Legal Things to Read from Ness

Last Updated: November 1, 2022

 Ness Terms of Service

Last Updated November 1, 2022

Hi there! We’re Ness Well, Inc. (collectively with our affiliates and subsidiaries, “Ness,” “we,” “us,” or “our”), and we operate nesswell.com (the “Site”), including our editorial publication, The Nessie, a mobile application (the “App”), our newsletter, Nessie Sightings, and our network of health and wellness providers (the “Provider Nesswork”) (collectively, the “Services”). The terms and conditions that follow form an agreement (the “Terms of Service” or “Agreement”) between you (“User”, “you,” or “your”) and Ness that governs your use of the Services, our social media channels, any related applications provided by us, and all content and features contained herein.

This Agreement is important, so please read it carefully before you start to access the Services, and forgive us for the loud text that follows:  

BY ACCESSING OR UTILIZING ANY OF THE SERVICES, YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS OF SERVICE INCLUDING OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE.  

To be clear, if you do not agree to be bound by these Terms of Service or the Privacy Policy, then you must not access any of the Services.

1. Eligibility

The Services are available only to Users who are 18 years of age or older and reside in the United States or any of its territories.  By using any of our Services, you represent and warrant that you are of legal age to form a binding contract with Ness and meet all the foregoing eligibility requirements.  If you do not meet all of these requirements, you must not access or use any of our Services.

2. Changes to the Terms of Service

We may make changes or modifications to the Services or to this Agreement at any time and without prior notice to you.  Any and all changes are effective immediately when we post them and apply to all access and use of the Services thereafter.  You acknowledge and agree that your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so that you are aware of any changes, as they are binding on you.  

3. Your Use of the Services

By accessing and/or using the Services, you agree to comply with the following rules:

• Your use of any of the Services, including any content you submit, will comply with this Agreement and all applicable local, state, national and international laws, regulations, and rules
• Your use of any of the Services will not violate the legal rights, including the rights of publicity and privacy, of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and our Privacy Policy.
• You will not use any of the Services in a manner (as determined by Ness in its sole and absolute discretion) that is illegal, infringing, defamatory, obscene, indecent, abusive, offensive, harassing, inflammatory, or otherwise objectionable
• You will not use any of the Services for hate speech, hate crimes, or violence
• You will not impersonate any person or misrepresent your affiliation with any person or organization
• You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent
• You will not use any of the Services to send spam or other unsolicited bulk email, for computer or network hacking or cracking, or to transmit any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, damaging or limiting the functionality of the Services
• You will not copy or distribute in any medium any part of the Services, except where expressly authorized by Ness
• You will not access Ness Content or User Content (as those terms are defined below) through any technology or means other than through the Services themselves
• You will not use any of the Services for any commercial use without Ness’s express prior written consent, and you will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large loan on our technical infrastructure. 

4. Beta Features (we call these “First Sightings” at Ness!)

From time to time, Ness may include new and/or updated features in the Services for trial use (“First Sightings”).  You understand and agree that your use of the First Sightings is voluntary and Ness is not obligated to provide you with any First Sightings or to incorporate any First Sightings into future general releases.  Furthermore, if you decide to use the First Sightings, you agree to abide by any rules or restrictions Ness may place on them. You understand that once you use the First Sightings, you may be unable to revert to the earlier version of the same or similar feature.  Additionally, if such reversion is possible, you may not be able to return or restore data created within the First Sightings back to the earlier version. The First Sightings are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption, or loss of data and/or information from any connected device.  You acknowledge and agree that all use of the First Sightings is at your sole risk.

5. Intellectual Property

The content delivered through the Services, including without limitation the text (such as the articles found on The Ness Well or in The Nessie), software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“Ness Content”), are owned by or licensed to Ness in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States, and other intellectual property rights under United States laws.  Ness Content is provided to you “as is,” “as available,” and “with all faults,” for your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Ness.  No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement.  Ness reserves all rights not expressly granted in and to Ness Content and the Services. This Agreement does not transfer ownership of these rights.  If you violate any part of this Agreement, your permission to access and/or use Ness Content or any of the Services automatically terminates, and you must immediately destroy any copies you have made of Ness Content.  The trademarks, service marks, and logos of Ness (“Ness Trademarks”) used and displayed in the App, on the Site, or via the Services are registered and unregistered trademarks or service marks of Ness.  Other company, product, and service names located in the App, on the Site, or in the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the Ness Trademarks, the “Trademarks”).  Nothing in any of the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use.  Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such link is approved in advance by us in writing.  If you wish to seek approval for such a link or to use any of the Ness Content, please address your request to [email protected].  All goodwill generated from the use of Ness Trademarks inures to our benefit.  All of the Services have been specially designated to present Ness Content in a unique format and appearance. We are concerned about the integrity of Ness Content when it is viewed in a setting created by a third party that includes advertising or other materials that we have not authorized to be displayed with our content.  Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors.  Neither you nor any third party shall make use of Ness Content in any manner that constitutes an infringement of our rights, including copyright, or that has not been authorized by us.

6. Our Use of User Content

Some of the features of the Services may allow Users to view, post, publish or share their ideas, opinions, preferences, or feedback (e.g., through a “like” or “comment” function) related to Ness Content, such as articles on the Ness Well (“On-Site User Content”).  We may also make available interactive services through third-party websites and third-party social media platforms (“Third-Party Platforms”) (e.g., Ness-designated hashtags, and comment or posting sections on Ness-related pages hosted on third-party social media platforms) pursuant to which Users can post associated content (“Off-Site User Content,” together with On-Site User Content, “User Content”).  

By posting or publishing User Content to the Services, or to Third-Party Platforms, you represent and warrant to Ness that:

• You have all necessary rights to distribute User Content, either because you are the sole author and owner of the User Content and have the right to distribute the same or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content; 
• You are not violating the rights of any third-party by posting or publishing User Content; and
• All of your User Content does and will comply with these Terms of Service.

Any User Content you post via any of the Services will be considered non-confidential and non-proprietary.  By providing any User Content, you grant us a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable right and license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material, for any purpose, including without limitation promoting and redistributing all or part of the Services in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party.

You understand and acknowledge that you are responsible for any User Content that you submit or contribute, and you, not Ness, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.  We are not responsible or liable to any third party for the substance or accuracy of any User Content posted by you or any other user of the Services.

7. Copyright

It is never our intention to violate your copyright. If you believe that any User Content violates your copyright, please notify us by emailing us at [email protected] with the subject “Notice of Copyright Infringement.”  Ness will respond to notices of alleged infringement regarding third-party material sent pursuant to and in accordance with the Digital Millennium Copyright Act (“DMCA”), which may include Ness removing or disabling access to third-party material claimed to be the subject of infringement or other activity.  All notices sent to Ness regarding matters other than informing Ness that a party’s copyrighted material may have been infringed as a result of third-party materials will not receive a response through this process.  

In accordance with the DMCA, your written notice of copyright infringement should include the following to be effective:

• Your physical or electronic signature
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site or via the Services, a representative list of such works
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material
• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if applicable, email address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law
• A statement that the information in the written notice is accurate
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner

If you believe that material you posted via the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting a written notice to [email protected] with the subject “Copyright Counter Notice.”  Pursuant to the DMCA, the Counter Notice must include substantially the following:

• Your physical or electronic signature
• An identification of the material that has been removed or to which access has been disabled and the location of which the material appeared before it was removed or access disabled
• Adequate information by which we can contact you (including your name, postal address, telephone number, and if applicable, email address)
• A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled because of a mistake or misidentification of the material to be removed or disabled
• A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Site or Services may be found or accessed) and that you will accept service from the person who provided Ness with the complaint at issue.

