These Terms provide that with limited exceptions all disputes between you and Ness arising out of or relating to these Terms or your use of the Service will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters covered by Section 17.3 of these Terms. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 17 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate most disputes with Ness.
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.
Ness provides a mobile app that connects consumers with retail stores and restaurants to facilitate on-demand pickup services (the "Platform"). Through the Platform, consumers may place orders from particular retail locations or restaurants. Partnered retail locations and restaurants can access the Platform and receive mobile ordering opportunities. Ness is not a retail store, restaurant, or food preparation entity.
As provided in greater detail in these Terms, you agree and acknowledge these material Terms:
BY ACCEPTING THESE TERMS, YOU AND NESS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the Dispute Resolution and Arbitration section below for the details regarding your agreement to arbitrate any disputes with Ness.
You must be at least fourteen (14) years old to use the Service. By agreeing to these Terms, you represent and warrant to us:
If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, credit card information, e-mail address, phone number or other contact information). You agree that the information you provide to us is accurate and that you will keep it up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for Facebook, or other third party login. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us via our Help Center
The App is licensed, not sold, to you for use only under the terms of this license. Ness reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, Ness hereby grants you a personal, limited, revocable, non-transferable license to use the App on compatible devices that you own or control, solely for your non-commercial use.
You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. If you breach these license restrictions, or otherwise exceed the scope of the license granted in these Terms, you may be subject to prosecution and legal damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by Ness that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license in which case the terms of that license will govern.
You understand that the prices for menu items displayed through the Service may differ from the prices offered or published by merchants for the same menu items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the menu items are sold. Please note that in some cases, the estimated pricing published through the Service at time of checkout may differ from the prevailing pricing; for instance, a merchant may charge more for some items than is estimated. Ness reserves the right to determine final prevailing pricing of all items ordered through the Service. In cases in which prevailing pricing is different than the estimated pricing, the fees you are ultimately charged may be different than the estimate. You acknowledge and agree to pay the prevailing pricing and fees. Please visit our Help Center to learn more about how items are priced. Ness has no obligation to itemize its costs, profits or margins when publishing prices on the Site or in the App and reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on Ness’ income).
Certain features of the Service, including placing orders, may require you to pay fees. Ness may change, or add, fees for our Service at any time as we deem necessary or appropriate for our business. You will have an opportunity to review and accept an estimate of the fees that you will be charged, as applicable. The final fees may differ from the estimate, which may be the result of any requested substitutions or the ultimate prevailing price of the items (discussed above). In some cases we may not be able to provide an estimate of the fees, such as when the merchandise cost is unknown or we are otherwise unable to predict fees. In all cases, you acknowledge and accept that a fee will be charged and you agree to pay said fee. We encourage you to check our Site or visit our Help Center periodically to learn more about how we charge for the Service.
Ness will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information.
Charges paid by you are final and non-refundable, except as expressly provided in Section 4.2, and will be quoted in the local currency of the location where the order is being placed. Except as expressly provided in Section 4.2, Ness has no obligation to provide refunds or credits, but may grant them, in each case in Ness sole discretion and regardless of your decision to terminate your usage, our decision to terminate your usage, and/or any disruption caused to our Service for any reason whatsoever.
Ness, in its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your use of the Service or fees charged to you. Ness reserves its right to expire or modify any promotion at any time.
You authorize Ness to charge all sums for orders that you make and services you select to the payment method designated in your account. When you order on Ness, a temporary pre-authorization hold is placed on your designated payment method to verify that the card is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the order total quoted at checkout. However, you will only be charged the final order total once your order is registered as complete within the Ness system, which generally occurs between 24-48 business hours after you receive your order. In the event that the pre-authorization is greater than the final amount, the difference will be returned to you after your order is completed or cancelled, which may take up to 5 business days depending on your bank.
Ness also places an initial temporary pre-authorization hold on each new payment method you add to your account.
Ness reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent.
If payment for purchases on your account is delinquent, your account information may be sent to a collection agency / debt collector and you may be subject to a collection action, and payment of collection related fees and costs. If you have questions regarding an outstanding balance on your account, please contact us via our Help Center.
Ness reserves the right to charge a customer the full order amount if that customer does not pick up their order within 1 hour of the designated time.
If you cancel your Ness order you may be charged depending on what stage the order was in when you canceled. If you cancel an order after it has been accepted but is not yet being prepared by the merchant, you will not be charged a cancellation fee. If you cancel an order after a merchant has started preparing your order, you will be charged the price of the items, including applicable taxes, plus a cancellation fee of up to $4.
During use of the Service, you may purchase goods and services from third-party merchants through the Service. Any such activity, and any disputes, terms, conditions, warranties or representations associated with that activity, is solely between you and the applicable third party. Ness and its licensors shall have no liability, obligation or responsibility for any purchase or transaction between you and any third-party provider. In no event shall Ness or its licensors be responsible for any content, products, services or other materials on or available from third-party sites or third-party providers. Certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and Ness disclaims any and all responsibility or liability arising from such agreements between you and a third party.
You may engage third-party Couriers through the Service to provide delivery services to you and may interact with those Couriers. Any interactions or disputes between you and a Courier are solely between you and that Courier. Ness and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.
The Service may contain third-party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing.
The Service may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
In order to use the Service, you agree to the following:
The Service, and the media and materials contained in the Service, including all intellectual property rights in the Service, are the sole and exclusive property of Ness and its licensors. Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Ness in these Terms are expressly reserved.
