TERMS OF SERVICE
Last updated: December 9, 2024
DO NOT USE THE SERVICES IF YOU HAVE A MEDICAL EMERGENCY. IF YOU ARE HAVING A MEDICAL EMERGENCY, PLEASE DIAL 911 OR GO IMMEDIATELY TO THE EMERGENCY ROOM.
These Terms of Service (“Terms”) govern your access to and use of the Winona, Inc. (“Winona”) website, located at https://bywinona.com/contact/ (the “Website”) and the Winona mobile applications and services that facilitate direct access to certain women’s health services provided by physicians who are contracted with or employed by affiliated physician practices (the “Physician(s)”) who may order certain prescription medications and other products from Winona’s affiliated pharmacies and pharmacy partners, and for the payment of these services (collectively, the “Services”).
Please read these Terms carefully. By clicking “I accept,” “I agree,” or similar when the option is presented to you, or by accessing or using the Services, you agree to these Terms. If you do not agree to these Terms, you are not allowed to use the Services.
WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: WHILE THERE ARE IMPORTANT POINTS THROUGHOUT THESE TERMS, PLEASE NOTE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS ON OUR LIABILITY ARE EXPLAINED IN SECTION 10.
MANDATORY ARBITRATION NOTICE: SECTION 11 OF THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND WINONA ARE EACH GIVING UP RIGHTS TO BRING CLAIMS AGAINST EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND.
Privacy: For more details about how we handle personal information, please review our Privacy Policy.
Section 1: Basic Terms
WINONA, INC. IS NOT A HEALTHCARE PROVIDER. Winona acts as a technology platform to connect registered users of the Services with Physicians and pharmacies for medical consultations and dispensing of medications prescribed by the Physicians. Winona is not a health care provider or pharmacy and does not offer or provide any medical advice, treatment recommendations, or pharmacy services. You acknowledge that you are not entering into a physician-patient relationship with Winona, and that Winona is not liable for any advice, medical care, or treatment you receive by the Physicians or pharmacies affiliated with Winona (“Pharmacies”) or for any consequences, injury or harm that may result therefrom.
Physicians employed or under contract with Winona’s affiliated physician practice(s) (the “Medical Practice”) provide specific medical consultations through the Services. Winona does not own the Medical Practice, nor does Winona control the practice of medicine by the Medical Practice or its Physicians. The content of the Services and the Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Winona.
You are responsible for verifying that any information you provide to Winona or a treating Physician is accurate and complete. Winona will not be liable for any damages or losses that occur as a result of untruthful, inaccurate or otherwise incomplete information. The Services are not a substitute for in-person treatment or advice of your primary care physician or other health care providers. The Services facilitate medical consultations limited to diagnosis and treatment of certain women’s health issues, and not for any other medical or health issue. If you are not feeling well, contact your primary care physician.
EXCEPT FOR INFORMATION YOU RECEIVE DIRECTLY FROM A PROVIDER RELATED TO YOUR SPECIFIC MEDICAL CONDITION, ALL CONTENT AVAILABLE THROUGH THE PLATFORM IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. YOU SHOULD ALWAYS TALK TO AN APPROPRIATELY QUALIFIED HEALTH CARE PROFESSIONAL FOR DIAGNOSIS AND TREATMENT, INCLUDING INFORMATION REGARDING WHICH MEDICATIONS OR TREATMENT MAY BE APPROPRIATE FOR YOU. DO NOT DISREGARD, AVOID, OR DELAY OBTAINING IN-PERSON CARE FROM YOUR DOCTOR OR OTHER QUALIFIED PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE PLATFORM.
Prescription Fulfillment Services. Certain products available through the Services require a valid prescription by a licensed healthcare provider. You will not be able to obtain a prescription product unless you have completed a consultation with one of the providers, the provider has determined the prescription product is appropriate for you, and the provider has written a prescription.
