WINKEL PLAY DAILY
TERMS AND CONDITIONS
BY DOWNLOADING THE APPLICATION AND ACCEPTING OUR TERMS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/ INSTALL/USE THE APPLICATION.
1. About us
1.1. We are Winkel Limited, a company registered in England and Wales with its registered office address at C/O Cox Costello & Horne Fourth & Fifth Floors, 14-15 Lower Grosvenor Place, London, England, SW1W 0EX. Our company registration number is 11645373 and our VAT registration number is 336714496. Our website is www.winkelgames.com (“Website”).
1.2. We provide a mobile application to consumers for private, non-commercial, entertainment purposes (“App”).
1.3. If you have any questions about our App or would like to contact us for any other reason, please do so via e-mail at firstname.lastname@example.org.
2. About these terms
2.1. In this document, Winkel Limited is referred to as “we”, “us” and “our”. Users of our App are referred to as “you”, “your” and “yours”.
2.2. These terms and conditions (“Terms”) apply to your download, access and use of our App on your device (whether a desktop, laptop, smartphone or other digital device). Our App is made available for download in the various app stores.
2.3. These Terms are only available in English. No other languages will apply.
2.4. When you download, access and use our App and click ‘accept’, you enter into a legally binding agreement with us. These Terms, together with our Prize Draw Terms and Conditions and any rules and guidelines applicable to the games played in the App, form the entire agreement between you and us (“Agreement”). Any previous agreements, communications or understandings are superseded by this Agreement. If you do not agree to any of the terms of the Agreement, you are not allowed to use our App and should discontinue its use immediately.
3. Age restrictions
3.1. Our App is not intended for use by children under the age of 18 years. If you are under the age of 18, please do not use our App. By using the App, you warrant that you are at least 18 years of age. In states and territories where the minimum age for permissible use of the App is greater than 18 years, you must meet the age requirement in your local jurisdiction, state or territory.
4. Equipment and internet connection
4.1. Our App is made available for download through the app stores.
4.2. We do not warrant that the App or its content will meet the requirements of your mobile device. You are responsible for the necessary equipment and internet connection in order to be able to use our App. You are also responsible and liable to pay for any connectivity or mobile fees you may incur by downloading and using our App.
5. Free and paid version
5.1. Our App is freely available and you do not have to pay for its use if you do not want to.
5.2. We also provide for a paid version of our App (VIP subscription). The paid version of our App is free from advertisements. If you choose the VIP subscription, your purchase is handled by a third-party provider and you agree to the payment terms of the app store you are connected to.
5.3. Please note that subscribing to the VIP pass does not in any way affect your chances of earning rewards when you play any of the games in our App.
5.4. We may modify the subscription fees at any time and in our sole discretion. Subscription fee changes will become effective at the end of the then-current billing cycle. Your continued use of the App, after the subscription fee change comes into effect, constitutes your agreement to pay the modified subscription fee. If you do not agree to any changes, you must cancel your subscription in accordance with these Terms.
6. Personal Information
7. Changes to these Terms
7.1. From time to time we may have to make changes to these Terms, for example to reflect changes in laws and regulations we are subject to or because we have made improvements or changed the features or functionalities of our App.
7.2. When we change these Terms, we will make the latest version of these Terms available via our Website and you will be prompted to accept the revised terms. If you do not agree to the revised terms, you will not be able to use our App. If you accept our revised terms, you agree to be bound by them.
8. Updates to the App
8.1. We may from time to time in our sole discretion develop and provide updates, which may include upgrades, bug fixes, patches, 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 we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when your device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
8.2. 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 these Terms.
9. Ownership, grant of rights and restrictions
9.1. You understand that we are and will always be the exclusive owner of all intellectual property rights in and attached to the App and any content displayed in it. Intellectual property, includes, but is not limited to, computer or application code, scripts, design elements, graphics, interactive features, artwork, text communication, storylines, character names and any other content that may be found in the App. The Agreement does not grant you any rights of ownership in the App or its content, save for the limited right to use our App subject to these Terms. All other rights are expressly reserved by Winkel Limited.
9.2. When you have downloaded our App and you have agreed to these Terms, you are granted the limited right to use and play our Games for personal, non-commercial purposes only. This right is non-exclusive, non-sublicensable, non-transferable and revocable.
