Terms of Service 

Last updated on 21 September 2018

SUBJECT MATTER

(1) These Terms of Service (“ToS”) regulate the business relationship between Wind Mobility Inc. (“we”, “us”, “our”, “Wind”) and natural persons who want to use our eScooters (“You”, “Your”). 

(2) These ToS and the Price List displayed in our App shall apply to the contractual relationship which is created when You register a Wind user account, to each purchase of a Rental Pass, to each Subscription and to each Individual Vehicle Rental during Your Wind membership (“Individual Rental Contract”). By accepting these ToS You agree to be bound by its terms and the Price List (“Price List”) as amended from time to time. 

1. DEFINITIONS

Terms in capitals used in these ToS shall have the following meanings: 

Wind Account means a personal account provided to You by Wind after successful registration.

Wind App means the software application developed by or lawfully licensed to Wind which operates on Android and iOS operational systems enabling rental and return of Vehicles. 

Wind Website means the official website of Wind, accessible under www.wind.co.

eScooter means the electric scooter made available by Wind for rent that is equipped with or consists of a board, a handle, a front and rear light, brakes, tires and a GPS device.

eScooter Rental means the rental of an eScooter via the Wind App. 

Force Majeure Event means the occurrence of any event or circumstance beyond the control of Wind. Force Majeure Events include (i) natural disasters, explosions, fires, floods, earthquakes, epidemics, catastrophic weather conditions, atmospheric disasters or other elements of nature, (ii) acts of war (declared or undeclared), acts of terrorism, insurrection, riots, rebellion, sabotage, (iii) exceptional traffic and road situations and (iv) strikes, lock-outs, and civil unrest.

Individual Rental Contract means the contract that is concluded between You and Wind for each Individual Vehicle Rental.

Individual Vehicle Rental means each individual rental of an eScooter beginning with the confirmation of the booking in accordance with section 4.1 paragraph (1) of these ToS.


Other Driver means any person using a Vehicle You rented on Your account with Your authorization.

Operating Area means the Area within the boundaries of which the Vehicles can generally be rented and returned. The Operating Area can be viewed, in its current form, on the Wind Website and in the Wind App. 

Rental Pass means the different rental passes that may be available for purchase within the App, including a certain number of time limited vehicle rentals per day within a certain time period (e.g. one day pass or one-month pass).

Rental Time means the period of time between the confirmation of the booking in accordance with section 4.1 paragraph (1) of these ToS and the end of the Individual Vehicle Rental in accordance with section 5 of these ToS.

Services means the rental of Vehicles together with the provision of the Wind App, as available in Your country of residence.

Subscription means the continuous subscription of a Rental Pass (e.g. monthly or annual pass subscription). 

ToS means these terms of service including, including all documents incorporated by reference, including the Price List.  

Vehicle(s) means eScooters made available by Wind. 

2. SERVICES

2.1 Subject to the terms of these ToS and the Price List, as amended from time to time (see section 10 of these ToS), Wind offers You the possibility to rent and use Vehicles on a pay per ride basis and, as the case may be, under a one-day or one-month rental pass or under a subscription as indicated in the Wind App and Price List, subject to availability. The categories and location of available Vehicles at Your place of residence will be displayed on the map screen in the Wind App. Vehicles are and shall remain the exclusive property of Wind at all times. 

2.2  eScooters are currently only offered at certain locations in the following states: California, Texas, Florida and Louisiana. We may expand the locations from time to time.

3. WINDAPP AND WEBSITE; ACCOUNT

You can rent the Vehicles via the Wind App which can be downloaded from online application stores or the Wind Website. Solely Wind and its licensors are entitled to all the intellectual property rights in or to the Wind App. 

3.1 REGISTRATION

(1) Before You can start using our Services and renting Vehicles, You must download the Wind App and register a user account. When registering, You must provide Your phone number to Wind. Alternatively, You can also create an account by using Your Facebook account. In order to register, You must be 18 years of age or older. After successful registration, Wind will provide You with Your personal Wind Account. 