Please be aware that if you knowingly materially misrepresent that material or activity on the Site or Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

8. Links to Third-Party Websites 

The Services may contain links to third-party sites and resources that are not owned or controlled by Ness. These links, which include those contained in advertisements and sponsored links, are provided solely for your convenience and do not constitute an endorsement by Ness of the content on such websites nor of the business practices of those operating such websites.  Ness has no control over and assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites or resources, or for any loss or damage that may arise from your use of such third-party websites and resources.  In addition, Ness does not censor or edit the content of third-party websites or resources.  

By using any of the Services, you expressly release Ness from any and all liability arising from your use of any third-party website or resource.  Accordingly, Ness encourages you to be aware when you leave the Services and enter a third-party site, and to review the terms and conditions, privacy policies, and other governing documents of any other third-party website or resource that you may visit.

9. Online Commerce

Throughout the Services and Ness Content, we may make recommendations for or otherwise feature third-party products and services (“Featured Products and Services”). We may also include affiliate links that allow you to purchase Featured Products and Services on a third-party website. While we may have opinions on the Featured Product and Services as users of them and we may receive compensation for purchases made through affiliate links, we are not responsible for the quality, accuracy, timeliness, reliability, or any other aspect of these Featured Products and Services. When you purchase Featured Products and Services on a third-party website you may be subject to additional terms and conditions that specifically apply to your purchase. For more information regarding a merchant, its online store, and/or any additional terms and conditions that may apply, visit that merchant’s website and click on its informational links. By using the Services or otherwise consuming Ness Content, you expressly release us from any and all liability that may arise from your purchase and/or use of the Featured Products and Services.

10. Geographic Restrictions

The owner of the Services is based in the United States.  We provide the Services for use only by persons located in the United States and its territories.  We make no claims that the Services or any content thereof is accessible or appropriate outside of the United States.  Access to the Services may not be legal by certain persons or in certain countries.  If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

11. Indemnity

You agree to indemnify and hold harmless Ness, our directors, officers, managers, employees, shareholders, agents, and licensors from and against all claims, demands, disputes, losses, expenses, damages, and costs, including reasonable attorneys’ fees arising out of or in relation to your breach of this Agreement or your use of the Services or Ness Content.  Ness reserves the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section.  In such event, you will cooperate with Ness, as we reasonably request.

If you are a California resident, you waive California Civil Code Section 1542, which states:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

12. Disclaimer of Warranties

YOUR USE OF THE SERVICES AND NESS CONTENT ARE AVAILABLE “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  NESS DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE SERVICES OR THE NESS CONTENT.  WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMMISSIONS IN THE SERVICES.  WE DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO THE SERVICES, ANY NESS CONTENT, OR ANY INFORMATION OR GOODS AND SERVICES THAT ARE AVAILABLE OR ADVERTISED OR SOLD THROUGH THE SERVICES OR NESS CONTENT.

WE DO NOT PROVIDE OR AUTHORIZE THE PROVISION OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE THROUGH THE SERVICES OR ANY NESS CONTENT, AND SO WE DISCLAIM ANY RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL INFORMATION THAT IS CONTAINED WITHIN THE SERVICES OR ANY NESS CONTENT.  YOU SHOULD NOT RELY ON INFORMATION PROVIDED THROUGH THE SERVICES OR NESS CONTENT FOR MEDICAL ADVICE, AND SHOULD INSTEAD SEEK ADVICE DIRECTLY FROM A QUALIFIED PROFESSIONAL.

WE DO NOT MAKE ANY REPRESENTATIONS REGARDING, NOR DO WE ENDORSE THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER MATERIAL OR DATABASE DISPLAYED, UPLOADED, OR DISTRIBUTED IN THE SERVICES OR AVAILABLE THROUGH LINKS IN THE FOREGOING. WE DO NOT GUARANTEE THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED THEREFROM DO NOT CONTAIN VIRUSES, WORMS, “TROJAN HORSES,” OR OTHER DESTRUCTIVE MATERIALS.  WE ARE NOT LIABLE FOR DAMAGES OR HARM ATTRIBUTABLE TO SUCH FEATURES. 

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS, NESS AND OUR DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, SHAREHOLDERS, AGENTS, AND LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OF BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES OR NESS CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR ANY NESS CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE FOREGOING DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

13. Governing Law and Jurisdiction

All matters relating to the Services and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice of law provision or rule (whether of the State of New York or any other jurisdiction).

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or any of the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York.  In each case, located in the City of New York and County of New York, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Service in your country of residence or any other relevant country.  You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

14. Arbitration

At Ness’s sole discretion, we may require you to submit any disputes arising from these Terms of Service or your use any of the Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New York law.

15. Limitation on Time to File Claims

Any cause of action or claim you may have arising out of or related to these Terms of Services or any of the Services must be commenced within one (1) year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred.

16. Waiver and Severability

No waiver by Ness of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Ness to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service continue in full force and effect.

17. Entire Agreement

The Terms of Service and our Privacy Policy constitute the sole and entire agreement between you and Ness regarding the Site and Services, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

18. Your Comments and Concerns

The Services are operated by Ness Well, Inc.

All notices of copyright infringement claims should be sent to [email protected] in the manner and by the means set out in the above “Copyright” Section.  All other feedback, comments, requests for technical support, and other communications related to the Site or Services should be directed to: [email protected]

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Ness Privacy Policy

Last Updated: November 1, 2022

The Basics

Who We Are

Hello! We’re Ness Well, Inc. (“Ness”, “we”, “our”, or “us”), a Delaware public benefit corporation that is dedicated to promoting health and wellness.  We curate a health and wellness focused newsletter called Nessie Sightings, an online editorial publication called The Nessie, a mobile application that rewards you for healthy actions (the “App”), a credit card issued by The Bank of Missouri (the “Ness Card”) that does the same, and a health and wellness network of providers (“Provider Nesswork”). You can learn more about each of these on our website, nesswell.com (the “Site”). Collectively, we regard Nessie Sightings, The Nessie, the App, the Ness Card, the Provider Nesswork, the Site, our social media channels, and any related applications as Ness’s services (the “Services”).  

We (and others acting on our behalf) are committed to respecting and protecting your privacy.  We will:

• keep your information safe and private;
• never sell your personal information; and
• allow you to change your marketing choices at any time.

Why You Should Read This Notice

As you engage with any of our Services, you may share personal information with us.  This privacy notice (“Privacy Notice”) explains the types of information we collect and how we use it.  If you have any questions or concerns about our notice or our practices with regard to your personal information, please contact us at [email protected]. If you do not agree with any part of this Privacy Notice, you must not use our Services. 

And review our Terms of Service, too, if you haven’t already!  You must agree with the Terms of Service, in addition to agreeing with this Privacy Notice, in order to use any of our Services.  Any capitalized terms not defined in this Privacy Notice shall have the same meaning given to them in the Terms of Service.

Now, onto the good stuff.

Information We Collect and How We Use It

The information we collect falls into the following categories:  

• Information you voluntarily provide to us
• Information from your spending
• Information from others
• Information collected automatically from your browser or device 
• Cookies and other technologies
• Information we have aggregated and anonymized

Information you voluntarily provide to us

When you sign up for Nessie Sightings or the App, complete and submit any Ness surveys or forms, apply for the Ness Card, register to participate in the Provider Nesswork, or correspond with us (including via customer support), we collect and keep the information you provide.  This may include personal information like your name, email address, phone number, date of birth, social security number, educational background, other registration information, and details regarding your customer support inquiries.  We use this information to: 

• provide our Services;
• improve our Services (e.g., making changes based on customer support inquiries);
• meet our legal obligations and enforce our legal rights; 
• protect against fraud; and 
• keep you updated on the development of our Services.

