Website Terms of Use

Last updated: May 28, 2013

This is a legal agreement between you and Essess Inc. (“Essess”, “we”, “us” or “our”) governing the use of all internet-based properties owned and operated by Essess, including but not limited to its mobile and web applications, and website and services located at http://www.essess.com (the “Essess Website”).

  1. By accessing or using the Essess Website. You acknowledge that you have read, understand, and agree to be bound by the following Terms and Conditions of Use, as they may be modified from time to time (collectively, the “Terms”). If at any time you don’t agree to these Terms, immediately discontinue your use of the Essess Website.
  2. NOTE TO USERS UNDER 13: Our service is not for persons under the age of 13. If you are under 13 years old, then please do not use the Essess Website. If you are over 13, but under the age of consent where you live, then you must get the consent of your parents prior to using the Essess Website and, if you do use the Essess Website, you represent to us that you have done so.
  3. Privacy. Your privacy is important to us. Our Privacy Policy is hereby incorporated into these Terms by reference. Please read our Privacy Policy carefully for details relating to the collection, use and disclosure of your personal information.
  4. Modification of the Terms. Because the Essess Website changes from time to time, Essess reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time without notice. Please check the Terms periodically for changes. Your continued use of the Essess Website after the posting of changes will constitute your acceptance of such changes. While non-material changes to these Terms are effective immediately, any material changes to these Terms will automatically be effective thirty (30) days after they are initially posted on the Essess Website.
  5. Ownership. The Essess Website is owned and operated by us and our licensors. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Essess Website that are provided by us (“Essess Materials”) are protected by copyright, trade dress, patent and trademark laws, international conventions, all other relevant intellectual property and proprietary rights, and applicable laws. Essess Materials do not include any content owned and submitted by you. Except as expressly authorized by us, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Essess Website or Essess Materials. You shall not acquire any right, title or interest to the Essess Website or Essess Materials, except for the limited rights set forth in these Terms or any express license from us or our licensors.
  6. Content Disclaimer. You understand that when using the Essess Website, you will be exposed to text, images, videos, and other content (“Content”) from a variety of sources, and that Essess is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Essess with respect thereto. Essess does not endorse any Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Essess be liable in any way for or in connection with any Content, including, but not limited to, for any inaccuracies, errors, or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the Essess Website.
  7. Availability of Website or Content. Essess and its designees shall have the right (but not the obligation) in their sole discretion to refuse, remove, or discontinue any Content or Essess Materials in whole or in part at any time for any reason or no reason, with or without notice, and without liability of any kind. The Content or Essess Materials on the Essess Website may be out of date, and Essess makes no commitment to update these items. Essess may also in its sole discretion and at any time discontinue providing access to the Essess Website, or any part thereof, with or without notice.
  8. Prohibited Uses.
    1. As a condition of your use of the Essess Website, you will not use the Essess Website for any purpose that is unlawful or prohibited by these Terms. The Essess Website is controlled and offered by Essess from its facilities in the United States of America. Essess makes no representations that the Essess Website is appropriate or available for use in other locations. Access to the Essess Materials and the Essess Website from territories where access or use thereof is illegal is strictly prohibited. Essess Website users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, and privacy.
    2. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any part of the Essess Website or Content obtained through the Essess Website in any medium, for any purpose other than as the Essess Website is offered by Essess, without Essess’s prior written permission.
    3. You agree not to defame, harass, abuse, threaten, stalk or defraud users of the Essess Website, or collect, or attempt to collect, personal information about users or third parties without their consent.
    4. You agree not to intentionally interfere with, damage, impair, or disable the operation of the Essess Website or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
    5. You agree not to remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Essess Website, features that prevent or restrict the use or copying of any content accessible through the Essess Website, or features that enforce limitations on the use of the Essess Website.