(2) Registration for the Services is free.

(3) You agree to provide accurate and complete information during Your registration and to maintain it updated.

(4) You are obliged to inform Wind immediately of any changes to Your personal information, in particular regarding Your billing information.

(5) Your Wind Account will be assigned uniquely to You, and You may neither transfer or otherwise make available Your Wind Account to others, nor use anyone else’s Wind Account at any time. You are responsible for maintaining the confidentiality of Your Wind Account information (including usernames, passwords, and billing information). Wind is not liable for any loss that You may incur as a result of someone else using Your account, except if such use was caused willfully or negligently by Wind. You are liable for any losses or damages incurred by Wind or any third party as a result of someone else using Your account, provided that such use was willfully or negligently caused by You. If You become aware of any event of theft, unauthorized use, or any other breach of security on Your account, You must notify Wind immediately under the contact details as provided at the end of these ToS.

3.2 NETWORK ACCESS AND DEVICE

(1) You are responsible for Your device´s network connections required to use the Services and for any access or data fees incurred from third parties (such as Your Internet provider or mobile carrier) in connection with Your use of Our Services. Your mobile network's data and messaging rates and fees may be applied if You access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary for the access and use of the Services and any updates thereto. 

(2)  You do hereby acknowledge and agree that your use of the website is at your sole risk. To the fullest extent permitted by law, Wind and its related parties disclaim all express and implied warranties, including warranties of merchantability, fitness for a particular purpose, title, compatibility, security, accuracy, noninfringement, and usefulness, with respect to any service, the website, any website content, or any information contained on the website (collectively, "works"). The works are provided "as is" and "as available." You rely on the works solely at your own risk. We do not represent or warrant that any works will be uninterrupted or error-free. There could be delays, omissions, interruptions, or inaccuracies in the information or other materials that are available on or through the works. You assume full responsibility and risk of loss, including loss of data, resulting from your downloading or use of the works. Although we may take reasonable steps to prevent the introduction of viruses and other destructive materials to or through the works, we do not guarantee, represent, or warrant that the works or materials that may be downloaded from the works are free of such destructive features. We are not liable for any damages or harm attributable to any of the foregoing.


3.3 NOTIFICATIONS 

By creating a Wind Account, You agree that Wind may send You informational text messages (SMS), emails, as well as push notifications as part of the normal business operation of Your use of the Services. We only send You promotional messages, if You have expressly authorized it.


4. INDIVIDUAL VEHICLE RENTAL AND USE

4.1 VEHICLE RENTAL PERIOD

(1) The Individual Vehicle Rental will commence once You indicate Your wish to rent a Vehicle through the Wind App and Wind has confirmed the rental by activating the electric power of the eScooter. 

(2) The Individual Vehicle Rental will end once a Vehicle is returned in accordance with section 5 of these ToS or if Wind terminates the Individual Vehicle Rental in accordance with these ToS. 

(3) During the Rental Time You are responsible for the Vehicle. Therefore, any incident/damage occurred to the Vehicle during the Rental Time may be directly imputed to You, subject to section 8.1 of these ToS.

(4) You may not leave a Vehicle unattended at any time during the Rental Time and You must park the Vehicle at where is permitted by applicable regulations.

(5) Generally You may only rent one Vehicle at a time on Your Wind Account and we do not recommend you to leave the Vehicle you rented to Other Driver. If You leave the Vehicle you rented to Other Driver, You are responsible to inform such Other Driver about all obligations arising from these ToS as well as for their compliance with them. While Other Driver use the Vehicle, You are responsible for the culpability, whether foreseeable or unforeseeable, in the use of the Vehicle attributable to such Other Driver. 

4.2 AVAILABILITY; MAINTENANCE

(1) Rental of the Vehicles is subject to availability on a first-come, first-serve basis, and although Wind makes an effort to meet the demand for the Vehicles by customers, Wind cannot guarantee that supply will be adequate to provide a Vehicle to every customer at any time.