Certain prescriptions can be filled through one of the Pharmacies by using the Services, or you may request that your prescription be sent to the pharmacy of your choice by notifying you’re the Physician providing services to you. Some of the prescriptions available through the Services are available may only be filled by a compounding pharmacy and your preferred pharmacy may not be able to fill your prescription. If you fill a prescription with a pharmacy other than the Pharmacies, the Physician will send the prescription to your selected pharmacy, but you will be responsible for picking up or otherwise obtaining the prescription product and paying the pharmacy directly for the cost of the prescription product, and your Subscription Fee (defined below) will not include the cost of medication and pharmacy fulfillment. Choosing a pharmacy other than the Pharmacies is at your own risk, and Winona will not be liable to you in any way, either directly or indirectly for any claim, errors, damage, loss, or incorrect content caused by or in connection with your election to fill a prescription with such a pharmacy. If you later transfer your prescription from a local pharmacy to the Pharmacies, the cost of medication and pharmacy fulfillment will be added to your Subscription Fee at the beginning of the next billing cycle. You authorize us to send and disclose all information provided by you, healthcare records, and other applicable health care information and personal information (such as your name, location and demographic information) to the applicable Pharmacy or the pharmacy of your choice so that you may receive pharmacy services.
Some of the products available on the Services might not require a prescription, in which case, you may purchase the products following your Registration without a medical consultation.
Section 2: Eligibility to Use the Services
The Services currently are available only in the states listed here. You must be located in one of these in order to receive services from Physicians and Pharmacies through the Services.
You are responsible for your use of the Services and for any consequences thereof. You may use the Services only if you can form a binding contract with Winona and are not a person barred from accessing the Services under the laws of the United States or other applicable jurisdiction. The Services are not available to individuals under the age of eighteen (18). You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations.
The form and nature of the Services are always evolving, and may change from time to time without prior notice to you. In addition, Winona may decide to temporarily or permanently stop providing the Services, or any features within the Services, to you or to users generally, and may not be able to provide you with prior notice when doing so. Winona retains the right to create limits on use of the Services, and/or storage your information related to the Services, at our sole discretion at any time and without prior notice to you.
The Services may include advertisements, which may be targeted to the content or information on the Services, queries made through the Services, or other information. The types and extent of advertising on the Services are subject to change at any time and without prior notice to you. In consideration for Winona granting you access to and use of the Services, you agree that Winona, its partners, and any third party providers may place such advertising on the Services or in connection with the display of content or information from the Services whether submitted by you or others.
Section 3: Registering for an Account
You must create a user account in order to use the Services. You may create such an account by registering through the Services and providing us with accurate and complete information as requested, including but not limited to completing an adaptive interview that asks about your health and medical conditions and symptoms.
You must update your information, as needed, in order to keep it accurate and complete.
Upon creating your account, you may utilize the Services to consult with a Physician and, if medically indicated, to place your order for products recommended by the Physician.
Some of the products available for purchase on the Services require a prescription, while others do not. We cannot accept returns of pharmaceutical products. Winona does not endorse any specific medications, pharmacies, or physicians.
Section 4: Passwords
You are solely responsible for safeguarding the password or other credentials you use to access your Winona account and the Services. We encourage you to use “strong” passwords, commonly described as passwords that use a combination of upper and lower case letters, numbers, and symbols, with your account and with other accounts that you may connect to your Winona account. Winona cannot, and will not, be liable for any loss or damage arising from your failure to comply with the above requirements. You agree to notify us immediately upon becoming aware of any breach of security or unauthorized use of your Winona account.
You may not use as a username the name of another person or entity or a name or trademark that is subject to any rights of another person without appropriate authorization. You may not use as a username any word or combination of words that is offensive, vulgar, or obscene.
