act
- Disclaimer of Warranties
- Limitation of Liability
- Your Legal Liability
- California Residents’ Rights
- Geographic Restrictions
- Changes to Terms of Service
- Third Party Links
- No Rights of Third Parties
- Arbitration / Dispute Resolution
- Contact Us
1. WHO WE ARE
Winston Brands offers thousands of products to customers throughout the United States through its catalogs and its web site, collectionsetc.com. As a customer focused organization, our growth has been built on a simple philosophy of providing customers with unique and appealing merchandise at an exceptional value. Offering a wide range of affordably-priced, hard-to-find and exclusive products including items for home and garden, health and beauty as well as apparel and accessories, we are always working to make customers smile more, pay less and always be delighted.
2. ACCEPTANCE OF TERMS
Agreement to the Terms. Each time that you access or use the Services you represent that you are legally competent to enter into this agreement and that you have read, understand, and agree to be bound by these Terms. If you do not agree to any of these Terms you must discontinue using the Services.
Eligibility. You must be at least 18 years old or have reached the age of majority in the jurisdiction in which you reside to use the Services or become a member and by registering with us you attest that you have reached the age of majority in your jurisdiction and have the legal capacity to be legally bound by these Terms.
Electronic Form/Communications. By accessing or using the Services you consent to having this agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, e-mail or by posting notices on the Services. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
3. ACCOUNT AND CONTACT INFORMATION
Access to the Services. You do not need to register in order to access and browse sections of the Services. If you are browsing the Services and have not yet registered with us your use of the Services will still be subject to these Terms.
Account. To access certain portions of the Services, you must create an account. You can create an account by submitting the information required (“Winston Brands Account”). You’ll need to provide a valid email address and a password which you will be required to submit each time you log in. You agree to provide truthful and accurate information during the registration process and keep your Winston Brands Account up-to-date at all times. If you provide any information that is untrue, inaccurate, or incomplete, we reserve the right to terminate your account and suspend your use of any and all of the Services.
Security. If you use our Services you are responsible for restricting access to your Winston Brands Account and ensuring that your computer and mobile device are free from all types of malicious content, including content that may track any data you enter via the Services. Your login ID email address (or other unique identifier needed to create an account) and password, together with any mobile number or other contact information you provide, form your “Account Information.” You understand and agree that you are responsible for maintaining the confidentiality and security of your password and other Account Information, and that you are solely responsible for all activities or omissions that occur on or through your Winston Brands Account. You further agree to notify Winston Brands immediately of any unauthorized access to your Winston Brands Account or unauthorized use of your Account Information or any other security breach by emailing us at [email protected].
Contacting You. When you provide us with contact information in connection with a particular activity or when using our Services, such as an email address or telephone number, you expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent. You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. 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, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable laws or regulations (“Applicable Laws”).
Keep me signed in. When you check the "Keep me signed in" box before signing in, it means you will stay signed in until you sign out manually or cookies stored by the website in your browser are deleted. By checking this box, you are opting to receive “session ID” and “persistent” cookies, which make signing in easier for you by saving your username and password. Do not use the “Keep me signed in” option when you are using a public computer in an office or other public place, when you share a computer, or where others could easily access your profile or account without your authorization. Because this option allows others to sign-in without entering your password, your personal information could be jeopardized if you use a public computer or a device where others could easily access your profile or account without your authorization. Once selected, you may uncheck this box at any time from the bottom of the Account Info page under My Account.
4. ORDERING AND PAYMENT
Product Description, Product Availability & Pricing Information. Winston Brands strives to be as accurate as possible and eliminate errors on the Services. However, there may be information on the Services that contains typographical errors, inaccuracies, or omissions and they may relate to product descriptions, pricing, promotions, offers and/or availability. Certain products displayed on the Services may have limited quantities and may not always be available.
We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information on the Services at any time and without prior notice (including after you have submitted an order), at our sole discretion. In the event that any errors, inaccuracies, or omissions affect an order you have already placed, your sole remedy is to cancel, return, or exchange your order, in compliance with any applicable Winston Brands policies. We try to display the image of the products available on the Services, including colors, as accurately as possible but they may vary and the actual colors you see depend upon your device display. We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations. If a product offered on the Services is not as described or pictured, or otherwise does not meet your expectations, your sole remedy is to return or exchange your order, in compliance with any applicable Winston Brands policies.
