Terms of Use

Version 1 du 08 Décembre 2020

Effective date: May 05, 2021

OVERVIEW

This Platform is operated by KWINKIE, INC. Throughout the site, the terms “we,” “us,” “our,” “Kwinkie,” and “Company” refer to KWINKIE, INC. Kwinkie offers this website, including all information, tools, services, and other content available on this site to you, the user, conditioned upon your acceptance of all the terms, conditions, policies, and notices stated in these Terms of Use (hereinafter, the “Terms”). These Terms apply to Kwinkie’s websites, mobile applications, software platforms, Solution, and/or online offerings (collectively, the “Platform”), and will be available by link on all sites and offerings which it covers. You should review the applicable terms and conditions available.

By accessing or using any part of the Platform or our services, you agree to be bound by these Terms, our Privacy Policy, and Data Processing Addendum (collectively, the “Binding Agreements”). If you do not agree to any or all of the terms and conditions set forth in the Binding Agreements, you do not have permission to access the Platform or use our services. 

Please read the Binding Agreements carefully before accessing or using our Platform. Your access to and use of the Platform or our services is conditioned upon your compliance with the Binding Agreements. These Binding Agreements apply to all visitors, users, and others who wish to access or use our Platform or services.

Any new features or tools which are added to the current Platform or our services shall also be subject to the Binding Agreements. You can review the most current version of the Binding Agreements at any time on this page. We reserve the right to update, change, modify, or replace all or any part of the Binding Agreements by posting updates, modifications, and/or changes to our Platform. It is your responsibility to check this page periodically for any such changes or updates. Your continued use of or access to the Platform or our services following the posting of any changes, modifications, or updates constitutes your express acceptance thereof.

 

IMPORTANT NOTICES

PLEASE READ THESE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE PLATFORM. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT PERMITTED TO USE THE PLATFORM AND YOU MUST IMMEDIATELY CEASE DOWNLOADING, INSTALLING, OR USING THE PLATFORM

BY DOWNLOADING, INSTALLING, ACCESSING, BROWSING, SIGNING UP, OR USING THIS PLATFORM, YOU ACCEPT AND AGREE TO THESE TERMS WHICH BIND YOU LEGALLY, AND YOU FURTHER: 

  1. ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS; 
  2. ACKNOWLEDGE THAT YOU ARE 18 YEARS OF AGE OR OLDER OR THAT YOU ARE 18 YEARS OF AGE OR OLDER AND YOU HAVE GIVEN US YOUR CONSENT TO ALLOW ANY OF YOUR MINOR DEPENDENTS TO USE THIS PLATFORM; 
  3. WARRANT THAT IF YOU ARE USING THE PLATFORM FOR AN ENTITY, YOU HAVE THE LEGAL AUTHORITY TO REPRESENT AND BIND THE ENTITY;
  4. ACKNOWLEDGE THAT WE WILL COLLECT AND USE YOUR INFORMATION TO PROVIDE THE PRODUCTS AND SERVICES YOU REQUEST THROUGH THE PLATFORM;
  5. WARRANT THAT ALL INFORMATION PROVIDED UPON REGISTRATION AS PART OF YOUR ACCOUNT IS TRUE, COMPLETE, AND ACCURATE, AND THAT YOU WILL PROMPTLY INFORM US OF ANY CHANGES TO SUCH INFORMATION BY UPDATING THE INFORMATION ON YOUR ACCOUNT; 
  6. AGREE TO TERMS OF THE KWINKIE’S PRIVACY POLICY (“PRIVACY POLICY”), AVAILABLE AT https://kwinkie.com/privacy/ ;
  7. AGREE TO THE DATA PROCESSING ADDENDUM (“DPA”), AVAILABLE AT https://kwinkie.com/data_processing_addendum/ ; and
  8. ACKNOWLEDGE AND AGREE THAT THE PLATFORM ACCESSES AND USES YOUR LOCATION INFORMATION BASED ON THE LOCATION OF YOUR DEVICE AT THE TIME OF CONNECTION.

If at any time after reviewing or using the Platform you wish to terminate such use or these Terms, you must uninstall, remove, and/or cease the use of the Platform from your Device completely and delete any copies thereof in your possession. “Device” means any Android or iOS compatible basic phone, smartphone, smart watch, tablet, laptop, or computer.

 

SECTION 1 – DEFINITIONS

The Terms cover the conditions of sale and use of the services offered through the software for creating, hosting, and selling funnels which is a SaaS solution that was developed by Kwinkie and taking the form of an platform allowing to transmit, animate, and sell its knowledge, its experience, and its passions on the internet (the "Solution").

