These terms and conditions (these “Terms”) apply to your access to and use of Hourglass Offerings LLC’s Nomwell mobile application and any other applications, software, and Nomwell-branded online properties. To make these Terms easier to read, such mobile application and other Nomwell-branded online properties are collectively called the “Application.” “You” and “your” refer to you, as a user of the Application. A “user” is someone who accesses, browses, crawls, scrapes, or in any way uses the Application.
1. Agreement to Terms
By using the Application, you agree to be bound by these Terms and are concluding a legally binding contract with Hourglass Offerings LLC (“Nomwell,” “we,” “our,” and “us”). Do not access or use the Application if you are unwilling or unable to be bound by the Terms.
2. Changes to the Terms
You understand and agree that your access to or use of the Application is governed by the Terms effective at the time of your access to or use of the Application. If we make material changes to these Terms, we will notify you by email or by posting a notice in the Application on or prior to the effective date of the changes. You should revisit these Terms on a regular basis, as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms. By continuing to access or use the Application after such modifications become effective, you agree to be bound by the modified Terms.
3. Using the Application
To access or use the Application, you must be 18 years old and have the requisite power and authority to enter into these Terms. You may not access or use the Application if we have previously banned you from the Application or closed your Account.
B. Permission to Use the Application
We hereby grant you permission to access and use the Application subject to the restrictions in these Terms. Your use of the Application is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
C. Registration and Your Information
D. Application Availability
We reserve the right to modify, update, interrupt, suspend, or discontinue the Application in our sole discretion at any time without notice or liability.
E. Communications from Us
By creating an Account, you agree to receive certain communications in connection with the Application.
“Content” means text, images, photos, audio, video, location data, and all other data, information and communication. “Your Content” means Content that you submit or transmit to, through, or in connection with the Application, such as ratings, reviews, compliments, invitations, check-ins, messages, lists, and information that you publicly display in your account profile. “User Content” means Content that users submit or transmit to, through, or in connection with the Application, including, if applicable, Your Content. “Nomwell Content” means Content that we create and make available in connection with the Application. “Third Party Content” means Content that is not Your Content, User Content, or Nomwell Content and which is made available in connection with the Application. “Application Content” means all of the Content that is made available in connection with the Application, including Your Content, User Content, Third Party Content, and Nomwell Content.
B. Responsibility for Your Content
You alone are responsible for Your Content, and once published, you acknowledge and agree that you may not always be able to withdraw or delete it. You assume all risk associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, and any disclosure by you of information in Your Content that personally identifies you. You represent that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Nomwell.
C. Our Right to Use Your Content
You acknowledge and agree that we may use Your Content in any manner in our sole discretion (“Other Media”), including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant us a world-wide, perpetual, irrevocable, non-terminable, non-exclusive, royalty-free, fully paid-up, assignable, sublicensable, transferable right and license to use Your Content for any purpose. Please note that you also irrevocably grant the users of the Application and any Other Media the right to access Your Content in connection with their use of the Application and any Other Media. Finally, you irrevocably waive, and cause to be waived, against Nomwell and its users any claims and assertions of moral rights or attribution with respect to Your Content. For the purposes of these Terms, by “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
As between you and Nomwell, you own Your Content. We own the Nomwell Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Application Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Application excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world (“IP Rights”) associated with the Nomwell Content and the Application, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not use, modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Nomwell Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided in these Terms, we do not grant you any express or implied rights, and all rights in and to the Application and the Nomwell Content are retained by us.
User Content (including any that may have been created by users employed or contracted by Nomwell) does not necessarily reflect the opinion of Nomwell. We reserve the right to remove, screen, edit, or reinstate User Content from time to time at our sole discretion for any reason or for no reason, and without notice to you.
6. Restrictions and Nomwell’s Enforcement Rights
A. Use and Restrictions
We ask that you respect our community of users and our desire for such users to feel safe when using the Application, including any Content. Accordingly, you agree that you’ll only use the Application in a manner that is consistent with the Terms. If you use the Application in a manner that is inconsistent with the Terms, including, without limitation, by taking any of the actions listed below, we may suspend or terminate your Account.
You agree not to do any of the following:
· Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
· Use, display, mirror, or frame the Application, or any individual element within the Application, Nomwell’s name, any Nomwell trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Nomwell’s express written consent;
· Access, tamper with, or use non-public areas of the Application or the technical delivery systems of Nomwell’s providers;
· Attempt to probe, scan, or test the vulnerability of any Nomwell system or network or breach any security or authentication measures;
· Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Nomwell or any of Nomwell providers or any other third party (including another user) to protect the Application or Content;
· Attempt to access or search the Application or Content or download Content from the Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software or search agents provided by Nomwell or other generally available third party web browsers;
· Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation to Users of the Application or otherwise through or with the assistance of the Application;
· Use any meta tags or other hidden text or metadata utilizing a Nomwell trademark, logo URL or product name without Nomwell’s express written consent;
· Use the Application or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
· Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Application or Content to send altered, deceptive or false source-identifying information;
· Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Application or Content;
· Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Application;
· Collect or store any personally identifiable information from the Application from other users of the Application without their express permission;
· Impersonate or misrepresent your affiliation with any person or entity in connection with your use of the Application;
· Violate any applicable law, regulation, or other legal requirement in connection with using or as a result of your use of the Application; or
· Encourage or enable any other individual to do any of the foregoing.
