Terms of Use

These Terms and Conditions are applicable to Subscribers of the Winnow product.

Effective December 5, 2020

These Terms of Use, together with the executed Winnow Subscription Order Form (collectively, the “Agreement”), form a legal agreement between you (“Customer” or “You”) and Winnow Solutions, LLC  (“Winnow”), and set forth the terms and conditions governing Customer’s access to and use of the Subscription (as defined below). By executing a Winnow Subscription Order Form, Customer agrees to be bound by this Agreement, as may be amended by Winnow from time to time in accordance with Section 12.3, including the arbitration agreement set forth in Section 11 below (the “Arbitration Agreement”).  You should read the Arbitration Agreement carefully since it will govern how Disputes between You and Winnow are resolved.

Important Legal Notices

LEGAL ADVICE DISCLAIMER

The Subscription is not legal advice or a substitute or legal advice from a licensed attorney.  Neither this Agreement nor the purchase or use of the Subscription establish or are subject to any attorney-client relationship with Winnow, which is not engaged in the practice of law, Orrick Herrington & Sutcliffe LLP (“Orrick”) or other Winnow Affiliate (as defined below), or any attorneys associated with any of them.  Accordingly, use of the Subscription and other activities under or in connection with this Agreement are not subject to the attorney-client communications privilege or other protections of an attorney-client relationship.

ORRICK CLIENTS

By executing a Winnow Subscription Order Form and agreeing to be bound by this Agreement, any Customer who is also a legal client of Orrick acknowledges that Orrick has a substantial financial interest in Winnow, that the Customer has been given an opportunity to consult with independent counsel before entering into this Agreement, and that the Customer has determined that the Agreement is fair and reasonable.

1.     DEFINITIONS

1.1.         “Activation Date” means the date on which Customer is provided access to the Subscription as indicated on the Winnow Subscription Order Form.

1.2.         “Affiliate” means with respect to a Party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such Party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares or comparable membership or other interests entitled to vote for the election of directors or the equivalent.

1.3.         “API” means application programming interface.  

1.4.         “Authorized Administrator” – means the employee(s) or consultants of Customer identified on the Winnow Subscription Order Form who; (i) are given password-protected access to the Subscription; (ii) have the authority on behalf of Customer to administer Authorized Users within the Subscription, and (c) who may contact Winnow Support directly in accordance with Section 3.2 herein.

1.5.         “Authorized User” means an employee or officer of Customer who has (i) been assigned a unique username-password combination to access and use the Subscription, and (ii) registered through the Site to access and use the Subscription.

1.6.         “Confidential Information” means any written, machine-reproducible and/or visual materials that (i) are clearly labeled as proprietary or confidential, (ii) are identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, or (iii) which should reasonably be understood to be confidential given the nature and circumstances of its disclosure, provided that Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party, which independent development can be shown by written evidence. 

1.7.         “Customer Data” means any data input into and/or stored by the Subscription by or for Customer or Authorized Administrators or Authorized Users, including data and personal information about Customers’ Authorized Administrators and Authorized Users who use the Subscription. Customer Data is Confidential Information of Customer.  Customer Data does not include (i) data in which the Customer has been anonymized or de-identified (such as though the aggregation of Customer Data with data from other customers) or (ii) metadata associated solely with the behaviors or actions of Authorized Administrators and Authorized Users with the Subscription.

1.8.         “Fees” means any fees paid by Customer for the Subscription, as set forth in the Winnow Subscription Order Form.

1.9.         “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.10.      “Party” means either Customer or Winnow, as applicable, and “Parties” means, collectively, Customer and Winnow.

1.11.      “Site” means the Winnow website located at www.winnow.law.

1.12.      “Software” means any Winnow or third-party software used by Winnow to provide the Subscription.

1.13.      “Subscription” means a subscription to Winnow Technology identified on the Subscription Order Form agreed to by Customer, including, related Support that may be provided by Winnow from time to time for the Subscription.

1.14.      “Winnow Subscription Order Form” or “Order Form” means the order form used to purchase a subscription to Winnow that includes, but is not limited to: (i) the annual subscription price; (ii) the modules and products included in the subscription; and (iii) the term of the subscription.

