Welcome to wink.com (the “Site”). This Site is owned and controlled by Wink Labs Inc., a Delaware corporation (referred to herein together with its affiliates as “Wink”, “us”, “we” or the “Company”). By accessing or using the Site, you represent and warrant that you have read, understand and agree to this Privacy Policy ( “Privacy Policy”) and the Terms of Service posted on the Site. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of Privacy Policy at any time without further notice. If we do this, we will post the changes to this Privacy Policy on this page and will indicate at the top of this page the date this Privacy Policy was last revised. Your continued use of the Site after any such changes constitutes your acceptance of the new Privacy Policy. If you do not agree to abide by this or any future Privacy Policy , do not use or access (or continue to use or access) the Site. This Privacy Policy applies to both the Site and our mobile application (collectively, the “Services”).

PLEASE READ THIS POLICY OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

Commonly Used Terms and their Definitions

All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meaning listed below:

• “Intellectual Property Rights” means any writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, trade secret or similar laws.

• “Person” means any individual, trust or legal entity.

• “Personally Identifiable Information” means information that can be reasonably linked to a specific User.

• “Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.

• “Site Content” means all information on the Site and available through any associated service Wink provides, including without limitation designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format, and their selection and arrangement.

• “User” is anyone that accesses the Site other than the Company.

COLLECTION AND USES OF YOUR PERSONAL INFORMATION

Personally Identifiable Information is data that can be used to identify or contact a single person.

You may be asked to provide Personally Identifiable Information when you sign up for Wink, download the Wink app, or make a purchase from Wink.com. Wink may share this Personally Identifiable Information with a Wink affiliated company and use it consistent with this Privacy Policy. They may also combine it with other information to provide and improve Wink products, services, content and advertising. You are not required to provide Personally Identifiable Information, but if you choose not to do so, you may not be able to use the Wink app, make a purchase on Wink.com, or use other Wink services.

If you do provide Personally Identifiable Information, you acknowledge and agree that Wink, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Services. Except as otherwise provided herein, the Personally Identifiable Information you provide to us is used for the Company’s internal purposes only. Wink uses the information it collects to learn what you like and to improve the Services.

Depending on what Services you use, Wink may request Personally Identifiable Information from you, including but not limited to your full name, a valid email address and username and/or password, billing address, credit card information, proof of identification and physical mailing address.

You agree that Wink may communicate with you via email and any similar technology for any purpose relating to the Services.

CONTROLLING AND ACCESSING YOUR PERSONAL INFORMATION

Your personal information is only private to the extent that you keep it private. Should you post personal information on the Site, Wink does not have any control over how another party might use that information. You can access your personal information at any time by emailing Wink at questions@wink.com.

SHARING YOUR PERSONAL INFORMATION

Wink will not disclose your Personally Identifiable Information without your express approval except: as reasonably necessary to fulfill your service request or purchase order, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to learn what you like and to improve the Services; to communicate with you regarding the Services and the Company’s business; to comply with tax and other applicable law; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; in connection with a merger, sale, reorganization, dissolution or liquidation of Wink businesses, to prospective or actual acquirers of Wink assets; or as otherwise necessary to protect the Company, its agents and other users of the Services. Wink can (and you authorize Wink to) disclose any information about you to private entities, law enforcement agencies or government officials, as Wink, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. The Company may share general, demographic, or aggregated information with third parties about its Users and their Content and Services usage, but that information will not include or be linked to any Personally Identifiable Information without your consent.

SECURITY OF YOUR PERSONAL INFORMATION

Wink takes the security of your Personally Identifiable Information very seriously, and follows generally accepted industry standards for the protection of the Personally Identifiable Information that you submit, both during transmission and after receipt. However, no method of transmission over the Internet or via mobile device, or method of electronic storage, is 100% secure. Therefore, although we strive to use commercially acceptable means to protect your Personally Identifiable Information, we do not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties.

HOW WE USE YOUR PERSONAL INFORMATION

The Personally Identifiable Information we collect allows us to keep you posted on Wink’s latest product announcements, software updates, new features, and upcoming events. If you do not wish to receive promotional emails from Wink, you can opt out anytime by updating your preferences.