B. DMCA/Copyright Policy
We respect copyright law and expect our users to do the same. It is Nomwell’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe the rights of copyright holders.
C. Nomwell’s Enforcement Rights
We are under no obligation to enforce the Terms on your behalf against another user. We have the right to monitor access to or use of the Application or Content or to review or edit any Content to ensure compliance with these Terms or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we at our sole discretion consider any Content to be objectionable or in violation of these Terms. We reserve the right to investigate and take appropriate action against any user at our sole discretion upon our belief that such user is or may be violating the Terms.
7. Links to Third Party Websites or Resources
The Application may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the Content, products or services on or available from those websites or resources or links displayed on such sites. We do not control or endorse any third party website or resource. Your use of third party websites and resources is at your own risk. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us a world-wide, perpetual, irrevocable, non-terminable, non-exclusive, royalty-free, fully paid-up, assignable, sublicensable, transferable right and license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Nomwell and its users any claims and assertions of any moral rights contained in such Feedback.
We may terminate your access to and use of the Application, including by terminating or suspending your Account, at our sole discretion, at any time and without notice to you. You may terminate the Terms at any time by canceling your Account, discontinuing your use of the Application, or providing Nomwell with a notice of termination by sending an email to us at email@example.com. Upon any termination, discontinuation, or cancellation of your access to or use of the Application or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, indemnification provisions, limitations of liability, and dispute resolution provisions. Upon our termination of the Terms or termination of your access to and use of the Application, you shall immediately delete the Application from all devices through which you have accessed the Application.
You agree to indemnify, defend, and hold Nomwell, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the “Nomwell Entities”) harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Application, (ii) your violation of the Terms, (iii) any products or services purchased or obtained by you in connection with the Application, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Nomwell reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of Nomwell. Nomwell will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11. Disclaimers and Limitations of Liability
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT LIMITS THE LIABILITY OF THE NOMWELL ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE APPLICATION. BY ACCESSING OR USING THE APPLICATION, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
A. THE APPLICATION IS MADE AVAILABLE TO YOU ON AN “AS-IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE NOMWELL ENTITIES MAY NOT MONITOR, CONTROL, OR REVIEW USER CONTENT. AS SUCH, YOUR USE OF THE APPLICATION IS AT YOUR OWN DISCRETION AND RISK. THE NOMWELL ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE APPLICATION, ITS SAFETY OR SECURITY, OR THE APPLICATION CONTENT. ACCORDINGLY, THE NOMWELL ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE APPLICATION’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS (INCLUDING THEIR CONTENT, ORDER, AND DISPLAY), OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE APPLICATION.
B. THE NOMWELL ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE APPLICATION OR THE APPLICATION’S USERS. ACCORDINGLY, THE NOMWELL ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE APPLICATION. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE APPLICATION IS AT YOUR OWN DISCRETION AND RISK.
C. THE NOMWELL ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE APPLICATION, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE NOMWELL ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.
D. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE APPLICATION, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE APPLICATION.
E. THE NOMWELL ENTITIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE APPLICATION OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE NOMWELL ENTITIES IN CONNECTION WITH THE APPLICATION IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
F. NOTWITHSTANDING ANY OTHER PROVISION OF THE TERMS, YOU AGREE THAT THE NOMWELL ENTITIES SHALL NOT BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
12. Choice of Law and Venue
Illinois law will govern these Terms, as well as any claim, cause of action, or dispute that might arise between you and Nomwell (a “Claim”), without regard to conflict of law provisions. FOR ANY CLAIM BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN COOK COUNTY, ILLINOIS.
13. General Terms
A. We may provide you with notices, including those regarding changes to the Terms by email, regular mail, or communications through the Application.
B. Except as otherwise stated in Section 7 above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
C. The Terms contain the entire agreement between you and us regarding the use of the Application, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
D. Any failure on Nomwell’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
E. If any provision of the Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
F. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with Nomwell’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
G. The section titles in the Terms are for convenience only and have no legal or contractual effect.
H. Unless expressly stated otherwise in these Terms, all remedies provided for in the Terms shall be cumulative and in addition to, and not in lieu of, any other remedies available to either party under the Terms, at law, in equity, or otherwise.
I. You agree that in the event of any breach (or threatened breach) of these Terms by you, in addition to any other remedies available under the Terms, at Law, in equity, or otherwise, shall be entitled to seek immediate equitable relief (including any injunction), specific performance, or both, without the need to post bond as other security or provide irreparable harm.
J.Notice: You may provide general notices to Nomwell at firstname.lastname@example.org.