1.15.      “Winnow Technology” means Winnow’s proprietary software, technology, frameworks, platforms, methodologies, facilitation guides, questionnaires, techniques, general purpose consulting and related know-how, logic, coherence and methods of operation of systems, user interfaces, screen designs, presentation materials, and documentation, including any enhancements, modifications or derivatives thereof, which are provided to Customer.

 2.     CUSTOMER ACCOUNT

2.1. Customer Account. To access the features of the Subscription, Customer must register for an account (the “Customer Account”) via the Order Form. Customer is responsible for maintaining the confidentiality of its Customer Account access credentials, the credentials of Authorized Administrators and Authorized Users, and the security of Customer’s systems and networks that it uses to access the Subscription.  Customer shall immediately notify Winnow in the event that Customer becomes aware, or otherwise suspects, that its Customer Account access credentials or the credentials of Authorized Administrators or Authorized Users have been shared or disclosed to third parties.

3.     SERVICES PROVIDED

3.1. Subscription Access. Subject to the terms and conditions of this Agreement, Winnow will make the Subscription available to Customer over the internet solely for Customer’s use for Customer’s internal business.  Unless otherwise provided, Subscriptions may only be accessed by Authorized Administrators and Authorized Users, and by the appropriate Customer divisions, business units, and/or geographies specified, as may be revised by Winnow or by Authorized Administrators.  Unless otherwise stated, Customer is responsible for the integration of Customer-side configuration and deployment of the Subscription.

3.2.  Support. In connection with the Subscription, Winnow will provide remote email support to Customer’s Authorized Administrator(s), as specified in the Order Form, through the email address support@winnow.law.  Such support shall consist solely of assistance with usage questions or troubleshooting bugs related to the Subscription.  Support hours shall be from 9:00 a.m. to 6:00 p.m. U.S. Pacific Time, Monday through Friday, (except U.S. federal holidays).  Authorized Users and Authorized Administrators also may utilize live chat support, to the extent provided by Winnow.       

3.3. Ancillary Services.  Customer hereby authorizes Winnow and its Affiliates to use the Subscription to market additional products and services to Customer, as well as to provide notice or information to Customer regarding Winnow or its Affiliates or their respective activities, regardless of whether such products, services, or activities relate to the Subscription.

3.4. Restrictions. Customer shall not interfere with or disrupt the Subscription or the Winnow Technology or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription). Customer shall not allow access to or use of the Subscription by anyone other than Authorized Administrators and Authorized Users. Customer shall not, and shall use commercially reasonable efforts to ensure its Authorized Administrators and Authorized Users do not: (i) copy, modify or distribute any portion of the Subscription or Winnow Technology, including without limitation, through screen scraping or the use of automated scripts or procedures; (ii) download, copy, remove, or otherwise transfer any intellectual property from the Subscription and Winnow Technology except as provided for in this Agreement; (iii) rent, lease, or provide access to the Subscription on a time-share or service bureau basis; or (iv) transfer any of its rights hereunder (except as specified in Section 12.9).

3.5. Acceptable Use Policies. Customer shall use the Subscription exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer may not, and shall ensure that Authorized Administrators and Authorized Users do not, use the Subscription in any manner that would violate the rights of any third party.  Customer shall not engage in any bulk downloading of the Winnow Technology or other information or content from the Subscription, except as may be permitted as a function of the Subscription. Customer shall, and shall ensure that its Authorized Users, keep confidential and do not disclose to any third parties any user identifications, Customer Account access credentials, account numbers and account profiles.

3.6. Illegal or Improper Use of Subscription. Winnow may immediately suspend or terminate Customer’s access to the Subscription, by written notice to Customer, in the event that (i) Winnow determines that Customer has breached this Agreement, (ii) Winnow determines on the basis of reasonable evidence that the Subscription are being used for fraudulent or criminal activities, or in violation of any applicable law or regulation, or (iii) in the event that a governmental, legal or other law enforcement authority so requires or instructs Winnow to terminate or suspend services to Customer. In the event Winnow suspects or anticipates such termination, Winnow will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Customer with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) termination. Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical.