We also use Personally Identifiable Information to help us create, develop, operate, deliver, and improve our products, services, content and advertising, and for loss prevention and anti-fraud purposes.

We may use your Personally Identifiable Information, including date of birth, to verify identity, assist with identification of users, and to determine appropriate services. For example, we may use your date of birth to determine your eligibility to make a purchase on the Site or to use Wink services.

From time to time, we may use your Personally Identifiable Information to send important notices about Wink, such as communications about purchases, changes to our terms and conditions, or Wink service-related issues. Because this information is important to your interaction with Wink and the Wink service, you may not opt out of receiving these communications.

We may also use Personally Identifiable Information for internal purposes, such as data analysis, understanding our user base, auditing, and research to improve Wink’s products, services and customer relations.

COLLECTION AND USE OF NON-PERSONAL INFORMATION

We also collect data that is not Personally Identifiable Information. That is, data that is in a form that does not, on its own, permit direct association with any specific individual. We may collect, use, transfer and disclose non-personal information for any purpose. The following are some examples of non-personal information that we collect and how we may use it:

We may collect information such as occupation, language, zip code, area code, unique device identifier, location, and time zone where you access the Wink app so that we can better understand customer behavior and improve our products, services and advertising.

We may collect information regarding your activities through use of the Wink app or Wink Relay, and from our partner products. This information is aggregated and used to help us and our partners provide more useful information to our customers, and to help improve the products and services. Aggregated data is not considered Personally Identifiable Information for purposes of this Privacy Policy.

We may collect and store details of how you use our services. This information may be used to improve our services, and provide additional services.

RETENTION OF YOUR PERSONAL INFORMATION

We may keep the information that we obtain from or about you as long as is permitted or required under the law, and use as authorized under this Privacy Policy. We may use retained data to prevent, investigate, or identify possible wrongdoing in connection with the Services or to comply with legal obligations. Information may exist in backup storage even after it has been removed from our active databases. If you are located in the European Union or other regions with laws governing data collection and use that differ from United States law, please note that we may transfer information, including Personally Identifiable Information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction. By using the Services you consent to the transfer of information to the United States or to any country in which Wink maintains facilities and the use and disclosure of information about you as described in this Agreement.

COOKIES

Wink’s website, services, the Wink App, email messages and advertisements may use “cookies” and other technologies such as pixel tags and web beacons (described in greater detail below). These technologies help us better understand user behavior, tell us which parts of our websites people have visited, and facilitate and measure the effectiveness of advertisements and web searches. A “cookie” is a small text file number that is stored on your hard drive when you begin to navigate the Site. The cookies used by the Site do not contain any Personally Identifiable Information about you, but they may identify your specific computer. If you would like to disable cookies from Wink, please use the help function in your web browser to restrict cookies from the Site. If you block cookies from Wink, you may not be able to use certain functions or features of the Site. Wink may also use cookies to track activity and click-through behavior to better understand Users’ preferences and browsing habits, and to provide a more personalized experience while visiting the Site, and for more personalized e-mail alerts.

Wink uses third-party advertising services to serve Wink ads when you visit the Site and sites upon which we advertise (often referred to as “online network advertising”). This advertising technology uses information about your visits to this Site and the sites upon which we advertise (not including your Personally Identifiable Information) to serve Wink ads to you. In the course of serving Wink advertisements to you, a unique third-party cookie may be placed or recognized on your browser.

At the date of last revision of this Privacy Policy, you may manage and opt out of third-party cookie-based advertising by visiting http://www.networkadvertising.org/choices/. Wink is not affiliated with, and does not control, the foregoing website, so does not represent or warrant its performance or availability to Users.

In some of our email messages, we use a “click-through URL” linked to content on the Wink website. When customers click on these URL’s, they pass through a separate web server before arriving at the destination page on our website. We track this click-through data to help us determine interest in particular topics and measure the effectiveness of our customer communications. If you prefer not to be tracked in this manner, you should not click text or graphic links in the email messages.