With your consent (which you may withdraw at any time), we will also collect information from Apple Health, including exercise minutes, mindful minutes, sleep hours and number of steps, and biometric information. We use this information to:

• provide our Services, including rewarding you for healthy actions and establishing additional security measures for accessing the App; and
• improve our Services (e.g., adapting our product recommendations in ways that might interest you or improving how you collect and redeem rewards).

Information about your linked accounts and spending

Through third-party data providers, we obtain information about credit card accounts you link to the App (“Linked Accounts”) and your spending.  For each of your Linked Accounts, we obtain the related financial institution and account type (e.g., “Chase Sapphire” or “American Express Platinum”).  We do NOT obtain specific account information, such as your credit card numbers. With regard to your spending, we obtain transaction information (e.g., transaction type, amount, and date) merchant information (e.g., merchant name, location and category), and information regarding other charges, such as fees and interest.  This includes historical spending information from the two (2) years prior to connecting your Linked Account, as well as ongoing spending information related to new transactions. We also collect metadata inferred from your purchase patterns, such as the number of transactions from merchants that Ness considers to be healthy.  We use this information to: 

• provide our Services;
• improve our Services (e.g., adapting our product recommendations in ways that might interest you or improving how you collect and redeem rewards); 
• offer additional products or Services for which you may be eligible; and 
• protect against fraud.

Information from other third parties

We may collect information from partners who help us provide our Services, such as wellness brands that provide you with discounts. We use this information to:

• provide our Services;
• improve our Services (e.g., offering new or different point redemption options); and
• meet our legal obligations and enforce our legal rights.

With your express consent and only for the permissible purpose of evaluating your eligibility for the Ness Card or, if you are a provider, verifying your educational and professional background, we may obtain additional information about you from consumer reporting agencies.  We will use this information to assess your Ness Card application, including to conduct “soft” credit pulls and pre-qualify you for the card, or to assess your qualifications for inclusion in the Provider Nesswork, as applicable.  Again, this will only be done with your express consent.

Information collected automatically

When you visit or use our Services, we may collect certain information automatically, such as IP address, browser and device information, referring URLs, and information about how you are engaging with the Services (e.g., pages you explore in the App, errors you experience, etc.).  In addition, if you have enabled the required permissions, we may collect information about your location and your usage of notifications based on your interactions with them.  Information in this category does not reveal your specific identity.  We use this information to: 

• maintain the security and operation of our Services, including protecting against fraud;
• improve the Services (e.g., fixing issues that are particular to certain devices or other technical circumstances); and
• for analytics and reporting purposes.

Cookies and other technologies

We may utilize cookies and other technologies, such as web beacons (also known as “clear gifs” or “pixel tags”) to recognize you and analyze engagement with our Site.  Cookies are very small files placed on your computer, and they allow us to count the number of visitors to our Site and distinguish repeat visitors from new visitors.  They also allow us to track visitor trends.  If you do not want us to deploy cookies in your browser, you can opt out by setting your browser to reject cookies or to notify you when a website tries to put a cookie in your browser software.

Information we have aggregated and anonymized

We consider data to be anonymized when it is not associated with your name, email, phone, social security number, or any other piece of information that can be used to uniquely identify you.  We consider data to be aggregated when it is grouped with data of seven (7) users or more.  Information we collect that is aggregated and anonymized includes:

• demographic information about our user population as a whole and as subsets, including how this population has engaged with our Services and/or partners, and 
• usage information, such as numbers of users who have engaged with a feature or the number of transactions that users have made at a particular merchant.

We use this information to:

• provide our Services;
• improve our Services (e.g., making changes to our Services based on engagement with particular features);
• advertise (e.g., to identify new audiences based on their differences from our current user population);
• meet our legal obligations and enforce our legal rights.  

Our Legal Basis for Using Your Information

We use the information we collect, whether personal information or otherwise, based on legitimate business interests and/or consent.  More specifically, we use the information to:

• Send you marketing and promotional emails.  You can opt-out of receiving these at any time by clicking the unsubscribe link in the emails we send or contacting us.
• Send you our newsletter, Nessie Sightings.  You can opt-out of this at any time, too. 
• Provide our Services.
• Develop additional products.

Whether We Share Your Information

We may share your information with vendors and other third-party service providers who perform services on our behalf and require access to such information to do that work.  Examples include third-party service providers that facilitate email delivery, marketing efforts, and data analysis.

We may also share aggregated and anonymized data in order to describe Ness to current and prospective business partners (including health and wellness brands you know and love).  As noted above, this information does not identify you personally.

Finally, we may share certain personal information such as your email address with Ness’ brand partners in order to provide you with certain offers. We will only do so with your express consent.

How Long We Keep Your Information

We keep your personal information for as long as it is necessary to fulfill the purpose(s) set out in this privacy notice, unless a longer retention period is legally required.

We Don’t Collect Information from Minors

We do not knowingly solicit data from or market to children under 18 years of age. If you are under 18, please do not give us any personal information.  If you have reason to believe that a minor under the age of 18 has provided us with personal information, please contact us, and we will endeavor to delete that information from our databases.

Controls for Do-Not-Track Features

Most web browsers and mobile operating systems include a Do-Not-Track (“DNT”) feature or setting you can activate to signal your privacy preference not to have data about your online browsing activities monitored and collected.  We do not currently respond to DNT browser signals or any other mechanism that automatically communicates your choice not to be tracked online.

Notice to California Residents

Ness is not currently subject to the California Consumer Privacy Act (“CCPA”) given the CCPA’s definition of “business.”  We may, however, become subject to the CCPA in the future as we grow. To that end, we strive to fulfill requests from California residents related to rights they have under the CCPA. Specifically, under the CCPA, California residents may submit a request to receive information about a business’s data collection practices with respect to their data. If you are a California resident, you may request the following regarding information we’ve collected in the preceding twelve (12) months:

• The categories of personal information (as defined under the CCPA) we have collected about you;
• The categories of sources from which the personal information was collected;
• The business or commercial purpose(s) for collecting the personal information;
• The categories of third parties with whom we share personal information (if any); and
• The specific pieces of personal information we have collected about you.

You may also request that we delete your personal information. We will honor all such requests, subject to certain exceptions outlined in the CCPA (e.g., information necessary to provide the Services to you or information we’re legally required to retain). 

To make a request described in this section, email [email protected] with the subject line “California Resident Data Subject Request.” You must provide us with enough information to identify you and the information you are requesting. Once we receive your request, we may verify it by requesting additional information from you to confirm your identity. 

We Might Change This Policy

We may update this privacy notice from time to time.  Any changes will be posted on our website, so we encourage you to check back frequently to stay informed of how we are protecting your personal information.  

How to Contact Us

If you have questions about this Privacy Notice or the personal information we’ve collected about you, please contact us at [email protected]

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Ness Rewards Program Terms

Last Updated: November 3, 2022

Welcome to the Ness Well, Inc. (along with our service providers, “Ness”, “we”, “us”, “our”, or “Company”) rewards program (the “Rewards Program”)!  We’re excited to make health and wellness more affordable.

The Rewards Program is administered through our mobile application (the “App”) and enables those who enroll in the program (“Users”, “you”, “your”) to earn points from healthy actions that can be redeemed through the App for further health and wellness products and services.  These terms and conditions (“Rewards Program Terms”) govern your use of the Rewards Program. 