3.7. Privacy and Cookie Policy.  The use of the Subscription by Customer and its Authorized Administrators and Authorized Users is governed by Winnow’s Privacy and Cookie Policy available at https://www.winnow.law/privacy-policy. This policy may be modified from time to time, and Customer agrees to comply, and to cause its Authorized Users to comply, with such policy, as amended.

3.8. Data Maintenance and Backup Procedures. The Subscription is not intended to be a failsafe data warehouse or data back-up solution. In the event of any loss or corruption of Customer Data, Winnow shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Winnow.  Customer acknowledges that full restoration of Customer Data may not be possible under all circumstances.

3.9. Export Control.  Winnow makes no claims that the Subscription is accessible or appropriate outside of the United States. Access to and use of the Subscription may not be legal by certain persons or in certain countries. If Customer accesses the Subscription from outside the United States, Customer does so at its own risk and remains solely responsible for compliance with local laws. The Subscription is subject to export controls under the laws of the United States and any other applicable countries’ laws. Customer agrees to comply with such laws governing export, re-export, transfer, and use of the Subscription and shall obtain all required U.S. and local authorizations, permits, or licenses prior to exporting, re-exporting, releasing, or otherwise making the Subscription available outside of the United States. Customer represents and warrants that: (i) it is not located in a country that is subject to an embargo by the United States, or that has been designated by the United States as a “terrorist supporting” country; and (ii) it is not listed on any list of the United States of prohibited or restricted parties.

4.     CUSTOMER OBLIGATIONS

4.1. Cooperation and Assistance. Customer shall at all times: (i) provide Winnow with good faith cooperation and access to such information and personnel assistance as may be reasonably required by Winnow in order to provide access to the Subscription from time to time; and (ii) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.

4.2. Marketing Support. Customer grants to Winnow a non-exclusive, non-transferable (except as permitted under Section 12.9), revocable, limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in accordance with any Customer trademark and logo use guidelines that Customer provides to Winnow. Any public use by Winnow of the Customer Marks shall be subject to Customer’s prior consent, except that Winnow may use the Customer Marks to identify Customer as a customer of Winnow, including on the Winnow corporate website. All goodwill developed from such use shall be solely for the benefit of Customer.

4.3. Enforcement. Customer shall ensure that all Authorized Administrators and Authorized Users comply with this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 3.4 and 3.5. Customer shall be responsible for noncompliance by Authorized Administrators and Authorized Users and for any charges incurred as a result of such actions. Customer shall promptly notify Winnow of any suspected or alleged violation of this Agreement by an Authorized Administrator, Authorized User, or unauthorized third party and shall cooperate with Winnow with respect to Winnow’s resulting investigation and any actions to enforce this Agreement. Winnow may elect, in its sole discretion, to suspend or terminate any Authorized Administrator or Authorized User’s access to the Subscription upon notice to Customer in the event that Winnow reasonably determines that such Authorized Administrator or Authorized User has violated this Agreement or has otherwise violated the law.

4.4. Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized Administrators’ and Authorized Users’ use of the Subscription is dependent upon access to telecommunications and Internet services, and Customer shall be responsible for all Customer-side configuration and development in connection with the Subscription.  Specifically, Customer shall use the most recent versions of either Google Chrome, Microsoft Internet Explorer or Edge, or Apple Safari Internet browsers to access and use the Subscription.  If any Internet browser shall become subject to “end-of-life” deprecation, Winnow may elect to no longer actively support such browser. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Winnow shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

4.5. License to Customer Data. Customer shall retain all right, title, and interest in and to Customer’s intellectual property rights in Customer Data. By importing or processing Customer Data, Customer grants to Winnow the right and license to reproduce, distribute, modify, and adapt Customer’s Data solely to provide the Subscription to Customer.  In addition, Customer acknowledges and agrees that third party subcontractors of Winnow may have access to Customer Data in connection with maintaining and developing the Subscription.  Winnow may use, display, store, disclose or transfer Customer Data as may be required by law or legal process and Winnow shall provide reasonable notice to Customer of any such disclosure.

