Terms of ServiceEffective May 22nd, 2017
Thank you for your interest in Wing and the Wing application for your mobile device (the “Application") provided to you by Wing AI Technologies, Inc. ("Wing," "us," “our,” or "we"). At Wing, we want to connect people through the execution of everyday tasks and bring communities together through the use of the Application, any other mobile applications offered by us, and our mobile services, web applications, web services, and software provided on or in connection with such applications or services (all such applications, services, and software collectively, the “Services”).
In order to avail yourself of the Services, you must agree to these Terms. These Terms govern your use of, access to, affiliation with, and operation of the Services from within the United States and its territories. PLEASE READ THESE TERMS AS THEY AND ALL REFERENCED DOCUMENTS AND POLICIES CONSTITUTE A LEGAL AGREEMENT, BETWEEN YOU AND WING, TO WHICH YOU ARE SUBJECT. Throughout these Terms, the word "including" can mean "including but not limited to." By accessing, downloading, installing, or using the Services, you signify that you have read, understood, and agreed to be bound by the provisions of these Terms.
- Use of Our Services and Your License
The Services serve as a marketplace where people who seek to get tasks done are matched with independent contractors and businesses (“Fulfillers”) who are reasonably capable of executing these jobs, tasks, or offers. Fulfillers are to be distinguished from Users (defined below) herein as “Fulfillers.” Fulfillers may be subject to independent contractor agreements overseen by Wing. The term "Users," on the other hand, will explicitly refer to parties in use of the Application or other Services seeking to get a task executed, subject to the terms of agreement of the user.
Subject to your compliance with these Terms and your payment of any applicable fees, Wing grants you, whether as a User or as a Fulfiller, a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal use of the Services. Wing, in its sole discretion, may terminate your license to any portion of the Services at any time without notice. This license does not include any resale of any portion of the Services or its contents; any derivative use of any portion of the Services or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms are reserved and retained by Wing. No portion of the Services may be reproduced, duplicated, copied, sold, or resold without the express written consent of Wing. You may not use any meta tags or any other "hidden text" utilizing Wing’s name or trademarks without our express written consent. You may not misuse the Services. You may use the Services only as permitted by law. The licenses granted by Wing will terminate if you do not comply with these Terms. If the license granted by Wing terminates, you continue to be bound by the provisions of these Terms.
- Each User must be at least 18 years old in order to be eligible to use the Services. The Services are not available for children (persons under the age of 18 regardless of parental consent) in any capacity, whether that be as a Fulfiller or as a User. By becoming a User, you represent, acknowledge, and warrant that you are at least 18 years of age and that you have the right, authority, and capacity to enter into and abide by the terms and conditions of these Terms.
- You further represent, acknowledge, and warrant that your use of the Services is in compliance with any and all applicable laws and regulations.
- By creating an account, you will be given access to different features of the various Services.
- When creating an account, you agree that you will provide complete and accurate information, and you agree that you will maintain this information as up-to-date at all times. Failure to do so may result in your inability to access the Services or in other forms of termination of access to the Services.
- Although Wing works to safeguard your account and passwords, you are solely responsible for protecting the confidentiality of your account and passwords.
- This excludes any known or unknown cyber attacks (via denial of service attacks, hacks, malware, worms, or otherwise), data breaches, or data malformation.
- You will accept responsibility for all activities that occur under your account, identifiable by your Wing User Unique Identifier ("Wing User ID").
- If you use the Services on behalf of an entity or organization, you represent and warrant that you have the authority to bind that entity or organization to these Terms, and you agree to be bound by these Terms on behalf of that entity or organization.
- Be sure to sign off when finished using a shared device. Wing will not be liable for any unauthorized use of your account.
- Service Rules.
- You agree to refrain from engaging in any of the following prohibited activities:
- Modifying, altering, reproducing, copying, distributing, or disclosing any confidential part of the Services in any medium (including but not limited to any information that you are aware or unaware of due to its confidentiality; information whose origin is unknown should be treated as confidential);
- Attempting to interfere or interfering with system integrity or security;
- Attempting to upload or uploading any virus, worm, code (malicious or otherwise), or other software through the Services; and
- Attempting to seek or provide a service that Wing has classified as a "Zero Tolerance Service" in Wing's Zero Tolerance Policy.