By accessing the App and creating a Rewards Program account (“Ness Rewards Account”) or opening a Ness credit card (“Ness Card”), you are accepting and agreeing to these Rewards Program Terms. You are also agreeing to the Ness Terms of Service, which includes an arbitration provision governing the Rewards Program, and our Privacy Policy, each of which is incorporated herein (collectively, the “Incorporated Terms”).   (You must separately apply and be approved for a Ness Card.) 

To be clear, if you do not agree to be bound by the Rewards Program Terms or the Incorporated Terms, then you must not create or use a Ness Rewards Account. 

Capitalized terms that are not defined in these Rewards Program Terms have the meaning given to them in the Incorporated Terms.

1. Changes to the Rewards Program Terms

We may, from time to time and in our sole discretion, amend, delete or add to these Rewards Program Terms and may change or limit any aspect of the Rewards Program and its restrictions, benefits, or features, in whole or in part.  Changes may include, but are not limited to, how you can earn points, imposing an annual Rewards Program membership fee or any fees associated with the Rewards Program, changing how we calculate the accrual and/or redemption of points, or changing the available rewards for which your points may be redeemed.  We aim to create a Rewards Program that is both compelling and fair for our Users and can be sustained long-term; our intention in making any changes to that program is to ensure that Ness can continue rewarding Users well into the future.  

We will post any such changes to these Rewards Program terms on this page: nesswell.com/legal. It is your responsibility to review these Rewards Program Terms (including the Incorporated Terms) for any such changes.  We reserve the right to notify you of such changes via our website, or otherwise, but other than as required by applicable law, we have no obligation to notify you of every update (and you may very well be annoyed if we did).

If the Rewards Program is terminated, upon termination, all unredeemed points will be forfeited without any obligation or liability, and points claims will no longer be honored.The Ness Rewards Program may be terminated at any time for any reason without advance notice and will terminate automatically without notice in the event that Ness permanently ceases to operate. Know that we definitely do not want this to happen!

2. Your Ness Rewards Account

Registration Information

In order to participate in the Ness Rewards Program, you will need to sign up for a Ness Rewards Account via the App. You can sign up for a Ness Rewards Account by providing your email (“LoginID”) and other requested information (the “Registration Information”). Once you submit the Registration Information, we alone will determine whether or not to approve your proposed account. We may use the Registration Information you provide to verify your identity when you contact us. You authorize us to make any inquiries we consider necessary to validate your identity. If you do not provide the requested information or Ness cannot verify your identity, we may refuse to allow you to use the App. 

For so long as you use the Ness Rewards Account, you agree to provide true, accurate, current, and complete information, which can be accomplished by logging into your Ness Rewards Account and making relevant changes. You represent that you are the legal owner of, and that you are authorized to provide us with all Registration Information. 

Account Security

You agree and understand that you are responsible for maintaining the confidentiality of your Registration Information. If you become aware of any unauthorized use of your Ness Rewards Account, you agree to notify Ness immediately at the email address [email protected].

Account Limitations

You may not register for more than one (1) Ness Rewards Account or link a single credit card (including a credit card held jointly between You and another person) to more than one (1) Ness Rewards Account. You may not set up multiple accounts for yourself, your family members and other affiliates, impersonate or use another person’s account, or use any manual or automated means (e.g., a macro, script, bot, use of a click farm), or engage in any other behavior or use of our products that is inconsistent with their normal and intended use, to circumvent these restrictions.  If we determine that you attempted to earn points using such methods or any other fraudulent or deceptive means, we reserve the right to cancel any and all of your points, terminate your Ness Rewards Account, and/or report you to the authorities. We reserve the right to investigate any transaction or activity that we believe, in our sole discretion, is abusing or has abused the Ness Rewards Program.  

If you have been previously suspended, removed, or otherwise deactivated from using the App or the Services, you may not create or register another Ness Rewards Account.

Different accounts cannot be combined, and joint accounts are not permitted.

Technology Requirements

In order to become a User and maintain a Rewards App account, you must have: (i) an iPhone or iPad that has internet access and is capable of running iOS applications (“Eligible Device”) and (ii) iOS version 14, or subsequent version of such software, installed on your Eligible Device.

3. Transaction and Health Information from Third-Party Sites

You may direct Ness to retrieve your transaction-related information maintained online by third-parties with which you have a relationship, maintain an account, and/or engage in financial transactions (“Transaction Information”).  Ness works with one or more third-party service providers to access this Transaction Information.  Ness does not review the Transaction Information for accuracy, completeness, legality, or non-infringement.  Ness is not responsible for the Transaction Information or products and services offered by or on third-party sites.

Similarly, you may grant permission to Ness to retrieve your health-related information maintained by Apple Health (e.g., Exercise Minutes, Sleep Hours, Mindful Minutes, and Steps) (“Health Information”).  Ness does not review the Health Information for accuracy, completeness, or non-infringement.  Ness is not responsible for the handling of Transaction or Health Information before it is transmitted to Ness, including without limitation, if and how you consent to the collection of such Transaction or Health Information through third-parties.  Ness is not responsible for the Health Information or products and services through which the Health Information is collected.

Ness cannot always foresee or anticipate technical or other difficulties that may result in failure to obtain data or loss of data, personalization settings, device operating environment malfunctions, or other service interruptions.  Ness cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings.  Ness relies on information received from third-parties to administer the Rewards Program.  There may be a delay from when Transaction Information is made available to you and when it is transmitted to us.     

We may not be able to award you points if we are unable to obtain (i) certain Transaction Information from the payment card network or financial institution associated with your Transaction Information or (ii) your Health Information from Apple HealthKit.

In the event that Ness receives inaccurate, including incomplete, Transaction Information and/or Health Information, Ness is under no obligation to (i) take steps to correct any inaccuracies, or (ii) act on additional or otherwise corrected information you provide outside of the Transaction and/or Health Information.

4. Earning Points

Healthy Actions

To begin earning points, you must link a qualifying credit card (“Qualifying Card”) to your Ness Rewards Account. Some exclusions may apply, and Ness reserves the right to determine in its sole discretion whether a particular credit card is a Qualifying Card.  A Qualifying Card that is jointly held by two (2) or more people may be linked to only one (1) Ness Rewards Account.  (A Qualifying Card that is successfully linked to your Ness Rewards Account through the App is hereinafter referred to as a Linked Card.)

You will have the opportunity to earn points based on Healthy Actions (defined below) or other actions you may take as described in a particular offer made via the App (“Ness Offer”).  Ness Offers may be subject to additional terms, conditions, and/or restrictions.  Such terms, conditions, and/or restrictions may be updated, modified, suspended, or canceled at any time without notice to you.  If there is a conflict between these Reward Program Terms and the terms and conditions of any Ness Offer, unless explicitly provided otherwise in these Reward Program Terms, the Ness Offer terms and conditions will control.  Ness Offers are not transferable, and may not be made available to all users.

Healthy Actions

We’re here to inspire you to take more Healthy Actions (as defined in the chart below), and so that is how you can earn points. “Healthy Actions” include:

• Certain physical activity recorded via Apple Health
• Certain purchases conducted on qualifying credit cards (as determined by Ness) that are linked to your Ness Rewards Account (“Linked Cards”); and
• Purchases conducted on your Ness Card;

Check the chart below to learn how you can earn points from your Healthy Actions.