Section 5: Payment for the Services
You agree to pay all fees, including any fees that we collect on behalf of the Physicians and Pharmacies and any shipping and handling charges shown at the time you make a purchase, at the fees and pursuant to any additional payment terms presented to you when engaging in such transactions. Prices are subject to change at any point in our sole discretion. When you make a purchase, you may be asked to supply certain information relevant to the transaction, including, without limitation, your payment card number and expiration date, your billing address, your shipping address, your phone number and/or your email address.
All products offered for sale are subject to availability and we reserve the right to impose quantity limits on any order or reject all or any part of an order without prior notice. In the event of an error, we reserve the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged. Prices for products are subject to change at any time. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise in writing via the Services, risk of loss or damage to a product pass to you upon delivery of the product to the designated carrier.
Some products available on the Services require that you purchase the product on a subscription basis for a monthly subscription fee that is automatically charged against the form of payment you provide to Winona (the “Subscription Fee”). The Subscription Fee covers the Services platform fee, the cost of Physician medical consultations, prescriptions filled by the Pharmacy, shipping and handling costs of products distributed by the Pharmacy, and sales or similar taxes that may be imposed on your payments. Certain, other products are available for purchase on the Services that do not require a prescription. These products may be purchased by registered users at the prices indicated on the Services and without a subscription.
By entering your payment information and submitting your request, you authorize us and our third party payment processors to charge the amount(s) due. Any health care services or pharmacy services not made available through the Services are not included in the payments collected by Winona, and are separately chargeable by the Physicians and/or the Pharmacies, as applicable. Your Subscription Fee may be increased or decreased if your prescription changes, such as by a dosage increase or frequency of refills. YOU MAY CANCEL YOUR SUBSCRIPTION BY LOGGING INTO YOUR ACCOUNT PAGE AT HTTPS://BYWINONA.COM/CONTACT/. PLEASE REVIEW OUR CANCELLATION POLICY FOR MORE INFORMATION ABOUT CANCELLING YOUR SUBSCRIPTION.
EXCEPT AS DESCRIBED IN OUR REFUND POLICY, YOU ACKNOWLEDGE AND AGREE THAT ALL SALES ARE FINAL AND ANY APPLICABLE FEES AND OTHER CHARGES, INCLUDING FEES FOR SUBSCRIPTION SERVICES, ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
Federal and state health care programs, such as Medicare and Medicaid, do not cover or pay for the Services, including your medical consultations and pharmacy products. If you are covered by a government health plan, please consult with a provider who participates in such plans. Neither Winona, the Medical Practice, the Physicians, nor the Pharmacies, submit any claims for payments to third parties for Services provided to you. You acknowledge and agree that you are solely responsible for the cost of any services or products provided to you, that no claims for reimbursement will be submitted on your behalf, and that you will not submit a claim for reimbursement to any third party for the Services.
Communication Preferences. By creating an account, you consent to receive electronic communications from Winona (e.g., via email to the email address you provide, text message (SMS or otherwise) at the mobile phone number and email address you provide, or by posting notices to the Services) regarding your account and the Services. These communications are part of your relationship with us. You may incur data, call-time or messaging charges from your communication providers in connection with communications from Winona. You can choose to filter any Services emails using your email settings, but we do not provide an option for you to opt out of these communications.
You acknowledge that electronic communications may be unencrypted and carry some risk that the information in the messages, including information about your health, could be read by an unauthorized person. You further acknowledge and agree that Winona cannot guarantee the security and confidentiality of the unencrypted communications that we send to you and are not responsible for any unauthorized access that occurs during or after the transmission of the communications to you.
If you consent to receive marketing or other communications not related to your account or the Services, including newsletters, special offers, surveys, and other news and information we think will be of interest to you, we will provide you with the option to opt out of such marketing communications at any time by following the unsubscribe instructions provided in such messages.
