THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS, WAIVE CLASS ACTIONS, AND WAIVE JURY TRIALS, DISCLAIMERS, AND LIMITATIONS ON LIABILITY (SECTION 15). PLEASE READ THESE TERMS, INCLUDING THOSE SECTIONS, CAREFULLY.
Welcome to Wink. Please read through these Terms that govern your use of our products, website(s), mobile application, and any other services offered by Wink or its affiliated companies. (Collectively, the “Services” or “Wink Services”). The Services include functionality to enable users to make payments to merchants and other parties who are selling goods and/or services (“Merchant” or collectively, “Merchants”) and using Wink to receive payment. If you are a Merchant, please contact email@example.com for more information on Merchant Agreement Terms.
What is Wink
Wink is an omnichannel checkout platform that makes the buying experience safe, secure, and easier than ever with a zero-click, password-less login. You can create an account with a zero-click checkout, which gives you access to Wink’s growing network of retailers.
1. Wink Account.
- You may choose to create an account with Wink (“Wink Account”) when you complete a transaction on a merchant or partner website utilizing the Wink Services, or by creating a shopping account on a merchant or partner website utilizing Wink SSO Commerce. The information you submit in connection with payment as well as any other information saved with the Merchant and passed to us to affect your payment (collectively, “Information”) may be made a part of your Wink Account that can be used for future purchases. Your Wink Account remembers important details like shipping and payment information, so you get a one click, password-less experience that effortlessly moves you through the purchase process.
- In order to communicate with you, you consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which will deliver pre-recorded messages, for the purposes of secondary authentication, receipts, reminders, and other notifications associated with your Wink Account and transactions. You consent to accept and receive communications from us using the email address and phone number you provide. We may also send you transactional text messages and emails for the purpose of verifying your Wink Account or notifying you about transactions you place on Merchant or partner websites. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
- You may opt-out of receiving communications by following the unsubscribe options we provide to you in each form of communication or emailing firstname.lastname@example.org. To unsubscribe from text messages, reply STOP to any text message you receive from us. If you unsubscribe, we may restrict or terminate your access to the Services. You consent that following a request to unsubscribe from text messages, you may receive one final text message from us confirming your request and/or providing an alternative to access your Wink account. You acknowledge that opting out of receiving communications may impact your use of our Services. Depending on your current carrier plan, you may incur charges for text messages or e-mail and agree you will not hold, nor participate in any action which seeks to hold, Wink liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (for example, Apple®, Android™, or Verizon) create no obligation or responsibility on the part of Wink, and that Wink is not responsible for any failure of warranty by any such third party. Wink cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
3. How Wink protects your Privacy
- When you pay using your Wink Account, your payment information is encrypted and stored securely in a token vault used for transactions. Shop easy knowing Merchants do not have access to sensitive payment information.
4. Your Use of the Services
By using the Services, You represent, warrant, and agree to the following:
- The Services are not targeted towards, nor intended for use by, anyone under the age of 18. YOU MUST BE AT LEAST AGE 18 TO ACCESS AND USE THE SERVICES. By using the Services, you represent and warrant that you are at least 18 years of age. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at email@example.com.
- You agree that these Terms form a binding contract between you and Wink. If you are using the Services on behalf of an individual, company, entity, or organization (each, an “Organization”), you represent and warrant that (i) you are an authorized representative of such Organization with the authority to bind such Organization to these Terms, (ii) agree to be bound by these Terms on behalf of such Organization, and (iii) your Organization meets the eligibility requirements for the Services, as set forth in these Terms. Further, you will be solely responsible for ensuring your Organization complies with these Terms.
- You may not provide information that you don’t have the right to use, or another person’s name with the intent to impersonate that person or attempt, in any manner, to obtain the password, account, or other security information from any other user.
- You may not transfer your account to anyone else without our prior written permission.
- You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all applicable laws including export laws.
- You will not share your account with anyone, and you must protect the security of your account details. You are responsible for any activity associated with your account.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services. Wink reserves the right to bar any such activity and to pursue damages from you for such activity as set forth herein.
5. Payment Terms
- Anytime you click “pay” on the Services, you are authorizing us to transfer funds out of your account or to debit them from your payment card (as applicable), and deposit them into the Merchant’s account. If you complete a purchase with recurring payments, you authorize Wink to charge the card you used for the initial purchase for each reoccurrence.
- Whenever you make a purchase, you consent to the creation and use of a unique token in connection with that purchase. This allows us to affect a charge on your credit or debit card, and you agree that we may affect a charge using this token for future transactions when you use the same credit or debit card.
- When storing your payment information into your Wink Account, you agree that the Merchant may charge you in accordance with your agreement with such Merchant for each transaction using the stored payment information. When you complete a transaction using your Wink Account, you agree that Wink may use the Information stored in your Wink Account to initiate the payment process with the Merchant for your transaction and to fulfill the order.
- By submitting your payment request, you represent and warrant that you are authorized to use the payment method and authorize Wink to (1) debit, withdraw or charge your payment method and (2) to initiate any credit, debit or charge to your payment method in order to process any returns, chargebacks, reversals, refunds, corrections or other necessary adjustments. All payment requests are subject to authorization by your card issuer, financial institution or payment network.