(2) Wind is responsible for the daily operation maintenance and repair of the Vehicles. However, this shall not mean that Wind guarantees that all Vehicles available are in a trouble-free condition at any time.

4.3 CONDITIONS OF USE

(1) As a precedent condition for each Individual Vehicle Rental You acknowledge and agree that: 

(2) You further acknowledge and agree that:

4.4 DUTIES IN CASE OF AN ACCIDENT

You are obliged to notify Wind under the contact details provided at the end of these ToS as well as the local police without on the day of the incident, unless any provable injuries preclude You from doing so, in the event: (i) an accident occurs during Your rental of the Vehicle involving not only You but also third-parties and/or their property, or (ii) if a Vehicle is stolen during Rental Time. Failure to do so shall result in You being liable for damages incurred by Wind resulting from violation of the foregoing obligation;

4.5 INSPECTION OF THE VEHICLES 

Before and during each use of a Vehicle, You shall familiarize Yourself with the following: 

4.6 RESTRICTED USES

The Vehicles may not be used under the following conditions:

5. END OF THE INDIVIDUAL VEHICLE RENTAL AND RETURN OF THE VEHICLE

5.1 You must return the Vehicle in the same condition as when received.

5.2 In case of an eScooter Rental, the Individual Vehicle Rental ends (i) when the eScooter is properly parked and locked at any legal, freely accessible parking location within the boundaries of the Operating Area, (ii) You have indicated the end of the Individual Vehicle Rental via the Wind App and (iii) Wind confirms the return of the eScooter via the Wind App. You may return a Vehicle outside the Operating Area in accordance with the aforementioned provisions subject to additional fees as set out in the current Price List. Upon Return of a Vehicle, You can view the completed rental process including the total Rental Time and total fees in the Wind App.

5.3 If the return of a Vehicle fails, for example due to low battery of Your device or missing internet connection, You must, within twenty-four (24) hours, notify the Wind customer service as soon as possible via the Wind App or via the contact details provided at the end of these ToS. In such a case Wind will manually end the Individual Vehicle Rental.  In addition, Wind reserves the right to end Individual Vehicle Rentals if You do not use a Vehicle within a period of 24 hours after commencement of the Individual Vehicle Rental.

5.4 You must be able to provide information in regards to the exact location of a returned Vehicle upon request by Wind for a period of 48 hours following the return of a Vehicle. 

5.5 You are obliged to follow road traffic regulations and specific conditions of the Operating Area when parking. You must make sure that the Vehicle does not hinder other road or sidewalk users or other third parties. In particular, You must not park the Vehicle at trees, traffic signs, traffic lights, parking meters, parking ticket machines, fences to property of third parties, benches, containers, litter bins, in front of or near emergency exits and fire department service zones, in front of driveways and exits, lowered curbstones, on access paths to public transportation, orientation aids for the blind, pedestrian crossings, in buildings, backyards, vehicles, parks and green spaces or where the Vehicle covers advertisements, urban furniture when the destination or functionality of the covered item is impaired or when the Vehicle damages or deteriorates the item´s condition, in the areas reserved for loading and unloading, in places reserved for other users or services and, in general, in any other places forbidden by local regulations of the city in which You are driving the Vehicle.

5.6 You are responsible for checking that there are no temporary prohibitions (for works, markets, parties, tree pruning, filming, etc.) in a parking area. You may not end the Individual Vehicle Rental by parking a Vehicle in areas with daily or time parking restrictions, if the restriction starts in less than 24h after the vehicle has been parked. For example, if the parking ban starts on Tuesday at 09.00 am, You are not allowed to park the Vehicle in the restricted area after 09.00 am of the previous Monday.