4.6. Representations and Warranties with Respect to Customer Data. With respect to any Customer Data that Customer imports, stores, or processes through Winnow, Customer represents, and warrants that:

4.6.1. Customer is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use, Customer Data.

4.6.2. Customer and its Authorized Administrators and Authorized Users have been authorized, by all required legal action, to input Customer Data into the Subscription and to have Customer Data stored by the Subscription.

4.6.3. Winnow (and, where applicable, Authorized Users) is authorized to use and distribute Customer Data as necessary to exercise the licenses granted by Customer in this Agreement.

4.6.4. Customer Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.

4.6.5. Customer’s privacy policies and practices allow Customer to provide Customer Data regarding Authorized Users to Winnow, and do not prohibit or conflict with Winnow’s ability to use, store, and disclose such Customer Data as set forth in this Agreement.

4.7 Customer Control.  Customer will be solely responsible for administering and monitoring the use of login IDs and passwords provided by Authorized Administrators within the Subscription or by Winnow on behalf of Customer.  Upon the termination of employment of any Authorized User or Authorized Administrator, Customer will terminate that individual’s login ID and password.  Winnow is not responsible for any damages resulting from Customer’s failure to manage the confidentiality of its login ID and passwords.  Customer is responsible for any actions arising out of any use or misuse of Customer’s login IDs.

4.8 Prohibited Uses and Customer Restrictions.  Customer must not modify, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer the Winnow Technology provided under this Agreement, except as explicitly permitted hereunder.  Unless otherwise expressly set forth, the Subscription must be used solely by Customer, and not (by implication or otherwise) by any parent, other division, subsidiary or affiliate of Customer.  Customer must not permit a competitor of Winnow to access the Winnow Technology, except with Winnow’s prior written consent.  Customer must not:  (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from the Winnow Technology; (ii) interfere with or disrupt the integrity or performance of the Winnow Technology, or the data contained therein; (iii) use the Winnow Technology in a manner inconsistent with its applicable documentation; or (iv) attempt to gain unauthorized access to the Winnow Technology or related systems or networks.

5.     FEES; TAXES

5.1. Fees. Customer shall pay all Fees by ACH, wire, or check, or through an online payment system provided by Winnow, if available.  Except as otherwise set forth in this Agreement, all Fees are non-refundable.

5.2. Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any Fees, other than any taxes based on Winnow’s net income.

5.3. Payments. All Fees will be invoiced, and shall be paid, in US dollars.  Unless otherwise provided in any invoice, payment from Customer shall be due within thirty (30) days from the date of invoice.   

5.4. Late Payment. For any late payment, Customer may be required to pay interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.

6.     OWNERSHIP 

6.1. Winnow Ownership. As between Winnow and Customer, the Subscription and Winnow Technology, and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Winnow or its licensors. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Subscription and Winnow Technology are protected by all relevant intellectual property and proprietary rights and applicable laws. Except for the Customer Data, all Winnow Technology contained in the Subscription are the property of Winnow or its third-party licensors. Except as expressly authorized by Winnow, Customer may not make use of the Winnow Technology. Winnow reserves all rights to the Winnow Technology not expressly granted in this Agreement.

7.     CONFIDENTIALITY AND SECURITY. 

7.1. Confidentiality Obligations. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither Party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Neither Party shall disclose Confidential Information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors). Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide (to the extent permitted by applicable law) the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

7.2. Security Obligations. Winnow shall (i) maintain appropriate information security practices for Winnow’s systems used to provide Subscription, including reasonable security procedures and practices appropriate to the nature of the information, to prevent unauthorized access to, or use or disclosure of, any Customer Data (a “Security Incident”), and (ii) comply with all privacy and data security laws and regulations applicable to Winnow. Winnow shall promptly notify Customer of any confirmed Security Incident that has impacted Customer Data, investigate, and remediate any such Security Incident. Winnow shall have no responsibility or liability for any Security Incident to the extent such Security Incident is caused in whole or in part by the negligence, willful misconduct, or fraud of Customer or its Authorized Administrators or Authorized Users.