    6. You agree not to attempt to gain unauthorized access to the Essess Website or any part of it, or other users’ accounts, computer systems, or networks connected to the Essess Website, through hacking, password mining or any other means, or to interfere or attempt to interfere with the proper working of the Essess Website or any activities conducted on the Essess Website.
    7. You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Essess Website. You agree neither to modify the Essess Website in any manner or form, nor to use modified versions of the Essess Website, including (without limitation) for the purpose of obtaining unauthorized access to the Essess Website.
    8. You agree that you will not use any robot, spider, scraper, or other automated means to access the Essess Website for any purpose without our express written permission, or to bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Essess Website. You agree not to deep-link to the Essess Website and will promptly remove any links that Essess finds objectionable in its sole discretion.
    9. You agree not to utilize framing techniques to enclose any trademark, logo, or other Essess Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Essess’ name or trademarks without our express written consent.
    10. You agree not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Essess Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
    11. You agree not to alter, modify, adapt, translate or create unauthorized derivative works based upon the Essess Website or any part thereof, other than as may be reasonably necessary to use the Essess Website for its intended purposes, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
  9. Limited Disclosure of Information. You acknowledge, consent and agree that Essess may access, preserve and disclose your account information, if any, other information relating to you, and information you provide to Essess in the following circumstances: (a) if required to do so by law, (b) in a good faith belief that such access, preservation, or disclosure is reasonably necessary to comply with any requirement of law, regulation, legal process, or enforceable governmental request; (c) in a good faith belief that such access, preservation, or disclosure is reasonably necessary to enforce or investigate a potential violation of these Terms or to detect, prevent or otherwise respond to fraud, security or technical concerns; (d) in a good faith belief that such access, preservation, or disclosure is reasonably necessary to protect the rights, property or safety of Essess, its users, or the public against harm, (e) in the event of merger or sale, (f) in response to your requests for customer service, or (g) when you consent or direct Essess to share the information.
  10. Links and Third Party Content. Essess or third parties may provide links on the Essess Website to other sites or content (“Third Party Sites”). Essess has no control over such Third Party Sites, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Third Party Sites linked to by the Essess Website. Essess provides links to you only as a convenience, and the inclusion of any link on the Essess Website does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK. When you leave the Essess Website, our Terms and policies no longer govern. You should review applicable the terms and policies, including the privacy and data gathering practices, of any Third Party Sites.
  11. Interactions and Disagreements Between Users. Your interactions with other users, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other user. You are solely responsible for your involvement with other users. If you have a dispute with one or more users, you agree to release Essess (and Essess’s officers, directors, agents, affiliates, subsidiaries, joint ventures and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If there is a dispute between you and any third party, Essess is under no obligation to become involved.
  12. Terms of Use Violations; Termination.
    1. On behalf of Essess. You agree that Essess, in its sole discretion and for any or no reason, may terminate any user or user account (or any part thereof) you may have at the Essess Website or your use of the Essess Website, and discard all or any part of your account or any of information you provide to Essess, at any time, with or without notice, without liability to you or any third-party for any such termination. We do not permit infringing activities on the Essess Website, and we reserve the right to terminate access to the Essess Website, and remove all Content submitted, by any persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Essess may have at law or in equity.
    2. On behalf of User. If you are dissatisfied with the Essess Website, please let us know at support@essess.com. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with (i) the Essess Website, (ii) any term of these Terms, (iii) any policy or practice of Essess in operating the Essess Website, or (iv) any content or information transmitted through the Essess Website, is to terminate your use of the Essess Website and your account, if any. You may terminate these Terms at any time by closing your account, discontinuing your use of any and all parts of the Essess Website, and providing Essess notice of termination at support@essess.com.
  13. Indemnification; Hold Harmless. You agree to indemnify and hold harmless Essess and its subsidiaries, affiliates, and any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of the foregoing, from any and all claims, losses, obligations, damages, liabilities, costs, debts and expenses (including attorneys’ fees) arising out of: (i) your use or misuse of the Essess Website; (ii) your violation of these Terms; (iii) your violation of the rights of any other person or entity; and (iv) your breach or alleged breach of any representations, warranties, and covenants herein. Essess 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 matter in which Essess is a named party without Essess’s prior written consent. Essess will use reasonable efforts to notify you of any such claim, action, or proceeding upon receiving notice of it.