5.7 If You park the Vehicle in breach of the aforementioned provisions, additional charges may apply in accordance with the current Price List. In case the Vehicle has been parked in breach of the provision as set out in section 5.2 above, the Rental Time also continues to run, subject to charges, until the respective Vehicle is returned in accordance with such provisions, but no longer than 48 hours after the Vehicle has been parked in breach of such provisions. The respective fees will not be charged to the extent that You prove not to be responsible for the damages incurred to Wind, that no damage occurred or that the actual damage incurred is significantly lower than the fees imposed on You.  

 

6. PAYMENT AND BILLING

6.1 Wind will charge You on the basis of the prices applicable at the time of booking. The current Price List is available on the Wind Website and in the Wind App. WIND is entitled to amend the Price List at any time for future bookings in accordance with section 10 of these ToS.

6.2 If a Vehicle is returned outside the Operating Area as defined on the Wind Website and in the  Wind App additional fees are due according to the current Price List. 

6.3 Different rates may apply to different categories of eScooters as indicated in the Wind App or Wind Website. 

6.4 Payments for an Individual Vehicle Rental are payable at the end of the Individual Vehicle Rental. Payments for a Rental Pass shall be payable at the time of booking. Payments for Subscriptions (Monthly or Yearly) shall be payable at the beginning of each subscription term. 

6.5 After Registration, Wind sets up a credit account (“Credit Account”) for You, which You may charge with money at any time in order to pay any fees incurred. Besides You can choose between different payment methods as Your preferred payment method (“Preferred Payment Method”). You have the option to pay the amounts due by means of credit card (Visa, Mastercard or American Express) or with PayPal. For payment by Credit Card Winduses the Stripe Sdk and for payments with PayPal, Wind uses the PayPal Sdk (for more information see section 9 of these ToS). If You choose to pay with PayPal You will be asked to log in to Your PayPal account with Your email address and password to confirm the payment. You may change Your Preferred Payment Method at any time. 

6.6 If and to the extent You have a credit balance (“Credit Balance”) on Your Credit Account, Your Credit Account will be used first for any payments due and Your Preferred Payment Method will be used for any remaining amounts due. Wind may from time to time and at its own discretion provide You with bonus amounts (“Bonus Amounts”). Bonus Amounts are kept by WIND on a separate account (“Bonus Account”) within the Wind App. You can view the total balance of Your Credit and/or Bonus Account at any time in the Wind App. If and to the extent You have a balance on Your Bonus Account, WIND will use first and foremost such balance. If there is no credit on the Bonus Account or if the Services cannot be offset with the Bonus Account, BKYE debits the (remaining) charges from the Credit Account and/or Your Preferred Payment Method. 

6.7 You are not able to transfer Your Bonus Amount or Credit Balance to other users of the Wind App or any other third party.

6.8 There is no expiration date for Your Credit Balance during the term of service. In the event of termination, any Credit Amounts existing at the end date of the term of service shall upon Your request be transferred to a designated bank account as set out in section 7.1 paragraph (5) of these ToS.  Remaining Bonus Amounts existing at this date shall expire automatically and will neither be returned to You nor can such amounts be used to reduce any amounts owed by You to Wind. 

6.9 Any charges applicable for Wind´s Services are inclusive of applicable taxes required by law.

6.10 Should it be impossible to process a payment due to reasons for which You are responsible, Wind will charge You with expenses that may be incurred due to such default in accordance with the Price List, unless You can prove that no expenses incurred at all or the actual expenses incurred were lower than indicated.  Wind will also charge reminder fees to You, as defined in the Price List. In addition, if You are in default of payment, the outstanding amount shall bear interest at the rate of five percent (5%) over the then current basic rate of interest. 

6.11 If the payment is delayed, Wind is upon a warning authorized to discontinue the Service until You meet Your payment obligations.

6.12 Wind will debit any charges due automatically via Your Preferred Payment Method without the requirement of prior payment request. Objections to the charges must be submitted in writing to Wind within 14 days of receipt of the invoice.