8.     WARRANTY AND DISCLAIMER 

8.1. Customer Use and Data. Winnow shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Winnow by Customer or by any Authorized Administrator or Authorized User in connection with the Subscription. Except as otherwise set forth herein, Winnow expressly disclaims any and all liability in connection with Customer Data. Winnow is under no obligation to edit or control Customer Data that Customer imports to or the Subscription. Winnow may, at any time without prior notice, remove any Customer Data that violates this Agreement or applicable law, or which violates the rights of a third party or Winnow. Winnow shall have no liability for any acts taken by Customer or an Authorized Administrator of Authorized User in violation of Section 3.

8.2. General Disclaimer. Except as set forth in Section 8.3, Winnow makes no representations or warranties of any kind whatsoever, express or implied, in connection with this Agreement or the Subscription. Without limiting the foregoing, Winnow disclaims any warranty that the Subscription will be error free or uninterrupted or that all errors will be corrected. Winnow further disclaims any and all warranties with respect to the Subscription as to merchantability, accuracy of any information provided, or fitness for a particular purpose, or non-infringement. Winnow further disclaims any and all warranties arising from course of dealing or usage of trade. No advice or information, including, without limitation, tax advice and reporting responsibilities, whether oral or written, obtained from Winnow or elsewhere shall create any warranty not expressly stated in this Agreement. In jurisdictions that by law do not allow the exclusion of certain warranties in certain circumstances, the disclaimers in this Section 8.2 and elsewhere in this Agreement shall be construed to comply with such applicable law.

8.3 Limited Subscription Warranty.  Notwithstanding Section 8.2, Winnow warrants that the Subscription will perform in all material respects with the functions described in the then-current Winnow product documentation included in the Subscription.  This warranty does not apply if the Subscription is not administered by Customer in accordance with this Agreement, or any applicable instructions and training provided by Winnow.  If the Subscription fails to operate as warranted in this Section 8.3 and Customer notifies Winnow in writing of the nature of the non-conformance (“Notice”), Winnow will use commercially reasonable efforts to promptly repair or replace the non-conforming Subscription without charge.  If, after a reasonable opportunity to cure, Winnow does not remedy the non-conformance, Customer may no later than sixty (60) days after giving the Notice, terminate the Subscription and receive a refund of the prepaid Subscription fees for the period following the date of Notice.  The foregoing provides Customer’s sole remedy for breach of the exclusive warranty in this Section 8.3.

9.     TERM AND TERMINATION

9.1. Term. The term of the Subscription shall be as set forth in the Order Form (the “Term”), unless this Agreement or the Subscription are otherwise terminated in accordance with this Agreement.

9.2. Termination for Convenience. Customer may terminate this Agreement by providing written notice to Winnow, and Winnow will reasonably cooperate with Customer in a wind-down of the Subscription. Customer shall not be entitled to a refund of any prepaid Fees as a result of Customer’s termination for convenience. In no event shall any termination relieve Customer of the obligation to pay any non-Disputed Fees payable to Winnow for the period prior to the effective date of termination or cancellation, or for payment for the Subscription for the remainder of the then-current Term.

9.3. Termination for Cessation of Subscription.  At any time, Winnow may terminate this Agreement, effective immediately, if Winnow elects in its sole discretion to cease providing the Subscription, in the manner described in this Agreement, to Customer and to Winnow’s other customers, provided that Customer shall be entitled to a pro-rated refund of its prepaid Fees as of the date of termination.

9.4. Termination for Breach. If either Party commits a material breach of its obligations in this Agreement (including payment obligations), the non-defaulting Party may give written notice to the defaulting Party specifying the nature of the default, and if such default is not cured within thirty (30) days from the receipt of such notice, then the non-defaulting Party shall have the right to immediately terminate this Agreement. In the event that Customer terminates due to a material breach by Winnow, Customer shall be entitled to a pro-rated refund of its prepaid Fees as of the date of termination.

9.5. Termination for Insolvency. Notwithstanding anything hereinabove set forth, either Party may terminate this Agreement immediately by providing written notice to the other Party in the event the other Party becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against such Party.