Orders. Any prices displayed on the Services are quoted in U.S. dollars, are subject to change without notice, and are intended to be valid and effective only in the United States. We will add shipping and handling fees and applicable sales/use tax in accordance with our then-current policies. All orders are for personal use only and orders for resale are prohibited without prior written approval. Products displayed on the Services are available only while supplies last 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.
No Binding Offer. Nothing on the Services constitutes a binding offer to sell, distribute or give away any products or services. In the event the products and services are listed at an incorrect price, we have the right to refuse or cancel orders placed at the incorrect price, regardless of whether the order has been confirmed or you have been charged. We reserve the right at any time after receipt of your order to accept or decline such order, or any portion thereof, or to not ship to particular addresses, even after your receipt of an order confirmation or after you have been charged. We also reserve the right at any time to limit the quantities of merchandise, products and/or services ordered for you or your household. Return Policy. Click here to view our return policy.
Transactions. Winston Brands only sells products to adults. If you are under the age of majority in your jurisdiction of residence, you may not make a purchase or provide any information to Winston Brands. If you wish to purchase any product available through the Services, you will be asked to supply certain information relevant to your order including, without limitation, information about your method of payment (such as your payment card number and expiration date), your billing address, and your shipping information. When you provide any such payment information (“Billing Information”) to Winston Brands or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you (“Payment Method”), and you authorize Winston Brands to charge such Payment Method for the full amount of the transaction. The terms of your payment will be based on your Payment Method and 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 Method Provider"). If Winston Brands does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by your Payment Method, we may re-present such un-cleared or rejected payment, or any lessor amount thereof, to your Payment Method Provider. In the event we have to collect unpaid amounts you owe us, you will be liable for all collection costs, including attorneys' and collection agency fees. Winston Brands reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment and to update your information from available third-party sources. In the event Winston Brands cannot charge the Payment Method you provide we reserve the right to terminate your order and invoice you for any unpaid amounts. You must promptly notify Winston Brands if your Payment Method is canceled (e.g., for loss or theft). If you fail to notify us, you remain responsible for any continued charges to the Payment Method you provided.
You further agree to provide current, complete, and accurate information for all orders placed through the Services. You agree to promptly update your account and other information, as applicable, so that we can complete your order and contact you as needed. By submitting any information in connection with an order, you grant to Winston Brands the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of an order. Winston Brands’ acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. We reserve the right to refuse service, terminate accounts, or cancel or modify orders in our sole discretion and shall have no liability to you other than refunding your order, if applicable.
Without limiting the foregoing, we may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. If we make a change to or cancel an order, we will attempt to notify you by contacting the email and/or billing phone number provided at the time the order was made. Purchase of our merchandise for resale purposes is not authorized. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by unauthorized dealers, resellers or distributors, and to cease doing business with such customers, with no further notice. You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price in effect when such charges are incurred including, without limitation, all shipping and handling charges. You remain solely responsible for any taxes that may be applicable to your orders. Further, it is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from the Services. By placing an order, you represent that the products ordered will be used only in a lawful manner. Any offer for any product or service made in connection with the Services is void where prohibited.
Third Party Content. 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.
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’ SERVERS AND HAS THE RIGHT TO DELETE SUCH ACCOUNT INFORMATION AT ANY TIME FOR ANY REASON.
5. YOUR USE OF THE SERVICES
Monitoring. Winston Brands reserves the right to monitor all network traffic on the Services and anyone using the Services expressly acknowledges that such monitoring may occur. Winston Brands may block unauthorized attempts or intrusions to upload or change information or cause damage to the Services in any fashion. You acknowledge that Winston Brands has no general obligation to monitor User Content (as hereinafter defined) nor to actively seek facts or circumstances indicating illegal activity, but has the right to review, disable access to, or to edit any User Content in order to: (i) operate, secure and improve the security of the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure compliance with these Terms; (iii) comply with Applicable Laws or the order or requirement of a court, law enforcement, or other administration agency or governmental body; (iv) respond to User Content or user conduct that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms or as otherwise deemed appropriate in our sole discretion.