Electronic Notices and Signatures. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and you consent and agree that your use of your finger, a keypad, mouse, or other device to select an item, button, icon, or similar act while using the Services, or in accessing or making any transactions regarding any agreement, acknowledgment, consent, terms, disclosures, or conditions, constitutes your signature, acceptance, and agreement as if actually signed by you in writing. You should maintain copies of electronic communications from us by printing a paper copy, saving an electronic copy, or both. Further, you agree that no certification authority or other third-party verification is necessary to establish the validity of your electronic signature, and that the lack of such certification or third-party verification will not affect the enforceability of your signature or any resulting contract between you and us.Electronic Notices and Signatures. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and you consent and agree that your use of your finger, a keypad, mouse, or other device to select an item, button, icon, or similar act while using the Services, or in accessing or making any transactions regarding any agreement, acknowledgment, consent, terms, disclosures, or conditions, constitutes your signature, acceptance, and agreement as if actually signed by you in writing. You should maintain copies of electronic communications from us by printing a paper copy, saving an electronic copy, or both. Further, you agree that no certification authority or other third-party verification is necessary to establish the validity of your electronic signature, and that the lack of such certification or third-party verification will not affect the enforceability of your signature or any resulting contract between you and us.
Section 6: Content Regarding the Services
Please be aware that, except as expressly provided or as otherwise required under applicable law, Winona does not verify the accuracy of any information made available on the Services by third parties. Information about prescription medications that may be purchased on the Services has been provided directly by our affiliated pharmacies and has not been reviewed or approved by Winona. Any use or reliance on any information you obtain through the Services is at your own risk.
You understand that by using the Services, you may be exposed to content that might be offensive, harmful, inaccurate, or otherwise inappropriate. Under no circumstances will Winona be liable in any way for any content posted, emailed, transmitted, or otherwise made available via the Services or broadcast elsewhere.
Section 7: Winona’s Rights
Subject to these Terms, Winona grants you a limited and non-exclusive license (without the right to sublicense) to access and use the Services as provided herein. Winona is the sole and exclusive owner of the Services, including any and all copyright, patent, trademark, trade secret and other ownership and intellectual property rights, in and to the Services and any related materials and documentation. No title or ownership of the Services or any portion thereof is transferred to you hereunder. Winona reserves all rights not expressly granted hereunder. You agree not to change or delete any copyright or proprietary notice related to materials downloaded from the Services.
All rights, title, and interest in and to the Services and any content available on the Services are and will remain the exclusive property of Winona and its licensors. The Services and its content are protected by copyright, trademark, and other laws of the United States. Winona reserves all rights not expressly granted in these Terms. You acknowledge and agree that any feedback, comments, or suggestions you may provide regarding Winona, or the Services, are entirely voluntary and we will be free to use such feedback, comments, or suggestions as we see fit and without any obligation to you. Notwithstanding the foregoing, any content, such as postings, messages, or photos that you upload to the Services, including any content that you submit using the Services in connection with any medical consultation, belongs to you and you authorize Winona to use and disclose such content in connection with providing the Services.
Section 8: Restrictions on Use of the Services
Winona reserves the right, at all times, but will not have an obligation, to suspend and or terminate users or reclaim usernames without liability to you. Winona May, in its sole discretion, terminate your access to the Services and Services, or any portion thereof, for any reason whatsoever without prior notice.
You may not do any of the following while accessing or using the Services: (i) access, tamper with, or use non-public areas of the Services, Winona’s computer systems, or the technical delivery systems of Winona providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Winona (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Winona (NOTE: scraping the Services without the prior consent of Winona is expressly prohibited); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Services.
You agree not to transmit any content on the Services that:
Is harassing, impersonates another person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
Violates the rights of a third party, including copyright, trademark, privacy, and publicity rights;
Is a direct and specific threat of violence to others;
Violates any contractual obligation to refrain from photographing, filming or streaming any performance, event, film, concert, sporting event or other happening;
Is furtherance of illegal activities; or
Is abusive or constitutes spam.
Section 9: Termination
These Terms will continue to apply until terminated by either you or Winona as follows:
You may deactivate your Winona account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at https://bywinona.com/contact/.
