TERMS OF USE
Last Updated: 4/17/18
Acceptance of the Terms.
Welcome to The Wing! The following terms and conditions, (these “Terms”) are entered into by and between you and Refresh Club, Inc. (d/b/a ‘The Wing’) (“The Wing”, “Company“, “we“, “us” or “our“). These Terms govern your access to and use of our website, www.the-wing.com (the “Site”), your purchase or use of our application (“App”), membership with The Wing (“Membership”), and retail items (“Products”), along with any other services offered by us, whether through the Site or otherwise (collectively and together with the Site, the “Services”).
Please read these Terms carefully. By accessing, browsing or otherwise using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you (1) acknowledge that you have read and understood these Terms, (2) represent and warrant that you meet all of our eligibility requirements for using the Services as described in these Terms, and (3) accept and agree to be bound by these Terms, including any other terms applicable to the Services that are incorporated herein by reference. If you are using the Services on behalf of an entity, you are agreeing to these Terms for that entity and are representing to us that you have the authority to bind that entity to these Terms (in which case “you” will refer to that entity). If you do not accept these Terms or do not satisfy the eligibility requirements set forth below, you may not access or use the Services.
Privacy Policy.
Your use of, and participation in, the Services offered by the Company is subject to the terms set forth in our privacy policy located at www.the-wing.com/privacy (the “Privacy Policy”). Our Privacy Policy details how we collect and use your information. Please review it if you would like to know more about how we collect, use, and treat your information.
Changes to the Terms of Use.
We reserve the right to update and revise these Terms at any time. We’ll make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Please review these Terms regularly because once we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.
Ontario residents only: Despite any other section that refers to our right to change these Terms, if you are a resident of Ontario, we reserve the right to update and revise these Terms (including changing the scope of the Services, access to the Services, applicable fees and charges or our eligibility criteria) (collectively, “Changes”) no less than on a yearly basis by providing you thirty (30) days’ advance notice of such Changes in accordance with applicable law. Upon receiving the notice, you may refuse the Changes and cancel these Terms by sending us a notice to that effect to [email protected] within the time specified in the notice. If you do not agree with the Changes, then notwithstanding any cancellation of these Terms, you agree that all outstanding amounts owing to us are immediately due and payable and that we have the right to bring suit and exercise all rights and remedies available under applicable law in respect of such outstanding amounts. If you do not notify us within the time specified in the notice, the Changes will take effect on the date indicated in the notice. In that case, you will be deemed to agree to the Changes which will apply to all access to and use of the Services thereafter and will become part of these Terms.
Access to Services.
By accessing the Services, you warrant that:
Purchase of Membership and Products.
If you purchase a Membership or any Product from the Site, the terms of sale provided in this section apply to you, as well as any other specific rules, usage restrictions, or procedures that we may provide to you in relation to your purchase (including your Membership Terms and Conditions).
You agree to provide your payment information at the time you purchase or renew your membership or order any Product on the Site. Our payment page is powered by third party payment service providers, Square and Shopify. The information provided to Square and Shopify is governed by Square and Shopify’s respective Terms of Services and Privacy Policies located at https://squareup.com/legal/ua; https://squareup.com/legal/privacy and https://www.shopify.com/legal/terms; https://www.shopify.com/legal/privacy. The Wing is not responsible for the performance of Square and Shopify. In the course of your use of the Services, the third party payment service providers may receive and implement updated credit card information from your credit card issuer in order to prevent your membership from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to third party payment service providers at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer. Our obligation to provide the Services only comes into being when we take receipt of your order. You agree not to hold us responsible for banking charges incurred due to payments on your account.
Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes on your membership, and taxes, shipping or carriage of the Products as such costs are specified by us on the Site when you submit your order.
Purchase of a Membership must be for your personal use only. Transfer of Membership to other persons is prohibited.
By purchasing Products, you hereby agree not to resell or distribute such Products for any commercial purposes. All orders are subject to our acceptance or rejection based on Product availability. Noncompliance with these Terms or any other reason are determined in our sole discretion. For instance, if we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place.
Membership Policies.
The Wing is a community of members. In order to become a member of the Wing, you must apply through our Site. The Wing is a diverse community open to all.
Cancellation or Suspension of Membership.
The Wing’s Membership, cancellation, and suspension policies are set forth in its Membership Terms and Conditions, which are made available to all applicants for Membership that have been accepted to The Wing. Except as provided in the Membership Terms and Conditions, all Memberships are non-refundable unless otherwise specified in writing by The Wing.
Returns and Refunds.