	Physical Activity	Purchases on Linked Cards	Purchases on Ness Card
Earning Points	You may earn points (subject to the limitations described below) based on your number of Exercise Minutes, Mindful Minutes, Sleep Hours, and Steps, each as recorded via Apple Health. Points earned for Physical Activity are awarded after completion of the Physical Activity.	You may earn points for non-commercial, personal, and household purchases (“Qualifying Purchases”) made using your Linked Cards, including sales tax, at merchants that fall within our health and wellness framework (“Qualifying Health & Wellness Merchants”).  See the section on Qualifying Health & Wellness Merchants below and Wellness at Ness for more information about Ness’s health and wellness framework.  A Qualifying Purchase made at a Qualifying Health & Wellness Merchant with a Linked Card is a Points-Eligible Transaction.  Ness Rewards will not be awarded on Purchases that are determined to be fraud.  Ness Rewards are not available on business purchases.  If Ness believes a Linked Card is being used for non-consumer spending, Ness may review such transactions or contact the User to investigate whether the purchases are for business or consumer purposes.  If it is determined that a Linked Card is used for non-consumer spending, Ness may unlink the specific Linked Card or disable the User’s Ness Rewards Account.	You may earn points on all (that’s right, all!) purchases made and settled using your Ness Card.   Purchases at Qualifying Health & Wellness Merchants will earn you more points than purchases at all other merchants (see more in How Your Points Are Calculated below). Ness Rewards will not be awarded on Purchases that are determined to be fraud.
		Note:  Points will be issued based only on bona-fide, completed transactions that have cleared and settled. It typically takes one (1) to five (5) days for transactions to clear and settle, but may take up to fourteen (14) days.	Note:  Points will be issued based only on bona-fide, completed transactions that have cleared and settled. It typically takes one (1) to five (5) days for transactions to clear and settle, but may take up to fourteen (14) days.
How Your Points Are Calculated	You may earn a maximum of 40 points for physical activity-based Healthy Actions per day.  Such points may be earned as follows: 10 points for 30 or more active minutes per day 10 points for 10 or more mindful minutes per day 10 points for 7 or more sleep hours per day 10 points for 6,000 or more steps per day	For every dollar spent on a Points-Eligible Transaction, you will earn one (1) point.  No points will be earned for any purchases made prior to creating a Ness Rewards Account and setting up your Linked Cards, unless otherwise stated in a Ness Offer (see more on Ness Offers below). Certain spending, including but not limited to, repeat purchases, high-value purchases, and purchases made for commercial, non-personal or non-household purposes, may not at Ness’s absolute discretion, be considered Qualifying Purchases and may be ineligible for points.	For every dollar spent on your Ness Card at Qualifying Health & Wellness Merchants, you will earn six (6) points. For every dollar spent on your Ness Card at any other merchant, you will earn two (2) points.
		Rounding of Points: Ness does not award fractional points. Points are awarded based on the total transaction amount multiplied by the relevant multiplier (see above) and rounded to the nearest point.  For example: – A Linked Card transaction of $25.10 at a Qualifying Health & Wellness Merchant will earn you 25 points because $25.10 X 1 = 25.1, which rounds down to 25 points. Returns, Chargebacks, Cancellations, Disputes and other Refunds on Qualifying Purchases: Without limiting any of the other provisions of these Rewards Program Terms, if you return, chargeback, cancel, successfully dispute, or otherwise request or receive a refund for a Qualifying Purchase for which you have already received points, we will reduce the balance of points in your Ness Rewards Account by the amount of points you received for such purchase. If the balance of points in your Ness Rewards Account is less than the amount of points you received for such purchase, we will offset the applicable number of points from the points you would otherwise receive for future Qualifying Purchases.   For example, if you earned 25 points on a Qualifying Purchase and later returned the purchase after receiving the points and you had 100 points existing in your Ness Rewards Account after receiving points from the then returned purchase, we will reduce the number of points in your Ness Rewards Account to 75 points to reflect the loss of points based on the return.   If you had 20 points in your Ness Rewards Account at the time of the return, then we will reduce the number of points in your Ness Rewards Account to -5 points which will be offset by points earned from future Qualifying Purchases.	Rounding of Points: Ness does not award fractional points. Points are awarded based on the total transaction amount multiplied by the relevant multiplier (see above) and rounded to the nearest point.  For example: – A Ness Card transaction of $25.10 at Qualifying Health & Wellness Merchant will earn you 151 points because $25.10 X 6 = 150.6, which rounds up to 151 points. – A Ness Card transaction of $25.10 at a merchant that is not a Qualifying Health & Wellness Merchant will earn you 50 points because $25.10 X 2 = 50.2, which rounds down to 50 points. Returns, Chargebacks, Cancellations, Disputes and other Refunds on Qualifying Purchases: Without limiting any of the other provisions of these Rewards Program Terms, if you return, chargeback, cancel, successfully dispute, or otherwise request or receive a refund for a Qualifying Purchase for which you have already received points, we will reduce the balance of points in your Ness Rewards Account by the amount of points you received for such purchase. If the balance of points in your Ness Rewards Account is less than the amount of points you received for such purchase, we will offset the applicable number of points from the points you would otherwise receive for future Qualifying Purchases.   For example, if you earned 25 points on a Qualifying Purchase and later returned the purchase after receiving the points and you had 100 points existing in your Ness Rewards Account after receiving points from the then returned purchase, we will reduce the number of points in your Ness Rewards Account to 75 points to reflect the loss of points based on the return.   If you had 20 points in your Ness Rewards Account at the time of the return, then we will reduce the number of points in your Ness Rewards Account to -5 points which will be offset by points earned from future Qualifying Purchases.

Qualifying Health & Wellness Merchants

As stated above, Ness considers a merchant to be a Qualifying Health & Wellness Merchant if it falls within our health & wellness framework.  You can learn more about our health & wellness framework and the criteria used to evaluate merchants here and here. If you would like to know whether a merchant is a Qualifying Health & Wellness Merchant prior to making a purchase, please reach out to [email protected] with the subject line “Healthy Merchant Review Request” and information about the merchant, including the merchant name and website. If you have made a purchase at a merchant that you believe meets our health & wellness framework, but did not receive points, tap on the particular purchase in the “Activity” tab and select “Request points for this purchase.”  This will initiate a review of the merchant by Ness.  If we agree that the merchant meets our health & wellness framework, we will award you the appropriate number of points based on the transaction amount. Whether you are requesting a merchant review before or after a purchase, you will receive an email confirming the conclusion and outcome of our review within approximately 3 business days of your request. 

Ness Offers

You may also have the opportunity to earn points as described in a particular offer made via the App (“Ness Offer”). Ness Offers may be subject to additional terms, conditions, and/or restrictions. Such terms, conditions, and/or restrictions may be updated, modified, suspended, or canceled at any time without notice to you. If there is a conflict between these Reward Program Terms and the terms and conditions of any Ness Offer, unless explicitly provided otherwise in these Reward Program Terms, the Ness Offer terms and conditions will control. Ness Offers are not transferable and may not be made available to all Users.  The applicable point accrual scheme will be disclosed in any such Ness Offer.

Checking your Points Balance

You can check your points balance by logging into your Ness Rewards Account on the App and checking the ”Activity” tab. It is your responsibility to check your Ness Rewards Account regularly to ensure that points have been properly credited and your account balance is accurate. Ness will attempt to credit accounts with points on a timely basis. Points will accrue as described in these Rewards Program Terms or in an applicable Ness Offer and may take several days to be uploaded to your account upon such accrual. 

Errors Related to Point Earnings

Across all modes of earning, if Ness erroneously rewards you with a number of points greater than you were entitled to, you agree that Ness can, at its sole discretion, recover from your Ness Rewards Account the excess number of points or from future points. 

If you believe that you are eligible for points that you have not received, or that you received points that were calculated incorrectly, or that any other error in connection with your points balance has been made, you must report the possible error to Ness promptly, but no later than: (a) 60 days after the close of the relevant billing period if related to spend on the Ness Card, or (b) 60 days after the date on which you claim the points should have accrued for spend on Linked Cards or physical activity. After the applicable 60-day period, your points balance as shown in your Ness Rewards Account will be deemed accurate.  