Posting of User Content. The Services may contain public facing community forums (“Community Forums”) designed to enable you to post and communicate content, such as reviews, photos, videos, or other information or content (collectively, “User Content”) with other users of the Services. You agree that all such User Content you submit, post, upload, embed, display or communicate through the Services will comply with these Terms and with the Rules of Conduct set forth herein. You acknowledge and agree that when you post User Content it is available to the public and that you have no expectation of privacy concerning your User Content. As a result, please exercise caution when posting any personal information in User Content as it may be seen and used by others. Winston Brands has no obligation to monitor User Content but reserves the right to review and remove any User Content at any time, without notice, for any reason and in its sole discretion. Winston Brands specifically disclaims any liability with regard to User Content and any actions resulting from your participation in any such Community Forums. WINSTON BRANDS IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT OR INFORMATION YOU POST ON OR THROUGH THE SERVICES.
Objectionable Content. If you encounter something you find objectionable and in violation of these Terms, you can report it to [email protected].
License to User Content. All User Content must comply with these Terms. By submitting, transmitting, or displaying your User Content on or through the Services, you automatically grant (and you represent and warrant that you have the right to grant) to Winston Brands, its licensees, and their respective successors and assigns, officers, directors, employees, licensees, agents, representatives 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 in connection with the Services (“License”).
Representation of Ownership. You retain copyright and other intellectual property rights with respect to any User Content to the extent that you have such rights under Applicable Laws. By posting or submitting User Content through the Services you represent and warrant that (i) you own such User Content or otherwise have the right to grant us the License set forth in these Terms; (ii) the User Content is accurate and not confidential and the distribution, submission, transmission, posting and use of your User Content on the Services is not in violation of any Applicable Law or contractual restrictions or other third party rights (including, without limitation, privacy, publicity, and intellectual property rights); and (iii) you are solely responsible for, and Winston Brands will have no liability in connection with, your User Content or any other User Content you access through the Services. Your ownership in your User Content does not confer any rights to the Services, nor any rights to other User Content or Winston Brands Content stored by or on behalf of Winston Brands.
Feedback/Idea Submissions. Winston Brands does not accept unauthorized idea submissions. Any ideas disclosed to Winston Brands are not confidential and Winston Brands may develop, use and freely disclose or publish similar ideas without compensating you or accounting to you. All comments or materials submitted to us, including testimonials, images, reviews, questions, comments, or suggestions (collectively, “Feedback”), is received and treated by us on a non-confidential and unrestricted basis. If you provide Winston Brands with any Feedback, you hereby grant Winston Brands a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation throughout the world. If any such rights may not be licensed under Applicable Laws (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that Winston Brands is not required to make any use of any Feedback that you provide. You agree that if Winston Brands makes use of your Feedback, Winston Brands is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Winston Brands to grant Winston Brands and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary, privacy or other personal rights.
Termination. Winston Brands may terminate your access to its Services immediately or disable any user name, password or other identifier, whether chosen by you or provided by Winston Brands, at any time without notice, if, in Winston Brands’ sole opinion, you have violated any provision of these Terms. Termination will not limit any of Winston Brands’ rights or remedies at law or in equity.
Data Collection Policy. No party unaffiliated with Winston Brands 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.
Modification to Services. Winston Brands has the right to modify its Services (and products and services accessible through its Services)at any time in its sole discretion which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Winston Brands has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality or other aspects of its Services. Your only right with respect to any dissatisfaction with any updates made to its Services, or any policies or practices of Winston Brands in providing its Services, is to cancel your account and/or stop using the Services.
Injunctive Relief. You expressly acknowledge and agree that there may be no adequate remedy at law for a breach of these Terms, that such a breach may irreparably harm Winston Brands and Winston Brands is entitled, without limiting any of its other remedies at law or equity, to seek injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach of these Terms.
6. PROPRIETARY RIGHTS
Ownership of Content and Marks. The Services and its content, features and functionality, including, without limitation, information, text, graphics, logos, button icons, images, audio clips, video clips, data compilations and the design, selection and arrangement thereof (collectively, the “Content”), are the exclusive property of Winston Brands, our licensors, or other content suppliers, and are protected by United States and international copyright, trademark, patent and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent.