Except for any products designated on the Site as nonreturnable or “final sale’, Products that are unworn, unwashed or defective may be returned within fourteen (14) days of the date you receive the Products. Products can be returned to The Wing only if you purchased the Products on the Site or at a physical location of The Wing. To return a Product, you must first email us at [email protected]. If you bought a Product at another online reseller or any retail store, you must seek to return where the Product was originally purchased.
You must return qualifying Products to us in their original or equivalent packaging, along with their included accessories, packaging, and valid proof of purchase. You are responsible for all shipping and handling charges on returned items unless otherwise specified, and you bear the risk of loss for returning or exchanging Products. The Wing is not responsible for Products that are returned without following our instructions, or are lost, damaged, modified or otherwise processed for disposal or resale. At The Wing’s discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing, or missing parts. Your refunded amount will be made based upon the original payment method. Shipping charges are not refundable.
Shipments; Delivery; Title and Risk of Loss.
The Wing will arrange for shipment of Products to you. You will pay all shipping and handling charges listed in the order confirmation unless the confirmation specifies otherwise. Title and risk of loss pass to you upon our transfer of the products to the carrier (including, but not limited to, FedEx, UPS, or USPS). Shipping and delivery dates are estimates only and cannot be guaranteed. The Wing is not liable for any delays in shipments, and you are not eligible for a refund of any Product ordered by you as a result of a shipping delay.
Changing Fees and Charges.
We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Services.
Cancellations By The Wing.
We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms or other related restrictions (including, but not limited to, your Membership Terms and Conditions). Such termination or suspension may be immediate and without notice. A breach of these Terms, includes without limitation, the unauthorized copying or download of content from the Services.
Eligibility; User Restrictions.
We only permit individuals who are at least 18 years old, or the age of majority in your province, territory or country, and can form legally binding contracts with us to use the Services. Individuals under the age of 18, or the applicable age of majority (“Minor”) may utilize the Services only with the consent and support of a parent, legal guardian or other qualified adults. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor’s use of the Services and by these Terms. If you are under the age of 18 or the applicable age of majority and do not have the requisite parent or guardian consent, please do not attempt to access or use the Services.
You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure these Terms are in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction, including the specific laws of your jurisdiction regarding the import, export, or re-export of the Services.
Your use of the Services means you represent and warrant that you meet all eligibility requirements we outline in these Terms. We may still refuse to let certain people access or use the Services. We may also change our eligibility criteria. We may also suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice.
Use of the Services; Restrictions on Use.
We may from time to time in our sole discretion develop and provide updates to the Services, change the Services, restrict access to the Services (including to registered users) or withdraw or terminate the Services entirely, and we reserve the right to do so in our sole discretion without notice. Any such updates or changes will be deemed part of the Services and subject to all terms and conditions of these Terms. We will not be liable to you or any third party for any modification, suspension or discontinuance of the Services. In the event of modification or termination, you will still be bound by your obligations under these Terms, including the warranties made by you, and by the disclaimers and limitations of liability.
You may only use the Services as explicitly authorized and in compliance with any policies made available to you within the Services. You will not use such proprietary 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. Without limiting the foregoing, you may not do any of the following while accessing or using the Services:
Internet.
You also acknowledge and agree that your use of the Services requires Internet access and bandwidth and we do not own or control all aspects through which the Services are provided and cannot guarantee the performance of such facilities, equipment and communications lines. The Internet is not a secure network and third parties may be able to intercept, accept, use or corrupt the information you transmit or receive over the Internet. We are not responsible for invalid, erroneous or corrupted data.
Links to Third Party Websites.
We may provide links to third party websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those websites or services. Although a third party website may contain The Wing’s logo or other intellectual property elements, please understand that it is independent from The Wing and that The Wing has no control over the content of that website. These links do not imply endorsement of, sponsorship of, or affiliation with The Wing. We are not responsible in any way for: (a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) the use to which others make of these other websites and services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
Social Media.
The Company will not tolerate certain social media conduct by users of the Site, whether indirectly or directly targeting or relating to The Wing, its members, officers, directors, employees, personnel, or agents, including for example: (a) defamatory, malicious, obscene, intimidating, discriminatory, harassing or threatening comments or hate propaganda; (b) calls to violence of any kind or other threats of any kind; or (c) conduct that violates any law or regulation. In the event that The Wing feels that you have breached these Terms, The Wing reserves all its rights to take further action, including but not limited to: (i) adding, removing, or modifying any content, including comments, (ii) blocking you or any other disruptive users; and (iii) discontinuing any of its social media channels at any time. In the event that you engage in (or direct or influence any person to engage in) any of this prohibited conduct on your social media channels regarding The Wing or any of The Wing’s officers, directors, employees, personnel, agents, policies, services or products or other members, The Wing may immediately terminate your Membership or use of this Site and reserves it full legal rights to pursue legal damages against you.