You may choose to, or Ness may invite you to, submit comments, bug reports, ideas or other feedback about the Service ("Feedback"). By submitting Feedback, you agree that Ness is free to use such Feedback at its discretion without any obligation to you. Ness may also choose to disclose Feedback to third parties. You hereby grant Ness a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
By using the Services or Software, you agree that the Company and those acting on its behalf may send you text (SMS) messages at the phone number you provided us. These messages may include operational messages about your use of the Services, as well as marketing or other promotional messages. You will not be able to use the Services or Software without agreeing to receive operational text messages. Your agreement to receive marketing texts is not a condition of any purchase or service offered by Company. If you change or deactivate the phone number you provided to Company, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details.
When you install our app on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page.
You agree that we may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
You are responsible for your use of the Service, and you agree to defend (at Ness’ option) and indemnify Ness and its officers, directors, employees, contractors, consultants, affiliates, investors, service providers, business partners, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:
Ness reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations) and you agree to cooperate with our defense of that claim. If the defense or settlement is assumed by you, Ness may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim without Ness’ prior written consent.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY NESS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NESS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. NESS DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE SERVICE OR ANY PRODUCTS OR MATERIALS OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
NESS’ SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NESS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
NESS RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS AND RETAILERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. NESS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION NUTRITIONAL AND ALLERGEN INFORMATION.
NESS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A RESTAURANT OR OTHER THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR THIRD-PARTY SERVICE, AND NESS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IN NO EVENT SHALL NESS’ AGGREGATE LIABILITY EXCEED THE FEES ACTUALLY PAID BY YOU TO NESS IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR $100, WHICHEVER IS LESS. IN NO EVENT SHALL NESS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF NESS AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
THE SERVICE CONNECTS YOU TO COURIERS AND MERCHANTS FOR THE PURPOSES OF FACILITATING COURIER SERVICES. NESS WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY COURIERS AND YOU EXPRESSLY WAIVE AND RELEASE NESS FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE COURIERS. NESS WILL NOT ASSESS THE QUALITY, SAFETY, OR LEGALITY OF THE ITEMS PROVIDED BY MERCHANTS OR RETAILERS ON THE PLATFORM, AND YOU EXPRESSLY WAIVE AND RELEASE NESS FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO MERCHANTS, RETAILERS, AND THE ITEMS THEY PROVIDE. NESS WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN YOU AND ANY COURIERS, MERCHANTS, OR RETAILERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE SERVICE (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. IN ADDITION, WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE NESS FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SERVICE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
THE QUALITY OF THE COURIER SCHEDULED THROUGH THE USE OF THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY COURIER WHO ULTIMATELY PROVIDES DELIVERY SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE SERVICE, YOUR ITEMS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE SERVICE AT YOUR OWN RISK.
Ness may give notice by any means of communication reasonably anticipated to notify you of the information provided. By way of example only, such communication may be a general notice on the Service or via email to the email address listed on your Ness account. It is your obligation to update your account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch.
You may give notice to Ness (such notice shall be deemed given when received by Ness) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Ness at the following address:Ness Order Inc.
You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be void.
These Terms are effective until terminated by you or Ness as described below. Your rights under these Terms will terminate automatically without notice from Ness if you fail to comply with any of these Terms (including by violating any license restriction contained in these Terms). In addition, Ness may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate these Terms at any time by closing your account, uninstalling the App, and ceasing use of the Service.
Ness is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, any Courier or other third party. Disputes between a user and Ness are subject to this Section 17.
In the interest of resolving disputes between you and Ness in the most expedient and cost effective manner, you and Ness agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NESS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of the paragraph directly above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to:
Any arbitration between you and Ness will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Ness at email@example.com
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice").
Ness’ address for Notice is:Ness ORDER Inc.
The Notice must:
We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Ness may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Ness must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
If our dispute is finally resolved through arbitration in your favor, Ness will pay you the highest of the following:
If you commence arbitration in accordance with these Terms, Ness will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules.
Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted:
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Ness for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
YOU AND NESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and Ness agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If Ness makes any future change to this arbitration provision (other than a change to Ness’ address for Notice), you may reject the change by sending us written notice within 30 days of the change to Ness’ address for Notice, in which case your account with Ness will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.
If Section 17.7 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.
We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service, except as set forth below. These Terms identify the date of last update. Your use of the Service following any such change constitutes your agreement to be bound by the modified Terms of Service. In the case of material changes to these Terms, we will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism.
Material changes to these Terms will be effective upon the earlier of:
Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
You acknowledge and agree that when using the App, you may have direct or indirect access or exposure to Ness’ confidential information ("Confidential Information"). Confidential Information includes Ness’ data, provider IDs, user information, delivery recipient information, delivery provider information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that Ness designates as being proprietary or confidential or that you should reasonably know to treat as confidential.
You acknowledge and agree that: (a) all Confidential Information shall remain the exclusive property of the Ness; (b) you shall not use Confidential Information for any purpose except in furtherance of your use of the App; (c) you shall not disclose Confidential Information to any third party; and (d) you shall not store or keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of your use of the App or at the request of Ness.
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no action or omission by you; (b) was possessed by you prior to your use of the App without an obligation of confidentiality; or (c) is disclosed to you by a third party having no obligation of confidentiality with respect thereto.
These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and Ness agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that materials included in the Service are appropriate or available for use in other locations. No joint venture, partnership, employment, or agency relationship exists between you, Ness or any third-party provider as a result of the Terms or use of the Service.
If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of Ness to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Ness in writing.
This Agreement comprises the entire agreement between you and Ness and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained in these Terms.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 21. You acknowledge that these Terms are between you and Ness only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Service and the content thereof.
Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.
Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to:
Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
You hereby represent and warrant that: