Terms

TERMS OF USE

Last Updated: 4/17/18

Acceptance of the Terms.

Welcome to The Wing! The following terms and conditions, (these “Terms”) are entered into by and between you and Refresh Club, Inc. (d/b/a ‘The Wing’) (“The Wing”, “Company“, “we“, “us” or “our“).  These Terms govern your access to and use of our website, www.the-wing.com (the “Site”), your purchase or use of our application (“App”), membership with The Wing (“Membership”), and retail items (“Products”), along with any other services offered by us, whether through the Site or otherwise (collectively and together with the Site, the “Services”). 

Please read these Terms carefully. By accessing, browsing or otherwise using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you (1) acknowledge that you have read and understood these Terms, (2) represent and warrant that you meet all of our eligibility requirements for using the Services as described in these Terms, and (3) accept and agree to be bound by these Terms, including any other terms applicable to the Services that are incorporated herein by reference. If you are using the Services on behalf of an entity, you are agreeing to these Terms for that entity and are representing to us that you have the authority to bind that entity to these Terms (in which case “you” will refer to that entity). If you do not accept these Terms or do not satisfy the eligibility requirements set forth below, you may not access or use the Services. 

Privacy Policy.

Your use of, and participation in, the Services offered by the Company is subject to the terms set forth in our privacy policy located at www.the-wing.com/privacy (the “Privacy Policy”). Our Privacy Policy details how we collect and use your information. Please review it if you would like to know more about how we collect, use, and treat your information.

Changes to the Terms of Use.

We reserve the right to update and revise these Terms at any time. We’ll make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Please review these Terms regularly because once we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.

Ontario residents only:  Despite any other section that refers to our right to change these Terms, if you are a resident of Ontario, we reserve the right to update and revise these Terms (including changing the scope of the Services, access to the Services, applicable fees and charges or our eligibility criteria) (collectively, “Changes”) no less than on a yearly basis by providing you thirty (30) days’ advance notice of such Changes in accordance with applicable law.  Upon receiving the notice, you may refuse the Changes and cancel these Terms by sending us a notice to that effect to [email protected] within the time specified in the notice. If you do not agree with the Changes, then notwithstanding any cancellation of these Terms, you agree that all outstanding amounts owing to us are immediately due and payable and that we have the right to bring suit and exercise all rights and remedies available under applicable law in respect of such outstanding amounts. If you do not notify us within the time specified in the notice, the Changes will take effect on the date indicated in the notice. In that case, you will be deemed to agree to the Changes which will apply to all access to and use of the Services thereafter and will become part of these Terms.

Access to Services.

By accessing the Services, you warrant that:

  1. You are legally capable of entering into binding contracts;
  2. All registration information you submit is truthful and accurate;
  3. You will maintain the accuracy of such information; and
  4. Your use of the Services does not violate any applicable law or regulation.

Purchase of Membership and Products.

If you purchase a Membership or any Product from the Site, the terms of sale provided in this section apply to you, as well as any other specific rules, usage restrictions, or procedures that we may provide to you in relation to your purchase (including your Membership Terms and Conditions).

You agree to provide your payment information at the time you purchase or renew your membership or order any Product on the Site. Our payment page is powered by third party payment service providers, Square and Shopify. The information provided to Square and Shopify is governed by Square and Shopify’s respective Terms of Services and Privacy Policies located at https://squareup.com/legal/ua; https://squareup.com/legal/privacy and https://www.shopify.com/legal/terms; https://www.shopify.com/legal/privacy. The Wing is not responsible for the performance of Square and Shopify. In the course of your use of the Services, the third party payment service providers may receive and implement updated credit card information from your credit card issuer in order to prevent your membership from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to third party payment service providers at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer. Our obligation to provide the Services only comes into being when we take receipt of your order. You agree not to hold us responsible for banking charges incurred due to payments on your account.

Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes on your membership, and taxes, shipping or carriage of the Products as such costs are specified by us on the Site when you submit your order.

Purchase of a Membership must be for your personal use only. Transfer of Membership to other persons is prohibited.

By purchasing Products, you hereby agree not to resell or distribute such Products for any commercial purposes. All orders are subject to our acceptance or rejection based on Product availability. Noncompliance with these Terms or any other reason are determined in our sole discretion. For instance, if we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place.

Membership Policies.

The Wing is a community of members.  In order to become a member of the Wing, you must apply through our Site.  The Wing is a diverse community open to all.

Cancellation or Suspension of Membership.

The Wing’s Membership, cancellation, and suspension policies are set forth in its Membership Terms and Conditions, which are made available to all applicants for Membership that have been accepted to The Wing. Except as provided in the Membership Terms and Conditions, all Memberships are non-refundable unless otherwise specified in writing by The Wing.

Returns and Refunds.

Except for any products designated on the Site as nonreturnable or “final sale’, Products that are unworn, unwashed or defective may be returned within fourteen (14) days of the date you receive the Products. Products can be returned to The Wing only if you purchased the Products on the Site or at a physical location of The Wing. To return a Product, you must first email us at [email protected]. If you bought a Product at another online reseller or any retail store, you must seek to return where the Product was originally purchased.

You must return qualifying Products to us in their original or equivalent packaging, along with their included accessories, packaging, and valid proof of purchase. You are responsible for all shipping and handling charges on returned items unless otherwise specified, and you bear the risk of loss for returning or exchanging Products. The Wing is not responsible for Products that are returned without following our instructions, or are lost, damaged, modified or otherwise processed for disposal or resale. At The Wing’s discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing, or missing parts. Your refunded amount will be made based upon the original payment method. Shipping charges are not refundable.

Shipments; Delivery; Title and Risk of Loss.

The Wing will arrange for shipment of Products to you. You will pay all shipping and handling charges listed in the order confirmation unless the confirmation specifies otherwise. Title and risk of loss pass to you upon our transfer of the products to the carrier (including, but not limited to, FedEx, UPS, or USPS). Shipping and delivery dates are estimates only and cannot be guaranteed. The Wing is not liable for any delays in shipments, and you are not eligible for a refund of any Product ordered by you as a result of a shipping delay.

Changing Fees and Charges.

We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Services.

Cancellations By The Wing.

We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms or other related restrictions (including, but not limited to, your Membership Terms and Conditions). Such termination or suspension may be immediate and without notice. A breach of these Terms, includes without limitation, the unauthorized copying or download of content from the Services.

Eligibility; User Restrictions.

We only permit individuals who are at least 18 years old, or the age of majority in your province, territory or country, and can form legally binding contracts with us to use the Services. Individuals under the age of 18, or the applicable age of majority (“Minor”) may utilize the Services only with the consent and support of a parent, legal guardian or other qualified adults. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor’s use of the Services and by these Terms. If you are under the age of 18 or the applicable age of majority and do not have the requisite parent or guardian consent, please do not attempt to access or use the Services.

You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure these Terms are in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction, including the specific laws of your jurisdiction regarding the import, export, or re-export of the Services.

Your use of the Services means you represent and warrant that you meet all eligibility requirements we outline in these Terms. We may still refuse to let certain people access or use the Services. We may also change our eligibility criteria. We may also suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice.

Use of the Services; Restrictions on Use.

We may from time to time in our sole discretion develop and provide updates to the Services, change the Services, restrict access to the Services (including to registered users) or withdraw or terminate the Services entirely, and we reserve the right to do so in our sole discretion without notice.  Any such updates or changes will be deemed part of the Services and subject to all terms and conditions of these Terms. We will not be liable to you or any third party for any modification, suspension or discontinuance of the Services. In the event of modification or termination, you will still be bound by your obligations under these Terms, including the warranties made by you, and by the disclaimers and limitations of liability.

You may only use the Services as explicitly authorized and in compliance with any policies made available to you within the Services.  You will not use such proprietary information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. Without limiting the foregoing, you may not do any of the following while accessing or using the Services:

  • use the Services or solicit members for any revenue generating endeavor, commercial enterprise, or other purpose other than for personal, non-commercial use, without our express written consent;
  • express or imply that any statements you make are endorsed by The Wing;
  • scrape the Services or use other automated or manual means to take our content without our express prior written consent;
  • modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of the Services not intended to be so read;
  • take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure;
  • interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
  • bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems or networks connected to the Services;
  • run any form of auto-responder or “spam” on the Services;
  • access or use the Services for any illegal or unauthorized purpose, including to harass, abuse, defame or otherwise infringe or violate the rights of any other party; or
  • otherwise take any action in violation of these Terms.

Internet.

You also acknowledge and agree that your use of the Services requires Internet access and bandwidth and we do not own or control all aspects through which the Services are provided and cannot guarantee the performance of such facilities, equipment and communications lines. The Internet is not a secure network and third parties may be able to intercept, accept, use or corrupt the information you transmit or receive over the Internet. We are not responsible for invalid, erroneous or corrupted data.

Links to Third Party Websites.

We may provide links to third party websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those websites or services. Although a third party website may contain The Wing’s logo or other intellectual property elements, please understand that it is independent from The Wing and that The Wing has no control over the content of that website. These links do not imply endorsement of, sponsorship of, or affiliation with The Wing. We are not responsible in any way for: (a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) the use to which others make of these other websites and services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.

Social Media.

The Company will not tolerate certain social media conduct by users of the Site, whether indirectly or directly targeting or relating to The Wing, its members, officers, directors, employees, personnel, or agents, including for example: (a) defamatory, malicious, obscene, intimidating, discriminatory, harassing or threatening comments or hate propaganda; (b) calls to violence of any kind or other threats of any kind; or (c) conduct that violates any law or regulation. In the event that The Wing feels that you have breached these Terms, The Wing reserves all its rights to take further action, including but not limited to: (i) adding, removing, or modifying any content, including comments, (ii) blocking you or any other disruptive users; and (iii) discontinuing any of its social media channels at any time. In the event that you engage in (or direct or influence any person to engage in) any of this prohibited conduct on your social media channels regarding The Wing or any of The Wing’s officers, directors, employees, personnel, agents, policies, services or products or other members, The Wing may immediately terminate your Membership or use of this Site and reserves it full legal rights to pursue legal damages against you.

Intellectual Property.

Except as otherwise expressly granted to you in these Terms, we reserve and retain all right, title and interest in the Services, including without limitation, all technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, text, video, graphics, logos, images and icons, as well as the arrangement thereof. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws, and you agree that, except with our prior written consent or as explicitly provided in these Terms, (1) using the Services does not give you any ownership of any intellectual property rights in our Services or (2) grant you the right to display, modify, reproduce, distribute, create derivative works of, download, store, transmit or otherwise use any of our intellectual property.  Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.

In particular, audio or video content from The Wing not explicitly indicated as downloadable may not be downloaded or copied from the Services. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.

You must not access or use for any commercial purposes any part of the Site and App or any services or materials available through the Site and App. You acknowledge and agree that you do not acquire any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Services in accordance with the license granted. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.

To inquire about obtaining authorization to use the materials or content other than as permitted in these Terms, please contact us at [email protected]

Availability of the Services.

Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in our Services, please report it to us at [email protected] and we will review your complaint and, where we determine it appropriate to do so, correct the fault. We will not be liable to you if the Services are unavailable from time to time.

Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can.

Device Requirements.

To enjoy the Services via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Site, and the Google, Apple and Amazon Alexa Skill marketplaces.

End User License.