The "Client(s)" means any individual or legal entity, whether a professional, a non-professional, or a consumer who accepts these Terms in order to subscribe to a package in order to access the Solution and create an account on the Platform (the "Subscription").

There are several Subscriptions which have different plans, opening more or less restricted access to the functionalities of the Solution which are adapted to the possible profiles of the Client (the "Plans"). The details of each Subscription package can be found at https://kwinkie.com . 

The Subscription allows the Client to open access to its content to its own prospects and customers (its "Members").

These Plans are offered in the form of monthly subscriptions without commitment or time limit, or in the form of annual subscriptions (commitment for one year) to the Solution. These subscriptions are renewable by tacit agreement for the duration for which they were subscribed, that is to say each month or each year.

To learn more about the Solution, you can also consult our help pages (https://kwinkie.com/help/). Any question or complaint can be sent by email to the address: contact@kwinkie.com.

 

SECTION 2 – GENERAL CONDITIONS

Collection of Location and Other Information. The Platform accesses and uses your Device Location information for our analysis of geographic dispersion of our services based on the area where your Device is located. In addition, this Platform collects and uses your name, address, email address, phone number, IP Address, cookie data, Device information (such as OS, browser user agent string). It is your responsibility to keep your Device and access to the Platform secure. If you access the Platform from locations outside the United States, you do so on your own initiative and are responsible for the consequences and for compliance with all applicable laws.

Location Alerts. You agree to receive pre-programmed notifications (“Location Alerts”) on your Device if you have turned on locational services on your mobile telephone or other handheld devices (as the case may be).

Term and Termination. These Terms and the license granted hereunder shall be effective from the time you download, install, copy, or otherwise use the Platform until terminated. We may, in our sole and absolute discretion, at any time and for any or no reason, suspend or terminate the license and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any provision of these Terms, then the license and any rights afforded to you hereunder shall immediately terminate automatically, without the necessity of notice or other action by us. Upon the termination of the license granted to you hereunder, you shall cease all use of the Platform and uninstall and delete the Platform from your Device. We may, without notice to you, disable the Platform at any time. We will not be liable to you or any third party for compensation, indemnity, or damages of any sort as a result of suspending or terminating the license hereunder in accordance with these Terms, and such suspension or termination will be without prejudice to any other right or remedy we may have now or in the future. These obligations shall survive the termination of the license and these Terms.

Permission to use Device. If you are not the bill payer for the mobile telephone or handheld device being used to access the Platform, you will be assumed to have received permission from the bill payer for using the Platform.

Scope. We are offering the Platform to use for your own personal use only, and you should be aware that you cannot send it to anyone else, and you are not allowed to copy or modify our trademarks or the Platform or any part thereof in any way. You are not allowed to attempt to extract the source code of the Platform, and you should not try to translate the Platform into other languages or make derivative versions. The Platform and all the trademarks, copyright, database rights, and other intellectual property rights related thereto belong solely to Kwinkie.

Revisions to Terms. We may change or revise these Terms from time to time in our sole discretion, with or without notice to you. You are bound by any such changes and revisions and should therefore periodically visit our Platform to review our then-current Terms. Your continued access and use of the Platform will be governed by our most current Terms and constitute your acceptance thereof and your agreement to be bound accordingly.

Updates. From time to time, we may provide updates to the Platform. You may not be able to use the Platform until you have installed the latest version.

Electronic Notices. You understand and agree that we transact with the Platform users electronically and, therefore, may provide you with required notices and terms electronically, such as by posting a notice in the Platform, and/or sending you an email.

 

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We may, but have no obligation to, update our product and service offerings on the Platform, and may experience delays in updating information on the Platform or in our advertising on other platforms. You agree that it is your responsibility to monitor changes to our Platform. We are not responsible if information made available on this Platform is not accurate, complete, or current. The material on this Platform is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information. Any reliance on the material on this Platform is at your own risk. This Platform may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. The information found on this Platform may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Platform, and we cannot guarantee the accuracy or completeness of any information found on the Platform. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

 

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products and services are subject to change at any time without notice in our sole discretion. We reserve the right to modify or discontinue any products, services, or the Platform (or any part or content thereof) without prior notice at any time. We shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of any of our products, services, or the Platform.

 

SECTION 5 - LICENSE GRANT AND USE RESTRICTIONS

License Grant. Subject to these Terms and the Binding Agreements, we grant you a personal, revocable, non-exclusive, non-transferable, non-sublicensable, limited right to download, install, and use a copy of the Platform on a Device owned and controlled by you, and to access and use the Platform on such Device in accordance with these Terms and all applicable local, national, and international laws and regulations. You represent, warrant, and agree that you are using the Platform solely for access premises via the Platform and not for redistribution or transfer of any kind. Any other use of the Platform is strictly prohibited. We reserve any and all rights in and to the Platform. We also reserve the right to revoke or terminate the license granted hereunder at any time in our sole discretion, with or without prior notice. Unless we tell you otherwise in writing, upon any such revocation or termination, (i) the rights and license granted to you under these Terms will end immediately, and (ii) you must immediately stop using the Platform and delete it from your Device. 

Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, or create derivative works based on the whole or any part of the Platform, for any purpose whatsoever; (b) modify, adapt, improve, or create any derivative work from the Platform or any part thereof or permit the Platform or any part of the Platform to be combined with or become incorporated in any other programs; (c) violate any applicable laws, rules or regulations in connection with your access or use of the Platform; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Kwinkie or its affiliates, partners, or suppliers; (e) use the Platform in a manner that derives revenue directly from the Platform (other than in accordance with these Terms), or use the Platform for any other purpose for which it is not designed or intended; (f) distribute the Platform to multiple Devices; (g) make the Platform available over a network or other environment permitting access or use by multiple Devices or users at the same time; (h) use the Platform for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Kwinkie; (i) use the Platform to send automated queries to any website or to send any unsolicited commercial e-mail; (j) use any proprietary information, interfaces or other intellectual property of Kwinkie, or its affiliates, partners, or suppliers in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Platform; (k) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Platform or your Device; (l) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Platform; (m) copy, reproduce, reuse, upload, post, transmit, or distribute any content presented in or provided by the Platform, including, without limitation, for public or commercial purposes, including any text, images, audio, and video; (n) rent, lease, sub-license, loan, distribute, time-share, or translate the Platform in any way; (o) sell, resell, or exploit the Platform in whole or in part (including object and source code), in any form to any person or entity; or (p) use the Platform in a way that could damage, disable, overburden, impair, or compromise our systems or security or interfere with other users, or restrict or inhibit any other user from using the Platform. 

You agree to abide by the rules and policies which are established from time to time by us in these Terms or any amendments, modifications, revisions, or updates thereto. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Platform and obtaining available patches to address security, interoperability, or performance issues. Your continued use of the Platform indicates your agreement to any revised license rights. Accordingly, we urge you to frequently review the license and any amendments thereto, and, if you do not agree to the terms of such rules and policies or any revisions thereto, you must cease using the Platform immediately.

 

SECTION 6 – KWINKIE SUBSCRIPTIONS

 

Subscription Services. This Platform offers certain Subscriptions. By purchasing a Subscription, you will be subject to any charges and rules set forth in the description of that Plan.

Payment Method. Unless otherwise specified, an order can be paid by credit card, Paypal, Braintree or Stripe which are secure online payment services provided by third parties to Kwinkie. When selecting your payment method, you guaranty that you have the necessary funds and authorizations to use the payment method selected and undertake to take the necessary measures so that the Subscription price can be withdrawn in the absence of termination before the end of the current period and in accordance with the terms of these Terms.

Kwinkie Subscription and Charges. Kwinkie provides several Subscription Plans from which you can choose. Details for each Plan can be reviewed at https://kwinkie.com, which also includes the payment terms. In the event that you pay for a Subscription by credit card, you authorize us to charge your credit card account by registering for the service and providing us with your credit card information. You warrant to us that the credit card information that you provide us is correct and is your account. We may permanently suspend your account in the event of an unlawful credit card chargeback or payment dispute. You further acknowledge and agree that payments are due on a recurring basis in accordance with the payment terms for the specific Subscription Plan purchased (unless the Subscription is cancelled in accordance with these Terms) and therefore authorize the automatic payment collection terms applicable to that specific Plan (i.e., on a monthly basis and for a specific amount). Subscriptions are non-transferable and sharing an account is prohibited. If we suspect users abusing their accounts, we reserve the right to permanently suspend use of such account. Any sum not paid by a user within thirty (30) days shall accrue interest in the amount of 1.5% per month.

Free Trials. Your Kwinkie Subscription may start with a free trial. The duration of the free trial period will be specified during your account registration process and is intended to allow new users and certain former users to try our Solution. Free trial eligibility is determined by Kwinkie at its sole discretion, and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your account on hold in the event that we determine that you are not eligible. Members of households with an existing or recent Kwinkie Subscription are not eligible. We may use information such as device ID, method of payment, or an account email address used with an existing or recent Kwinkie Subscription to determine eligibility. For combinations with other offers, restrictions may apply. We will automatically charge the Subscription fee for the next billing cycle to your payment method at the end of the free trial period unless you cancel your Subscription within 24 hours prior to the end of the free trial period. Kwinkie reserves the right, in its absolute discretion, to withdraw or to modify the free trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.

