Terms and Conditions
Last updated: December 1st, 2023
1. Agreement to Terms
These Terms and Conditions (“Terms and Conditions”) constitute a legally binding agreement made between you, on behalf of yourself or an entity (“Client”, “User” “you”, “your”) and Simon Wynn Consulting (“SWC”, “Company”, “we”, “us”). These Terms and Conditions govern your use of the website at www.simonwynn.com, and any other associated web or mobile websites, or media channels we operate or may operate in the future (hereinafter the “Website” or “Websites”).
You agree that by accessing our Websites and using the functionality that may be provided by our Websites, you have read, understood, and agree to be bound by these Terms and Conditions. If you do not agree with the Terms and Conditions, you should stop using the Websites.
These Terms and Conditions do not apply to Client engagements, or any other business relationship with us, including all activity and deliverables associated with such engagements, business relationships, or other activities that do not directly involve your use of the Websites. Such engagements, business relationships, or other activities are subject to separate agreements and contractual terms.
Supplemental terms and conditions and other documents may be posted on our Websites and are expressly incorporated by reference. We reserve the right, in our sole discretion, to make changes and updates to these Terms and Conditions, and at any time and for any reason. We encourage you to periodically review these Terms and Conditions and stay informed of any updates. You will be subject to, and will deem to have been made aware of any changes to these Terms and Conditions by your continued use of the Websites.
You affirm that you are more than 18 years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions. The Websites are exclusively for the use of adults 18 years of age or older, and if you are below the age of 18, you are prohibited from using the Websites.
2. Rights and License
Right to Use Service. Subject to these Terms and Conditions, SWC will provide the Website in accordance with these Terms and Conditions. SWC hereby grants to you a limited, personal, non-exclusive, non-transferable, non-sublicensable right to access and use the Website.
3. Intellectual Property Rights
3.1 Proprietary Rights. Except for the limited rights granted herein, you have no right, title, or interest in or to the Company Marks or Services or any components provided by SWC in connection with the Website or any intellectual property rights related thereto. You acknowledge that SWC or its licensors retain all proprietary rights, title, and interest in and to, or practiced in connection with, the Company Marks and the Website and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades, and interfaces thereto.
3.2 Company Marks. Unless expressly authorized under the terms of these Terms and Conditions, you agree that you shall not use, register, or apply for registration of any trademark, service mark, business name, company/trade name, domain name, or social media account name or handle which is comprised of or incorporates in whole or in part any Mark of Company or is otherwise confusingly similar to a Mark of Company. In the event of any breach of this provision, User agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name, or social media account name or handle to SWC, including but not limited to executing assignment documentation. As noted above, reproduction, copying, or redistribution for commercial purposes of any materials or design elements on the Website is strictly prohibited without the express written permission of SWC. For information on requesting such permission, please contact us using the contact information listed in the section entitled “About Us”.
3.3 Your Ideas, Suggestions, and Improvements. You agree that any ideas, suggestions, or improvements that you provide to Company about Company’s services, engagement models, processes, etc., shall be owned by Company and that Company is free to include such ideas in future plans without compensation to you.
3.4 User Generated Content. Our Website allows you to provide comments, upload content, or otherwise contribute your own content (“User Generated Content”), for example when you use our blogging features. By submitting, posting, or displaying User Generated Content you give to SWC a perpetual, worldwide, non-exclusive, sublicensable, irrevocable, fully transferable right and license to use (including the right to copy, display, perform, publish, modify, adapt, and translate) such User Generated Content in all forms and media.
4. User Accounts and Usage
You understand and agree not to provide false information about yourself, to impersonate another individual, or provide misleading or false user information when and if you create an account on the Website, and through your use of the Website.
5. Prohibited Activities and Restrictions
5.1 You affirm, represent, and warrant that through your use of the Websites, any User Generated Content that you submit does not relate to the following:
Pornography or sexually explicit content
Purchase and use of illegal narcotics
Illegal activities of any kind
You also represent and warrant that any User Generated Content that you submit does not violate the intellectual property rights of third parties. The Company reserves the right to make the final decision regarding what is appropriate.
5.2 The Services are for professional/business use only, and may not be used for any other purpose.
5.3 You understand and agree to not place an unreasonable burden on the servers hosting the Websites, to not interfere with the running of the Websites, and to not attempt unauthorized access to any portions of the Websites.
5.4 You agree not to use bots, click-farms, fake click-throughs, or any other automated or manual techniques to fake, simulate, or otherwise generate user activity on the Websites with the intention of creating exaggerated or misleading user activity.
5.5 Except to the extent permitted by applicable law, User agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Websites, Services, and/or Company’s technology; (ii) knowingly or negligently access or use the Websites or Services in a manner that abuses or disrupts the Company’s networks, security systems, user accounts, or Services of Company or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) market, offer to sell, and/or resell the Services to any unauthorized third party; (iv) use the Services in violation of Company policies, applicable laws, ordinances or regulations; (v) use the Websites or Services directly or indirectly for competitive benchmarking or other competitive analysis if User is a direct competitor of the applicable Service; or (vi) make any representations with respect to Company or these Terms and Conditions (including, without limitation, that Company is a warrantor or co-seller of any of User’s products and/or services). Company shall have sole and exclusive discretion to determine the applicability of the restrictions set forth above and any violations thereof.