Pixel tags enable us to send email messages in a format that customers can read, and also tells us whether mail has been opened. We may use this information to reduce or eliminate messages sent to customers, or to determine what messages are most effective.

LEGAL BASES FOR PROCESSING YOUR DATA-EU

We only use your personal information when the law allows us to. Most commonly, we use your personal information in the following circumstances:

• Where it is necessary for our legitimate interests (or those of a third party) and your interests and fundamental rights do not override those interests, which include growing our business, efficiently dealing with customer complaints and enquiries, efficiently fulfilling our legal and contractual duties and managing legal risk, providing high-quality customer service, and keeping you informed (including marketing).
• Where we need to comply with a legal obligation, such as to record all safety or quality issues for monitoring purposes of the Products and to report safety and quality issues relating to the Products to the relevant regulator or authority.
• Where you have provided your consent (Marketing, below).

MARKETING-EU

In relation to marketing communications, we will provide you with an “opt in” or “opt out” mechanism depending on where you are located when we collect your personal information. An “opt in” mechanism will provide you the opportunity to positively indicate that you would like to receive our marketing communications and we will not send you any unless you have “opted in”. An “opt out” mechanism (e.g., “unsubscribe”) will provide you the opportunity to indicate that you do not want us to send you such communications, and if you “opt out” we will not send you any.

You may opt out of marketing-related emails by clicking on a link at the bottom of each such email, or by contacting us using the contact details above. You may continue to receive service-related and other non-marketing emails. We will get your express opt-in consent before we share your personal information with any third party for marketing purposes.

LINKED WEBSITES, SERVICES

The Services may contain links to websites other than the Site, and redirection or pass-through to, or integration of, services other than the Services. Except as set forth herein, Wink does not share your Personally Identifiable Information with these websites and services, nor is Wink responsible for the privacy practices of these websites and services. Wink makes no representations or warranties concerning such websites and services, nor shall Wink have any liability concerning such websites and services.

REVIEW SECTIONS OF SITE

The review sections of pages associated with the Site are public. The information that you provide in such portions of the Site is publicly available to others, and can be read, collected and/or used by others, potentially outside the Site. The opinions expressed by each review section participant (who is not an employee of Wink) are his/her own and do not represent the views of Wink.

You grant to Company a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise any copyright, publicity, and database rights you may have in User Content you provide in the reviews sections of the Site (including without limitation, your name, voice, image, likeness, and representations made by you), in any media now known or not currently known (including, without limitation, television, print, radio and the Internet), world-wide, for the purposes of advertising, promoting, reporting and disseminating information about the Company or the Company’s business, services and products.

CHILDREN’S PRIVACY

The Services are not directed to or intended to be used by children under the age of 13. Wink does not knowingly collect Personally Identifiable Information from children under the age of 13. If Wink learns that it has collected Personally Identifiable Information of a child under the age of 13 without parental consent, we will delete that data from our systems. If you become aware that a child has provided Wink with Personally Identifiable Information without parental consent, please contact Wink at legalnotice@wink.com.

SHINE THE LIGHT

California Civil Code Section § 1798.83 permits users of our web site that are California residents to request certain information regarding our disclosure of personal information to other parties for their direct marketing purposes. To make such a request, please send an email to legalnotice@wink.com with the subject “Shine the Light Request.”

CONTACT WINK

If you have questions, suggestions or concerns related to this Privacy Policy, you may contact Wink at legalnotice@wink.com.

UPDATES TO THIS PRIVACY POLICY

Wink may change, modify, add, or delete portions of this Privacy Policy at any time pursuant to the process disclosed above for changes to this Agreement.

NOTICE

Wink may give notice to you by means of a general notice through the Services, by electronic mail to your e-mail address in our records, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record. All notices given by you or required under this Agreement shall be mailed to us at legalnotice@wink.com unless otherwise provided in this Privacy Policy.

