Terms of Use for Ness Computing Service
Effective July 19th, 2011
1. ACCEPTANCE OF TERMS
Ness Computing, Inc. (“Ness Computing”) provides its services to you subject to the following Terms of Use ("TOU"). Ness Computing reserves the right, at its sole discretion, to update the TOU at any time. You can review the most current version of the TOU at any time at the URL for this page. In addition, when using particular Ness Computing owned or operated services, you shall be subject to any posted guidelines or rules applicable to such services. All such guidelines and rules are incorporated herein by reference.
You understand that the TOU supplements the end user license agreement for any application (including, but not limited to, the Ness Computing iPhone, iPod Touch and iPad app) that you use to access the Ness Computing Service (as define in Section 2) (the “EULA”). Your further understand that your use of the Service is governed by the Privacy Policy posted at http://www.likeness.com/privacy.html. Both the EULA and the Privacy Policy are incorporated herein by reference.
PLEASE REVIEW THESE TERMS CAREFULLY. BY REGISTERING FOR OR USING THE SERVICE (AS DEFINED IN SECTION 2), YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY REVISIONS THERETO POSTED AT THE URL FOR THIS PAGE OR OTHERWISE DISCLOSED TO YOU.
2. GRANT OF RIGHTS
Ness Computing provides a service utilizing various tools, including, but not limited to, the Ness Computing website at http://www.likeness.com/ and applications for mobile devices, that allows users to interact with others to review, rate and discover restaurants and other businesses. Subject to the terms and conditions of the TOU, Ness Computing grants you a limited, non-exclusive, revocable right to access and use the Ness Computing service (the “Service”).
3. LOGGING IN
(a) You may browse the Service without logging in, but you acknowledge that some features of the Service may not be accessible to you unless you log in. To log in to the Service, you must have and use a Facebook account and password. You acknowledge that all terms of use, policies and guidelines established by Facebook apply to your use of your Facebook account to interact with the Service.
(b) You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone, and you agree to: (1) notify Ness Computing immediately of any unauthorized use of your password or account or any other breach of security; and (2) exit from your account at the end of each session.
(c) You represent that you are: (1) over the age of thirteen (13); (2) of legal age to form a binding contract; and (3) not a person barred from using the Service under the laws of the United States or any other applicable jurisdiction.
4. RESPONSIBILITY FOR CONTENT
(a) You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service, whether publicly posted or privately transmitted ("Content"), are the sole responsibility of the person from whom such Content originated. This means that you, and not Ness Computing, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Ness Computing, are similarly responsible for all Content they upload, post, e-mail, transmit or otherwise make available through the Service (“User Content”).
(b) You acknowledge that Ness Computing has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Ness Computing reserves the right in its sole discretion to pre-screen, refuse or remove any Content. In the event that Ness Computing pre-screens, refuses or removes any Content, you acknowledge that Ness Computing will do so for Ness Computing’s benefit, not yours. Without limiting the foregoing, Ness Computing shall have the right to remove any Content that violates the TOU or is otherwise objectionable.
5. RIGHTS TO CONTENT
Ness Computing does not claim ownership of Your Content. However, you grant Ness Computing a perpetual, worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display Your Content. You understand that the technical processing and transmission of data associated with the Service, including Your Content, may involve: (1) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Except with respect to Your Content and User Content, you agree that Ness Computing and its licensors own all rights, title and interest in the Service and all Content within the Service. You may not (and you may not allow any third party to) copy, modify, create a derivative work from, decompile, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service. You agree not to access the Service by any means other than through the interface provided by Ness Computing and as expressly authorized under the TOU.
The Ness Computing name and logo are trademarks and service marks of Ness Computing (the “Ness Computing Marks”). You agree not to display or use in any manner any Ness Computing Marks without Ness Computing’s prior written consent.
6. USER CONDUCT
In connection with your use of the Service, you shall not:
(a) upload, post, e-mail, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, Ness Computing personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post, e-mail, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(f) upload, post, e-mail, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(h) upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) disrupt the normal flow of dialogue, cause a screen to scroll faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real-time exchanges;
(j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(k) intentionally or unintentionally violate any applicable local, state, national or international law or regulation;
(l) stalk or otherwise harass another person or entity;
(m) use spiders, crawlers, robots or any other means to access the Service or substantially download, reproduce or archive any portion of the Service; or
(n) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Service (including your user account) or access to or use of the Service.
7. INDEMNIFICATION
You agree to indemnify and hold Ness Computing and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, due to or arising out of: (a) Your Content; (b) your use of the Service; (c) your violation of the TOU; or (d) your violation of any rights of another party.
8. MODIFICATIONS TO SERVICE
Ness Computing reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Ness Computing shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
9. TERMINATION
(a) You agree that Ness Computing may, under certain circumstances and without prior notice, immediately terminate your account or access to the Service. Cause for such termination shall include, but not be limited to: (1) breaches or violations of the TOU or other incorporated agreements, guidelines or rules; (2) requests by law enforcement or other government agencies; (3) a request by you (e.g., self-initiated account deletions); (4) discontinuance or material modification to the Service (or any part thereof); (5) unexpected technical or security issues or problems; (6) extended periods of inactivity; or (7) engagement by you in fraudulent or illegal activities. You agree that all terminations for cause shall be made in Ness Computing's sole discretion and that Ness Computing shall not be liable to you or any third party for any termination of your account.
(b) In addition to Section 9(a), you agree that Ness Computing may terminate your account for any reason or no reason at all upon ten (10) days written notice.
10. DEALINGS WITH ADVERTISERS
Your dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Ness Computing shall not be responsible or liable for any loss or damage of any kind incurred as a result of any such dealings.
11. LINKS
The Service or third parties using the Service may provide links to other websites or resources. You acknowledge and agree that Ness Computing is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available through such sites or resources. You further acknowledge and agree that Ness Computing shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
12. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. NESS COMPUTING AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) NESS COMPUTING AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS; (2) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH MATERIALS.
13. LIMITATION OF LIABILITY
(a) YOU UNDERSTAND AND AGREE THAT NESS COMPUTING AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NESS COMPUTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (5) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL NESS COMPUTING’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FIFTY DOLLARS (US$50.00).
(b) YOU UNDERSTAND AND AGREE THAT BY USING THE SERVICE, YOU MAY BE EXPOSED TO CONTENT THAT IS OFFENSIVE, INDECENT OR OTHERWISE OBJECTIONABLE. UNDER NO CIRCUMSTANCES SHALL NESS COMPUTING AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE.
(c) NESS COMPUTING AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
14. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOU, there shall be no third-party beneficiaries to this agreement.
15. Procedure for Making Claims of Copyright Infringement
Ness Computing, Inc. (“Ness Computing”) respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Ness Computing will respond expeditiously to claims of copyright infringement committed using the Service. To submit a claim of copyright infringement, please refer to the Ness Computing DMCA Policy at http://docs.likeness.com/dmca.html.
16. GENERAL PROVISIONS
(a) Entire Agreement. The TOU constitutes the entire agreement between you and Ness Computing concerning your use of the Service, superseding any prior or contemporaneous agreements between you and Ness Computing with respect to the subject matter hereof.
(b) Choice of Law and Forum. The TOU and the relationship between you and Ness Computing shall be governed by the laws of the State of California without regard to its conflict of law principles. You agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Santa Clara in the State of California with respect to any claims arising from the TOU or your use of the Service.
(c) Waiver and Severability. The failure of Ness Computing to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court shall endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU shall remain in full force and effect.