Intellectual Property.
Except as otherwise expressly granted to you in these Terms, we reserve and retain all right, title and interest in the Services, including without limitation, all technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, text, video, graphics, logos, images and icons, as well as the arrangement thereof. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws, and you agree that, except with our prior written consent or as explicitly provided in these Terms, (1) using the Services does not give you any ownership of any intellectual property rights in our Services or (2) grant you the right to display, modify, reproduce, distribute, create derivative works of, download, store, transmit or otherwise use any of our intellectual property. Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
In particular, audio or video content from The Wing not explicitly indicated as downloadable may not be downloaded or copied from the Services. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.
You must not access or use for any commercial purposes any part of the Site and App or any services or materials available through the Site and App. You acknowledge and agree that you do not acquire any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Services in accordance with the license granted. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.
To inquire about obtaining authorization to use the materials or content other than as permitted in these Terms, please contact us at [email protected]
Availability of the Services.
Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in our Services, please report it to us at [email protected] and we will review your complaint and, where we determine it appropriate to do so, correct the fault. We will not be liable to you if the Services are unavailable from time to time.
Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can.
Device Requirements.
To enjoy the Services via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Site, and the Google, Apple and Amazon Alexa Skill marketplaces.
End User License.
Subject to the terms of this license agreement (“License Agreement”), as set forth in this “End User License Section,” and these other Terms, and your payment of applicable subscription fees, The Wing grants you a limited, non-exclusive, and nontransferable license to:
You shall promptly download and install all Updates and acknowledge and agree that the App 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 App and be subject to all terms and conditions of this License Agreement.
Intellectual Property.
If we believe a user may be infringing upon someone’s intellectual property rights, we may remove the material. If we believe someone is repeatedly infringing, we will terminate that person’s access rights.
If you believe someone has posted on the Services a work that you own without your authorization, let us know. Please send a notice of copyright infringement containing the following to our Designated Agent at [email protected]:
Third Party Materials and Content.
You understand that the Services may display, include, or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites (“Third Party Materials”). In consideration for The Wing allowing you to use the Services, you agree that we, our affiliates, and third party partners may place advertising on the Services.
You acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. We expressly disclaim any responsibility for all aspects of the Third Party Materials and you further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services in connection with any Third Party Materials.
Use of any third party trademarks or third party content on or in connection with the Services does not constitute affiliation with or endorsement of these third parties. Nothing in these Terms grants you any license to third party trademarks or content, which shall remain the property of their respective owners.
Warranty Disclaimers; Limitation of Liability.
THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND.
WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY THE COMPANY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
IN NO EVENT WHATSOEVER SHALL THE COMPANY, ITS AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, WHETHER DIRECTLY OR INDIRECTLY ARISING, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S BREACH OF CONTRACT OR NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS OF USE, COMPANY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES, COMPANY’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES PAID BY YOU TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM IS ASSERTED FOR ANY OF THE SERVICES OR FEATURE RELEVANT TO THE CLAIM, OR (2) US$500.00.
THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.
Indemnification.
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Services or your use of any information obtained through use of the Services.
Governing Law.
No matter where you’re located, the laws of England and Wales will govern these Terms and the relationship between you and the Company as if you signed these Terms in England. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. The parties agree to submit to the courts in England for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of these Terms.
For Ontario residents only: Subject to the arbitration clause below, and to the extent it is necessary to resort to a court, the parties agree to submit to the exclusive jurisdiction of Ontario Superior Court of Justice in Toronto for any dispute arising out of or related to your use of the Services or your breach of these Terms.
Arbitration.
At our sole discretion, we may require you to submit any disputes arising from the use of these Terms or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of England and Wales.
For Ontario residents only: If a dispute arises from the use of these Terms or the Website, including any dispute arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, we and you may agree to resolve any such dispute by submitting it to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of England and Wales.
Severability.
If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
Entire Agreement.
These Terms constitute the entire agreement between you and the Company and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved. Each party confirms that it has not relied upon, and shall have no remedy in respect of any agreement, warranty, statement, representation or undertaking unless set out expressly in these Terms.
Third Parties
A person who is not a party to these Terms shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
Force Majeure.
We take our commitment to customers seriously, and we will do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials.
Assignment.
You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.
Waiver.
If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
Comments, Concerns and Complaints.
All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: [email protected].