9.6. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, (i) Customer’s, Authorized Administrators’ and Authorized Users’ right to access and use the Subscription shall immediately terminate, (ii) Customer and its Authorized Administrators and Authorized Users shall immediately cease all use of the Subscription, (iii) Winnow shall cease use of the Customer Marks within a reasonable time, and (iv) each Party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other Party, provided that Winnow shall be permitted to retain Customer Data within the Subscription to the extent Winnow reasonably determines that such Customer Data cannot easily be extracted, and Winnow’s obligations under Section 7 shall survive with respect to such retained Customer Data for as long as Winnow retains the Customer Data.

9.7. Survival. Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically, Sections 6 (Ownership), 7 (Confidentiality and Security), 10 (Limitation of Liability), 11 (Disputes), and 12 (General).

10.  LIMITATION OF LIABILITY

10.1. Consequential Damages Waiver. In no event shall either Party be liable to the other Party for an incidental, special, exemplary or consequential damages, including loss of income, data, profits, revenue or business interruption, or cost of substitute services, or other economic loss, whether or not such Party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability) or otherwise.

10.2. Liability Cap. In no event shall either Party’s aggregate liability to the other Party in connection with this Agreement exceed the total Fees paid or payable by Customer in the twelve month period preceding the claim or action, regardless of the form or theory of the claim or action.

11.  DISPUTES

11.1. Dispute.  The term “Dispute” or “Disputes” means any claim, counterclaim, cross-claim, complaint, cross-complaint, controversy, or Dispute between Customer and Winnow that arises out of or relates in any way whatsoever to this Agreement. Without limiting the generality of the foregoing, the term “Dispute” or “Disputes” shall include: (i) any claim, controversy or Dispute without regard to when it arose, whether it is based in contract, tort, statute, regulation, common law, or equity; or whether the remedy sought is legal or equitable, including claims for compensatory, monetary, restitution and/or disgorgement, or injunctions, (ii) all Disputes asserted by You as a private attorney general, as a putative representative and/or member of a class of persons, or in any other representative capacity, all of which shall be heard on an individual basis only, and (iii) Disputes concerning the formation, existence, validity, enforceability, revocation or scope of this Arbitration Agreement, including any Disputes about the arbitrability of any claim or cause of action. Except as expressly excluded herein, all such Disputes shall be referred to the arbitrator and be decided by the arbitrator in accordance with this Arbitration Agreement.

11.2. Informal Resolution. Before arbitrating a Dispute, each Party agrees to try to resolve the Dispute by providing written notice to the other Party of the Dispute pursuant to Section 12.4. If a Dispute is not resolved within thirty (30) days of notice, either Party may bring a formal proceeding. 

11.3. Agreement to Arbitrate. By executing the Order Form, Customer agrees that any Dispute between Customer and Winnow shall be resolved by confidential, binding arbitration, as set forth herein. Customer acknowledges and agrees that this Arbitration Agreement results in a waiver of its right to have the Dispute resolved by a judge and jury in court in accordance with applicable rules of evidence and procedure and to have the matter heard in a public forum.  Customer also acknowledges by executing the Order Form that Customer is agreeing that any Dispute will be resolved on an individual basis only and that Customer will neither bring nor participate as a representative plaintiff or class member in a class action with respect to any Dispute.  Customer further acknowledges and agrees that any Dispute between Customer and Winnow will not be joined or consolidated with any other Dispute and that Customer will not bring any Dispute in any other representative capacity. To the extent permitted by law, Customer agrees not to bring any Dispute in any private attorney general capacity.