Special Offers. Other special Subscription offers may be offered on an exceptional and temporary basis by Kwinkie on the Platform or in partnership with a third party. Special Subscription offers are valid only for the duration and under the specific conditions provided on the Platform. The conditions applicable to special offers (including, but not limited to, special payment conditions, price reduction, commercial guarantees, etc.) are summarized on the order page. Kwinkie reserves the right to subject special offers to special conditions to be read and accepted by the Client at the time of its order, which supplement or replace the Terms. The Client is warned that Kwinkie reserves the right to make special offers reserved for new users that cannot be combined for people who have already benefited from a promotion or a free trial period in the past or from which cannot benefit Clients with a current Subscription.

Member Account and Password. You are responsible for any membership name and password that is associated with your account during registration. If the Platform does not recognize your Device from a previous sign-in, you will be asked for information that will help us to identify your registration. It is your responsibility to maintain the confidentiality of your password, if one is established. You are entirely responsible for any and all activities that occur under your account and agree to notify us immediately of any unauthorized use of your account.

Cancellation. You may cancel your Subscription at any time in accordance with this paragraph. To cancel, go to your account and click on “Subscription” and “Cancel my subscription”, or contact customer service via e-mail at contact@kwinkie.com. For monthly Subscriptions, we require at least fourteen (14) days’ prior written notice of cancellation by email. If you provide such notice less than fourteen (14) days before the first day of your next Subscription month, your credit card may still be charged. You will not be entitled to prorate your last month’s use, nor will you be entitled to any refund for any payments to Kwinkie. For annual Subscriptions, we also require at least fourteen (14) days’ prior written notice of cancellation by email. If you provide such notification less than fourteen (14) days before the first day of your next Subscription year, your credit card may still be charged. You will not be entitled to any refund for any payments to Kwinkie.

Cancellation of the Subscription will result in the deletion of the user’s content and data on the Platform (i.e., training, sales channels, conferences, Members, etc.). Therefore, it is solely up to the Client to save its content and lists of Members by downloading the content/data or using other means before the end of the Subscription period. 

Refunds. Generally, all charges for purchases and fees are nonrefundable, and there are no refunds or credits for partially used periods. We may make an exception if the laws applicable in your jurisdiction provide for refunds. 

IF YOU ARE A KWINKIE CLIENT WITH A MONTHLY OR ANNUAL SUBSCRIPTION AND YOU HAVE PROVIDED US WITH A VALID CREDIT OR DEBIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF YOUR DESIGNATED PAYMENT DATE (MONTHLY OR ANNUALLY) AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT.  IF WE DO NOT RECEIVE SUFFICIENT FUNDS, WE MAY CHARGE YOU A LESSER AMOUNT TO PAUSE YOUR ACCOUNT. IF YOU WISH TO CANCEL YOUR SUBSCRIPTION TO KWINKIE SOLUTION, YOU MAY DO SO THROUGH YOUR ACCOUNT OR BY EMAILING US AT CONTACT@KWINKIE.COM AT LEAST FOURTEEN (14) DAYS BEFORE THE FIRST DAY OF YOUR NEXT SUBSCRIPTION MONTH/YEAR.

In addition to any Subscription fees, Kwinkie may also charge applicable value added or other tax.

 

SECTION 7 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

If you wish to purchase any product or service made available through the Platform, you may be asked to supply certain information relevant to your purchase, including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any purchase; and (ii) the information you supply is true, correct, and complete. The Platform may employ the use of third-party services for the purpose of facilitating payment and the completion of purchases. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.

You agree to provide current, complete and accurate purchase and account information for all purchases made. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account. You are responsible for maintaining the confidentiality of your account and password, including, but not limited to, the restriction of access to your Device or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Platform or a third-party service provider. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account or billing information. You may not use the billing information or identity of another person or entity without proper prior authorization. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion without notice.

 

SECTION 8 – USER RESPONSIBILITY

It is exclusively the user's responsibility to comply with any legal and/or administrative obligations resulting from the collection of a sum of money via any means of collection provided for in the Platform, and in particular the report and declaration of income collected to which the user is legally bound.

In the event that the user acts in a professional capacity (i.e., via an entity), it undertakes to comply with additional obligations. Any sales of training via the Solution will be in this case subjected to all the applicable provisions related to the rights of the consumer (i.e., prohibition of the deceptive commercial practices, clarity of the offer made to the consumer, information of the consumer, consumer right of withdrawal, invoicing and distance selling, guarantees, insurance, etc.), as well as any regulations applicable to the professional activity or to the user's sector of activity (including, but not limited to, taxation, sales tax, collection of personal data, etc.), for which the user hereby acknowledges and agrees to. 