7. TERM AND TERMINATION; SUSPENSION OF THE SERVICES

7.1 TERM AND TERMINATION 

(1) Services hereunder shall continue for an indefinite period of time if not terminated according to this section 7.

(2) Services can be terminated by Wind with a notice period of 3 days by sending You a termination notice via the Wind App, by email or text message (SMS). 

(3) You may terminate your services at any time by sending us a notification in text form (e.g. email). 

(4) A termination of Services is not possible during an Individual Vehicle Rental. If a minimum term has been agreed under a Subscription, the Services hereunder may only be terminated as to the end of the agreed minimum term. 

(5) After termination of any applicable term, Wind will collect any outstanding amounts within 14 working days and refund any remaining balance of Your Credit Account within another 14 working days after You have submitted to the Wind customer support (see section 17 of these ToS) a U.S. bank account. 

7.2 TERM AND TERMINATION OF SUBSCRIPTIONS AND INDIVIDUAL RENTAL CONTRACTS

(1) The Subscriptions have an indefinite contract term.

(2) The monthly pass Subscription can be cancelled by You at any time prior to the end of a contract month and by Wind with a notice period of 3 days to the end of a contract month. If a Subscription for example starts on the 13th of a month, it can be cancelled with effect to the 12th of each following month. If neither party cancels the Subscription, it is automatically extended for an additional month. 

(2) The annual pass Subscription can be cancelled by You at any time prior to the end of a contract year and by Wind with a notice period of 3 days to the end of a contract year. If the Subscription begins for example on April 13 of a year, it can be cancelled with effect to April 12 of each following year. If neither party cancels the Subscription, it is automatically extended for an additional year. 

(3) Notice of termination from WIND must be given in text form (e.g. by email, SMS or by App notification). You may cancel a Subscription directly in the App under the menu item "My tariff" or by sending us a termination notice in text form (e.g. via email).

(4) You can terminate an Individual Rental Contract at any time by returning the Vehicle in accordance with section 5.2 of these ToS.


8. LIABILITY AND LIMITATION OF LIABILITY 

8.1 YOUR LIABILITY 

(1) You use the Services at Your own risk. If You cause damages to a Vehicle or a Vehicle is stolen during Rental Time resulting from your negligence or willful conduct, You are liable for losses Wind suffers arising from such damages or theft. 

(2) If due to a breach of these ToS, in particular with section 5 of these ToS, a Vehicle has to be relocated by public authorities or by Wind, and Wind is subject to a fine and/or other costs, such as relocation costs, such fine and/or costs will be passed on to You. In addition, Wind will charge a service fee according to the current Price List.   

(3) You agree to defend, indemnify, and hold Wind its officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses arising out of or in any way connected with (i) Your willful or negligent violation of these ToS, (ii) Your willful or negligent violation of third party rights, or (iii) Your leaving of Vehicles to Other Drivers.

8.2 WIND’S LIABILITY 

You do hereby acknowledge and agree that Wind and its related parties are not liable for any injury, liability, claim, loss, damage, expense, cost (including attorneys fees incurred at trial, on appeal, or otherwise), debt, fine, charge, or lien, whether direct or indirect, including consequential, exemplary, incidental, special, punitive, lost profits, or otherwise, that arises out of or relates to (a) this agreement, (b) your use or inability to use the service, (c) your use of any information, (d) any unauthorized access or alteration of your transmission or data, or (e) any action or inaction of any other user. You do hereby waive any and all claims with respect to the foregoing, whether based in contract, tort (including negligence), statutory, or other grounds, even if we have been advised of the possibility of such damages. Our total liability for any and all contract, tort (including negligence), statutory, or other claims arising out of or relating to: (i) this Agreement, (ii) your use or inability to use the Service, (iii) your use of any information, (iv) any unauthorized access or alteration of your transmission or data, or (v) any action or inaction of any other user is limited to the sum of $100. Some jurisdictions do not allow for limited liability or exclusion of implied warranties; and, if any of those laws apply to you, then some or all of the above disclaimers, exclusions, or limitations might not apply to you, and you might have additional rights.

9. DATA PRIVACY 

9.1 Wind collects, processes and uses personal data which You provide during registration and use of the Services, such as Your mobile phone number, email address and bank details as well as personal data related to Your usage of the Vehicles, such as the start location and destination, start time and the duration of use, insofar as required for performance of the Services and in compliance with the provisions as set forth in the applicable privacy protection laws in the United States, as well as the European General Data Protection Regulation (“GDPR”, applicable when you are a EU resident).

9.2 Wind uses Google Maps API applications to determine the current location of a Vehicle and display the nearest available Vehicle. Google Maps is provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). The Google Maps API is essential for the functionality and availability of the Services. Google Maps API applications record the destination, departure and arrival times and duration of use of Vehicles. When using Google Maps, information about Your use of the Wind App or Wind Website is transmitted and stored on servers belonging to Google in the USA. The transfer of all locational data to Google occurs anonymously.

9.3 Wind engages payment service providers for the processing of Your payments. For payments by credit card Wind uses the payment service provider Stripe Inc., located at 185 Berry Street, Suite 550 San Francisco, CA 94107, USA (“Stripe”). Thus, if You choose payment by credit card as Your Preferred Payment Method, the credit card details You enter will be transmitted to Stripe. Stripe may only use these details in order to process credit card transactions that You have initiated. Stripe's privacy policy can be found here: https://stripe.com/de/privacy. For payments by PayPal, we use the payment service provider PayPal (United States) (“PayPal”). You can find PayPal's privacy policy here: https://www.paypal.com/us/webapps/mpp/ua/privacy-full. The data are transmitted to WIND´s service providers on the basis of Art. 6 para. 1 lit. b of the GDPR. 

9.4 As for Stripe and Google, the data are transferred to a country outside the European Union. Such transmissions are allowed under the EU commission’s decision about the adoption of the EU-US data protection framework “Privacy Shield” (https://www.privacyshield.gov/welcome). Stripe and Google are certified under this EU-US Privacy Shield Framework.

9.5 For further information regarding the use, administration and processing of Your personal data please read our Privacy Policy.


10. MODIFICATIONS TO THESE TOS AND THE PRICE LIST

10.1 Wind expressly reserves the right to amend these ToS and the Price List pursuant to the following provisions.

10.2 Wind is entitled to amend these ToS and the Price List  at any time without giving reasons for future Individual Vehicle Rentals or Rental Passes. Wind will notify You of any such changes at least
3 days prior to such changes via the App. Individual Vehicle Rentals included in Rental Passes or active Subscriptions that (i.e. the Rental Passes or Subscriptions) were purchased before the notification on amendments shall not be affected during the current contract/subscription period. 

10.3 In case of monthly Subscriptions, Wind is entitled to change these ToS and the Price List without giving reasons with effect to the next contract month. Wind will notify You of any such changes at least 3 days prior to the end of the current contract month. Any communicated amendments are considered approved if You do not object to them in text form (e.g. email) within 1 week upon notification. In case You object to the amendments, the Subscription shall be automatically terminated. Wind will specifically point the aforementioned consequences out in Wind’s notification of amendments.

10.4 In case of annual Subscriptions, Wind is entitled to change these ToS and the Price List without giving reasons with effect to the next contract year. Wind will notify You of any such changes at least 3 days prior to the end of the current contract year. Any communicated amendments are considered approved if You do not object to them in text form (e.g. email) within one week upon notification. In case You object to the amendments, the Subscription shall be automatically terminated. Wind will specifically point the aforementioned consequences out in Wind’s notification of amendments. Wind is only entitled to adjust or change these ToS with effect to the current contract year, if required due to a change of significant technical, commercial or legal framework conditions. Any communicated amendments with effect to the current contract year shall take effect and are considered approved if You do not object to them in text form (e.g. email) within one week upon notification. Wind will specifically point the aforementioned consequences out in Wind’s notification of the amendments. In case mandatory changes are required by applicable law, court orders or orders by public authorities the above notification period might have to be shorter, depending on the respective law, court order or public order. If You object to the amendments, You should terminate to use our Service. Wind is in this case however entitled to terminate the contractual relationship and the respective Subscription with a notice period of 3 days following Your objection. 