Ness may require you to submit documentation to resolve any errors related to point earnings.  This documentation may include copies of receipts or invoices.  In the event there is a discrepancy between your records and ours, Ness records will control.  Ness will not have any liability for any failure, delay, or error in crediting points to your account.

5. Redeeming Points

Points are valid and redeemable via the App. Points have no cash, monetary, or other value and cannot be converted into any currency. Points may be redeemed for various rewards that we make available and that may change from time to time. 

The number of points recorded in your account and the number of points required to obtain any particular reward are subject to verification by us. Once a reward has been requested or redeemed by a User, no changes, refunds, or return of points are permitted for any reason.  Ness is not responsible for lost or stolen points or rewards.  All rewards are offered subject to availability and restrictions imposed by the reward suppliers.  We assume no responsibility for any loss, damage, defect, injury, death or expense relating to any reward or rewards processing or shipment, or for your rewards not turning out as you expected for whatever reason. If any points or rewards are believed to have been sold, exchanged, or obtained fraudulently, or issued to someone other than the registered User of the applicable Ness Rewards Account, those points or rewards will be void and will not be honored. If you redeem points for a service that is no longer available, we may offer a substitute reward of a similar value.

6. Expiration, Inactivity & Cancellation

For Ness Cardmembers, you will continue to earn points as long as your Ness Card account is open, in good standing (i.e., not delinquent) and used to make purchases. If you are three (3) days past due on your Ness Card, you will lose the ability to (a) conduct additional transactions (and thus earn additional points on your Ness Card) and (b) redeem points you’ve already earned on your Ness Rewards Program Account.  If you are ineligible to earn points on your Ness Card, you may still earn points for Points-Eligible Transactions on Linked Cards or for Physical Activity, but you will not be able to redeem any points until your Ness Card is in good standing or your Ness Card account is closed. If you fail to pay the Amount Due for 60 days, you will immediately lose access to all your points. See your Cardmember Agreement (emailed to you before you accepted the Ness Card) for additional details on your payment obligations. So long as your Ness Card account is open, your points will not expire (though your ability to redeem those points may be restricted as described in this paragraph).  

For Rewards App members who do not have a Ness Card, Ness does not award points to inactive accounts.  A Ness Rewards Account is considered “inactive” if during a sixty (60) day period you do not open the Ness App.  When your account becomes inactive, your point balance will be frozen.  If your account is inactive for an additional 120 days (or 180 days in total), your points will expire. Expired points will not be reinstated. Want to begin earning points again? Open the App and log-in!

You may cancel your account and participation in the Rewards Program by contacting Ness at [email protected] or 1-888-842-6061 with your request. All unredeemed points will be forfeited immediately upon cancellation and may not be reinstated or transferred.

Ness may cancel your accumulated points, suspend your benefits, or terminate your account at any time with immediate effect and without written notice, for any reason and in Ness’s sole discretion, including in instances where Ness believes that you have (i) acted in a manner inconsistent with applicable laws or regulations, (ii) acted in an inappropriate, fraudulent, abusive, or hostile manner, (iii) breached or violated any of these Rewards Program Terms or the Incorporated Terms, or (iv) engaged in any misconduct or wrongdoing in connection with the App. Nothing contained in these Rewards Program Terms will limit Ness in the exercise of any legal or equitable rights or remedies. 

If your account is terminated or disabled for any reason, including but not limited to fraudulent activity, then your existing points will be forfeited and any further transactions that might otherwise earn you points will not be deemed to be applicable.

Points and other related benefits and services are the sole property of Ness and are not the property of the users.  Points have no cash value, and Ness will not compensate or pay cash, cash equivalent, or credit for any forfeited or unused points.

Whether you may re-enroll in the App after a termination is at Ness’s sole discretion.  In any event, previously earned points that were forfeited will not be credited to you.

7. Fees and Taxes

Fees associated with the Ness Card are detailed in your Cardmember Agreement.

For App users who do not have a Ness Card, Ness currently charges no fees for access and/or use of the App, but we reserve the right to charge such fees in the future. We will notify you and obtain any consent before charging any fees. If you continue accessing or using the App after providing such consent, you must pay all applicable fees.

You may be taxed on your receipt or redemption of points, other consideration (merchandise, travel, prizes from a contest, etc.) depending on applicable tax laws.  You acknowledge and agree that you are solely responsible for any and all tax liability arising out of your use of App and any consideration you receive as a result thereof.  You are also responsible for making all applicable disclosures to third parties.  

Any unspecified expenses related to the enrollment or use of the App, including without limitation the Rewards Program, are solely the User’s responsibility.  Ness will not be liable for any tax liability, duty, or other charges in connection with the issuance of points or any other App or Rewards Program benefits.

8. Limitation of Liability

IN NO EVENT SHALL NESS, NOR OUR AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, NOR ANY OF OUR OR THEIR SUPPLIERS (INCLUDING DATA AGGREGATORS, PAYMENT CARD NETWORKS, AND PAYMENT PROCESSORS), NOR THE ISSUING BANK BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE REWARDS PROGRAM OR THE REWARDS (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION).

9. Disclaimer of Warranties

THE REWARDS PROGRAM, REWARDS, AND ALL CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE REWARDS PROGRAM, REWARDS AND CONTENT ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NESS AND ITS AFFILIATES, LICENSORS AND OUR AND THEIR SUPPLIERS (INCLUDING DATA AGGREGATORS, PAYMENT CARD NETWORKS, AND PAYMENT PROCESSORS) DO NOT WARRANT THAT: (1) THE CONTENT IS TIMELY, ACCURATE, COMPLETE, RELIABLE, OR CORRECT; (2) THE REWARDS PROGRAM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (3) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (4) THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (5) THE RESULTS OF USING OR PARTICIPATING IN THE REWARDS PROGRAM WILL MEET YOUR REQUIREMENTS. YOUR USE OR PARTICIPATION OF THE REWARDS PROGRAM IS SOLELY AT YOUR OWN RISK.

10. Indemnification

You shall defend, indemnify, and hold harmless us and our affiliates, third-party service providers, directors, officers, employees, contractors, and suppliers from and against any loss, damage, liability, claim, cost, or expense of any kind, including reasonable attorneys’ fees, that arise from your use of the Rewards Program, any fraud or misuse of the Rewards Program, violation of these Rewards Program Terms, infringement of any intellectual property, and/or violation of any applicable law or the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. 

If you are a California resident, you waive California Civil Code Section 1542, which states:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

11. Waiver and Severability

No waiver by Ness of any term or condition set out in these Rewards Program Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Ness to assert a right or provision under these Rewards Program Terms shall not constitute a waiver of such right or provision.

If any provision of these Rewards Program Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Rewards Program Terms continue in full force and effect.

12. Entire Agreement

The Rewards Program Terms, as well as the Incorporated Terms, constitute the sole and entire agreement between you and Ness regarding the Rewards Program, and supersede any and all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Rewards Program.

13. Governing Law

These Rewards Program Terms, your rights and obligations, and all actions contemplated by, arising out of or related to these Rewards Program Terms shall be governed by the laws of the State of New York, as if these Rewards Program Terms is a contract wholly entered into and wholly performed within the State of New York.

14. Survival 

You agree and understand that all provisions of these Rewards Program Terms, which by their nature extend beyond the termination or expiration of these Rewards Program Terms, including, but not limited to, sections pertaining to expiration, inactivity, suspension, cancellation, disputes with us, limitation of liability, disclaimer of warranties, indemnification, and governing law, shall survive the termination or expiration of these Rewards Program Terms.

15. Right to Rewards 

You acknowledge and agree that Ness Well, Inc., in its capacity as servicer of this Rewards Program, has sole discretion in the administration of this Rewards Program and that you have no rights to any points unless and until such points are deposited in your Ness Rewards Account, subject to any adjustments to point earnings as described herein.

13. Rewards Program Assistance

If you have questions regarding your points or the Rewards Program, please contact [email protected]. 

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 Ness Provider Terms

Last Updated: October 28, 2022

Hello! Ness Well, Inc. (together with its affiliates, “Ness” or the “Company”)) is a public benefit corporation that is dedicated to promoting health & wellness products and services, including a curated network of health & wellness providers (the “Provider Nesswork”).  The Provider Nesswork is made available to consumers through our website (nesswell.com), including various subpages thereof (the “Site”), Ness’ mobile application (the “App”), and Ness’ content channels, including the newsletter Nessie Sightings and social media pages (collectively, along with Ness’ credit card (the “Ness Card”), the “Services”).  

Your participation in the Provider Nesswork constitutes acceptance of the terms herein and formation of a binding legal agreement (the “Provider Terms”) between you (henceforth, “you,” “your,” “Provider”) and Ness.  By participating in the Provider Nesswork, you confirm that you have read, accept, and agree to be bound by (i) the terms of these Provider Terms; (ii) the Company’s Terms of Service and Privacy Policy, each of which is incorporated herein (collectively, the “Incorporated Terms”); and (iii) all other instructions provided by Ness to You in relation to the Provider Nesswork.

Consumers who view and use the Provider Nesswork to book services with a Provider (“Provider Services”) are referred to as Customers (“Customers”).  Together, Providers and Customers are referred to as users (“Users”).  

1. Changes to these Provider Terms

Ness may, in its sole discretion, amend, delete, or add to these Provider Terms at any time by posting a revised version to the Site. Any revisions to the Provider Agreement will take effect on the noted last updated date. 

It is your responsibility to review these Provider Terms (including the Incorporated Terms) for any such changes.  We reserve the right to notify you of such changes via our website, or otherwise, but other than as required by applicable law, we have no obligation to notify you of every update.

2. Provider Profile

As part of the registration process for participating in the Provider Nesswork, you must complete a Provider profile (“Profile”), which you consent to be shown to other Users.  You agree to provide true, accurate, and complete information on your Profile, registration and any other forms completed via the Services or upon request by Ness. You further agree to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity, location, skills, or Provider services. Failure to comply may result in removal from the Provider Nesswork.

3. Provider Verification

You understand that your Profile may be subject to validation and verification at any time, including at a minimum, upon registration with Ness and annually thereafter. This could include validation to confirm your identity, location, education credentials, and other profile details against official government documents, legal documents, and third-party databases. You authorize Ness, directly and through third parties, to make any inquiries necessary, subject to applicable law, to perform this validation, and will comply in a timely manner with a request for you to provide Ness with information.  The Company reserves the right to limit inclusion of your Profile in the Provider Nesswork and access to any other features given to Providers during this verification.

4. Ownership and Restrictions

Ness or its licensors retain all ownership and intellectual property rights to the Services, as well as to anything developed and delivered under this Agreement. All pages, features and content within the Services and any material made available for download are the property of Ness, or its licensors or suppliers, as applicable. The contents of the Services and the Provider Nesswork, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through the Services may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Provider Terms and the Incorporated Terms. You agree that you will use the Services, including the Site and App, and the Provider Nesswork only for legal purposes.

You retain all ownership and intellectual property rights in and to your data (“Provider Data”).  

5. License Grant

With respect to the Provider Data, which may include your name, image, and likeness, you expressly grant Ness and our successors a worldwide, sublicensable, fully-paid and royalty-free and non-exclusive license to use, reproduce, display, modify, adapt, distribute the Provider Data throughout the Services in connection with our business purpose. This license does not grant us the right to sell the Provider Data or otherwise distribute it outside of our Services. This license will terminate upon termination of these Provider Terms.

6. Relationship between Ness, the Providers, and Customers

The Provider Nesswork enables Providers to publish and offer their services to Ness Customers.  All Users are responsible for evaluating and determining the suitability of a Provider Service on their own. If a Customer decides to purchase Provider Services or enter into any other contractual relationship with a Provider (either, a “Provider Contract”), that Provider Contract is between the Users; Ness is not a party to that Provider Contract.  Ness is not acting as an agent in any capacity for any User. 

If a Customer cancels or modifies an appointment with you for Provider Services, the amount owed to you is determined by your Provider Contract with the Customer. Ness will not be held responsible or liable for any amounts owed to you under your Provider Contract.

User Behavior

You agree that Ness does not control the behavior and/or usage of the Provider Services by any User.  You acknowledge that Ness has the right, but not the obligation, to monitor the use of the Provider Nesswork. Providers agree to cooperate with and assist Ness in good faith, and to provide Ness with such information and take such actions as may be reasonably requested by Ness with respect to any investigation undertaken by Ness regarding the Provider Nesswork.

7. Provider Tiers

The Provider Nesswork includes two (2) tiers of Providers – Standard Providers and Preferred Providers. The Standard provider tier is the default; Providers may elect to be in the Preferred Provider tier.  

You may modify your tier by submitting a request to Ness via email at [email protected] Ness reserves the right to take up to thirty (30) days to fulfill such modification. Ness will confirm the modification and the date on which it will take effect (“Modification Date”) in writing via email. 

8. Fees for Services

Standard Providers 

As of the date of these Provider Terms, Ness does not charge Standard Providers for inclusion in the Provider Nesswork.  

Preferred Providers

Ness charges a minimum ten percent (10%) commission for all Provider Services performed by Preferred Providers paid for using a Ness Card. You and Ness may enter into additional agreement(s) covering further marketing performed by Ness in exchange for an additional commission amount in excess of ten percent (10%) (“Commission Agreement”). The commission owed under these Provider Terms and any Commission Agreement is hereinafter referred to as “Fees.” Ness will invoice Preferred Providers on at least a monthly basis for Fees owed under these Provider Terms. Payments will be due to Ness within thirty (30) days of the invoice date.

If you are a Preferred Provider, you hereby agree to pay all Fees under these Provider Terms and any Commission Agreement in the manner directed by Ness, at the time they are required and as a condition of participating in the Provider Nesswork.  If you fail to pay an amount due under this Agreement or any Commission Agreement by a due date, Ness may suspend your inclusion in the Provider Nesswork until such overdue Fees are paid in full.  Continued failure to pay Fees and interest may result in a downgrade to the Standard Provider tier or removal from the Provider Nesswork.

Changes in Fees

Ness reserves the right to change Fees at any time, and will provide notice of any fee changes prior to such changes taking effect.  If you disagree with any fee changes, you may request to change Provider tiers in accordance with Section 7 or to terminate these Provider Terms in accordance with Section 10.

9. Treatment of the Ness Brand

Ness is dedicated to promoting a brand that is synonymous with health and wellness. As a participant in the Provider Nesswork, you agree to do nothing that would hamper Ness’ reputation. Except as expressly permitted by applicable law, you must not:

• Indicate or imply that you prefer, directly or indirectly, any other charge, credit, debit, stored value, prepaid, or smart cards, account access devices, or other payment cards, services, or products other than the Ness Card (“Other Payment Products”) over the Ness Card;
• try to dissuade Cardmembers from using the Ness Card;
• criticize or mischaracterize the Ness Card or any of our Services;
• try to persuade or prompt Cardmembers to use any Other Payment Products or any other method of payment (e.g., payment by cash or check);
• impose any restrictions, conditions, disadvantages, or fees when the Ness Card is accepted that are not imposed equally on all Other Payment Products, except for electronic funds transfer, or cash and check;
• suggest or require Cardmembers to waive their right to dispute a transaction;
• engage in activities that harm our business or the Ness brand (or both); or
• promote any Other Payment Products more actively than you promote the Ness Card.