It is up to each user to determine whether it is acting in a professional capacity or not. In any case, the user who has an employer identification number (EIN) is presumed to be a professional. The information provided by Kwinkie is informational only and Kwinkie cannot be held responsible in this regard.

The user agrees to respond to any withdrawal request from a Member. In the event that the right of withdrawal applies, user will have to reimburse the full amount paid by the Member, including the service fees paid by the Member. Such withdrawal shall be properly documented in writing. In no event shall Kwinkie be responsible for any reimbursement, amounts, claim, convictions, attorneys’ fees, liability, and/or other amounts that would be due which is related to the relationship between the user and a Member (hereinafter, the “Member Claims”), and user hereby agrees to indemnify and hold Kwinkie harmless from any and all such Member Claims. 

If you are acting in a professional capacity, you understand and agree that you are solely and exclusively responsible for complying with any and all applicable laws and regulations in running your business, including, but not limited to, all laws governing advertising and marketing claims, subscriptions, refunds, premium offers, tax laws, and all additional laws applicable to your business. You agree to notify Kwinkie if any investigation or lawsuit is threatened or filed against you, whereupon Kwinkie shall have the right to terminate these Terms without liability. Kwinkie shall have no liability for your violation of any laws. You are solely and exclusively responsible for collecting and reporting any and all sales and use tax, and any other taxes, which may apply to sales of products or services by your business. Kwinkie shall not be responsible to collect or report any taxes which may apply to your business or sales of products or services by your business to your Members. You agree to indemnify Kwinkie in the event that you and/or your business violates any law and a claim is threatened or asserted against Kwinkie as a result. You agree to have all the necessary insurances, in particular commercial liability insurance, to offer your products and services via the Solution. You shall solely be responsible to control and verify on your own initiative that the insurance policies you have covers all the situations that you may experience while using the Solution. 

Users content responsibility. The user is solely responsible for the content of the training user will put online via the Solution and for their use, as well as any content published by user’s Members (media, comments, etc.). These contents are not controlled by Kwinkie. The user must in particular ensure that all online content via the Platform respects the laws and regulations in force, public order, good morals, and, where applicable, the ethical rules of user’s profession. User must make sure that the Members have the intellectual property rights, image, use of said content before putting them online via the Solution. Kwinkie will not be held responsible for any breach of a user’s obligations due to use by the user or the user's Members. Kwinkie reserves the right to delete any clearly illegal content published by the user or one of its Members.

Compliance with Laws. As a Kwinkie user and/or Affiliate, you must comply with all laws, both U.S. and foreign, including, but not limited to, laws prohibiting deceptive and misleading advertising and marketing, e-mail marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), data protection laws (including but not limited to the European Union General Data Protection Regulation, U.K. Data Protection Act, California Consumer Privacy Act, and Brazilian General Data Protection Regulation), telemarketing laws (including the federal Telephone Consumer Protection Act (47 U.S.C. § 227) and the Federal Trade Commission’s Telemarketing Sales Rule (16 C.F.R. § 310)), laws governing testimonials (including the Federal Trade Commission’s Revised Endorsements and Testimonials Guides (16 CFR Part 255)), and/or any similar laws, laws relating to intellectual property, privacy, security, terrorism, corruption, child protection, or import/export laws. You are solely responsible for ensuring your and your Members’ compliance with all applicable laws, rules, regulations, and court orders of any kind of any jurisdiction applicable to you and your business, and any recipient to whom you send digital messages using our products or services. You have the responsibility to be aware of, understand, and comply with all applicable laws and ensure that you and all users of your account comply with such applicable laws at all times. 

If you use any messaging software, including any Kwinkie-provided messaging software now existing or which may in the future be created, or any other messaging system or other software or hardware provided by you or a third-party, you agree that you will follow all applicable laws with respect to sending messages, including without limitation the federal Telephone Consumer Protection Act. You further agree to indemnify and defend Kwinkie from any claims, damages, losses, and lawsuits of any kind or nature that may be made or brought against Kwinkie relating in any way to your violation of law or third-party rights by use or misuse of any messaging software or hardware, whether or not provided by Kwinkie. You further understand and agree that Kwinkie has no control over, and therefore cannot be responsible for, the functionality or failures of any thithird-partyftware, including without limitation Facebook, Facebook Messenger, and internet browser notifications. KWINKIE DOES NOT WARRANT THAT ANY KWINKIE MESSAGING SOFTWARE WILL BE COMPATIBLE WITH ANY THIRD-PARTY SOFTWARE. YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF ANY AND ALL MESSAGING SOFTWARE AND/OR HARDWARE.