- Failure to comply with the terms of this Section 4 may result in your inability to access the Services or other forms of termination of access to the Services.
- Billing Services.
- As a User, you agree to pay the amounts charged for your use of the Services as described in this Section 5(a) below. “Charges” include any fares described below (“Fares” and other applicable fees), in addition to any voluntary tip you may elect to give to a Fulfiller.
- Fares: Fares consist of a base charge and any adjustments based on location and category of task.
- Market Adjusted Pricing: Fares are subject to change based on demand at a rate determined by either our patented pricing algorithm, market conditions.
- Service Fee: Wing may consider levying additional service fees but the right to do so shall remain retained to Wing itself entirely.
- Cancellation Fee: After you the User requests a task you may cancel it through the Application, but be aware that in certain cases a cancellation fee may apply, as referenced in the Cancellation Policy for Wing.
- Insurance Fee or Safety Fee: There may be a required charge to cover the cost of corporate insurance ensuring liabilities are accounted for and can be mediated in a reasonable manner.
- Toll Fee: Toll fees in some instances may occur if the User does not indicate that toll roads should not be used, as our Fulfillers will assume that Users would prefer convenience and efficiency in terms of the speed with which or time at which the task is done.
- Subscription Fee: Wing, dependent on the use of the Services, will charge a monthly Subscription Fee concurrent with the selected plan.
- Credit Cards and Debit Cards:
- Authorization: Upon the addition of a new payment method or each task request, Wing may seek authorization of your selected payment method to verify the payment method, ensure the task cost will be covered, and protect against unauthorized behavior. The authorization is not a charge; however, it may reduce your available credit by the authorization amount until your bank's next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft or non-sufficient funds charges by the bank issuing your debit or check card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
- Fraud Prevention: Wing may rely on third-party payment gateways to handle credit card and debit card authorization, payments, and card management and cannot be held responsible for data breaches, data loss, malformation of data as a result of cyber attacks, data breaches, data loss, or malformation of data affecting the third-party payment gateway. Our choice of third-party payment gateways will still adhere to our standards of adequate User payment data security, meaning always maintaining PCI Service Provider Level 1 compliance, utilizing TLS (SSL) connections in data transit, and storing sensitive card information in an encrypted format.
- Certain features of the Services will be provided for a fee. In most cases, you will be given an opportunity to view a price estimate for such features and choose to accept prior to paying the fee.
- Wing has the authority and reserves the right to adjust and modify pricing, based on type of request, time of day, or location. Although we employ methods to make users fully aware of the final price they will be paying, you are responsible for the payment of the final price regardless of your awareness of such Charges.
- All Charges are non-refundable and apply at all times regardless of Application usage or termination of usage, unless a User has a demonstrable basis for a refund - please contact our Support Center to request a refund.
- Wing in its sole discretion may offer refunds on a case by case basis.
- Credit and Task Discounts: You may receive credits ("Wing Credits") that you can apply towards the payment of charges. They may or may not be not transferable or redeemable for cash, except as required by law.
- If you are a Fulfiller, you will carry out or execute tasks as requested by Users within your scope of claimed experience and expertise ("Fulfiller Services") and receive payment for your provision of such Fulfiller Services ("Payment"). Payment and transactions are subject to a commission by Wing, referenced below. You may also receive tips provided by Users to you.
- Commission: In exchange for permitting you to offer your services through the Services as a Fulfiller, you agree to pay Wing (and permit Wing to retain) a fee based on each transaction in which you provide Fulfiller Services ("Commission"). The amount of the applicable Commission may be communicated to you in a Commission schedule through our website. Wing reserves the right to change the Commission at any time in Wing's discretion based upon local market factors, and Wing will provide you with notice in the event of such change. Continued use of the Services after any such change in the Commission calculation shall constitute your consent to such change.
- Pricing: You expressly authorize Wing to set the prices on your behalf for all Charges that apply to the provision of your Fulfiller Services. Wing reserves the right to change the Charges schedule at any time in our discretion based upon local market factors. We will communicate relevant changes to the base fare unit amounts that would result in a change in the applicable Payments or transactions. Charges may be subject to maximum limits as set forth in your market's Wing Cities page or the Wing Support Center.