This software application is controlled by Wink Labs Inc., a Delaware corporation (referred to herein together with its affiliates as “Wink”, “us”, “we” or the “Company”). By creating a user account and/or accessing or using the associated software, products and/or devices (the “Services”), you represent and warrant that you have read, understand and agree to be bound by these Terms of Use and Privacy Policy (collectively, the “Terms of Use” or “Agreement”). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. If you have a user account prior to any such changes, you will be prompted to review the revised Terms of Use, and accept them, prior to logging in to your user account. Your continued use of the Services after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Services.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.

Commonly Used Terms and their Definitions

All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following Terms shall have the meaning listed below:

• “Content” includes all information downloaded, uploaded or appearing on the Services and which may become available for use or display, including without limitation all designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format.

• “Intellectual Property Rights” means any writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, trade secret or similar laws.

• “Non-Wink Product” means a product manufactured and/or controlled by a Person other than (a) Wink, Inc. and (b) a Person owned or controlled by Wink, Inc.

• “Person” means any individual, trust or legal entity.

• “Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.

• “User” is anyone that creates an account and is registered to provide content on the Services and includes all other Persons who participate on the Services other than the Company.

Wink Services

When you use any Service through the Wink App or 3rd party services that connect to your Wink hub or Wink Relay, your use is subject to the applicable terms and conditions for the Wink service, including the Wink Terms of Service.

Software License

Subject to the terms and conditions of these Terms of Use, Wink hereby grants to you a nonexclusive, nontransferable license (the “License”) to install and utilize software from Wink (“Software”), together with any related documentation as may be provided by Wink, in such version or versions as Wink may make available to you for any use permitted hereunder.

You will not, directly or through others, (a) install or use any Software on any computers, work stations or devices other than the permitted locations or permit access to or use of the Software by any unauthorized persons; (b) market, license, distribute or transfer the Software or make unauthorized copies of the Software; (c) disassemble, reverse engineer, or decompile the Software or otherwise attempt to discover any portion of the source code of any Software; (d) modify, translate, or create derivative works based on any element of the Software or any related documentation; (e) publish or disclose to third parties any evaluation of the Software without Wink’s prior written consent; (f) access the Wink platform in order to build, or provide any assistance in the development of, a competitive product or service; or (g) use the Wink platform for any purpose other than expressly permitted by the license grant set forth herein.

Wink Control of the Services

You acknowledge that Wink is a service provider that generally does not regulate the content of Users’ interactions with the Services. As a result, Wink has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of User Content provided by Users. Nonetheless, Wink reserves the right to monitor and/or limit any User Content provided by a User on the Services.

Service Interruptions and Changes to the Services

Wink reserves the right to interrupt the Services with or without prior notice for any reason or no reason. You agree that Wink will not be liable for any interruption of the Services, delay or failure to perform. Wink has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Services as it sees fit in its sole discretion.

Eligibility

Participation in the Services is void where prohibited. The Services are intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Services by anyone under 18 is unauthorized, unlicensed and in violation of these Terms of Use. By using the Services, you represent and warrant that you are 18 or older, and that you agree to and will abide by all of the terms and conditions of this Agreement.

Registration Data; Account Security

Certain features or services offered by Wink on or through the Site may require you to open an account. In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data and any other information you provide to Company, and keep it accurate, current and complete; and (d) notify Wink immediately of any unauthorized use of your Registration Data, or any other breach of security. You may be held liable for losses incurred by Wink or any other User of the Site due to someone else using your Registration Data or account information as a result of your failing to keep your Registration Data secure and confidential.

You may not use anyone else’s Registration Data at any time without the express permission and consent of the holder of that Registration Data. Wink cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.ns.

Paid Monthly Subscriptions

When you first set up your Product through the Services, or at any time after you begin using your Product, you may enjoy Wink Subscription Service by enrolling in our monthly subscription plan, which will continue until you or we cancel your subscription. These subscription plans entitle you to access our Wink Subscription Service for each payment period until such subscription is cancelled. Your paid subscription will automatically commence on the day you sign up for the Wink Subscription Service and will automatically renew on a monthly basis depending on your election when you first set up your Product. By submitting your payment details you agree to this charge. To avoid this charge, you must cancel your Wink Subscription Service by either contacting us before the end of your trial period or discontinuing the Wink Subscription Service via the Wink website.