 

SECTION 9 – USE OF THE PLATFORM

Storage space, Hosting, Traffic Volume. The storage capacity on the Platform to store videos, images, and files, is specified at the time of the order according to the Subscription Plan selected by the user. The storage space made available by Kwinkie for the user is exclusively reserved for content dedicated to conducting training on Kwinkie. Hosting of any other content intended for distribution or integration on media other than the Kwinkie pages is not permitted. The user is responsible for respecting the volume of traffic and the storage space authorized according to its Subscription. The user is warned that non-compliant use of the Platform according to the specifications of its Subscription may result in a temporary cutoff of access to the user's training and marketing space. The latter will be invited to return to a threshold in accordance with his Subscription or to opt for a higher subscription offer. In this regard, the bandwidth used cannot exceed 1 GB/month or significantly exceed the average bandwidth used by other users (determined only by Kwinkie). In the event of termination, discontinuation, or suspension of the Platform, Kwinkie reserves the right to delete the user's content. Kwinkie undertakes to proceed with the deletion at the Client's first written request.

Kwinkie Guarantees. Kwinkie will take all measures to ensure that the Platform operates reliably and continuously. However, the user acknowledges that no one can guarantee the correct functioning of the Internet network. As such, Kwinkie undertakes to make every effort to allow access to the Platform within the limits of reasonable use of the Platform, 7 days a week, 24 hours a day, for the duration of the rights of use of the training course(s), except for possible breakdown or technical constraints linked to the specificities of the Internet network. The user agrees to inform Kwinkie within 24 hours of the discovery of a technical malfunction. Then, Kwinkie will intervene with the user within a maximum period provided for under the support in its current Subscription.

In the event of an interruption of service by Kwinkie linked to a corrective maintenance intervention, Kwinkie will make every effort to remedy the malfunction within 24 working hours. After this period, Kwinkie will grant the user an extension of access to the solution for the benefit of its Members for a period corresponding to that of unavailability. 

In the event of progressive maintenance of the Platform, Kwinkie may also temporarily interrupt the access of the user and of its Members. Kwinkie will then endeavor to limit the downtime and will endeavor to notify the user in advance. The latter undertakes not to claim compensation or damages from Kwinkie. Kwinkie will extend access to the solution for the benefit of users for a period corresponding to that of unavailability as the sole remedy of the user. It is the responsibility of any user to notify its Members that a temporary interruption is likely to occur under the aforementioned conditions.

In the event of a breakdown due to the Platform’s host for a period of at least eight (8) days, the duration of access will be extended for a period corresponding to that of unavailability. Kwinkie will not be liable for any such damage and interest. 

Any Kwinkie warranty to users is expressly excluded in the event of misuse, negligence, material defect on the part of the user, accident, or Force Majeure as provided for in these Terms. A user’s remedy is limited to a new Subscription.

 

SECTION 10 - INTELLECTUAL PROPERTY RIGHTS

Rights to Platform. You acknowledge and agree that the source and object code of the Platform (including whether or not present on your Device; and including, without limitation, any copy that you download, install, or use on your Device) and the format, directories, queries, algorithms, structure and organization of the Platform are the intellectual property and proprietary and confidential information of us, our affiliates, licensors, or suppliers. The Platform is licensed, not sold, to you. Title to the Platform shall remain at all times with us. We and our partners, collaborators, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Platform (or any copy thereof) at any time without notice and will have no liability to you or any third party for doing so. Except as expressly stated in these Terms, you are not granted any intellectual property rights in or to the Platform, whether by implication, estoppel or other legal theory, and all rights in and to the Platform not expressly granted to you under these Terms are hereby reserved and retained by us. These obligations survive the termination of these Terms and the license granted hereunder.

Kwinkie Marks. Trademarks (including, but not limited to, the Kwinkie logo) that are used or displayed in the Platform are owned by us or our affiliates, licensors, or suppliers. Our trademarks may not be copied or used, in whole, partial or modified form, without the prior written permission of us or, if applicable, our licensors. In addition, Kwinkie custom graphics, logos, button icons, scripts, and page headers are covered by trademark, trade dress, copyright or other proprietary right law, and may not be copied, imitated, or used, in whole, partial or modified form, without our prior written permission. You may not use any meta tags or any other "hidden text" utilizing a Kwinkie name, trademark, or product name without our express written consent. These obligations survive the termination of these Terms and the license granted hereunder.

Open-Source Software. The Platform may utilize or include third party software that is subject to open-source license terms ("Open-Source Software"). You acknowledge and agree that your right to use such Open-Source Software as part of the Platform is subject to and governed by the terms and conditions of any applicable open-source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the "Open-Source License Terms"). In the event of a conflict between these Terms and the Open-Source License Terms, the Open Source License Terms shall control.