11.4. Arbitration Procedures.  To initiate arbitration, a Party will serve a written demand for arbitration on the other Party pursuant to Section 12.4 setting forth the basis of the initiating Party’s claim and the amount of damages sought.  The arbitration shall be conducted pursuant to the JAMS Comprehensive Arbitration Rules and Procedures before a single arbitrator who shall be a retired judge selected by the Parties.  If the Parties cannot agree on an arbitrator, one will be appointed by JAMS.  If JAMS is unwilling or unable to administer the arbitration, the arbitration shall be administered by the American Arbitration Association, in accordance with its Commercial Arbitration Rules, or by such other arbitration administrator as the parties may agree to.  The Parties shall share the cost of arbitration (including the administrator’s and the arbitrator’s fees) equally and bear their own legal fees and costs.  The arbitration proceedings and the decision of the arbitrator will be confidential.  To the extent permitted by law, no punitive or exemplary damages shall be awarded by the arbitrator.  The exclusive venue for the arbitration shall be Washington, DC.  The arbitrator shall have no authority to conduct class arbitration, to consolidate or join Disputes of other Customers with Your Dispute, to hear claims brought in a private attorney general capacity, or to award injunctive relief beyond such relief as is necessary to remedy Customer’s individual injury or to prevent future injury to the Customer alone. The arbitrator shall hear Motions to Dismiss or their equivalent and Motions for Summary Judgment. The arbitrator shall determine such motions under Rules 12 and 56 of the Federal Rules of Civil Procedure (or their equivalents if superseded) and case law construing these rules governing at the time of decision. Unless otherwise agreed by the parties, a motion to dismiss shall be filed no later than the 60th day following the appointment of the arbitrator and heard by the arbitrator within 30 days thereafter.  The arbitrator shall rule on any motion to dismiss within 15 days of the hearing date on such motion.  If the arbitrator allows an amended pleading, then the opposing Party shall have an opportunity to move to dismiss any amended pleading. A Party shall be entitled bring a motion or motions for summary judgment at any point after the 60th day following notice of an election to arbitrate and any such motion or motions shall be heard and determined no later than 4 weeks prior to the date of any evidentiary hearing in the matter. The arbitration award will be final and conclusive on both Parties and not be subject to de novo review or appeal.  The arbitrator’s award may be confirmed, and judgment thereon may be entered, in any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, related to such enforcement.

11.5. Law Governing Arbitration Agreement. Customer acknowledges and agrees that the Agreement evidences a transaction in interstate commerce.  Accordingly, the Arbitration Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq. (the “FAA”), and not by any state or local law governing consolidation or joinder of parties or claims, the arbitrability of claims, or the enforcement of class action or jury trial waivers.

11.6. Applicable Law.   The arbitrator shall apply the FAA to all questions before him or her arising under the FAA. Subject to and to the extent not pre-empted by the FAA, the terms of this Arbitration Agreement, the applicable JAMS rules, and the law of the District of Columbia (without reference to its choice of law rules) shall be applied (in the foregoing order of priority) by the arbitrator as the rule of decision in arbitration to issues that would be governed by state law if the Dispute were heard in court instead of in arbitration; likewise, the arbitrator shall apply federal law to all questions of federal law that arise in arbitration. The arbitrator is authorized to award on an individual basis remedies that would be available if the action were heard in a court. The arbitrator shall honor claims of privilege in accordance with federal law, if a federal claim is at issue, or District of Columbia law, if a claim governed by state law or foreign law is at issue.

11.7. Exceptions. Either Party may bring a lawsuit in the United States District Court for the District of Columbia or the Superior Court of the District of Columbia, and each Party consents to the jurisdiction of these courts:

11.7.1. to enforce the arbitration provisions of this Agreement as provided by the FAA or applicable District of Columbia procedure; 

11.7.2. for equitable remedies as described in Section 12.13 on a provisional basis pending arbitration. Such equitable remedies shall remain in place until the later of such time as the arbitrator’s award entering preliminary or permanent injunctive relief (or dissolving or modifying a court-entered injunction) is (a) confirmed or (b) the time for bringing a motion to confirm the arbitral award has expired without a motion or petition for confirmation having been timely filed; 

11.7.3. California Residents Regarding Public Injunctive Relief: If Customer is a California resident and a Dispute involves a claim for public injunctive relief under California law, You may bring that claim in court.  If You bring that claim in court, You further agree that Winnow may treat such a claim as a Dispute within the meaning of this Arbitration Agreement, and that Winnow would then have the right to demand arbitration, and if You refuse its demand, to move to enforce arbitration in accordance with the terms of this Arbitration Agreement pursuant to the FAA. If Winnow brings and loses that motion, Your claim for public injunctive relief will be heard in court, but You agree to stay Your claim in court for public injunctive relief pending (a) exhaustion of Winnow’s right to appeal in court from the ruling against it, and (b) completion of arbitration of all other Disputes. If Winnow wins its motion, Your claims for injunctive relief will be decided in arbitration in accordance with the terms of this Arbitration Agreement, meaning that the arbitrators can award only such injunctive relief as is necessary to remedy Your own alleged injury or to prevent future injury to You alone. 