- Payment Adjustment: Wing reserves the right to adjust or withhold all or a portion of Payment if it believes that (i) you have attempted to defraud or abuse Wing or Wing's payment systems, or (ii) in order to resolve a User complaint (e.g., you took an inefficient route or failed to properly end a particular instance of Fulfiller Services in the Application when a task was completed). Wing's decision to adjust or withhold the Payment in any way shall be exercised in a reasonable manner.
- Carrier Rates: We currently provide our services on our Application for little to no cost, but be aware that your carrier rates, such as text messages and data charges, will still apply, and you will be responsible for such cost.We also provide services on our website for little to no cost, but be aware that your carrier rates still apply, and charges you receive will not signify or entail that Wing is responsible; you will be responsible for such cost.
- Deactivation: At your sole discretion, you may deactivate your account with Wing. However, you will be responsible for paying any bills posted on your account prior to your deactivation.
- Third-Party Links
- The use of our Services may provide you with links to third-parties and their respective material. Wing does not own or control any of the third-party contents and does not assume responsibility for your usage of such third-party sites. You understand that if you use such sites you do so at your own risk.
- You relieve Wing from any liability that may arise during your use of any third-party sites.
- You are responsible for your use of the Services, and you agree to defend, indemnify, and hold Wing, including our affiliates, subsidiaries, parents, successors, and assigns, and each of our respective officers, directors, employees, independent contractors, agents, and shareholders, harmless from any claims, actions, suits, losses, costs, liabilities, and expenses (including reasonable attorneys' fees and costs) relating to or arising out of your use of and participation in the Services, including:
- your breach of these Terms or the documents incorporated herein by reference;
- your violation of any law or regulation or the rights of a third-party, including, without limitation, Fulfillers, Users, other motorists, and pedestrians, as a result of your own interaction with such third-party;
- any allegation that any materials that you submit to us or transmit through the Services infringe upon or otherwise violate the copyright, trademark, patent, trade secret, or other intellectual property or other rights of any third-party;
- your ownership, use, or operation of a motor vehicle or passenger vehicle, or any other relevant tools (including but not limited to: laundry machines, cleaning equipment, or stationary or technical equipment), including your provision of Services as a Fulfiller; and/or
- any other activities in connection with the Services.
- The indemnity provided for in this section shall be applicable without regard to the negligence of any party, including any indemnified person.
- Liability Boundaries. IN NO EVENT WILL WING, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS, AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRATORS, AGENTS, OR SHAREHOLDERS (COLLECTIVELY "WING" FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR THESE TERMS, HOWEVER ARISING, INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR OTHER SERVICES WITH THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT WING HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS, OR OTHER SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THEIR TERMS. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- Dispute Resolution and Arbitration Agreement
- As part of the agreement to lawfully permit the use of the Services in the manner disclosed in these Terms, you the User will be required to resolve disputes with Wing on an individual basis through determent, final, and binding arbitration. By entering into these Terms you fully acknowledge that you have read and understand the provisions of these Terms and have exercised reasonable caution in considering the consequences of consenting to these Terms. YOU AND WING MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, AS SET FORTH BELOW.
- Agreement to Binding Arbitration Between You and Wing.
- This agreement to arbitrate (the "Arbitration Agreement") is governed by the Federal Arbitration Act and survives after the Terms terminate or your relationship with Wing ends. ANY ARBITRATION UNDER THE ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, the Arbitration Agreement applies to all Claims (defined below) between you and Wing, including our affiliates, subsidiaries, parents, successors, and assigns, and each of our respective officers, directors, employees, independent contractors, agents, and shareholders.
- EXCEPT AS EXPRESSLY PROVIDED BELOW, ALL DISPUTES AND CLAIMS BETWEEN US (EACH, A "CLAIM," AND COLLECTIVELY, "CLAIMS") SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND WING. These Claims include but are not limited to any dispute, claim, or controversy, whether based on past, present, or future events, arising out of or relating to: these Terms and prior versions thereof (including the breach, termination, enforcement, interpretation, or validity thereof), the Services, any other goods or services made available through the Services, your relationship with Wing, the threatened or actual suspension, deactivation, or termination of your User Account or these Terms, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Wing, any city, county, state, or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws, claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act, and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act of 1974 (except for individual claims for employee benefits under any benefit plan sponsored by Wing and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
- BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND WING ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THE ARBITRATION AGREEMENT. The Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of the Arbitration Agreement are expressly excluded from the requirement to arbitrate.