10. Termination; Tail Period

Termination by You or Ness

These Provider Terms between you and Ness remain in effect until either party, you or Ness, terminates the agreement in accordance with this Section 10 of the Provider Agreement.

• You may terminate this agreement for any reason with thirty (30) days’ notice by sending us an email at [email protected]  
• Ness may terminate this agreement and your inclusion in the Provider Nesswork at any time for any reason. 
• Parts of These Provider Terms that by their nature survive termination, will survive termination of this Agreement.

Tail Period for Preferred Providers

For Preferred Providers, if you terminate these Provider Terms in accordance with Section 10 or modify your provider tier from Preferred Provider to Standard Provider in accordance with Section 7, then any Provider Services provided by you that are paid for by Customers with a Ness Card will continue to be subject to the Fees described in Section 8 for a period of ninety (90) days following the Termination Date or Modification Date, as applicable. 

11. Limitation of Liability

We provide the Provider Nesswork and all content within the Services “as is” without warranty of any kind and we disclaim all warranties, whether express or implied.  For example: (i) we do not endorse or warrant the existence, conduct, performance, quality, legality or suitability of any Provider, Customer, User, third party, Provider Contract, or Provider Services; (ii) we do not warrant the performance or non-interruption of the Services; and (iii) we do not warrant that verification conducted on Users – whether Providers or Customers – will identify past misconduct or prevent future misconduct. The disclaimers in these Provider Terms apply to the maximum extent permitted by law. If you have statutory rights or warranties we cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.

Neither Ness (including its affiliates and personnel) nor any other party involved in creating, producing, or delivering the Provider Nesswork or the Services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Provider Terms, (ii) the use of or inability to use the Provider Nesswork or the Services, (iii) any communications, interactions or meetings you may have with someone you interact or meet with through, or as a result of, your use of the Provider Nesswork, or (iv) publishing or purchasing of Provider Services, including the provision or use of Provider Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Ness has been informed of the possibility of such damage, even if a limited remedy set out in these Terms is found to have failed of its essential purpose.

In no event will Ness’ aggregate liability for any claim or dispute arising out of or in connection with these Provider Terms, your interaction with any Users or your use of or inclusion in the Provider Nesswork or any Services exceed one hundred U.S. dollars ($100.00 USD).

12. Indemnification

To the maximum extent permitted by applicable law, you agree to release, defend (at Ness’ option), indemnify, and hold Ness (including Ness, its affiliates and personnel) harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your breach of these Provider Terms, including the Incorporated Terms, (ii) your improper use of the Provider Nesswork, (iii) your interaction with any User, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, (iv) your failure, or our failure at your direction, to accurately report, collect or remit Taxes, or (v) your breach of any laws, regulations or third party rights such as intellectual property or privacy rights.

13. Dispute Resolution

You and Ness agree that any dispute or claim arising from or relating to these Provider Terms shall be settled by final and binding arbitration, in accordance with Section 14 of the Ness Terms of Service. 

14. General 

These Provider Terms, the Incorporated Terms and any Commission Agreement constitute the entire agreement between Ness and you pertaining to your inclusion in the Provider Nesswork or use of the Services, and supersede any and all prior oral or written understandings and agreements between Ness and you.

These Provider Terms do not and are not intended to confer any rights or remedies upon anyone other than Ness or you.

If any provision of these Provider Terms is held to be invalid or unenforceable such provision will be struck and will not affect the validity and enforceability of the remaining provisions. Where the word “will” is used in these Provider Terms it connotes an obligation with the same meaning as “shall.”

Ness’ failure to enforce any right or provision in these Provider Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Provider Terms, the exercise by either party of any of its remedies under these Provider Terms will be without prejudice to its other remedies under these Provider Terms or otherwise permitted under law

You may not assign, transfer or delegate this agreement or your rights and obligations hereunder without Ness’ prior written consent. Ness may without restriction assign, transfer or delegate this agreement and any rights and obligations hereunder, at its sole discretion, with 30 days’ prior notice.

Unless specified otherwise, any notices or other communications to Users permitted or required under this agreement, will be provided electronically and given by Ness via email.

Thank you for your participation in the Provider Nesswork!

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Electronic Communications Consent

Your Consent to Electronic Signatures & Communications

Last Updated: November 1, 2022

1. Background

As part of your relationship with Ness, we want to ensure you have all of the information you need to effectively manage your account. We are required by law to give you certain information, including legal disclosures, notices, records, statements, and communications (“Covered Communications”) “in writing” (i.e., on paper by mail). We may, however, instead provide this information to you electronically with your prior consent (and save some trees in the process!). We also need your general consent to use electronic records and signatures in our relationship with you. So, before proceeding with your charge card application, you must review and consent to the terms of this document.

2. Consent

In this document, “we,” “us,” and “our” refer to: (1) The Bank of Missouri, issuer of the Ness Card; (2) Ness Well, Inc., creator of the Ness App and the Ness Rewards Program, and (3) their service providers, including Ness Well Financial, LLC, servicer of the Ness Card.  

In addition, “provide” means to deliver, make available, send, notify or take similar action.  

To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all Covered Communications. Your consent gives us permission to communicate with you electronically in regard to any activity on, including the products and services accessed through, the Ness App and is not specific to any extension of credit, inquiry, product, service or transaction. Communications include, as applicable:

• Any information we provide to you about your charge card application, including rates and fees, any adverse action, and any final terms of your credit offer;
• Any information we provide to you about any product, service, or transaction you conduct;
• Any terms and conditions and policies you agree to, including updates to these agreements or policies, and other authorizations you provide;
• Any documents or disclosures we provide to you; and,
• Any other information relating to your relationship with us. 

We will provide these Covered Communications to you by emailing them to you at your registered email address and/or making them available via the App after you log-in. It is your responsibility to keep your registered email address up to date so that we can communicate with you electronically. 

3. System Requirements

In order to access and retain electronic communications, you will need: 

• An iPhone or iPad that has internet access and is capable of running iOS applications (“Eligible Device”);
•  Have iOS version 14, or subsequent versions of such software, installed on your Eligible Device; and
• Have a valid email address associated with your account.

4. Paper Versions of Covered Communications

You may request a paper version of a Covered Communication. You acknowledge that Ness reserves the right to charge you a reasonable fee for the production and mailing of paper versions of Covered Communications, unless charging a fee is prohibited by applicable law. To request a paper copy of a Covered Communication contact us at 1-(888) 842-6061.

5. Withdrawal of Consent

You have the right to withdraw consent and may withdraw your consent to receive Covered Communications electronically or update information needed to contact you electronically by emailing us at [email protected]; however, Ness will not be able to service your account and will require closure of your account.  If you withdraw your consent prior to completing your application, you will not be able to complete the application process and therefore will not be issued an extension of credit. 

6. Updates

You acknowledge that we may amend this policy at any time by posting a revised version on our website. If we make a material change to this policy we will also send a notice to your registered email address.

7. Acknowledging Ability to Access and Consenting to Electronic Communications

By confirming that you have read and agreed to these terms, you are confirming that (1) you have access to an Eligible Device, (2) you agree to receive the Covered Communications electronically, and (3) you are able to access and print or store information presented to you.