5.6 Company further reserves the right to suspend or terminate your use of the Websites and Services without prior notice for a violation of any of the provisions in this section.
7. Third-Party Sites
The Website and Services may link you to other sites on the Internet. These sites may contain information or material that some people may find inappropriate or offensive. These other sites are not under the control of Company, and you acknowledge that Company is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of the site by or any association with its operators.
8. Compliance with Laws
In connection with the performance, access, and use of the Services under these Terms and Conditions, Company and User agrees to comply with all applicable laws, rules, and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations. Specifically, User shall provide the relevant persons and/or participants with all information or notices User is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required.
9. Disclaimer of Warranties
ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE WEBSITE AND SERVICES (THE “CONTENT”) ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE CONTENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY AND ITS AGENTS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE OR SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE WEBSITE AND SERVICES IS SOLELY AT YOUR RISK. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE WEBSITE AND SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, COMPANY’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Any provision herein to the contrary notwithstanding, the maximum liability of Company to any person, firm, or corporation whatsoever arising out of or in connection with any license, use, or other employment of any Services delivered to You hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual fees paid to Company by You for the Services, which in most cases shall be zero dollars since the Services are free to all Users.
Upon a request by Company, you agree to defend, indemnify, and hold Company and its other affiliated companies harmless, and their employees, contractors, officers, and directors from all liabilities, claims, and expenses, including attorney’s fees, that arise from your misuse of the Website or Services.
12. Additional Terms
12.1 Copyright. In the event User believes that the Services have been used in a manner that constitutes copyright infringement, User shall notify Company at email@example.com, and provide all of the following information, as required by the Digital Millennium Copyright Act ("DMCA"): (i) a statement that User has identified content in the Services that infringes a copyright of a third party for whom User is authorized to act; (ii) a description of the copyrighted work User claims has been infringed; (iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content's location; (iv) User’s name, address, telephone number, and e-mail address; (v) a statement that User has a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use); (vi) a statement that, under penalty of perjury, the information in User’s notice is accurate and that User is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and (vii) User’s electronic or scanned physical signature. Company reserves the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.
12.3 Notices. Any notice required or permitted to be given under these Terms and Conditions shall be in writing, shall specifically refer to these Terms and Conditions, and shall be addressed to the appropriate Party at the address specified below or such other address as may be specified by such Party in writing in accordance with this Section15.3, and shall be deemed to have been given for all purposes (a)when received, if hand-delivered or sent by a reputable international courier service, or (b) five (5) Business Days after mailing, if mailed by first class certified or registered airmail, postage prepaid, return receipt requested.
12.4 Entire Agreement. Order of Precedence. These Terms and Conditions set forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. Nothing contained in any document submitted by User shall in any way add to or otherwise modify these Terms and Conditions or Company’s program terms.
12.5 General Terms. Captions and headings are used herein for convenience only, are not a part of these Terms and Conditions, and shall not be used in interpreting or construing these Terms and Conditions. The parties are independent contractors, and nothing in these Terms and Conditions creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. No person or entity not a party to these Terms and Conditions will be deemed to be a third-party beneficiary of these Terms and Conditions or any provision hereof. No waiver or amendment of any term or condition of these Terms and Conditions shall be valid or binding on any party unless agreed to in writing by Company or User. Company failure to enforce any term of these Terms and Conditions will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative.
13. Severability and Integration
Unless otherwise specified herein, these Terms and Conditions constitute the entire agreement between you and Company with respect to the Website and Services and supersedes all prior or contemporaneous communications between you and Company with respect to the Website and Services. If any part of these Terms and Conditions is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
14. Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California. You hereby consent to binding arbitration in the State of California to resolve any disputes arising under these Terms and Conditions.
15. Arbitration of Disputes
The parties agree that any dispute or claim in law or equity arising between them regarding the use of the Website, the Services, or these Terms and Conditions, including any dispute regarding the enforceability or applicability of this arbitration provision, shall be decided by neutral, binding arbitration conducted in Santa Clara County, California. The arbitrator shall be a retired judge, justice, or an attorney with at least ten (10) years of legal experience relating to the subject matter of these Terms and Conditions, unless the parties mutually agree otherwise, who shall render an award in accordance with the substantive laws of Santa Clara County, California. In all other respects, the arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association, subject to the parties being allowed limited discovery. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction.
NOTICE: BY USING THE WEBSITE AND SERVICES YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED TO ARBITRATE ANYHOW PURSUANT TO A COURT ORDER. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. IF YOU DO NOT WISH TO AGREE TO ARBITRATION, THEN YOU MAY NOT USE THE WEBSITES OR SERVICES.
16. Class Action Waiver
ANY LEGAL ACTION OR ARBITRATION ARISING IN CONNECTION WITH THE USE OF THE WEBSITE, THE SERVICES, OR THESE TERMS AND CONDITIONS MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
17. Attorneys’ Fees
In any dispute, action, proceeding, or arbitration regarding the use of the Website, the Services, or these Terms and Conditions, including the enforcement of any arbitration provision herein, the party prevailing in such action or proceeding shall be entitled to recover, in addition to any other award of damages or other remedies, its reasonable attorneys’ and experts’ fees, costs and expenses (including, without limitation, expenses for expert witnesses and all reasonable attorneys’ fees, costs and expenses upon appeal).
Our Websites and Services are provided by:
Simon Wynn Consulting
33 Lighthouse Ct.
Napa, CA 94559