- Prohibition of Class Actions and Non-Individualized Relief.
- YOU UNDERSTAND AND AGREE THAT YOU AND WING MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS ("CLASS ACTION WAIVER"). YOU UNDERSTAND AND AGREE THAT YOU AND WING BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (C) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST WING.
- The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
- Notwithstanding any other provision of these Terms, the Arbitration Agreement, or the AAA Rules (defined below), disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action, and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
- Representative PAGA Waiver. Notwithstanding any other provision of these Terms or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Wing agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the PAGA, both you and Wing agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, "representative PAGA Waiver"). Notwithstanding any other provision of the Terms, the Arbitration Agreement, or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from these Terms; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
- Rules Governing the Arbitration.
- Any arbitration conducted pursuant to the Arbitration Agreement shall be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated (the "AAA Rules"), as modified by the provisions set forth in these Terms. Copies of the AAA Rules can be obtained at the AAA's website (www.adr.org) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person's Claims or otherwise preside over any form of representative, collective, or class proceeding.
- As part of the arbitration, both you and Wing will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator's decision which shall explain the award given and the findings and conclusions on which the decision is based.
- The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users or Fulfillers but is bound by rulings in prior arbitrations involving the same User or Fulfiller to the extent required by applicable law. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
- Location and Manner of Arbitration. Unless you and Wing agree otherwise, any arbitration hearings between Wing and a User will take place in the county of your billing address, and any arbitration hearings between Wing and a Fulfiller will take place in the county in which the Fulfiller provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Wing agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
- Exceptions to Arbitration.
- The Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court's jurisdiction; (2) a representative action brought on behalf of others under the PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 9(d) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers' compensation, state disability insurance, and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
- Nothing in the Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state, or federal agency, and nothing in the Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration; however, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under these Terms. Nothing in these Terms or the Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim, or charge otherwise covered by the Arbitration Agreement.
- Severability. In addition to the severability provisions in subsection (d) above, in the event that any portion of the Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed, and the remainder of the Arbitration Agreement shall be given full force and effect.
- Fulfiller Claims in Pending Settlement. If you are a member of a putative class in a lawsuit against Wing involving Fulfiller Claims and a motion for preliminary approval of a settlement has been filed with the court in that lawsuit prior to the Effective Date (a "Pending Settlement Action"), then the Arbitration Agreement shall not apply to your Fulfiller Claims in that particular class action. Instead, your Fulfiller Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable agreement that you accepted prior to the Effective Date.
- Opting Out of Arbitration for Fulfiller Claims That Are Not in a Pending Settlement Action.
- As a Fulfiller, you may opt out of the requirement to arbitrate Fulfiller Claims, pursuant to the terms of this subsection. If you do not wish to be subject to the Arbitration Agreement with respect to Fulfiller Claims, you may opt out of arbitration with respect to such Fulfiller Claims, pursuant to the terms of this subsection.
- Cases have been filed against Wing and may be filed in the future involving Fulfiller Claims. You should assume that there may be in the future lawsuits against Wing alleging class, collective, and/or representative Fulfiller Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Fulfiller Claims with Wing under the Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Wing in an individual arbitration provision, except for the Fulfiller Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate, or seek to recover monetary or other relief for such claims, in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning the Arbitration Agreement, and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Fulfiller Claims under the Arbitration Agreement.
- Optional Pre-Arbitration Negotiation Process. Before initiating any arbitration or proceeding, you and Wing may agree to first attempt to negotiate any dispute, claim, or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Wing. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute, and (2) set forth the specific relief sought. All offers, promises, conduct, and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, officers, directors, independent contractors, employees, and attorneys are confidential, privileged, and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or any other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
- Wing Promotions and Referral Programs
- Wing has discretion and may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your agreement or relationship with Wing. Wing reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Wing determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or these Terms.