  14. Disclaimers; No Warranties.
    1. “As is”, “As available”, and “With All Faults”. YOU EXPRESSLY AGREE THAT THE USE OF THE ESSESS WEBSITE IS AT YOUR SOLE RISK. THE ESSESS WEBSITE AND ANY MEDIA, CONTENT, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ESSESS WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. ESSESS, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ESSESS WEBSITE OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
    2. No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ESSESS AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. No advice or information, whether oral or written, obtained by you from Essess or the Essess Website will create any warranty not expressly stated herein. You expressly acknowledge that, as used in the sections titled “Disclaimers; No Warranties” and “Limitations of Liability, Damages and Claims”, the term Essess includes Essess’s partners, officers, directors, employees, shareholders, agents, service providers, suppliers, licensors, affiliates and subcontractors.
  15. Limitations of Liability, Damages and Claims
    1. Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) SHALL ESSESS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, THIRD PARTY PARTNERS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE, OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR INABILITY TO USE THE ESSESS WEBSITE, THE CONTENT THEREON, OR OTHER INTERACTIONS WITH ESSESS OR ANY THIRD PARTY SITES, EVEN IF ESSESS OR A ESSESS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If you are a California resident, you waive California Civil Code Section 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 settlement with the debtor.” If you are not a California resident, you waive any applicable state statutes of a similar effect.
    2. Limitation of Damages. IN NO EVENT SHALL ESSESS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE ESSESS WEBSITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID ESSESS IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
    3. Limitation of Claims. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ESSESS WEBSITE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    4. Limitations by Applicable Law. Certain jurisdictions do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If you reside in such a jurisdiction, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights. The limitations or exclusions of warranties, remedies or liability contained in these Terms apply to you to the fullest extent such limitations or exclusions are permitted under the laws of the applicable jurisdictions.
  16. Miscellaneous Provisions.
    1. Notice. Essess may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Essess Website. Notice will be deemed given twenty-four (24) hours after the email is sent, unless Essess is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Essess Website. In such case, notice will be deemed given three (3) days after the date of mailing.
    2. Governing Law. You agree that (i) the Essess Website and any services provided by the Essess Website shall be deemed solely based in Massachusetts; and (ii) the Essess Website shall be deemed a passive website that does not give rise to personal jurisdiction over Essess, either specific or general, in jurisdictions other than Massachusetts. These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any principles of conflicts of law.
    3. Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms, the Privacy Policy or the Essess Website shall be filed only in the state or federal courts in and for Boston, Massachusetts and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
    4. Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Essess to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
    5. Severability. If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be severed from these Terms and shall not affect the validity and enforceability of any remaining provisions.
    6. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Essess without restriction. Any assignment attempted to be made in violation of this Terms shall be void.
    7. No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Essess as a result of these Terms or your use of the Essess Website. You further acknowledge that by submitting information to Essess, no confidential, fiduciary, contractually implied or other relationship is created between you and Essess other than pursuant to these Terms.
    8. Survival. The Sections entitled “Ownership”, “Disclaimers; No Warranties”, “Indemnification; Hold Harmless”, “Limitations of Liability, Damages and Claims”, and “Miscellaneous Provisions” will survive any termination of these Terms.
    9. Headings. The heading references herein are for convenience only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
    10. Entire Agreement. This is the entire agreement between you and Essess relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement shall not be modified except in a writing signed by both parties or by a change to these Terms made by Essess as set forth in these Terms.
    11. Disclosures. The Essess Website is offered by Eye-R Systems, Inc., d/b/a Essess, located at 25 Thomson Place, Suite 460, Boston, MA 02210, email: support@essess.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.