Winmark Business Solutions Site Terms and Conditions of Use

PLEASE READ THIS DOCUMENT CAREFULLY. ACCESS TO THE WINMARK BUSINESS SOLUTIONS SITE (THE “SITE”) AND USE OF THE FEATURES AND FUNCTIONS OF THE WINMARK BUSINESS SOLUTIONS SITE ARE SUBJECT TO THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SITE. BY CLICKING “ACCEPT” BELOW, YOU AGREE THAT THESE TERMS AND CONDITIONS OF USE REPRESENT THE ENTIRE AGREEMENT BETWEEN YOU AND WINMARK CORPORATION (“WINMARK”) CONCERNING THE SITE, AND THAT THESE TERMS AND CONDITIONS OF USE SUPERSEDE ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN YOU AND WINMARK WITH RESPECT TO THE SITE. NO OTHER COMMUNICATION WILL BE CONSTRUED AS, OR CONSTITUTE, A WAIVER OF THESE TERMS AND CONDITIONS OF USE, OR ACCEPTANCE OF ANY ADDITIONAL TERMS, CONDITIONS OR SPECIFICATIONS, AND WINMARK HEREBY OBJECTS TO ANY SUCH ADDITIONAL OR CONTRARY TERMS, CONDITIONS OR SPECIFICATIONS.

1. SITE ACCESS AND USE. Subject to these Terms and Conditions, you may access and use the Site to obtain access to the information made available by Winmark from time to time through the Site. Winmark may change the Site, and the information and services available at the Site at any time. Winmark does not guarantee the accuracy of any such information and your reliance on that information is at your own risk.

2. SECURITY. A unique username and password will be assigned to you for your access to the Site. You may not disclose any such username or password to any other party, or otherwise give any other party access to the Site, or any information obtained through the Site. You assume responsibility for any unauthorized use of any username or password assigned to you, and you must promptly inform Winmark of any actual or suspected unauthorized use. You must limit your use of the Site to the information and functions made available through your assigned username and password, and you must not attempt to access information of other users or other functions. You should promptly report any circumstances in which such other information or functions are made available to you in error, or any other security issue of which you become aware. You must not interfere, disrupt, or attempt to interfere or disrupt the operation of the Site or of the networks connected to the Site through your use of the Site or otherwise. You acknowledge and agree that Winmark may monitor access and use of the Site for security purposes.

3. INTELLECTUAL PROPERTY. You acknowledge and agree that all content you access or that is made available to you on the Site is the property of Winmark, of its suppliers and of its affiliated vendors, including but not limited to all information, text, graphics, trademarks, logotypes, data and data compilations. United States and international trademark, copyright and other intellectual property right laws protect that content. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. Winmark will file appropriate legal actions to enjoin the unauthorized use of these marks. Under the law, we would be entitled to collect your profits, our actual damages and , perhaps, even our attorney fees. You may make limited copies of content or information incorporated in the Site for your internal business purposes, but no other right is granted to copy or distribute any content or information incorporated in or accessed through the Site. Any software that is accessed or made available through the Site may be used only for the purpose of the Site. You may not reverse engineer, decompile or disassemble that software, or attempt to do so.

4. DISCLAIMER OF WARRANTIES. Winmark does not guarantee that access to the Site will be uninterrupted or error free, that defects will be corrected, or that the Site or any linked site or the server that makes it available, are free of viruses or other harmful components. Winmark will not be responsible for any delay, down time or other Site performance problem. THE SITE, AND THE CONTENT, INFORMATION, SERVICES, PRODUCTS AND MATERIALS THAT ARE MADE AVAILABLE ON AND THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WINMARK MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH RESPECT TO THE SITE OR A LINKED SITE, OR THEIR CONTENT, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH WINMARK HEREBY EXPRESSLY DISCLAIMS.

WINMARK DOES NOT WARRANT THE COMPLETENESS OR ACCURACY OF THE MATERIALS OR INFORMATION, THE RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE SITE OR LINKED SITE, OR THAT SUCH INFORMATION, ADVICE, OPINIONS OR STATEMENTS BE USEFUL OR WILL SATISFY YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, ADVICE, STATEMENT, MEMORANDUM OR INFORMATION WILL BE AT YOUR SOLE RISK. IN ADDITION, WINMARK MAY AT ANY TIME ADD, CHANGE OR UPDATE THE SITE, MATERIALS, PRODUCTS, PROGRAMS, OR PRICES WITHOUT NOTICE.

5. LIMITATION OF LIABILITY FOR USE OF THE SITE AND LINKED SITES. WINMARK AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS AND VENDORS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO THE SITE (INCLUDING LIABILITY FOR NEGLIGENCE) EXCEPT FOR LOSS OR DAMAGE RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF WINMARK. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR THIRD PARTY WEB SITES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. IN NO EVENT WILL THE LIABILITY OF WINMARK OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS AND VENDORS OF ANY KIND INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF WINMARK SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL WINMARK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU TO WINMARK FOR PRODUCTS SOLD OR SERVICES RENDERED. WINMARK ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR FOR USES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THIS SITE OR LINKED SITE.