All trademarks, logos, service marks, trade names, and trade dress appearing on the Services (“Marks”), are proprietary to Winston Brands, its affiliates, or its licensors. You acknowledge that you do not acquire any ownership rights in any Content or Marks downloaded or accessed from the Services. You may not frame, utilize framing techniques to enclose any Marks or Content (including images, text, page layout, or form), or make it appear that a third-party site is presenting or endorsing any of the Content, nor use any Meta tags or any other "hidden text" utilizing Winston Brands, its affiliates’, or its licensors’ name or Marks without the prior express written consent of Winston Brands or any applicable third party suppliers. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, the Services, Marks or Content, in whole or in part, without the prior written consent or Winston Brands. Any unauthorized use of the Winston Brand Content may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. You agree to comply with reasonable written requests from us to help us protect our proprietary and intellectual property rights.
Our Limited License to You. You acknowledge and agree that the Services are provided under license, and not sold, to you and your use. You do not acquire any ownership interest in the Services or Content under these Terms, or any other rights thereto other than the limited right to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions under these Terms. Winston Brands grants you a limited, personal, non-commercial, non-exclusive, revocable, non-assignable, and non-transferable license to access (but not through scraping, spidering, crawling or other technology or software used to access data) and display the Content (excluding any software code) solely for your personal and non-commercial use in connection with accessing and using the Services as reasonably necessary to use them for their intended purpose and in compliance with these Terms. You may not insert any code or product to manipulate the Content or Services in any way that affects any user's experience. Winston Brands and its licensors reserve all rights not expressly granted in and to its respective Services, Marks and Content. You may not use the Services, Marks or Content in a manner that constitutes an infringement of our rights or that has not been authorized by Winston Brands. More specifically, unless explicitly authorized in these Terms you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Services. You may, however, download copies of individual pages from the Services for your personal, non-commercial use, provided that you keep intact all copyright and other notices intact. This license is available to you as long as you are not barred from the Services by Applicable Laws and your access is not terminated by us. If these Terms are not enforceable where you are located, you may not use the Services. Winston Brands reserves all right, title, and interest not expressly granted under this license to the fullest extent possible under applicable laws.
7. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
Filing a Complaint. If you are a user in the United States, Winston Brands has designated an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (“DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any User Content on the Services which allegedly infringes another person’s copyright. We are under no obligation to 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 the 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, (“DMCA Takedown Notice”), that at a minimum includes:
- Identification of the URL to the relevant portion of the Services 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 or information reasonably sufficient to permit us to contact the complaining party ;
- 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 material that was removed by Winston Brands and the URL with the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the material;
- Your name, address, telephone number and email address or information reasonably sufficient to permit us to contact the complaining party ;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 the State of Illinois 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) who provided the DMCA Takedown Notice to us;
- A statement from you, under penalty of perjury, 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.
PO Box 7985
Elk Grove Village IL 60009-7985
Attn: Susan Connor – DMCA
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, and where technically feasible, of account holders who are repeat infringers.
8. DISCLAIMER OF WARRANTIES
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED UNDER LAW AND SAVE FOR THE RIGHTS GRANTED TO CONSUMERS UNDER APPLICABLE LAWS, THE CONTENT, INFORMATION PRODUCTS, AND SERVICES OFFERED ON OR THROUGH THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, WINSTON BRANDS DISCLAIMS ALL WARRANTIES OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WINSTON BRANDS DISCLAIMS IMPLIED WARRANTIES THAT THE SERVICES AND ALL PRODUCTS, SOFTWARE, CONTENT SERVICES, AND INFORMATION DISTRIBUTED OR OFFERED THROUGH THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WINSTON BRANDS OR A REPRESENTATIVE SHALL CREATE A WARRANTY.
WINSTON BRANDS DOES NOT WARRANT: THAT THE SERVICES, OR ANY OF THEIR FUNCTIONS, WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT ANY PART OF THE SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THEY ARE ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES. WE DO NOT GUARANTEE THAT THE SERVICES, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, AND ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING.
WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR CONTENT CONTAINED THEREIN WITH REGARD TO THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE. DUE TO THE NATURE OF THE INTERNET, WINSTON BRANDS CANNOT GUARANTEE THE CONTINUOUS AND UNINTERRUPTED AVAILABILITY AND ACCESSIBILITY OF THE SERVICES. WINSTON BRANDS MAY RESTRICT THE AVAILABILITY OF THE SERVICES OR CERTAIN AREAS OR FEATURES IF NECESSARY, IN VIEW OF CAPACITY LIMITS, THE SECURITY OR INTEGRITY OF ITS SERVERS, OR TO CARRY OUT MAINTENANCE MEASURES THAT ASSIST IN THE PROPER OR IMPROVED FUNCTIONING OF THE SERVICES. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES. WINSTON BRANDS’ LICENSORS AND AGENTS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS.
