Ness Well Terms of Service

Hi there! Are you a visitor to nesswell.com (the “Site”)? A reader of our online publication, The Ness Well? A subscriber to our newsletter, The Nessie? A viewer or follower of our social media channels?  No matter who you are, the terms and conditions that follow form an agreement (the “Terms of Service” or “Agreement”) between you (“User,” “you,” or “your”) and Ness Well, Inc., its affiliates, successors, and assigns (“Ness,” “we,” “us,” or “our”).  These Terms of Service govern your use of the Site (including The Ness Well), our Services (defined as the Nessie, email notifications, social media channels, or any related applications provided by us), and all content and features contained in the Site or Services.

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

BY ACCESSING THE SITE 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 the Site or the Services.

Eligibility

This Site and 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 the Site and 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 the Site or any of our Services.

Changes to the Terms of Service

We may make changes or modifications to the Site, 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 Site and/or 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.  

Your Use of the Site and the Services

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

• Your use of the Site or any 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 the Site or 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 the Site or 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 the Site or 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 the Site or 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 Site or the Services
• You will not copy or distribute in any medium any part of the Site or 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 this Site or the Services themselves
• You will not use the Site or 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. 

Intellectual Property

The content on this Site and 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, this Site, 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, the Site or 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 on the Site or via the Services are registered and unregistered trademarks or service marks of Ness.  Other company, product, and service names located 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 on the Site or in 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.  The Site and 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 Site and 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.

Our Use of User Content

Some of the features of this Site or 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 service through third-party website 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 this Site, 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 to the Site or via 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 this Site or 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 Site or Services.

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 on the Site or 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.

Links to Third-Party Websites 

The Site and 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 the Site or 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 this Site or 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.

Online Commerce

Throughout the Site, 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 Site or 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.

Geographic Restrictions

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

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 misuse of the Site, 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.

Disclaimer of Warranties

YOUR USE OF THE SITE, 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 SITE, THE SERVICES, OR THE NESS CONTENT.  WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMMISSIONS IN THE SITE OR 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 SITE, THE SERVICES, ANY NESS CONTENT, OR ANY INFORMATION OR GOODS AND SERVICES THAT ARE AVAILABLE OR ADVERTISED OR SOLD THROUGH THE SITE, THE SERVICES, OR NESS CONTENT.

WE DO NOT PROVIDE OR AUTHORIZE THE PROVISION OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE THROUGH THE SITE, 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 SITE, THE SERVICES OR ANY NESS CONTENT.  YOU SHOULD NOT RELY ON INFORMATION PROVIDED THROUGH THE SITE, 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 SITE, THE SERVICES OR AVAILABLE THROUGH LINKS IN THE FOREGOING. WE DO NOT GUARANTEE THAT THE SITE, 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 SITE, 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 SITE, 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.

Governing Law and Jurisdiction

All matters relating to the Site, 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 the Site and 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.

Arbitration

At Ness’s sole discretion, we may require you to submit any disputes arising from these Terms of Service or your use of the Site and/or 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.

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 the Site and Services must be commenced within one (1) year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred.

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.

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 Site and Services.

Your Comments and Concerns

This Site and 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].