10.5 Wind will notify You of any changes pursuant to section 10.2 to 10.4 by email, SMS or notification within the Wind App and by publication of the new ToS and prices on the Wind Website and in the Wind App. 

10.6 Notwithstanding sections 10.1 to 10.5, any alterations or amendments to these ToS and/or the Price List agreed between You and Wind are only valid and binding if agreed in text form. This shall also apply to this text form requirement itself. 


11. THIRD PARTY INTERACTIONS 

The Website may contain, or You may be sent through the Website, links to other websites and ads ("Third Party Websites"), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third Party Applications, Software, or Content"). Such Third-Party Websites and Third-Party Applications, Software, or Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by Wind. We are not responsible for any Third-Party Websites accessed through the Website or for any Third Party Applications, Software, or Content posted on, available through, or installed from the Website, including any content, opinions, privacy practices, or other policies contained in any Third Party Websites or Third Party Applications, Software, or Content. The inclusion of, linking to, or installation of any Third-Party Websites or any Third-Party Applications, Software, or Content does not imply any approval or endorsement thereof by Us. If You decide to leave the Website and access the Third-Party Websites or to use or install any Third Party Applications, Software, or Content, then You do so at Your sole risk and cost. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites to which You navigate from the Website or include with any application You use or install from the Third Party Websites.


12. APPLICABLE LAW

This Agreement and all matters relating to your access to, or use of, the Service shall be governed by U.S. federal law or the laws of the State of California, excluding that body of laws known as conflicts of laws. If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted, and the remaining provisions will continue in full force and effect. Any notices related to this agreement need to be given in writing to one another at our address below, or any new address that is given in such a notice. This agreement is the entire understanding between you and the company about the services. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.

13. ASSIGNMENT

13.1 Wind is entitled to assign its rights and obligations as specified in these ToS to a third party at any time without Your consent. Wind is however obliged to notify You in text form of a transfer in due time prior to any such transfer. Upon notification of a transfer, You are entitled to the same termination rights as set forth herein. Wind will point out this right again in the notification. 

13.2 You are under no circumstances entitled to transfer or assign rights from the Master Agreement to third parties without the prior written consent of Wind.

14. NO WAIVER

Wind’s failure to insist upon or enforce strict performance of any provision of these ToS shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any part of these ToS. No waiver by Wind shall be construed as a waiver of any proceeding or succeeding breach of any provision in these ToS. 

15. SEVERABILITY

If any provision of these ToS or in the current Price List is held by a court of competent jurisdiction to be invalid or void, the remaining provisions of these ToS shall remain in full force and effect. 

16. NOTE ON DISPUTE RESOLUTION 

If a dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in Los Angeles, California, conducted on a confidential basis under the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of arbitration will include the assessment of costs, expenses and reasonable attorney’s fees and a written determination of the arbitrators.  Absent an agreement to the contrary, arbitration will be conducted by an arbitrator experienced or familiar with the Promotions industry.  An award of arbitration is final and binding on the parties and may be confirmed in a court of competent jurisdiction.  The prevailing party has the right to collect from the other party its reasonable costs and attorney's fees incurred in enforcing this Agreement.

You agree that, by entering into this Agreement, you and the company are waiving the right to a trial by jury. You and the company agree that YOU AND THE COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, and not as a plaintiff or class member in any purported class or representative proceeding. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

17.  CUSTOMER SUPPORT 

If You encounter any problem using our Service, You can report it in the Wind App by clicking on the “Custom Service” button. Wind encourages You to submit Your comments. Besides, You can contact us by email for any legal related issues at: legal@wind.co