Subscription fees are billed or charged on the first day of the applicable subscription period. If any payment is not received, is returned unpaid or if any credit card or similar transaction is rejected or denied, Wink reserves the right to cancel your Wink Subscription Service and to collect any rejection or insufficient funds fee and to process any such payment by the payment method you have submitted to us.

To the extent applicable, if you choose to pay by direct debit, you agree that we may take the charge as early as the first day of the applicable subscription period. We will confirm the mandate by email once you have enrolled and will give you advance notice of future charges after the initial charge.

Auto-Renewal for Paid Monthly Subscriptions Only

Unless you opt out of auto-renewal, which can be done through your account settings by removing your payment information or by contacting us, any paid Services (for example, Wink Subscription Service) you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. Your non-termination or continued use of a paid Service reaffirms that we are authorized to charge your payment method for that paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, or as otherwise described when you initially selected to use the paid Service.

CANCELLATIONS, REFUNDS, AND PAYMENTS

Cancellation of Subscription Services

You may cancel your paid monthly Wink Subscription Service by contacting us or through your Wink account, at any time, with or without cause. After your cancellation, you will continue to enjoy access to the Wink Subscription Service until the last day of your subscription period. After such subscription period ends, the Wink Platform will no longer be accessible to you. No refund will be issued due to any cancellation.

You can reinstate a cancelled subscription at any time, including while your previously cancelled subscription is still active. You will not be charged until the currently active subscription expires and fees for the next period are due.

Purchases; Other Terms of Use

Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Site, all of which terms are made a part of these Terms of Use by reference. You agree to abide by such other terms and conditions. If there is a conflict between these Terms of Use and the terms posted for or applicable to a specific portion of the Wink website or for any good or service offered on or through Wink website, the latter terms shall control with respect to your use of that portion of the website, or the specific service or the specific products purchased.

The Company’s obligations, if any, with regard to its products and Services are governed solely by the agreements pursuant to which they are provided, and nothing herein should be construed to alter such agreements.

Proprietary Rights in Content; Limited License

All Content is the proprietary property of the Company, its Users or other licensors, with all rights reserved. No Content may be modified, copied, distributed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company’s prior written permission, except that the foregoing does not apply to Content that is legally provided by Users on the Services, which is addressed in more detail in the section below titled “Ownership of Content.” Provided that you are eligible for use of the Services, you are granted a limited license to access and use the Services and the Content and to download or print a copy of any portion of the Content to which you have properly gained access solely for your own personal use, in connection with participating on the Services. Except for your own Content, you may not upload or republish Content on any Internet, Intranet or Extranet services or incorporate the information in any other database or compilation, and any use of the Content not explicitly permitted herein is strictly prohibited. The foregoing license is subject to these Terms of Use and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Services or the Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to Intellectual Property Rights, whether by estoppel, implication or otherwise. The foregoing license is revocable at any time by the Company without notice and with or without cause.

Ownership of Data

The Company and each User that is a party to this Agreement acknowledges and agrees that, subject to the terms and conditions of this Agreement, Company retains ownership of User account data, regardless of any Intellectual Property Rights in User provided Content.

You agree that even though you may retain certain copyright or other Intellectual Property Rights with respect to Content that is submitted on the Services, you do not own the account you use to access the Services, nor do you own any data Wink stores on its servers (including without limitation any data representing or embodying any or all of your Content). Your Intellectual Property Rights in any Content, if any, do not confer any rights of access to the Services or any rights to data stored by or on behalf of the Company.

Trademarks

“WINK”, names of Wink-owned applications or software associated with the foregoing, and other associated graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Wink in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Wink and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

Conduct by Users; Prohibited Conduct

You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Services any Content that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) impersonate any Person without their consent, including, but not limited to, a Wink employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the Services any Content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Services any Content as determined by Wink at its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the Services any Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) take any action or upload, post, email or otherwise transmit to or via the Services any Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the Services any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (ix) attempt to gain access to any other User’s account or password; or (x) “stalk”, abuse or attempt to abuse, or otherwise harass another user; (xi) charge any third party for use of the Services; or (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Services. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension or cancellation of your account.