FURTHER, WINSTON BRANDS DOES NOT ENDORSE AND MAKES NO WARRANTY REGARDING THE ACCURACY OR RELIABILITY OF ANY OPINION, INFORMATION, ADVICE OR STATEMENT ON THE SERVICES. UNDER NO CIRCUMSTANCES WILL WINSTON BRANDS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE CONTENT ON THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT ON THE SERVICES.
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER LAW, WINSTON BRANDS WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DAMAGES OR LIABILITIES, INCLUDING DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT OR DAMAGES ARISING FROM PERSONAL INJURY/WRONGFUL DEATH) ARISING WITH RESPECT TO YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OF OR INABILITY TO USE THE SERVICES, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (iv) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SERVICES, OR (v) ANY OTHER MATTER RELATING TO THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. WINSTON BRANDS’ LICENSORS AND AGENTS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS LIMITATION OF LIABILITY.
10. YOUR LEGAL LIABILITY
You agree to defend (at Winston Brands’ option) , indemnify and hold harmless Winston Brands and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, and licensors from and against all damages, losses, liabilities, claims, expenses and costs (including, but not limited to, attorneys’ fees and costs , arising from or related to your misuse of the Services, including any breach by you of these Terms. We reserve the right, at our expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with us if and as requested by us in the defense and settlement of such matter. In any case, you agree never to settle any matter for which your indemnification is required absent our prior written consent.
11. CALIFORNIA RESIDENTS’ RIGHTS
If you are a California resident and in connection with the foregoing releases, 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.”
California Residents may reach Winston Brands at the contact information provided below in the “CONTACT US” section. California residents may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
12. GEOGRAPHIC RESTRICTIONS
Winston Brands will provide the Services with reasonable care and skill but makes no representations that they are appropriate for use from locations outside the United States or compliant with laws outside the United States. If you access the Services from outside the United States, you are responsible for compliance with local laws in relation to your use of the Services.
13. CHANGES TO TERMS OF SERVICE
Winston Brands will review and may update these Terms periodically and will note the new “effective date” at the top of this agreement when any changes are made. If we make material changes to these Terms we may, in our sole discretion, choose to notify you by posting a notice of a new Terms of Service update on the Services for a period of time or by other means as we see fit, but there is no guarantee that such additional notice will be provided, so we encourage you to review these Terms and make note of the “effective date” frequently. Your continued use of the Services after we post any changes to the Terms signifies your agreement to any such changes. If you do not agree to these Terms, you must discontinue using the Services.
14. THIRD PARTY LINKS
You may be able to access other websites, mobile applications or resources through links accessed on the Services. Because Winston Brands has no control over such websites or mobile applications you acknowledge and agree Winston Brands is not responsible for the availability of such external websites, mobile applications or resources accessible from those third parties, and does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials available from such websites or mobile applications, nor does Winston Brands endorse any such websites, mobile applications or resources, or the products or services assessable on such websites or mobile applications.
15. NO RIGHTS OF THIRD PARTIES
You agree that, except as otherwise expressly provided in these Terms, there are not third-party beneficiaries to these Terms.
16. ARBITRATION / DISPUTE RESOLUTION
Resolution of Any Dispute. In the event a dispute arises between you and Winston Brands related in any way to the Services of these Terms (“Dispute”), we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting our customer care department at (800) 582-5700, by writing first-class or certified mail to Winston Brands, Inc., PO Box 7985, Elk Grove Village IL 60009-7985 or by electronic mail to [email protected].
JAMS Mediation. If a Dispute has not been resolved by negotiations within 90 days as provided hereinabove, such Dispute shall be submitted to JAMS, or its successor (collectively, “JAMS”), for mediation as provided herein below. Any party involved in the Dispute may commence mediation by providing to JAMS and each other party involved in the Dispute a written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. None of the parties may commence arbitration or a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 30 business days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of arbitration or a civil action, if the parties so desire.
Agreement to Arbitrate. IF THERE IS A DISPUTE THAT REMAINS UNRESOLVED AFTER MEDIATION, INSTEAD OF SUING IN COURT, YOU AND WINSTON BRANDS EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE ANY SUCH DISPUTES EXCLUSIVELY THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT TO HAVE A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, COLLECTIVE OR REPRESENTATIVE CAPACITY. Other rights that you and we would otherwise have in court will not be available or will be more limited in arbitration, including discovery and appeal rights.
