Digital & Social Media Agreement

PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOUR LEGAL RIGHTS. WHEN YOU POST OR SEND MEDIA, IMAGES, VIDEO (COLLECTIVELY KNOWN AS “Content”) TO WINCOME HOSPITALITY WEBSITE, OR THROUGH SOCIAL MEDIA USING THE SOCIAL HANDLE @WINCOMEHOSPITALITY, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT.

• You may be viewing this license agreement on a small screen. If so, here are some highlights of the License Agreement below (but please read the entire License Agreement).

• You own the Content, which is defined in the License Agreement below. Nothing in this License Agreement changes that.

• You are giving Wincome Hospitality a license to use the Content on Wincome Hospitality’s websites, apps, e-mail, and social media, including for promotional purposes.

• You are also giving Wincome Hospitality a license to use your name and image and other biographic material in conjunction with the Content.

• You certify that you have all the rights from third parties for your Content and represent that nothing in the Content is inappropriate, defamatory or harmful to any third party.

• You are releasing and indemnifying Wincome Hospitality and related parties from any liability and you promise not to sue Wincome Hospitality for its use of the Content as described.

License Agreement

1. You represent and warrant that you are at least 18 years old.

2. You represent and warrant that you (a) own and control all rights, title and interest in and to the Content you license or that you otherwise have all rights, permissions, and consents necessary to post and use such Content (including, but not limited to, the right to use names, images and likenesses of any third party referenced or appearing in the Content); (b) have all rights necessary to provide Wincome Hospitality with the license and rights set forth in Section 3 below; and (c) have complied with all applicable laws and regulations associated with acquiring and/or producing the Content. For the purposes of this Agreement, “Content” means photographs, text, graphics, moving images, sound, illustrations and any other materials (including any associated metadata or location information) (collectively, “Content”). For purposes of clarification, Content also includes any profile information you allow Wincome Hospitality to access from third party social media platforms (such as, but not limited to, Instagram, Twitter, and Facebook) in accordance with the authorization procedures determined by the platform.

3. You hereby grant to Wincome Hospitality and its affiliates, agents, representatives, licensees and assigns, a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display the Content you submit, in whole or in part, on Wincome Hospitality’s social media accounts, on or in any digital platforms of Wincome Hospitality (including websites, apps and e-mail), and on third-party websites and apps for any purpose, including for promotional and publicity purposes. For purposes of clarification and not limitation, (a) this license includes, and you expressly consent to, Wincome Hospitality’s right to use and publicly display your name, image, likeness and persona; and (b) nothing in this license transfers your ownership of the Content to Wincome Hospitality. Nothing in this license requires Wincome Hospitality to use or publish your Content in any specific way or on a specific platform or use or publish your Content at all. If you have set your social media accounts to “public,” anyone on the Internet may view and have access to your Content.

4. Any statements, remarks or claims contained or depicted in your Content will reflect your honest views and experiences. When referencing or depicting brands, products or services in your Content, you further agree to disclose any material connections you may have with Wincome Hospitality or other third-party brands or sellers (such as if you are an employee, paid blogger or recipient of free products/services). You also agree to provide supporting information or documentation related to these statements, remarks, claims, views and experiences at Wincome Hospitality’s request.

5. You understand that you will not be paid for Wincome Hospitality’s use of your Content as described in this License Agreement. Each of us will bear our own expenses associated with this License Agreement.

6. You agree to take any actions (including the execution of documents) reasonably requested by Wincome Hospitality to effect, perfect or evidence the representations and/or licenses and rights set forth in this License Agreement.

7.      You agree that you will not submit Content that:

• infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary rights of another;

• includes material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, violent, harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable;

• displays describes or encourages the use of a product or service that could be offensive, inappropriate or harmful to Wincome Hospitality or any other person or depicts the use of a product in a manner that is contrary to any instruction or warnings relating to the product;

• impinges upon or violates the publicity, privacy or data protection rights of others; or

• makes or includes false or misleading statements, claims or depictions about a person, company, product or service.

Without limiting the foregoing, you agree that in conjunction with the production of your Content, you have not inflicted emotional distress or abuse on other people, have not publicly humiliated other people, have not assaulted, stalked or threatened other people, have not entered onto private property without permission, have not impersonated any other person or misrepresented your affiliation, title, or authority, and have not otherwise engaged in any activity that may result in injury, death, property damage, and/or liability of any kind. Wincome Hospitality may reject and/or remove any Content in which Wincome Hospitality believes, in its sole discretion, that any such activities have occurred.