11.8. Severability. If any portion of this Arbitration Agreement cannot be enforced, the unenforceable portion will be severed and the rest of this Arbitration Agreement Arbitrate will continue to apply.  However,  if (a) it is finally determined that the class action waiver contained in this  Arbitration Agreement cannot be enforced, or (b) the arbitrators (contrary to this Arbitration Agreement) purport to decide a Dispute on a class or other representative basis, or to award injunctive relief that extends beyond that necessary to remedy your own individual alleged injuries or to prevent future harm to you alone, then only this sentence will apply and the remainder of this Arbitration Agreement will be void. In no event will a claim for class relief (or for injunctive relief extending beyond your own individual alleged injuries or to prevent future harm to you alone) be arbitrated.

12.  GENERAL

12.1. Governing Law. Subject to Section 11, this Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the District of Columbia, without regard to its conflict of law provisions.

12.2. Waiver. No waiver by either Party any default or breach of this Agreement shall be valid unless set forth in writing by such waiving Party.  The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

12.3. Amendments.  This Agreement may be amended by Winnow from time to time, by posting the amended Agreement on the Site, and any such amendments to the Agreement shall be effective as of the initial date of posting.  Customer’s continued use of the Subscription following the posting of an amended Agreement shall constitute Customer’s acceptance of such amended Agreement.   

12.4. Notices.  Notices under this Agreement to Customer will be in writing and provided to the contact and address/email address indicated on the Order Form, provided that Customer may change such contact or address by written notice to Winnow.

All notices under this Agreement to Winnow will be in writing and sent by (i) personal delivery, including confirmed delivery by email; (ii) overnight courier; or (iii) first class mail, certified or registered, return receipt requested to:

Winnow Solutions, LLC

Attention: Chris Hilliard

5101 E La Palma Ave, Suite 101

Anaheim Hills, CA 92807

A copy of any notice should be sent via email to notices@winnow.law. 

12.5. Severability.  Subject to Section 11, if any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

12.6. Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.

12.7. Compliance with Laws. Each Party agrees to comply with all applicable laws with respect to its activities hereunder.

12.8. Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or attorney-client relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.  For the avoidance of doubt, Winnow shall not be deemed to be representing Customer in any legal capacity.

12.9. Assignment/Successors. This Agreement shall inure to the benefit of and be binding only upon the Parties unless the Agreement is assigned or transferred in accordance with this Section 12.9. Each Party may assign or transfer this Agreement, in whole or in part, only with the other Party’s prior written consent, except that each Party may assign or transfer this Agreement, in whole or part, to any of its Affiliates or as the result of a Change of Control (as defined below) at any time upon written notice to the other Party. Any attempted assignment or transfer in violation of this Section 12.9 will be null and void. “Change of Control” means, with respect to a Party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of or comparable membership or other interest in such Party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (b) the merger of such Party with another entity. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each Party.

12.10. Feedback. If Customer or its Authorized Users submit suggestions, ideas, comments, or questions containing product feedback about or posted through the Subscription (“Feedback”), Customer grants Winnow and its Affiliates a worldwide, non­exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form. Customer shall have no intellectual property right in the Subscription as a result of Winnow’s incorporation of Feedback into the Subscription.

12.11. Changes to Subscription. Winnow reserves the right to: (1) discontinue, impose limits on, or restrict access to any aspect of the Subscription at any time, with or without cause or notice, including the availability of any of the features, delivery services, databases, or content, or (2) edit or delete any documents, information, or other content appearing in the Subscription.

12.12. Entire Agreement. This Agreement, together with the Order Form, and any exhibits hereto, constitutes the complete and exclusive agreement between the Parties concerning the Subscription and supersedes all prior or contemporaneous agreements or understandings, written or oral, between the Parties concerning the Subscription.   For the avoidance of doubt, any agreements between Customer and Winnow Affiliate Orrick relating to the provision of legal advice or other matters do not apply to the Subscription.

12.13. Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.

12.14. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the Parties may enforce this Agreement.