Monitoring Content

Wink is not responsible or liable in any manner for any Content posted on the Services or in connection with the Services. We do not control and are not responsible for what Users post, transmit or share on the Services and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable User provided Content you may encounter on the Services. The Company is not responsible for the conduct, whether online or offline, of any User of the Services.

Disputes Between Users

As a condition of access to the Services, you release Wink (and Wink’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Users of the Services; including, without limitation, any claim that another User infringes upon your Intellectual Property Rights in any Content that you may provide. You further understand and agree that: (a) Wink will have the right but not the obligation to resolve disputes between Users relating to the Services, and Wink’s resolution of any particular dispute does not create an obligation to resolve any other dispute; (b) to the extent Wink elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the Services and will not make judgments regarding legal issues or claims; (c) Wink’s resolution of such disputes will be final with respect to the Services, but will have no bearing on any real-world legal disputes in which Users of the Services may become involved; and (d) you hereby release Wink (and Wink’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Wink’s resolution of disputes relating to the Services.

Data

All Data on the Company’s Servers is subject to deletion, alteration or transfer. When using the Services, you may accumulate Content, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON WINK’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN WINK’S SOLE DISCRETION. YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE WITH RESPECT TO CONTENT YOU PROVIDE ON THE SERVICES, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, WINK DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE COMPANY’S SERVERS.

YOU UNDERSTAND AND AGREE THAT WINK HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOUR CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.

All Services are Provided “as is” Without Express or Implied Warranties

WINK PROVIDES THE SERVICES STRICTLY ON AN “AS IS” BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the Services, the Services or your account, and you understand that you shall not be entitled to make any claim based on Wink’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.

Wink’s liability to you is expressly limited, to the extent allowable under applicable law.

IN NO EVENT SHALL WINK OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICES (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL WINK’S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).

Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Wink shall not be held responsible or liable for anything that occurs or results from accessing the Services or participating in the Services.

Indemnification

You hereby agree to defend, indemnify and hold harmless Wink, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns and other Users of the Services, from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any breach of this Agreement by you, or from your use of the Services. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors, successors and assigns from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any claims by third parties that your activity on the Services or your Content infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.

Non-Wink Products

The Services may enable your interaction with Non-Wink Products. These Non-Wink Products are outside Wink’s control and not covered by this Agreement. Wink makes no representations or warranties concerning such Non-Wink Products, nor shall Wink have any liability concerning such Non-Wink Products. You should contact the manufacturer of such Non-Wink Products for information regarding such Non-Wink Products.

Dispute Resolution; Governing Law; Venue and Jurisdiction

By visiting or using the Services, you agree that the laws of the State of New York, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates.

YOU AND THE COMPANY AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SERVICES (INCLUDING YOUR VISIT TO OR USE OF THE SERVICES) SHALL BE FINAL AND BINDING ARBITRATION, except that Wink may seek injunctive relief in state or federal court located in New York County, New York concerning violation by a User of any of the User conduct rules set forth above, and in such case, the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes (the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, YOU AND WINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THAT NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES. In no event shall any claim, action or proceeding by you related in any way to the Services (including your visit to or use of the Services) be instituted more than three (3) years after the cause of action arose.

VOID WHERE PROHIBITED

The Site is controlled and operated by Wink from its offices within the United States of America. The Company makes no representation that any aspect of the Services is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Services from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Services and its use. Although the Site is accessible worldwide, not all features, products, or services discussed, referenced, provided for or offered through or on the Site are available to all persons or in all geographic locations, or appropriate for use outside the United States. Wink reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

Export Control

You may not use or export or re-export any Site content or any copy or adaptation of such content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export control laws and regulations.

Non Waiver

The Company’s failure to act with respect to a breach by you or others does not waive Wink’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Wink under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Wink’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Services in a merger, acquisition or sale of all or substantially all of ‘s assets. You may not assign or transfer this Agreement or any or all of your rights or obligations hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Wink shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Wink.