6. THIRD PARTY SITES. As a convenience to you, Winmark provides links to web sites operated by other entities. If you use these sites, you will leave the Site. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. Winmark makes no warranty or representation regarding any linked web sites or the information appearing on those sites or any of the products or services described on those sites. Links do not imply that Winmark or the Site sponsors, endorses, is affiliated or associated with, or is legally authorized to use any trademark, trade name, logo or copyright symbol displayed in, or accessible through, the links, or that any linked site is authorized to use any trademark, trade name, logo or copyright symbol of Winmark or any of its affiliates or subsidiaries. Winmark is not responsible for (A) the accuracy or reliability of any opinion, advice or statement by any party other than Winmark, (B) any content provided on linked Sites or (C) the capabilities or reliability of any product or service obtained from a linked Site.

7. INDEMNIFICATION. You will indemnify, defend and hold Winmark and its current or former affiliates, employees, officers, directors, agents, Site providers and suppliers, harmless from any liability, loss, claim or expense, including attorney’s fees and expenses, arising out of, or relating to, your use of the Site. This provision will survive any termination or cancellation of your use of the Site.

8. TERMINATION. Winmark may limit or terminate access to the Site, or invalidate or change any username or password at any time for any reason, without notice or liability. Your obligations under Sections 2 and 7 of these Terms and Conditions, and the provisions of Sections 3, 4, 5, 6, 12, 13 and 14 of these Terms and Conditions will survive the termination of your use of the Site for any reason. In addition, immediately upon the termination of your use of the Site for any reason, you must destroy any copies made of content of information obtained from the Site. Winmark will not be liable to you or any third party for any termination of your access to this Site.

9. ASSIGNMENT. You may not assign any of your rights and obligations under these Terms and Conditions without the prior written consent of Winmark. Winmark may assign its rights and obligations under these Terms and Conditions without your consent.

10. NOTICES. Any notice permitted or required to be given by you under these Terms and Conditions will be deemed given and effective when sent to Winmark at 4200 Dahlberg Drive Suite 100, Minneapolis, Minnesota 55422. Any notice permitted or required to be given by Winmark under these Terms and Conditions will be given and effective when sent to you at the address or e-mail address provided at the time you registered for access to the Site.

11. INFORMATION PROVIDED BY YOU. You should not provide any confidential or proprietary information to Winmark through the Site. You agree that any information or materials provided to Winmark through the Site will not be considered confidential or proprietary, except to the extent expressly provided herein, in Winmark’s Privacy Policy or in a separate agreement in writing that is executed by both you and Winmark. By providing any such information or materials to Winmark, you grant to Winmark an unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, publicly perform, modify, transmit and distribute such information and materials, and you further agree that Winmark is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to Winmark. User should be aware that linked sites may contain confidentiality provisions that differ from the provisions provided herein. Winmark is not responsible for such provisions, and expressly disclaims any liability related to such provisions.

12. GOVERNING LAW. These Terms and Conditions will be interpreted and construed in accordance with the laws of the State of Minnesota. Any disputes, claims or controversies arising out of, or relating to, this Agreement may be brought in courts situated in Minnesota, and you consent to the exclusive jurisdiction of such courts for the resolution of all such disputes, claims and controversies.

13. GENERAL. These Terms and Conditions embody the entire understanding between you and Winmark relating to the Site, and will supersede all previous communications, representations or understandings, either oral or written, between you and Winmark relating to the Site. If any of these Terms and Conditions conflict with any applicable statute or rule of law, the affected terms and conditions will be deemed inoperative only to the extent that they may conflict therewith. In the event that any part of these Terms and Conditions is held illegal, void or ineffective, the remaining portions will remain in full force and effect. No failure by either party to take any action or assert any right under these Terms and Conditions will be deemed to be a waiver of that right in the event of the continuation or repetition of the circumstances giving rise to that right.

14. PRIVACY. Winmark’s policies and practices for the collection and sharing of information about you, and your use of the Service, is governed by Winmark’s Privacy Policy. The current Winmark’s Privacy Policy can be found at www.wbsonline.com. You agree and consent to Winmark’s policies and practices for the collection and sharing of information as provided in Winmark’s Privacy Policy by your agreement and consent to these Terms and Conditions. Winmark may change the terms of its Privacy Policy upon thirty days notice.

15. COMMUNICATIONS WITH WINMARK. As a convenience to you, the Site may provide various means to communicate with Winmark. Winmark does not guarantee the accuracy or timeliness of communications initiated through the Site, and you are responsible for ensuring receipt of your communications to Winmark. You acknowledge that communication through the Site is not a substitute for any means of notice or communication that is required in any agreement with Winmark or any third party. Nothing contained in the Site, accessible through the Site or communicated through the Site will modify, amend or alter the terms and conditions of any such agreement.