- A payment request does not necessarily assure that we will accept your request. We reserve the right to refuse, suspend, or cancel any request in our sole discretion.
- In order for Wink to verify your authority to use a card, you may be required to provide a mobile phone number and enter the One Time Passcode (“OTP”) that we send to that mobile phone number. By providing your phone number, you consent to receive a text and OTP from us as provided above. We may require additional information to complete your order.
- Once we receive a properly completed payment request from you and authorized by your card issuer, payment network or other financial institution, authorization of your form of payment is received and we have accepted your order, we will promptly place your order in line for fulfillment.
- If you make a purchase in a currency other than United States Dollars, you acknowledge and agree to be charged and, if applicable, refunded according to the then-current exchange rate set by your card issuer.
- Additional terms and conditions may apply to your payment request and to specific portions or features of the Services including rules related to your use of your payment method such as Visa, MasterCard, American Express, and Discover payment networks and bank transfers. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. These Terms do not alter the Terms you’ve agreed to with a Merchant, except with respect to the direct relationship between you and Wink.
6. How Wink Prevents Fraud
- In order to use the Services, Wink may need to confirm your identity and screen transactions to prevent fraud when you make a purchase. This helps you and the Merchant prevent fraudulent purchases.
- You consent to the collection and use of information in your Wink Account as well as other verification services used by Wink for the purpose of confirming your identity and validating your payment. Any background information generated or referenced in this matter is not used for the purpose of credit reporting about you. You agree that we may share this information with third parties for the purpose of preventing fraud through use of the Service and to improve and optimize our fraud detection and prevention services.
- You agree to (a) use only accurate Information in connection with the Services at all times; (b) maintain and promptly update your Information with each subsequent purchase; (c) promptly notify Wink if you discover or otherwise suspect any security breaches relating to the Services; and (f) be held solely liable for losses incurred by Wink or any Merchant due to any inaccurate Information you submit through the Services. Wink reserves the right to close, suspend, or limit access to your Wink Account and/or the Services in the event that, in our sole discretion, (a) we are unable to obtain or verify identity or eligibility; (b) the security of your Wink Account has been compromised; or (c) your Wink Account has been used in, or seems to have been used in, a nefarious manner.
- If fraud is suspected, Wink or the applicable Merchant may refuse to process a transaction. If fraud is detected after a transaction is processed, Wink or the applicable Merchant may at any time refuse the transaction and refund the charged amount back to the payment method it was charged to.
- In the event our fraud detection activities result in our, or the applicable Merchant’s, refusal to process a transaction, you will be notified with an email to the address you provided during payment.
7. Your Relationship with Merchants
- You are purchasing goods and/or services from the Merchant and your purchase is governed by any Merchant terms and conditions offered or any contract between you and the Merchant. Wink acts as the Merchant’s agent with respect to your transactions with the Merchant and receives payments from you on their behalf. You must contact the Merchant to resolve any issues you have with respect to the goods and services you ordered or purchased from the Merchant, including any issues relating to shipping and delivery, product warranty, product return, refund, exchange, and the terms of any agreements you entered into with the Merchant in connection with your order or purchase. You acknowledge and agree that Wink is not responsible for any of these issues.
- You also acknowledge and agree that Wink is not in any way responsible for the quality, usability, or any other element of the goods or services you order or purchase from a Merchant. You acknowledge that Wink does not endorse any goods or services offered for sale on Merchant websites linked to the Wink Services. Wink does not warrant the accuracy or reliability of any information or marketing messages contained in Merchant websites linked to the Wink Services.
- If you have dispute rights through your credit card issuer, any disputes filed with your credit card issuer shall be between you and the issuer, and Wink shall not be held liable for such disputes.
- You agree that we can make information about your purchase available to the Merchant through a Merchant dashboard and/or our API in order to fulfill your order, each of which will require the Merchant to pass certain authentication measures. If your Merchant operates through a third party platform, such as Shopify, your purchase information may be shared with that platform through the Merchant.
8. Ownership of Content
- You acknowledge and agree that the Services, including, without limitation, any content, modifications, enhancements and updates, any originals and copies thereof, and all intellectual property rights (collectively, “Proprietary Information”), is owned by Wink and its suppliers, as applicable. The Proprietary Information contains valuable copyrighted and proprietary material of Wink and the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms. You have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
9. Account Termination
10. Changes to the Wink Services
- Wink is always improving the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. Wink reserves the right to change these Terms at any time, and if we determine that changes are material, we will notify you by reasonable means, which may include either posting the change to our Services or any page from which you access the Services. If you use the Wink Services after the date the change takes effect, you consent to the changed Terms. We encourage you to read the Terms before each new purchase or payment transaction through the Wink Services.