We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; (iii) our provision of the Services to you is no longer commercially viable; or (iv) our relationship with the affiliated Medical Practice or Pharmacy ends. We will make reasonable efforts to notify you by the email address associated with your account or through the Services the next time you attempt to access your Winona account.
In all such cases, these Terms shall terminate, including, without limitation, your license to use the Services, except those sections you would expect to survive termination, such as indemnification, limitations on liability, and arbitration.
Nothing in this section shall affect Winona’s rights to change, limit, or stop the provision of the Services without prior notice, as provided above.
Section 10: Disclaimers, Limitation of Liability, and Indemnity
Please read this section carefully since it limits the liability of Winona and its stockholders, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Winona Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this Section 10 may not apply to you. Nothing in this Section 10 is intended to limit any rights you may have which may not be lawfully limited.
The Services are Available “As-Is”
Your access to and use of the Services is done at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, THE WINONA ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
The Winona Entities make no warranty and disclaim all responsibility and liability for: (i) any actions of Winona users, including without limitation, any advice, recommendations, treatment plans or other information provided by the affiliated Physicians and Pharmacies; (ii) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any information provided on the Services; (iii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any content; (iv) the deletion of, or the failure to store or to transmit, any content and other communications maintained by the Services; (v) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis; (vi) any advice or information you receive through the Services; and (vii) any injuries or harm you or a third party incurs as a result of information or advice received through the Services. No advice or information, whether oral or written, obtained from the Winona Entities or through the Services, will create any warranty not expressly made herein. TO THE EXTENT LEGALLY PERMITTED, YOU EXPRESSLY RELEASE THE WINONA ENTITIES FROM ANY AND ALL LIABILITY FOR ANY DAMAGES, SUITS, CLAIMS, PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS OF THE MEDICAL PRACTICE, PHYSICIANS, OR PHARMACIES IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION, THE PROVISION OF MEDICAL SERVICES, CONSULTATION, OR TREATMENT BY PHYSICIANS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “ A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Some of Winona’s shareholders, directors, officers, contractors, or employees may have a financial interest in the Medical Practice, the Pharmacies, or any other third party supplier of goods or services, and may profit from your use of such entities and/or the sale of such goods and services to you. Dr. Michael Green, President of the Medical Practice, is Winona’s Chief Medical Officer and receives compensation from Winona, including but not limited to an equity interest in Winona, for the performance of his non-clinical services to Winona.
Links
The Services may contain links to third party services or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such services or resources; or (ii) the content, products, or services on or available from such services or resources. Links to such services or resources do not imply any endorsement by Winona or the Winona Entities regarding such services or resources or the content, products, or services available from such services or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such services or resources.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WINONA ENTITIES, THE MEDICAL PRACTICE, THE PHYSICIANS, AND THE PHARMACIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, INCLUDING BUT NOT LIMITED TO ANY LOSS OF DATA, USE, GOOD-WILL, PROFITS, SERVICE INTERRUPTION, COMPUTER OR MOBILE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR APPLICATIONS, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WINONA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH IN THESE TERMS IS FOUND TO HAVE FAILED IN MEETING ITS ESSENTIAL PURPOSE.
EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE WINONA ENTITIES, THE MEDICAL PRACTICE, THE PHYSICIANS, OR THE PHARMACIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID WINONA, IF ANY, IN THE PAST SIX MONTHS FOR ACCESS TO THE SERVICES GIVING RISE TO THE CLAIM.
TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE WINONA ENTITIES, THE MEDICAL PRACTICE, THE PHYSICIANS, OR THE PHARMACIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR DAMAGES SUCH AS THOSE CONTAINED IN THIS SECTION. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU.
IF YOU ARE RESIDENT OF A U.S. STATE THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE LIMITATIONS IN THIS SECTION SPECIFICALLY DO APPLY TO YOU.