1. If you object to Content displayed on Wincome Hospitality’s social media accounts or in any digital platforms of Wincome Hospitality (including websites, apps and e-mail) and on third-party websites, you may contact us at INSERT and identify the post or Content that is objectionable. We will investigate your report and provide a prompt reply. We reserve the right to remove any posting on our digital platform at any time for any reason, including in response to objections received from any user.

2. To the fullest extent allowed by law, you agree to release, discharge and indemnify Wincome Hospitality and its lessor, partners, members, managers, officers, employees, contractors, sponsors and any person acting under Wincome Hospitality’s permission or authority, from any liability, claim, damage, judgment, cost, loss, expense (including reasonable attorneys’ fees), by virtue of any publication or use of the Content you submit or the name, image, likeness, persona or other information you provide in connection with such Content. You further agree to waive any rights to injunctive relief you may have in connection with this License Agreement. Wincome Hospitality shall not, under any circumstances, be liable to you for any indirect, incidental, consequential, special or exemplary damages arising out of or in connection with use of Wincome Hospitality social media accounts or in any digital platforms of Wincome Hospitality (including websites, apps and e-mail) and on third-party websites, whether based on breach of contract, breach of warranty, tort (including negligence, product liability or otherwise), or any other statutory, legal or equitable theory or for any other pecuniary loss, whether or not Wincome Hospitality has been advised of the possibility of such damages. Under no circumstances shall Wincome Hospitality be liable to you for any amount.

3. This is the entire agreement between you and Wincome Hospitality in relation to the Content you’re licensing. If a court finds any provision of this License Agreement to be unreasonable or unenforceable in any respect, you agree that this License Agreement will nonetheless be enforced to the maximum extent to which it is found by the court to be legally enforceable.

4. This License Agreement will be governed by applicable federal law and the laws of the State of California, without reference to its choice of law rules. Nothing herein will be interpreted as a waiver of Wincome Hospitality’s rights to the Content under federal and state common law and statutes (such as rights of public domain and fair use).

Communications Services

The Website or Social Media Applications may have social media pages, blogs, chat areas, forums, comments, rankings, sweepstakes, contests, games, communities, calendars, and/or other message or communication facilities that are designed to enable you and others to communicate with Wincome Hospitality and other users (collectively, “Communication Services”). You acknowledge that your submissions to the Websites or Applications may be or become available to others. You agree only to post, send, and receive messages and materials that are proper and related to the particular Communication Service and to adhere to these Terms and our “Terms & Use” posted on any Website, Application, or third-party website, platform or application.

 Prohibited Actions: You agree that the following actions are prohibited and constitute a material breach of these Terms. This list is not meant to be exhaustive, and Wincome Hospitality reserves the right to determine what types of conduct it considers to be inappropriate use of the Websites and Applications. In the case of inappropriate use, Wincome Hospitality or its designee may take such measures as it determines in its sole discretion.

 By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:

·         Use the Websites or Applications or the Content for any purpose or to take any actions in violation of local, state, national, or international laws, regulations, codes, or rules.

·         Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.

·         Take any action that imposes an unreasonable or disproportionately large load on a Website or Application’s infrastructure or otherwise in a manner that may adversely affect performance of the Website or Application or restrict or inhibit any other user from using and enjoying the Communication Service or the Website or Application.

·         Use any Website or Application for unauthorized framing or linking, or via automated devices, bots, agents, scraping, scripts, intelligent search or any similar means of access to the Content.

·         Aggregate, copy, duplicate, publish, or make available any of the Content to third parties outside the Websites or Applications in any manner.

·         Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.

·         Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material, content, or information.

·         Upload or download files that contain software or other material protected by intellectual property laws or other laws, unless you own or control the rights, titles, or interests thereto or have received all necessary consents or rights.

·         Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.

·         Use any Website or Application to make available unsolicited advertising or promotional materials, spam, pyramid schemes, chain letters, or similar forms of unauthorized advertising or solicitation.

·         Harvest or otherwise collect information about others, including email addresses, without their consent.

·         Falsify or delete any author attributions, legal or other notices, or proprietary designations or labels of origin or source.

·         Engage in any other action that, in the judgment of Wincome Hospitality, exposes it or any third party to potential liability or detriment of any type.