Severability

This Agreement sets forth the entire understanding and agreement between you and Wink with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

Notice

Wink may give notice to you by means of a general notice through the Services, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under this Agreement shall be mailed to us at legalnotice@wink.com unless otherwise provided in this Agreement.

Site Changes and Interruptions

Wink reserves the right to interrupt the Site with or without prior notice for any reason or no reason. You agree that Wink will not be liable for any interruption of the Site, delay or failure to perform. Wink has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site as it sees fit in its sole discretion.

All Data on the Company’s Servers is subject to Deletion, Alteration or Transfer

When using the Site, you may accumulate Site Content, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA RESIDING ON WINK’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN WINK’S SOLE DISCRETION.

YOU UNDERSTAND AND AGREE THAT WINK HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY SITE CONTENT IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.

Site Content is Provided “As-Is”

WINK DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS”AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. WINK CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU MAY DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. WINK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WINK DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY WINK SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST WINK FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

Wink, Inc. (“Wink”) warrants to the original purchaser (“Purchaser”) of all authentic Wink-branded products (a “Product”), for the period of one (1) year following the date on which Purchaser purchases a Product, that the Product shall be free of defects in design, assembly, material, or workmanship.

Wink will repair or replace, at its option, any defective Product free of charge.

Wink may replace any defective Product with, at Wink’s discretion, a new, a refurbished or a reconditioned Product of the same model.

In order to qualify for this warranty, the Purchaser must provide the defective Product and a copy of the original receipt of purchase to Wink for inspection. The receipt of purchase must indicate the Product purchased, price paid, date of purchase, and name of merchant.

To request service under this warranty, contact Wink at questions@wink.com, and a Wink representative will provide instruction on how to proceed.

This warranty shall be null and void if Wink determines that the Product has been improperly installed, altered or tampered with in any way.

This warranty does not protect against normal-use wear and tear or damage due to abuse.

This warranty does not cover non Wink-branded products or counterfeit, replica or otherwise non-authentic Wink branded products.

This warranty shall not apply to any Wink products purchased from unauthorized resellers or unauthorized retailers. For a list of Wink authorized retailers, please go to http://www.wink.com/authorized-retailers.

THIS WARRANTY CONTAINS THE SOLE WARRANTY OF WINK. THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SUCH IMPLIED WARRANTIES, IF ANY, ARE LIMITED IN DURATION TO THE TERM OF THIS WARRANTY. IN NO EVENT SHALL WINK BE LIABLE FOR INCIDENTAL, SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, LOST BUSINESS OR PROFITS ARISING OUT OF THE SALE OR USE OF ANY PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some jurisdictions do not allow exclusions or limitations on implied warranties or incidental, consequential or other damages, so the above exclusions and limitations may not apply to you.

All products purchased through wink.com may be returned for a full refund within 30 days following the date of purchase.

Conditions for Return

You may return a product purchased at wink.com within the above return period, subject to your compliance with the following conditions:

• You include all original packaging in like new condition,
• You include all accessories and documentation in undamaged like new condition,
• You include the product in undamaged like new condition, and
• You include a receipt documenting your purchase of the product at www.wink.com within the above return period.

How to Return your Product

To initiate your return, please use the following procedure:

• Contact Wink at questions@wink.com. You will be asked to provide: (1) your order number, (2) the product(s) you would like to return, and (3) the reason for the return. We’d love to hear your feedback!

• After we receive your email or phone call, and have confirmed that your product is eligible for return, we will provide you with an electronic return label from UPS (for domestic orders) or FedEX (for international orders).

• Print out the label and affix the label to the original Wink shipping box. Include the product and all required items listed above in the section “Conditions for Return.” The receipt of purchase must indicate the product to be returned, price paid, date of purchase, and name of merchant (www.wink.com).

• Ship the package at your local UPS or FedEx drop-off location.

Refund Timing

Wink will endeavor to issue a refund to the instrument of purchase within 10 business days of receiving a returned product that complies with the conditions for return set forth above. If your return is not a result of a Wink error, we reserve the right to deduct the return shipping costs for the products from your refund.

Covered by one or more claims of patents: http://sipcollc.com/patent-list/