Indemnification
To the extent not prohibited by law, you expressly agree to indemnify and hold harmless Winona and the Winona Entities, from and against any and all liabilities, expenses, damages, and costs, including, but not limited to, reasonable attorneys’ fees and costs, related to all third party claims, charges and investigations related to: (i) any information, advice, treatment recommendations, or other content you transmit via the Services; (ii) your failure to comply with the Terms, including without limitation, your obligations and representations provided in Section 1; (iii) your interactions with any other Winona user; (iv) your use or disclosure of information, including without limitation, personal information or medical information you learned about on or through the Services; and (v) any activity in which you engage on or through the Services.
Section 11: Dispute Resolution and Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND WINONA TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WINONA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WINONA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
We want to address your concerns without needing a formal legal case, so we have included a tiered dispute resolution process. This Dispute Resolution section may be modified by written agreement between you and Winona.
Informal Dispute Resolution. Before filing a claim against Winona, you agree to try to resolve the dispute informally by contacting hello@bywinona.com. If a dispute is not resolved within thirty (30) days after submission, you may bring a formal proceeding, as outlined below.
AGREEMENT TO ARBITRATE
You agree that any disputes that you and we are unable to resolve informally will be settled by binding arbitration, except that you and we each retain the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at hello@bywinona.com within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Services. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this Agreement to Arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in New York, New York. All other claims will be arbitrated.
Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution and Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and a separate form for Demand for Arbitration for California residents. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. The Arbitration shall be held either: (i) at a location determined by AAA pursuant to the AAA Rules (provided that such location is reasonably convenient for you and does not require travel more than 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and us; or (iii) via videoconference. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Warranty Disclaimers and Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes. Notwithstanding anything to the contrary in these Terms, if we change this “Dispute Resolution” section after the date you accepted these Terms or access our Services, you may reject any such change by sending us written notice (including by email to hello@bywinona.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” listed at the beginning of these Terms or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you accepted these Terms, or accessed our Services.
No Class Actions. YOU AND WE AGREE THAT EACH 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, unless both you and we agree otherwise in writing, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
Section 12: Miscellaneous Terms
Waiver and Severability
The failure of Winona to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the state of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings, or litigation arising in connection with the Services will be brought solely in the federal or state courts located in Los Angeles County, California, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You agree that you may only bring claims against Winona related to your use of the Services on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding.
Governing Law. These Terms shall be governed by the laws of the State of Texas without reference to its conflict of laws provisions.
Notice for California Users. Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at dca@dca.ca.gov; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD).
Entire Agreement
These Terms are the entire and exclusive agreement between Winona and you regarding the Services (excluding any service for which you have a separate agreement with Winona that is explicitly in addition or in place of these Terms). These Terms supersede and replace any prior agreements between Winona and you regarding the Services.
We may revise these Terms from time to time, and the most current version will always be at https://bywinona.com/contact/. If we, in our sole discretion, determine that the revision is material, we will notify you via email to the email address associated with your account. If you do not wish to be bound by any such revisions to the Terms, your sole and exclusive remedy is to discontinue your use of the the Services. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.These Terms are the entire and exclusive agreement between Winona and you regarding the Services (excluding any service for which you have a separate agreement with Winona that is explicitly in addition or in place of these Terms). These Terms supersede and replace any prior agreements between Winona and you regarding the Services.
We may revise these Terms from time to time, and the most current version will always be at https://bywinona.com/terms-and-conditions. If we, in our sole discretion, determine that the revision is material, we will notify you via email to the email address associated with your account. If you do not wish to be bound by any such revisions to the Terms, your sole and exclusive remedy is to discontinue your use of the the Services. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
Assignment
These Terms are personal to you, and are not assignable, transferable, or sub-licensable by you except with Winona’s prior written consent. Winona may assign, transfer, or delegate any of its rights and obligations hereunder without your consent.
Contact Us
If you have any questions about these Terms, please contact us by email at hello@bywinona.com or by mail at:
Winona, Inc., 1501 Barton Springs Road, Austin, Texas 78704