9.3. You shall not use the App for any other purpose and you shall comply with these Terms at all times.
9.4. Without prejudice to the generality of the foregoing, you agree that you will not:
(a) rent, lease, sub-license, loan, provide, or otherwise make available, the App in any form, in whole or in part to any person without prior written consent from us;
(b) copy the App except as part of the normal use of the App or where it is necessary for the purpose of back-up or operational security;
(c) translate, merge, adapt, vary, alter or modify, the whole or any part of the App, nor permit the App or any part of it to be combined with, or become incorporated in, any other programs, except as necessary to use the App on devices as permitted in these Terms;
(d) use any automated data collection methods, data mining, robots, or scraping or any data gathering methods of any kind on this App;
9.5. You must not use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the App or any operating system.
9.6. You agree that you will comply with all applicable laws in connection with the App and this Agreement, including but not limited to the U.S. export control and economic sanctions laws.
9.7. Our trademarks are our exclusive property and you shall refrain from using them without our prior written approval.
10. DISCLAIMER OF WARRANTIES
10.1. THE APP IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WINKEL LIMITED, 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, WINKEL LIMITED 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.
10.2. 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.
11. LIMITATION OF LIABILITY
11.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WINKEL LIMITED 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 APP OR THE CONTENT FOR:
(A) 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.
(B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU (IF ANYTHING) FOR THE APP IN THE 12 MONTHS PRECEDING THE EVENT CAUSING THE DAMAGES.
11.2. 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 WINKEL LIMITED WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12.1. You agree to indemnify, defend, and hold harmless Winkel Limited 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 reasonable attorneys' fees, arising from or relating to your use or misuse of the App or your breach of this Agreement.
13. US Government Rights
13.1. The App 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 App 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.
14. Hyperlinks and advertising
14.3. If you wish to use our App without advertising, you will need to subscribe to the VIP pass. This does not in any way affect your chances of earning rewards when you play our games.
15. How our games work/prize draws
15.1. We offer various games through our App. Our App contains lucky draws, daily lotteries and scratch cards. All are free to enter and offer you a chance to win cash prizes and gift cards.
15.2. Winkel Limited is the promoter of these prize draws. For full information about our prize draws, please read our Prize Draw Terms and Conditions, which are deemed included in these Terms by reference.
15.3. If you are the winner of a cash prize, the prize will be added to your account automatically. In order to pay out your prize, you must go to the shop in our App and choose to cash out via PayPal. You need a PayPal account in order to pay-out your prize. After you have submitted your request for pay-out, you will receive a confirmation e-mail stating that your pay-out is in progress. It may take up to seven (7) business days to complete the payout.
15.4. If you are the winner of a gift card, the gift card will be added to your account automatically. In order to redeem your gift card, you must go to the shop in our App and choose to redeem your gift card. After you have submitted your request, you will receive a confirmation e-mail.
15.5. When you are not a winner of a prize, you may be awarded tokens. Tokens can only be used to convert into gift cards in the shop in our App and cannot be exchanged for cash. It is at our sole discretion to determine the value and exchange rate of tokens. How many tokens you need before you can convert them into a gift card of a certain value is displayed in the shop. In the event
15.6. Scratch cards: you can play the amount of scratcher cards that we make available in the App by virtually scratching them. Scratching will immediately reveal if you have won a prize. If you did not win a prize, you will be awarded tokens.
15.7. Lucky draws: this is a prize draw you can enter one time per day. By submitting your ticket, your user name will be entered into the prize draw. A winner will be chosen at random by a computerized process each day. When you return to the App the next day, you will be notified of whether or not you are a winner.
15.8. Daily lotteries: this is a prize draw you can enter one time per day. A randomly chosen computer-generated set of numbers will be awarded to you, but you can replace any number with a number of your choice. By submitting your chosen set of numbers, you will enter the Prize Draw. A winner will be chosen at random by a computerized process each day. When you return to the App the next day, you will be notified of whether or not you are a winner.
15.9 PLEASE NOTE THAT YOU WILL NOT BE ENTITLED TO RECEIVE AND PAID OUT ANY WINNINGS WHEN YOU USE OUR APP AND PLAY OUR GAMES WHILE A VIRTUAL PRIVATE NETWORK (VPN) OR ADVERT-BLOCKING (AD-BLOCK) SERVICES OR SIMILAR TECHNIQUE OR METHOD IS ACTIVATED ON THE DEVICE YOU USE.