- From time to time, Wing may offer you with incentives to refer new Users to the Wing community. These incentives may come in the form of Wing Credits, and Wing may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion.
- Intellectual Property
- All intellectual property rights in the Services shall be owned by Wing absolutely and in their entirety. These rights include but are not limited to database rights, copyrights, patents, trade secrets, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, and company or product names set forth in the Services are the property of their respective owners.
- You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, photos, images, videos, data, or other information or materials ("Submissions") provided by you to us are non-confidential and shall become the sole property of Wing. Wing shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You are solely responsible for your Submissions. Your Submissions may not be false, materially misleading, libelous, defamatory, obscene, vulgar, abusive, harassing, threatening, or otherwise objectionable, invade a person's privacy, infringe another person's intellectual property or proprietary rights, or otherwise violate applicable law. You represent and warrant that you own or otherwise control all of the rights to your Submissions; that the use of such materials by Wing will not infringe upon or violate the rights of any third-party; and that you will indemnify Wing for all claims resulting from your Submissions.
- Wing and other Wing logos, designs, graphics, icons, scripts, and service names are registered trademarks, unregistered trademarks, or trade dress of Wing in the United States and/or other countries (collectively, the "Wing Marks"), referenced directly below in but not limited to blue shades:
[Insert Wing Marks]
- If you provide services as a Fulfiller, Wing grants to you, during the term of these Terms, and subject to your compliance with the terms and conditions of these Terms, a limited, revocable, non-exclusive license to display and use the Wing Marks solely in connection with providing such services ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third-party any right, permission, license, or sublicense with respect to any of the rights granted hereunder without Wing's prior written permission, which Wing may withhold in its sole discretion. The Wing Marks may not be used in any manner that is likely to cause confusion.
- You acknowledge that Wing is the owner and licensor of the Wing Marks, including all goodwill associated therewith, and that your use of the Wing Marks will confer no additional interest in or ownership of the Wing Marks in you but rather inures to the benefit of Wing. You agree to use the Wing Marks strictly in accordance with Wing's trademark usage guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Wing determines to be nonconforming or otherwise unacceptable.
- You agree that you will not: (1) create any materials that incorporate the Wing Marks or any derivatives of the Wing Marks other than as expressly approved by Wing in writing; (2) use the Wing Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names, or trade dress, or use the Wing Marks other than in accordance with the terms, conditions, and restrictions herein; (3) take any other action that would jeopardize or impair Wing's rights as owner of the Wing Marks or the legality and/or enforceability of the Wing Marks, including, without limitation, challenging or opposing Wing's ownership in the Wing Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Wing Marks, any derivative of the Wing Marks, any combination of the Wing Marks and any other name, or any trademark, service mark, trade name, symbol, or word which is similar to the Wing Marks; or (5) use the Wing Marks on or in connection with any product, service, or activity that is in violation of any law, statute, government regulation, or standard.
- Violation of any provision of this License may result in immediate termination of the License, in Wing's sole discretion. If you create any materials bearing the Wing Marks (in violation of these Terms or otherwise), you agree that upon their creation Wing exclusively owns all right, title, and interest in and to such materials, including without limitation any modifications to the Wing Marks or derivative works based on the Wing Marks. You further agree to assign any interest or right you may have in such materials to Wing and to provide information and execute any documents as reasonably requested by Wing to enable Wing to formalize such assignment.
- Copyrights Policy
Wing respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials on the Services infringe upon your copyrights, please visit our copyright policy page or send the following information to Wing at Wing, Inc., 5141 California Ave, #200, Irvine, CA 92617:
- a description of the copyrighted work that you claim has been infringed, including the specific location on the Services where the material you claim is infringed is located. Include enough information to allow Wing to locate the material, and explain why you think an infringement has taken place;
- a description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- your name, mailing address, telephone number, and e-mail address;
- 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 information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
You agree not to use any technical, financial, strategic, or other proprietary or confidential information relating to Wing's business, operations, or properties, including User information ("Confidential Information") disclosed to you by Wing for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third-parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Wing in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Wing with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Wing or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Wing; becomes known to you, without restriction, from a source other than Wing without breach of these Terms by you and otherwise not in violation of Wing's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to Wing to enable Wing to seek a protective order or otherwise prevent or restrict such disclosure.