 

SECTION 11 – COPYRIGHT INFRINGEMENT POLICY (DMCA)

Company respects the intellectual property rights of others and requests that you do the same. We will respond to notices of claimed copyright infringement that are properly provided to us and that comply with applicable law. If you believe that your work has been copied in a manner that constitutes copyright infringement, you may notify us at:

KWINKIE, INC.
contact@kwinkie.com 

So that we may properly assist you, the following information is required:

  • A description of the copyrighted work you claim has been infringed;
  • Information reasonably sufficient to locate the material in question on the Platform;
  • Your name, address, telephone number, e-mail address and all other information reasonably sufficient to permit Kwinkie to contact you;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; 
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on behalf of the copyright owner; and
  • A physical or electronic signature of the copyright owner or the person authorized to act on the owner's behalf. 

We suggest that you consult your legal advisor before filing a notice with Company’s copyright agent, because there may be penalties for false claims.

 

SECTION 12 - OPTIONAL TOOLS

We may provide you with access to third-party tools which we neither monitor nor have any control or input over. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of such optional third-party tools. Any use by you of optional tools offered through the Platform is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which such tools are provided by the relevant third-party provider(s). We may also, from time to time, offer new services and/or features through the Platform (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.

 

SECTION 13 - THIRD-PARTY LINKS

Certain content, advertisements, recommendations, information, products, and services available via our Platform may include materials from or links to third party websites or services, which are not controlled or owned by us. Third-party links on this Platform may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating their content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials, websites, or platforms, or for any other materials, products, or services of third parties. We have no control over and assume no responsibility for the content, privacy policies, or practices of any third-party website, platforms, or services. We do not warrant the offerings of any third-party providers or their platforms.

You acknowledge and agree that we shall not be liable, whether directly or indirectly, for any harm, loss, or damages caused or alleged to be caused by or in connection with your use or reliance on such content, goods, resources, transactions, or services available on or through any third-party websites/platforms. We strongly advise you to review carefully any third-party's policies, terms, conditions, and practices before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the third-party.

 

SECTION 14 - USER COMMENTS, FEEDBACK, AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example, contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation to: (1) maintain any Comments in confidence; (2) pay compensation for any Comments; or (3) respond to any Comments. We may, but have no obligation to, monitor, edit, or remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violating any party’s intellectual property rights or these Terms. You agree that your Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Platform or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third-party.

 

SECTION 15 - PERSONAL INFORMATION

We respect your privacy and the use and protection of your non-public, personal information.  Your submission of personal information through the Platform is governed by our Privacy Policy and, if you and/or your end users/Members are located in the European Union, United Kingdom, Brazil, or California (USA), our DPA as well.  Our Privacy Policy may be viewed at https://kwinkie.com/privacy/ and our DPA may be viewed at https://kwinkie.com/data_processing_addendum/. Kwinkie reserves the right to modify its Privacy Policy and DPA in its reasonable discretion from time-to-time. Our Privacy Policy and DPA are incorporated into this Agreement by reference.

 

SECTION 16 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our Platform, products, or services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Platform or on any related platform is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information on the Platform or on any related platform, including, without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Platform or on any related platform, should be taken to indicate that all information on the Platform or on any related platform has been modified or updated.

 

SECTION 17 - PROHIBITED USES

In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Platform or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Platform or of any related website, other websites, related platforms, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Platform or any related platform/website, other websites/platforms, or the Internet. We reserve the right to terminate your use of the Platform or any related website/platform for committing any of the prohibited uses.

 

SECTION 18 – AFFILIATE PROGRAMS

By joining the Kwinkie affiliate program via the Platform, the User declares and guarantees that user:

  • is at least 18 years old and/or is a professional in good standing in its jurisdiction;
  • is the owner or has authorization to use the accepted websites;
  • its websites do not infringe on any laws in force;
  • its websites respect any and all rights related to trademarks and copyrights; and
  • will not send spam or junk mail to promote anything related to the Platform

These conditions are cumulative.

The following is not authorized and considered as fraud: (i) fraud attempts by repeated clicks automatically or manually for the sole purpose of creating commissions or obtaining affiliates; (ii) the purchase of Kwinkie products using your own links or affiliate banners; (iii) promotion via paid communication in search engines; and (iv) inducing prospects to mix or confuse the Kwinkie brand with their own affiliate link. Any fraud noted will result in the deletion of the affiliate account and the cancellation of commissions without notice.