16.1. You may terminate this Agreement by deleting the App and all copies thereof from all your devices.
16.2. We may terminate this Agreement immediately and end your rights to use the App at any time without prior notice to you if you violate any of the terms of this Agreement.
16.3. If this Agreement is terminated:
(a) you must stop all activities authorised by these Terms, including your use of the App;
(b) you must delete or remove the App from all devices in your possession.
16.4. Termination will not limit our rights and remedies at law or in equity.
16.5. The provisions which by their nature should survive termination will survive the termination of this Agreement. These provisions include without limitation provisions addressing license limitations, disclaimer of warranties, limitation of liability, indemnification and ownership.
17. Transfer of rights and obligations
17.1. We are entitled to transfer our rights and obligations under this Agreement to another entity without your prior consent, for example, if we merge with another company or if we sell our assets to another company. If we do so, we will inform you as soon as possible and we will make sure that such transfer does not negatively affect your rights under these Terms.
17.2. You may not assign, sub-license or otherwise transfer any or all of your rights and obligations under these Terms to another person.
18. Severability and waiver
18.1. 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.
18.2. 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.
19.1. If you have a complaint about our App or our games, please do let us know by e-mail. In most cases, we can resolve your concerns ourselves.
19.2. In the unlikely event that we cannot solve your concern and you wish to bring legal action against us, please refer to the below clauses 20 and 21.
20. Binding arbitration and class action waiver
20.1. The BINDING ARBITRATION AND CLASS ACTION WAIVER provisions in this clause 20 apply to all Disputes between you and Winkel Limited and its subsidiaries and Affiliates relating to the App. This clause also applies to any Dispute between you and any Winkel Limited Affiliates, each of which is an intended third-party beneficiary of this clause 20.
20.2. For the purposes of this clause, “Affiliate” shall mean any entity controlling, controlled by or under common control with Winkel Limited, where ‘control’ means the direct or indirect ownership of more than fifty percent (50%) of such entity’s capital or equivalent voting rights and “Dispute” shall include any dispute, claim, controversy or action between you and Winkel Limited (or any Winkel Limited Affiliates) arising out of or relating to this Agreement, the App, or any other transaction involving you and Winkel Limited, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis.
20.3. Initial Dispute Resolution: if you have any concerns or queries regarding our App, please contact us by e-mail. Most concerns are quickly resolved in this manner to our customers' satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
20.4. Binding Arbitration: if the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to clause 20.3, then the parties agree that all Disputes shall be resolved by binding arbitration according to this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Under this Agreement, binding arbitration shall be administered by JAMS, a nationally recognized arbitration authority, under its procedures then in effect for consumer related disputes, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see clause 20.5 below). The parties understand and agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this clause 20, (b) this Agreement memorialises a transaction in interstate commerce, and (c) this clause 20 shall survive termination of this Agreement.
20.5. Arbitration Procedure: if any of the parties commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement and must follow applicable law. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is excluded from arbitration under clause 20.7. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Los Angeles, California, at your option. Instructions for initiating an arbitration are available at the JAMS website and toll-free number referenced above.
20.7. Exception - Litigation of Intellectual Property and Small Claims Court claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the App under these Terms. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
20.8. 30 Day Right to Opt-Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the Binding Arbitration and Class Action Waiver paragraphs above by sending written notice of your decision to opt-out to our registered office address set out in clause 1. The notice must be sent within 30 days of the earlier of your first download of the App or commencing use of our games; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those clauses. If you opt-out of these arbitration provisions, we also will not be bound by them.
20.9. Changes to this clause: we will provide 60-days’ notice of any changes to this clause. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.
21. Governing law, jurisdiction and limitation of time to file claims
21.1. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.
21.2. You and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in Los Angeles County, California to resolve any claims that are subject to exceptions to the arbitration agreement described in clause 20 above, or otherwise determined not to be arbitrable.
21.3. INSOFAR AS PERMISSIBLE UNDER APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
© Winkel Ltd. “Winkel” and Winkel Games is a registered trade mark of Winkel Limited. All rights reserved.