- Modification to these Terms
Wing reserves the right to modify the terms and conditions of these Terms. Wing reserves the right to change or modify information referenced throughout these Terms, including arbitrations provisions where herein does not create a renewed opportunity to opt out of arbitration. As such, the continued use of the Application or other Services will constitute your consent to such changes.
- Wing Communications
By becoming a User, you agree to receive communications from us, including e-mails, text messages, calls, and push notifications. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Wing, its affiliated companies, and/or Fulfillers, may include but are not limited to: operational communications concerning your User account or use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Wing and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
The following disclaimers are made on behalf of Wing, our affiliates, subsidiaries, parents, successors, and assigns, and each of our respective officers, directors, employees, independent contractors, agents, and shareholders:
- The Services are provided on an "as is" basis and without any warranty or condition, express, implied, or statutory. We do not guarantee and do not promise any specific results from use of the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
- We do not warrant that your use of the Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the Services will be corrected, or that the Services are free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Services.
- Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication, or other use or access of the Services by persons under the age of 18 in violation of these Terms. We encourage you to communicate directly with each potential Fulfiller or User prior to engaging in an arranged transportation service.
- Wing is not responsible for the conduct, whether online or offline, of any User of the Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings left in a car by Fulfillers or Users. By using or participating in the Services, you agree to accept such risks and agree that Wing is not responsible for the acts or omissions of Users on the or participating in the Services.
- Wing expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
- It is possible for others to obtain information about you that you provide, publish, or post to or through the Services (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on or through the Services. Please carefully select the type of information that you post on or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users or “hackers”).
- Opinions, advice, statements, offers, or other information or content concerning Wing or made available through the Services, but not directly by us, are those of their respective authors and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third-parties, whether on the Services or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Services and to remove any such material that in our sole opinion violates, or is alleged to violate, the law or these Terms, which might be offensive or illegal, or might violate the rights, harm, or threaten the safety of Users or others.
- Location data provided by the Services is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, or incomplete location data may lead to death, personal injury, or property or environmental damage. Neither Wing nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Services. Any of your Information, including geolocational data, that you upload, provide, or post on the Services may be accessible to Wing and certain Users.
- Wing advises you to use the Services with a data plan with unlimited or very high data usage limits, and Wing shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Services.
- This paragraph applies to any version of the Services that you acquire from the Apple App Store. These Terms are entered into between you and Wing. Apple, Inc. ("Apple") is not a party to these Terms and shall have no obligations with respect to the Services. Wing, not Apple, is solely responsible for the Services and the content thereof as set forth hereunder. However, Apple and Apple's subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple shall have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. These Terms incorporate by reference Apple's Licensed Application End User License Agreement, for purposes of which, you are "the end-user." In the event of a conflict between the terms of the Licensed Application End User License Agreement and these Terms, the provisions of these Terms shall control.
- Export Regulations; Government End Users.
You represent and warrant that you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury's Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce's Entity List), the European Union or its member states, or other applicable government authority. You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported, or transmitted, any commodities, software, or technology (“Items”) to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury, or Commerce, the European Union, or any other applicable government authority. If you are a U.S. Government end user, we are licensing the Software to you as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Services are the same as the rights we grant to all others under these Terms.
- Your Information is any information you provide, publish, or post to or through the Services or related services (including any profile information you provide) or send to other Users or Fulfillers (including via in-application feedback, any email feature, or through any Wing-related Facebook, Twitter, or other social media posting) (your "Information"). You consent to us using your Information to create a User account that will allow you to use the Services and participate in the Services.
- These Terms shall be governed by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret these Terms and is not intended to create any other substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.
- If any provision of these Terms is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of these Terms.
- These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you; any attempted transfer or assignment in violation hereof shall be null and void. However, you agree that these Terms and all incorporated policies or agreements may be assigned by Wing, in our sole discretion, by providing notice to you.
- A party's failure to act with respect to a breach by the other party does not constitute a waiver of the party's right to act with respect to subsequent or similar breaches.
- These Terms set forth the entire understanding and agreement between you and Wing with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Services or these Terms, please contact us at:
Irvine, CA 92617
Last updated on the Effective Date.