Subject to the terms of this license agreement (“License Agreement”), as set forth in this “End User License Section,” and these other Terms, and your payment of applicable subscription fees, The Wing grants you a limited, non-exclusive, and nontransferable license to:

  1. download, install, and use the App for your personal, non-commercial use on mobile device(s) owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the App’s documentation and with Apple Media Services’ Terms and Conditions (https://www.apple.com/legal/internet-services/itunes/us/terms.html); and
  2. access, stream, download, and use on such Mobile Device the Services made available in or otherwise accessible through the App, strictly in accordance with this License Agreement and the Terms applicable to the Services.
  3. You shall not:
    1. copy the App, except as expressly permitted by this license;
    2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
    3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
    4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
    5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time;
    6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App; or
    7. use the App in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems.
  4. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under this License Agreement, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this License Agreement. The Wing and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this License Agreement.
  5. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the App in any medium, including without limitation by any automated or non-automated “scraping”; (ii) deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any source code or underlying ideas or algorithms of any part of the App; (iii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc.; (iv) transmitting spam, chain letters, or other unsolicited email; (v) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the App; (vi) uploading invalid data, viruses, worms, or other software agents through the App (by breaching this provision you would commit a criminal offence under the Computer Misuse Act 1990); (vii) collecting or harvesting any personally identifiable information, including account names, from the App; (viii) using the App for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity, or creating a username that is vulgar or obscene (as determined in the Company’s sole discretion); (x) interfering with the proper working of the App; (xi) accessing any content on the App through any technology or means other than those provided or authorized by the App; or (xii) bypassing the measure we may use to prevent or restrict use or copying of any content or enforce limitations on use of the App or the content therein.
  6. You acknowledge that when you download, install, or use the App, The Wing may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the App. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the App or certain of its features or functionality. All information we collect through or in connection with this App is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  7. You may choose to or we may invite you to submit comments or ideas about the App, including without limitation about how to improve the App or our products (“Ideas”).  By submitting any Idea, you agree that your disclosure will not place The Wing under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.  You further acknowledge that, by acceptance of your submission, The Wing does not waive any rights to use similar or related ideas previously known to The Wing, or developed by its employees, or obtained from sources other than you.
  8. The Wing may from time to time in its sole discretion develop and provide App updates, 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 The Wing has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
    1. the App will automatically download and install all available Updates; or
    2. you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this License Agreement.

Intellectual Property.

If we believe a user may be infringing upon someone’s intellectual property rights, we may remove the material. If we believe someone is repeatedly infringing, we will terminate that person’s access rights.

If you believe someone has posted on the Services a work that you own without your authorization, let us know. Please send a notice of copyright infringement containing the following to our Designated Agent at [email protected]:

  • a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
  • identification of works or materials being infringed;
  • identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
  • your contact information, including address, telephone number and, if available, e-mail address;
  • a statement that you have a valid belief that the material is not authorized by the copyright owner, its agent, or the law; and
  • a statement made under penalty of perjury that the information provided is accurate and you are authorized to make the complaint on behalf of the copyright owner.

Third Party Materials and Content.

You understand that the Services may display, include, or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites (“Third Party Materials”).  In consideration for The Wing allowing you to use the Services, you agree that we, our affiliates, and third party partners may place advertising on the Services.

You acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. We expressly disclaim any responsibility for all aspects of the Third Party Materials and you further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services in connection with any Third Party Materials.

Use of any third party trademarks or third party content on or in connection with the Services does not constitute affiliation with or endorsement of these third parties. Nothing in these Terms grants you any license to third party trademarks or content, which shall remain the property of their respective owners.

Warranty Disclaimers; Limitation of Liability.

THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND.

WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO.  THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY THE COMPANY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

IN NO EVENT WHATSOEVER SHALL THE COMPANY, ITS AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, WHETHER DIRECTLY OR INDIRECTLY ARISING, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S BREACH OF CONTRACT OR NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS OF USE, COMPANY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES, COMPANY’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES PAID BY YOU TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM IS ASSERTED FOR ANY OF THE SERVICES OR FEATURE RELEVANT TO THE CLAIM, OR (2) US$500.00.

THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnification.

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Services or your use of any information obtained through use of the Services.

Governing Law

No matter where you’re located, the laws of England and Wales will govern these Terms and the relationship between you and the Company as if you signed these Terms in England. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. The parties agree to submit to the courts in England for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of these Terms.

For Ontario residents only:  Subject to the arbitration clause below, and to the extent it is necessary to resort to a court, the parties agree to submit to the exclusive jurisdiction of Ontario Superior Court of Justice in Toronto for any dispute arising out of or related to your use of the Services or your breach of these Terms.

Arbitration.

At our sole discretion, we may require you to submit any disputes arising from the use of these Terms or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of England and Wales.

For Ontario residents only:  If a dispute arises from the use of these Terms or the Website, including any dispute arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, we and you may agree to resolve any such dispute by submitting it to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of England and Wales.

Severability.

If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.

Entire Agreement.

These Terms constitute the entire agreement between you and the Company and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved. Each party confirms that it has not relied upon, and shall have no remedy in respect of any agreement, warranty, statement, representation or undertaking unless set out expressly in these Terms.

Third Parties

A person who is not a party to these Terms shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.

Force Majeure.

We take our commitment to customers seriously, and we will do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials.

Assignment.

You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.

Waiver.

If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

Comments, Concerns and Complaints.

All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: [email protected].

 

PRIVACY POLICY

Last Updated: 4/16/18

Introduction

This policy (“Privacy Policy”) describes the practices of Refresh Club, Inc. (d/b/a ‘The Wing’) (“The Wing”, “Company“, “we” or “us“) for collecting, using, maintaining, and disclosing information that we collect from you or that you provide to us when you visit our website (our “Site“), purchase and use our mobile application (“App”), membership with The Wing (“Membership”) and retail items (“Products”), along with access to any other products and services made available by us (collectively with the Site, the “Services“).

Please read this Privacy Policy carefully to understand our policies and practices regarding your information and how we will treat it. The use of information collected through our Services shall be limited to the purposes described under this Privacy Policy and our Terms of Service (or other relevant customer contracts). By accessing or using the Services, you agree to this Privacy Policy. If you are using the Services on behalf of an entity, you are agreeing to this Privacy Policy for that entity and are representing to us that you have the authority to do so (in which case “you” will refer to that entity). If you do not agree with our policies and practices, your choice is not to use the Services.

From May 2018, we’ll be moving to an ‘opt-in only’ communication policy. This means you’ll be in control of your information and we will only send marketing communications to you if you have explicitly stated that you’re happy for us to do so via your preferred channel(s) (email, SMS, phone or post).

This Privacy Policy may change from time to time. If we make any changes, we will post the changes on this page and indicate at the top of this page the date the policy was last revised. We will also notify you of any material changes either through a pop-up notice, e-mail or through other reasonable means. Any such changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new policy.

If you are providing personal information about another individual, please make sure you have their consent to provide such information.

Information We Collect and How We Collect Information

The information we collect from you falls into two categories: personally identifiable information (“Personal Information”) and non-personally identifiable information (i.e., information that cannot be used to identify who you are) (“Non-Personal Information”). Below are the various ways in which we may collect Personal Information and Non-Personal information from you.

Information We Automatically Collect. We and third-party service providers acting on our behalf, which may include third-party analytics service providers and third-party advertisers, may incorporate technology such as “pixel tags”, “web beacons”, and “cookies” that allow us to track the actions of users of our Services automatically. For example, we may automatically collect information about your location, your internet connection, your browser, when you access the Services, the website address that linked you to our Site, the website that you visit after using our Services, and details of how you used our Services, such as how often you used our Services and which features of the Services you used.

Third-Party Information Collection. When you use the Services, certain third parties may use cookies or other automatic information collection technologies to collect information, including Personal Information, about you and your online activities over time and across different websites. We do not control these third parties’ tracking technologies or how they may be used. If you have questions about their data collection practices, you should review the privacy policies of those third parties or contact them directly.

Publicly Posted. If you post information on public areas of the Site (i.e. comments or blog), that information is visible to and may be collected, stored and used by anyone. By posting information, you agree that you have obtained all necessary consents to make such information public and that doing so will not violate any laws. If you remove information that you have made public through our Services, copies may remain viewable in cached and archived pages of our Services or if other users have copied or saved that information. We are not responsible for the actions of any third parties with whom you share Personal Information.

Information You Voluntarily Provide to Us. If you contact us by phone, email, instant message, live chat, social media, or by some other means, we may keep a record of your contact information (including your name, company name, email, address and phone number) and the correspondence. When we send you emails, we may also track whether you open them to determine how to deliver more helpful emails and improve our Services. Personal Information may be obtained from online transactions, transmitted as part of a form submission or in connection with other activities or services made available on the Site. To the full extent permitted by the law in your jurisdiction, you acknowledge that you provide your Personal Information at your own risk.

User Accounts. We will collect and store the information you provide to us if you create an account, such as your name, company name, company address, phone number and email address. You do not have to share this information with us, but without it you may not be able to access certain features or participate in certain aspects of the Services. You can help The Wing maintain the accuracy of your Personal Information by updating your account. Please update your account when you change your email address, address, phone number, or payment information.

Financial Information. If you purchase our Services, we may request certain Personal Information to facilitate payment, such as your name, email, phone number, physical address, billing address and the last four digits of your credit card or bank account number. We store a limited portion of your credit card information in a manner that is generally permitted by credit card issuers.

Information Collected Through Use of the Services. If you use our Services, we may collect information about how you use and interact with the Services and the data and information that is collected or provided by you through or in connection with your use of the Services.

How We Protect Your Information

We go to great lengths to keep all your information safe. We invest in the appropriate resources to protect your personal information from loss, misuse, unauthorised access, modification or disclosure. We make sure we manage it in accordance with our legal responsibilities under applicable data protection laws. However, no internet-based site, including email, is 100% secure, so we cannot be held responsible for unauthorised or unintended access that is beyond our control.

How We Use Your Information

We may use information that we collect about you or that you provide to us, including Personal Information, to measure usage of the Services, to analyze the effectiveness of our Services, to conduct research, to improve and enhance functionality of the Services, to provide support for the Services and respond to requests and inquiries, to provide you with notices, such as updates or changes that we may make to the Services, and to market and advertise the Services where you have agreed to this, including through promotional e-mail messages, directly or in partnership with other parties, and by displaying our advertisements on other websites that you visit or use. We may also use this information to offer you targeted advertising in order to personalize your experience by showing you advertisements for products and services that are more likely to appeal to you (a practice known as behavioral advertising).

We may from time to time aggregate information in certain data analysis, reports, or other interpretations of trends for both internal and external purposes.

Personal Information will be retained only for as long as it serves a purpose consistent with the expectations of the reasonable user given the context of the collection in accordance with applicable laws. We will take reasonable steps to destroy or de-identify personal information we hold if it’s no longer needed for the purposes set out above. Non-Personal information may be stored indefinitely.

Disclosure of Your Information

We want you to know that we will never sell or pass on your personal information to third parties for their own marketing purposes. There may be some third parties that we need to share personal information with in order to help us provide services and products to you and to run our Services. We may disclose your Personal Information and Non-Personal Information to service providers or other third parties, such as vendors, technical agents, subcontractors and consultants, to perform certain business-related functions that help make the Services and our offerings available and functional, including, but not limited to, design services, installation services, web site hosting, data analysis and metrics services, maintenance and technical services, customer service and support, email delivery services, infrastructure services and to help us in our marketing efforts, including managing and delivering contextual and tailored advertisements.

We may also use the information we collect to display advertisements to our advertisers’ target audiences. Even though we do not disclose your Personal Information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria. In addition, we may disclose your Personal Information and Non-Personal Information to a buyer or other successor as part of a merger, acquisition, change of control or other similar business transfer, to government body or other third party if required to do so by law or in the good faith belief that such action is necessary to comply with a legal obligation, or in specific other cases with your consent.

If you apply for Membership or purchase Products through the Site, you are responsible for maintaining the confidentiality of your account, password, and for restricting access to your computer or device. You agree to accept responsibility for all activities that occur under your account and password.

We may disclose aggregated user statistics and other data with our affiliates, agents and current or prospective business partners. This aggregate information does not personally identify you.

The Services may allow you to post information to various third-party services or platforms, such as social networking services like Instagram, Twitter and Facebook.  You acknowledge that if you choose to use this feature, your friends, followers and subscribers on these third party services or platforms will be able to view such activity.  The use of the information by such social networking websites will be governed by their privacy policies, and we do not control their use of the shared data.

Required Disclosures of Information. The Wing will disclose your information where required to do so by law, if subject to subpoena or other legal proceeding or if we reasonably believe that such action is necessary to (a) comply with the law and the reasonable requests of law enforcement; (b) to enforce our Terms or to protect the security or integrity of our Services; and/or (c) to exercise or protect the rights, property, or personal safety of The Wing, our users or others.

Disclosures During a Change of Control. We may buy or sell/divest/transfer the company (including any shares in the company), or any combination of its products, services, assets and/or businesses. Your information such as customer names and email addresses, and other User information related to our Services may be among the items sold or otherwise transferred in these types of transactions. We may also sell, assign or otherwise transfer such information in the course of corporate divestitures, mergers, acquisitions, bankruptcies, dissolutions, reorganizations, liquidations, similar transactions or proceedings involving all or a portion of the company. You will be notified via email and/or a prominent notice on our Site of any change in ownership or uses of your Personal Information, as well as any choices you may have regarding your Personal Information.

Choices About How We Collect, Use and Disclose Your Information

We strive to provide you with choices regarding our collection, use and disclosure of the information you provide to us. The mechanisms listed below aim to provide you with control over such collection, use and disclosure:

Marketing Communication. To receive marketing or promotional communications, you can opt-in by clicking the “subscribe” link in any such promotional emails, checking the relevant box located on the form on which we collect your data or emailing us at [email protected]

Cookies. You have the option to accept or disable cookies at any time through your browser. You may refuse to accept browser cookies by activating the appropriate setting on your browser. If you choose to disable your cookies, your user experience may be limited.

Google Analytics. You can opt out of tracking by Google Analytics by using Google’s Ads Settings or going to https://tools.google.com/dlpage/gaoptout/. You may also opt out of Google marketing products, but please note that this does not opt you out of being served generic ads.

Mobile Analytics. If you are using our App, we use Mobile Device IDs, instead of cookies, to recognize you. We use the Mobile Device IDs and other mobile analytics software to allow us to better understand the functionality of our mobile software on your phone. These Mobile Device IDs are only tracking and collecting Non-Personal Information. The software may record information such as how often you use the Services, the events that occur within the App, aggregated usage, performance data, and where the App was downloaded from.

Third-Party Advertising. If you are interested in more information about tailored advertising and your choices to prevent third parties from delivering tailored web advertisements, you may visit the following websites: http://www.networkadvertising.org/choices/ or http://www.aboutads.info/choices/. These opt-out tools are provided by third parties. We do not control or operate these tools or the choices that advertisers and others provide through these tools. Please note that you may still receive advertisements from third parties within our Services even if you opt out of tailored advertising but they will not be based on your activity across unrelated web sites.

Do Not Track Signals. Third parties may keep track of your browsing activities across third party websites.  Certain web browsers enable users to activate a “Do Not Track” signal but we do not currently respond to the “Do Not Track” signal or other similar mechanisms.

To request any other changes or information about our collection, use or disclosure of your information, please email us at [email protected].

Accessing and Correcting Your Information

The file containing your personal information will be maintained on our servers or those of our service providers and will be accessible by our authorized employees, representatives and agents.  If you wish to access, update, correct or delete any Personal Information in our possession or control, you may log into your account and make updates. If you wish to make changes not available through your account settings, please contact us at [email protected] We do not guarantee that any Personal Information can be removed completely.

Third Parties; Links to Third Party Sites

This Privacy Policy applies only to the Services. The Services may contain advertisements or links to other web sites not operated or controlled by us (the “Third Party Sites”), and the policies and procedures described in this Privacy Policy do not apply to those Third Party Sites, even if you access them through the Services. The links from the Services or the Third Party Sites’ displays of The Wing’s logo or other intellectual property elements do not imply that we endorse, have reviewed, or are in any way affiliated with the Third Party Sites. We encourage you to carefully review the privacy policies of any Third Party Sites you access so you know how they will use and share your information.

Children Under the Age of 13

Our Services are intended for users who are 18 years of age and older. If you are under the age of 13, you are not permitted to submit any Personal Information to us. If you believe we might have any information from or about a child under 13, please contact us at [email protected]

Data Retention

We strive to keep your information only as long as we need it for legitimate business purposes and as permitted by applicable legal requirements. We will take reasonable steps to destroy or de-identify personal information we hold if it’s no longer needed for the purposes set out above. If you close your account, we will retain certain data for analytical purposes and recordkeeping integrity, as well as to prevent fraud, enforce our Terms of Use, take actions we deem necessary to protect the integrity of our Services or our users, or take other actions otherwise permitted by law. In addition, if certain information has already been provided to third parties as described in this Privacy Policy, retention of that information will be subject to those third parties’ policies.

You acknowledge that The Wing may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on The Wing’s servers on your behalf. You agree that The Wing has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You further acknowledge that The Wing reserves the right to change these general practices and limits at any time, in its sole discretion. We will endeavor to give you notice of any such change where required by applicable law.

Storage and Processing in Other Jurisdictions

Personal Information collected through the Services may be stored and processed in the United States or any other country in which The Wing or its subsidiaries, affiliates, or service providers maintain facilities.  If you are located in the European Union or other jurisdictions with laws governing data collection and protection that differ from U.S. law, you acknowledge that we may transfer Personal Information to a country or jurisdiction that has different data protection laws than the data protection laws of the country in which you reside and you expressly consent to the transfer of information, including Personal Information, to the United States or any other country in which The Wing or its subsidiaries, affiliates or service providers maintain facilities.  We will ensure that appropriate safeguards are in place to protect your personal data and that transfer of your personal data is in compliance with applicable data protection laws. Where required by applicable data protection laws, we have ensured that service providers sign standard contractual clauses as approved by the European Commission or other supervisory authority with jurisdiction over the relevant data exporter. You can obtain a copy of any standard contractual clauses in place which relate to transfers of your personal data by contacting us at [email protected].

Security

We take reasonable steps to protect the Personal Information provided to us from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. However, no Internet or e-mail transmission is ever fully secure or error free. In particular, e-mail sent to or from the Services may not be secure. Therefore, you should take special care in deciding what information you send to us via e-mail. Please keep this in mind when disclosing any Personal Information to us via the Internet. In the event that personal information is compromised as a breach of security, The Wing will promptly notify our customers in compliance with applicable law.

What Your Rights Are

We want to make sure you’re in control of how we use and keep your information. You can request copies of your personal information that we hold, and details of how we use it, at any time. If you think anything is inaccurate, then you can ask for it to be corrected or erased. You can request an electronic copy of your personal information to be sent to you, or another organisation.

You also have the right to stop us processing your personal information, and/or withdraw your agreement to us processing it based on ‘consent’, unless we have a legal justification for doing so.

Contact Information

If you have any questions about this Privacy Policy, please contact us at [email protected].

Complaints

If you have any concerns or complaints as to how we have handled your personal information, please don’t hesitate to get in touch (you can find the details above) and we will endeavour to investigate. You may also lodge a complaint with the UK’s data protection regulator, the ICO, who can be contacted at: www.ico.org.uk/global/contact-us/ or by writing to the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.