- These Terms, along with any applicable Wink policies and other agreements that you have agreed to, sets forth the entire understanding between you and Wink with respect to the Services. It supersedes any prior agreements between you and Wink regarding your use of the Services. All parts of these Terms apply to the maximum extent permitted by law. Unless stated otherwise in these Terms, if any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced
11. Warranty Disclaimer
- Neither Wink nor its affiliates makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our affiliates) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Wink does not guarantee the continuous, uninterrupted, error-free or secure use of any part of the Services. Use of the Services may be interrupted due to events outside Wink’s reasonable control, such as delays in the banking system or credit card networks or data networks. Wink will use commercially reasonable efforts to process payments in a timely manner, but Wink makes no representations or warranties regarding the time it takes to complete any transaction. THE SERVICES AND CONTENT ARE PROVIDED BY WINK AND ITS AFFILIATES ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO YOUR USE OF THE SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WINK DISCLAIMS ANY AND ALL STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, ACCURACY AND NON-INFRINGEMENT.
12. Limitation of Liability
- TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL WINK AND ITS AFFILIATES, THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND SUPPLIERS OF WINK OR ITS AFFILIATES, BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF $100, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
- To the fullest extent allowed by applicable law, You agree to indemnify and hold Wink, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms; (c) your violation of any applicable Law; (d) your violation of any agreement or Terms between you and the Merchant, and (e) your violation of any agreement between you and the card or payment networks such as Visa, MasterCard, American Express, and Discover or bank. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
14. Void Where Prohibited
- Wink administers and operates the Services from its location in San Francisco, California USA. Although the Services is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Services are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Wink reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Services is void where prohibited. If you choose to access the Services from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
15. Arbitration Agreement
- Agreement to Arbitrate.
Any dispute arising from or relating to the Services and these Terms shall be solely and exclusively resolved through a final and binding arbitration, as set forth in this Section 15 (“Arbitration Terms”), rather than in court. These Arbitration Terms and any dispute or arbitration hereunder will be governed by the Federal Arbitration Act and the laws of the State of Texas, without regard to principles of conflict of law, including any applicable statutes of limitations. 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.
- Prohibition of Class and Representative Actions and Non-Individualized Relief.
YOU AND WINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WINK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAMS). ANY RELIEF AWARDED CANNOT AFFECT OTHER WINK USERS.
- Arbitration Procedures.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, discovery is more limited, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual, including monetary damages, and injunctive or declaratory relief. An arbitrator also must follow these Terms as a court would.
- The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by these Arbitration Terms. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website at http://www.adr.org.
- The arbitration shall be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. Attendance at an in-person hearing may be made by telephone by you and/or Wink, unless the arbitrator requires otherwise. If the value of the relief sought is $10,000 or less, either you or Wink may elect to have the arbitration conducted based solely on written submissions pursuant to the AAA’s Procedures for the Resolution of Disputes through Document Submission, which election shall be binding on you and Wink subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant.
- Costs of Arbitration.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in these Arbitration Terms. If the value of the relief you are seeking is $15,000 or less, Wink will pay or reimburse your filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Wink should be submitted by mail to the AAA along with your Demand for Arbitration and Wink will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Wink for all fees associated with the arbitration that Wink paid on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
- 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision within 30 days after first accepting these Arbitration Terms to: firstname.lastname@example.org. Your notice must include your full name, the email address you used to set up your Wink account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Jury Waiver.
IF FOR ANY REASON A DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE RELATIONSHIP BETWEEN YOU AND WINK PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND WINK EACH WAIVE ANY RIGHT TO A JURY TRIAL TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.
- Severability and Survival.
If any part or parts of these Arbitration Terms are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed, and the remainder of the Arbitration Agreement will continue in full force and effect. These Arbitration Terms will survive the termination of your relationship with Wink.
- Future Changes to these Arbitration Terms.
Notwithstanding any provision in these Terms to the contrary, you and Wink agree that if we make any change to these Arbitration Terms (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Wink prior to the effective date of the change.
16. Additional Terms
- Governing Law.
These Terms are governed by and will be construed under the laws of the State of Texas, without regard to the conflicts of laws provisions thereof.
- Severability. If any provision of these Terms is to any extent invalid, illegal, or incapable of being enforced, such provision shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other provisions hereof shall remain in full force and effect.
- Force Majeure.
Wink will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Wink’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action, in so far as such an event prevents or delays Wink in fulfilling its obligations hereunder.
If you provide any feedback to Wink concerning the functionality and performance of the Services (including identifying potential errors and improvements), you hereby assign to Wink all right, title, and interest in and to such feedback, and Wink is free to use such feedback without payment or restriction.
You may not transfer or assign any rights or obligations you have under these Terms without Wink’s prior written consent. Wink reserves the right to transfer or assign these Terms or any right or obligation under these Terms at any time without consent.
- Notice to California Residents.
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Services is Wink Financial, Inc. To file a complaint regarding the Services or to receive further information regarding use of the Services, send a letter to the address below or contact Wink via email at email@example.com (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Boulevard, Suite N 112, Sacramento CA 95834 or by telephone at (800) 952-5210.
- Contact Us.
You may contact us with any comments, questions or suggestions you might have regarding these Terms or the Services. You may contact us at:
Payfave Inc. dba Wink
1400 Preston Road, Suite 400
Plano, TX 75093