Kwinkie reserves the right: (i) to accept, to refuse, and/or to suspend at any time registration to the affiliate program; (ii) to modify at any time the conditions of the affiliate program; and (iii) to suspend at any time the affiliate program. Kwinkie reserves the right to subject a User's registration to the affiliation program to special conditions not provided for in these Terms. 

 

SECTION 19 - APPLE APP STORE TERMS 

These Terms apply to your use of the Platform, including the iPhone, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

  1. Both you and Kwinkie acknowledge that these Terms are between you and Kwinkie only, and not with Apple, and that Apple is not responsible for the Application or any content posted to or made available via the Application;
  2. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Kwinkie Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they apply to the Platform;
  3. You will only use the Application in connection with an Apple device that you own or control;
  4. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
  5. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
  6. You acknowledge and agree that Kwinkie, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
  7. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Kwinkie, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
  8. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
  9. Both you and Kwinkie acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
  10. Both you and Kwinkie acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

 

SECTION 20 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

YOUR USE OF THE PLATFORM, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN THE PLATFORM, ANY PLATFORM-RELATED SERVICE OR SOFTWARE THAT IS PROVIDED TO YOU, IS AT YOUR SOLE RISK. THE PLATFORM, INCLUDING ANY CONTENT, SOFTWARE OR INFORMATION CONTAINED WITHIN THE PLATFORM AND ANY PLATFORM-RELATED SERVICE, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE AND OUR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES, EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.

NEITHER WE NOR OUR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, NOR OUR OR THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES MAKE ANY REPRESENTATION OR WARRANTY THAT: (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (ii) MATERIALS, SOFTWARE OR CONTENT AVAILABLE FROM THE PLATFORM ARE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; (iii) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE (INCLUDING FREE FROM UNAUTHORIZED ACCESS), PROVIDE CONTINUOUS STORAGE OR ACCESS, OR ERROR-FREE; (iv) THE RESULTS OR INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE, COMPLETE, CURRENT, OR RELIABLE; (v) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS; AND (vi) ANY ERRORS IN OUR PLATFORM OR SOFTWARE WILL BE CORRECTED.

EVERY ONLINE BUSINESS IS DIFFERENT, EMPLOYING DIFFERENT STRATEGIC APPROACHES AND ORGANIZATIONAL STRUCTURES, AND OFFERING DIFFERENT PRODUCTS AND SERVICES. THEREFORE, INDIVIDUAL RESULTS WILL VARY FROM USER TO USER. YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO YOUR CONTENT, BUSINESS MODEL, AND PRODUCT AND SERVICE OFFERINGS. KWINKIE DOES NOT PROMISE, GUARANTEE, OR WARRANT YOUR BUSINESS’ SUCCESS, INCOME, OR SALES. YOU UNDERSTAND AND ACKNOWLEDGE THAT KWINKIE WILL NOT AT ANY TIME PROVIDE SALES LEADS OR REFERRALS TO YOU OR YOUR BUSINESS. THOSE BUSINESSES WHO PURCHASE OUR PRODUCTS OR SERVICES WILL RECEIVE ACCESS TO SOFTWARE AND TOOLS TO CREATE INTERNET SALES FUNNELS AND OTHERWISE ASSIST WITH THEIR RESPECTIVE ONLINE OFFERINGS. HOWEVER, WE DO NOT GUARANTEE YOUR BUSINESS’ SUCCESS AND BASED UPON MANY MARKET FACTORS THAT WE CANNOT CONTROL, THE SOFTWARE AND TOOLS WE PROVIDE MAY OR MAY NOT BE APPLICABLE TO YOUR SPECIFIC BUSINESS. FURTHER, WE DO NOT MAKE EARNINGS CLAIMS, EFFORTS CLAIMS, RETURN ON INVESTMENT CLAIMS, OR CLAIMS THAT OUR SOFTWARE, TOOLS, OR OTHER OFFERINGS WILL MAKE YOUR BUSINESS ANY SPECIFIC AMOUNT OF MONEY, AND IT IS POSSIBLE THAT YOU WILL NOT EARN YOUR INVESTMENT BACK. 

ANY MATERIAL DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR BUSINESS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR THE USE OF THE PLATFORM.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY. ADVICE OR INFORMATION RECEIVED BY MEANS OF THE PLATFORM SHOULD NOT BE RELIED UPON FOR SIGNIFICANT PERSONAL, BUSINESS, MEDICAL, LEGAL, OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR PARTICULAR SITUATION. 

 

SECTION 21 – LIMITATIONS OF LIABILITY; INDEMNIFICATION

Limitation of Liabilities. IN NO EVENT SHALL WE OR OUR EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (i) THE USE OR INABILITY TO USE THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE PLATFORM; (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS