Mobile Application End User License Agreement
This Mobile Application End User License Agreement (“Agreement“) is a binding agreement between you (“End User” or “you“) and WinIt LLC (“Company“). This Agreement governs your use of the mobile application and related services provided by the Company (including all related documentation, the “Application“). The Application is licensed, not sold, to you.
BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
- License Grant. Subject to the terms of this Agreement, Company grants you a limited, non- download, install and use the Application for your personal, non-commercial use on a single iPhone or iPod Touch owned or otherwise controlled by you (“Mobile Device“) strictly in accordance with the Application’s documentation.
- License Restrictions. Licensee shall not:
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application; or
- use the Application in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments.
- This Application is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to local law or regulation.
- Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
- the Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials“). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions. You understand that by using any of the Contents and Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Contents and Services at your sole risk and that the Company shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. Moreover, The Company does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Company is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
- Local Laws. Third Party Services and Third Party Materials that may be accessed from, displayed on or linked to from the iPhone or iPod touch are not available in all languages or in all countries. The Company makes no representation that such Contents and Services are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Company, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the Company be liable for the removal of or disabling of access to any such Services. The Company may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
- Term and Termination.
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
- The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 0.
- you may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device. Notwithstanding the foregoing, you will still be bound by the terms and conditions set forth herein in the event that you have a pending parking ticket that you previously submitted that has not be adjudicated or resolved at the time.
- Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- Upon termination:
- Termination will not limit any of Company’s rights or remedies at law or in equity.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Parking Ticket Advocates. This Application provides a service made available by the Company, its partners, affiliates or subsidiaries all of which are considered for purposes of this EULA part of the Company. This Application is designed to help users challenge their parking violation tickets before the New York City (“NYC”) Parking Violations Bureau (“PVB”). The Company is not a law firm, we are not attorneys and we do not dispense legal advice nor should you consider it as such.
- Representation. By using this Application, you authorize us and/or our affiliates, agents, or to represent you at the NYC Parking Violations Bureau on all matters concerning the plate number registered with the Application.
- Standstill Provision. Once a parking ticket is submitted through this Application, you hereby expressly, unconditionally and irrevocably agree not to take any course of action that will directly or indirectly disrupt, intervene, or circumvent the Company’s efforts on your behalf. Towards that end, you agree not to pay any fines related to any parking tickets submitted to us unless and until the Company communicates with you the decision rendered by the NYC PVB with respect to your parking violation. Any violation of this provision shall subject you to a cancellation fee of $5, at Company’s sole discretion.
- Contingency Compensation. In the event that the Company is successful in having the PVB dismiss your ticket or reduce the amount of the fines, you hereby expressly authorize the Company to charge the credit card you have on file with the Company an amount equal to fifty percent (50%) of: (a) the face value of the fine plus any late payment penalties and/or interest already incurred at the time your ticket was submitted to the Company or (b) the difference between the amount You owed on the ticket prior to our involvement and any reduction in fines procured by the Company.
- Payment of Tickets.
- Guilty Pleas. In the event that we are unable to dispute your ticket for any reason or if you elect to plead guilty on a particular parking ticket, you will be given the option to pay the ticket through the App using our “Pay Now” function whereupon we will pay the city directly and a processing fee will be charged to your account.
- Cancellation Policy. Once a ticket is submitted through the Application, you will not be able to cancel or reverse your request. If you submit a ticket in error, please notify our customer support within 6 hours of submission. If you fail to notify us within this window of time, it will be assumed that there was no error in the submission. Once payment of the parking ticket has been processed on your behalf, your credit card will be charged for the amount of the underlying ticket as well as any applicable late fees and/or surcharges as well as our processing fee. Once payment has been cleared we will then pay the city directly on your behalf. Please note, that we do not under any circumstance send email confirmations of payments to the city.
- Failed Payment Fee. In the event that the Company is unable to process a payment fee or payment is stopped, the Company shall charge you a five dollar ($5.00) service fee per failed attempt. If we are unable to process payment, you will be responsible to pay for your ticket directly and our involvement will cease.
- Referral Program. From time to time, the Company intends to distribute promotional “WinIt Codes” and/or “WinIt Links” (collectively, “WinIt Codes”) to its active users. A “WinIt Code” is a unique alphanumeric code for you to distribute to friends, family and other third parties who (i) have never downloaded or otherwise used the Application before; and (ii) are at least 18 years old (“Eligible Referred User”). Provided that the Eligible Referred User has entered the WinIt Code you sent it upon the creation of its new WinIt account on the Application, then, subject to the terms herein, once the Eligible Referred User processes its first Valid Ticket (as defined below), you’ll receive $5 of Winit Credit (as defined below). “Valid Ticket” shall mean a parking violation ticket issued in New York City, which has not been previously challenged in any way. For the avoidance of any doubt, any ticket for which a hearing has been requested and/or scheduled or a default judgment has been entered in connection therewith shall not be deemed a Valid Ticket. “Winit Credit” shall mean a credit in the amount determined by the Company in its sole discretion (currently $5) to be deducted from future payments owed by you to the Company on the account of future services provided to you through the Application (whether for a successful dismissal or reduction of the amount of your own Valid Ticket, or for the processing fee charged if you elect to pay the ticket through the Application using our “Pay Now” function). The Program is subject to additional terms and conditions, as follows:
a.WinIt Credit are subject to expiration and must be used within the amount of time stated by the Company from time to time, but in no event later than six (6) months from the date the Eligible Referred User entered the WinIt Code.
b.You may not sell, trade, or barter WinIt Credit under any circumstances.
c,WinIt Credit is only redeemable for use on the Application subject to the terms of the Program and is not transferable or redeemable for cash.
d.You can earn only up to $500 (but no more) in WinIt Credit by referring Eligible Referred Users through the Program, all in accordance with and subject to the terms herein. The Company maintains the right, in its sole discretion, to cancel or revoke your WinIt Credit or prohibits your participation in the Program in the future, at any time for any reason it finds appropriate.
e.You must comply with all applicable laws and regulations (including anti-spam laws) in connection with your use of the Application and participation in the Program. Without derogating from the generality of the foregoing, you are prohibited from advertising WinIt Codes in connection with this Program for the purpose of soliciting potential users.
f.The terms and conditions of the Program including the amount and expiration date of a WinIt Credit are all subject to changes at the Company’s sole discretion. The Company reserves the right to modify this Agreement at any time, effective upon sending you a notice by Email in accordance with Section 20 below.
If you do not agree to any of the terms of the Program (stipulated herein, or as amended, from time to time), you may not participate in the Program.
- Communication Policy. The exclusive method by which we will communicate is via electronic mail (“Email”). By using the Application, you consent to communicate with us exclusively by email. Accordingly, you are responsible to maintain your email mailbox and agree to check your mailbox frequently. We assume no responsibility for a missed communication or any consequence caused by such missed communication.
- Late Fees. NYC imposes certain deadlines within which to plead and/or respond to parking violations. The deadlines are stated on the actual ticket. If you fail to submit the tickets to the Company 7 business days prior to the stated deadline, you shall be responsible for any potential late fees incurred as a result.
- Proprietary Processes. The Company and its affiliates represent a considerable amount of cases before the PVB at any given time, which makes responding to individual requests regarding the specifics of any one case prohibitive. Accordingly, the Company will not respond to individual inquiries regarding the details or specifics regarding any particular ticket, hearings or decisions related thereto.
- Enforceability. You acknowledge that by using the Company’s services and the Application, it imposes on you the obligation to pay the Company, pursuant to the terms of this EULA, a contingency fee. In the event that you fail to pay the Company, you will have established a debt by you to the Company and you hereby acknowledge the Company’s right to collect said debt.
- Assignment of Claims. The Company may at any time assign to one or more collection agencies or third parties all or a portion of its rights and obligations under this EULA. In addition to the amount due, delinquent accounts and/or chargebacks will be charged with fees and/or charges that are incidental to the collection of delinquent accounts and/or chargebacks including, but not limited to, collection fees and/or convenience fees and/or other third parties charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to the Company by you. Such communication may be made by the Company or by anyone on its behalf, including but not limited to a third party collection agent.
- Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that WinIt LLC assumes no responsibility for the content you submit or make available through this Application.
- Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
- US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Copyright. COPYRIGHT © WINIT, LLC 2014. ALL RIGHTS RESERVED. Copyright in the pages and in the screens displaying the pages, and in the information and material therein and in their arrangement, is owned by WINIT, LLC unless otherwise indicated.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in New York and New York You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
- Standstill Provision. Once a parking ticket is submitted through this Application, you hereby expressly, unconditionally and irrevocably agree:
- not to take any course of action that will directly or indirectly disrupt, intervene, or circumvent the Company’s efforts on your behalf. Towards that end, you agree not to pay any fines related to any parking tickets submitted to us unless and until the Company communicates with you the decision rendered by the NYC PVB with respect to your parking violation. Any violation of this provision shall subject you to a cancellation fee of $5, at Company’s sole discretion
- that the Company, its licensors, affiliates, agents and service providers are entitled to take any action they deem necessary or appropriate in the course of disputing your ticket, all subject to the terms herein.