This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator's decision and award are 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. YOU AND WINSTON BRANDS EACH VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SERVICES.
Class Action Waiver. YOU AND WINSTON BRANDS EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, 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 ("Notice"). All Notices to Winston Brands must be sent to the following address: Winston Brands, Inc., PO Box 7985, Elk Grove Village IL 60009-7985. 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 may provide Notice by any reasonable means. Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such 60-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 will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the Dispute. This Section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and Winston Brands agree that this Section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of Illinois, and for any non-frivolous claim that does not exceed $5,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone or videoconference. Each party will pay the fees and costs of its own counsel, experts and witnesses. 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 are void or voidable. For the avoidance of doubt, you and Winston Brands agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this agreement to arbitrate or the arbitrability of any claim or counterclaim. The arbitrator may award (on an individual basis) any relief that would be available in a court. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
JAMS Minimum Standards. The arbitration shall be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (https://www.jamsadr.com/consumer-minimum-standards/) (the “Minimum Standards”), but only if it is determined by JAMS or the arbitrator that these standards are applicable to the Dispute. If such a determination is made, and JAMS or the arbitrator determines that a provision of this Section conflicts with the Minimum Standards, then the Minimum Standards shall control, but only to the minimum extent necessary to resolve the conflict.
Exception to Arbitration. Notwithstanding the foregoing, in lieu of arbitration either you or Winston Brands may (1) bring an individual claim in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply and (2) file an individual claim in court to enjoin the infringement or other misuse of its intellectual property rights, provided that any such claim is brought and maintained on an individual basis.
Survival. This arbitration provision shall survive termination of these Terms.
Severability. If any provision of this Section 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 particular claim cannot be enforced, then the provision to arbitrate will not apply to that particular claim, but any other claims that are unaffected by the determination that the Class Action Waiver is unenforceable will proceed in arbitration pursuant to the Agreement to Arbitrate.
Governing Law & Forum. These Terms shall be governed by and construed in accordance with the laws of the State of Illinois without application of conflict of laws rules, except that the Arbitration provisions below shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Except for disputes or claims properly lodged in a small claims court in the United States, any disputes or claims not subject to the Agreement to Arbitrate shall be resolved by a court located in Illinois and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You further agree that any such claims will be brought and maintained solely on an individual basis and not as part of any class, consolidated, collective or representative capacity, and that you waive your right to a jury trial with respect to any such action.
These Terms, and policies incorporated herein, are the entire agreement between you and Winston Brands. They supersede any and all prior or contemporaneous agreements between you and Winston Brands relating to your use of the Services. If these Terms expire or are terminated for any reason, the provisions which by their nature should continue after termination including Proprietary Rights, Disclaimer of Warranties, Limitation of Liability, Your Legal Liability, Arbitration/Dispute Resolution, No Rights of Third Parties, and Miscellaneous shall survive any such expiration or termination. 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 for the Class Action Waiver which shall be treated in accordance with the Class Action Waiver section above. You may not assign your rights under your Winston Brands Account or this agreement to any third party without Winston Brands’ prior written permission. 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 shall not affect the interpretation or construction of this agreement. In these Terms, the words “include,” “includes,” and “including” are used in an illustrative sense and shall not limit the generality of the language preceding such term. Any limited or specific disclaimers or limitations of liability found in these Terms shall not limit the effect, forth, or breadth of any other disclaimers or limitations of liability in these Terms. The failure of Winston Brands to partially or fully exercise any rights or the waiver of Winston Brands to enforce any breach of these Terms by you, shall not prevent a subsequent exercise of such right by Winston Brands or be deemed a waiver by Winston Brands of any subsequent breach by you of the same or any other term 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, and the exercise of any such right or remedy shall not limit Winston Brands’ right to exercise any other right or remedy.. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and Winston Brands.
18. CONTACT US.
Please email us at [email protected], or contact customer service by phone at (800) 582-5700, or write to us if you have any questions about these Terms at:
PO Box 7985
Elk Grove Village IL 60009-7985
When contacting us, please include your full name, address, phone number, and email address, and indicate the specific nature of your request or inquiry.