User Materials

Any text, photos, videos, graphics, or other images, content, views or links submitted or otherwise made available by users through the Websites or Applications (“User Materials”) are strictly those of the originating author, who is solely responsible for the submitted content. Use of or reliance on User Materials is entirely at your own risk. Wincome Hospitality does not endorse any User Materials nor vouch for their reliability. Under no circumstances will Wincome Hospitality be liable in any way for any User Materials.

 You acknowledge that Wincome Hospitality may or may not pre-screen User Materials, but that it and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, edit, modify, delete and/or move any User Materials that are available via the Websites or Applications. Without limiting the foregoing, Wincome Hospitality and its designees have the right to remove any User Materials that violate these Terms or are otherwise objectionable in Wincome Hospitality’s sole discretion. Wincome Hospitality shall have no liability for such removal.

 You understand that by using the Websites or Applications, you may be exposed to User Materials that you may consider offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or exposure to any User Materials posted by others. You further acknowledge and agree that you will not rely on any Content or User Materials available on or through the Websites or Applications.

 Submissions

You are solely responsible for the User Materials that you post, share, email, transmit or otherwise make available via a Website or Social Media Application (“Submission”). All Submissions are subject to these Terms. Wincome Hospitality is under no obligation to post or use any Submission and may remove any Submission at any time in its sole discretion.

 By making a Submission, you represent and warrant that (i) your Submission is true, your own original work, and does not infringe any other person’s or entity’s rights, and that and you own all right, title and interest in your Submission and its parts, and copyright therein; (ii) that you and any other person mentioned or shown in your Submission, and your and their representatives, agents, heirs, executors and assigns, are 18 years old or older, and have the right to grant the rights hereunder concerning Wincome Hospitality’s or its designees’ use, modification or distribution of the Submission or any part thereof, including without limitation any name, address, likeness, voice, statements, actions or biographical information; (iii) your Submission does not violate any applicable laws or regulations, or the terms or rules of any platform where it was posted, does not include any confidential or private information, and does not infringe or violate any other person’s or entity’s rights; (iv) your Submission does not contain any automated devices, bots, viruses, scripts, or any similar software. You further represent and warrant that you have not been and will not be paid or compensated by anyone else for posting your Submission or any part thereof or for the rights granted to Wincome Hospitality in these Terms, and no third party agent, manager, union or anyone else is entitled to be paid or compensated as a result of your Submission or the rights granted to Wincome Hospitality in these Terms. You must own all right, title, and interest, including copyright, to your Submission, and must hold all necessary releases concerning the contents of your Submission and consents and rights to post, distribute, or transmit your Submission. You agree that you must evaluate, and bear all risks associated with, your disclosure of any Submission. By making a Submission, you grant Wincome Hospitality and its service providers, licensees, assignees and designees an irrevocable, assignable, fully sub-licensable, perpetual, world-wide, royalty-free, fully paid-up, non-exclusive license, in their sole discretion, to use, distribute, reproduce, modify, combine, adapt, publish, translate, rent, lease, sell, publicly perform and publicly display your Submission (in whole or in part), along with your name, username, caption, text, tags, or any part thereof and city/town/village/community of residency, in Wincome Hospitality’s discretion, on the Websites or Applications or elsewhere, and to use or incorporate all or any part of your Submission into other advertising, promotion, research, analysis or other materials in any format or medium now known or later developed. You hereby waive any right to inspect such use and any claims based on privacy, publicity, defamation, misappropriation, intellectual property or similar claims for any use of your Submission.

On behalf of yourself and your representatives, agents, heirs, executors, administrators and assigns, you hereby release Wincome Hospitality entities and all those acting in conjunction with or under the authority of Wincome Hospitality or any of them, from and against all claims, damages, losses, injuries, death or liability of any kind arising from or relating, in whole or in part, directly or indirectly, to your Submission or its use pursuant to these Terms. You acknowledge that you are familiar with the provisions of California Civil Code § 1542, which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Being aware of said code section, you hereby expressly waive any rights you may have thereunder, as well as any other statute or common law principles of similar effect.

9) Notice and Procedures for Making Claims of Copyright or Intellectual Property Infringement

Wincome Hospitality may, in appropriate circumstances and at its sole discretion, disable and/or terminate use by users who infringe the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Wincome Hospitality’s Copyright Agent a Notice containing the following information:

1.      an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

2.      a description of the copyrighted work or other intellectual property that you claim has been infringed;

3.      a description of where the material that you claim is infringing is located on the Website or Application (for example, providing URL(s) in the body of an email is the best way to help Wincome Hospitality locate content quickly on a Website);

4.      your name, address, telephone number, and email address;

5.      a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

6.      a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.