# Ness: AI Health Coach > The AI Health Coach in Your Pocket. Ness is a privacy-first AI health coach for iPhone that turns Apple Health data into daily sleep, recovery, strain, nutrition, stress, and fitness insights. ## Overview Ness: AI Health Coach is an iOS app (App Store ID: 6758977081) in the Health & Fitness category. It is free to download with an optional Ness Pro subscription. Ness integrates with Apple Health to provide daily guidance, scores, trend analysis, and AI-powered insights. ## Key facts - **Product:** Ness: AI Health Coach - **Platform:** iOS (App Store) - **App Store ID:** 6758977081 - **Category:** Health & Fitness / HealthApplication - **Price:** Free download with optional Ness Pro subscription - **Data source:** Apple Health (HealthKit) - **Privacy model:** Privacy-first design. Health data is used to power scores, insights, and AI features. Ness does not sell personal data or health data. AI features are processed under a Zero Data Retention policy. - **Medical disclaimer:** Ness is not a medical device. It is not intended to diagnose, treat, cure, monitor, or prevent any disease or medical condition. It provides general health and wellness information only. ## Features ### 1. Personal health coach Daily guidance based on your sleep, workouts, and nutrition. ### 2. Health trends Performance, recovery, sleep, strain, nutrition, stress, and resting heart rate in one place, with trend graphs so you can see the direction of your health at a glance. ### 3. AI nutrition tracking Photo, voice, and text food logging backed by a database of millions of entries for accurate calories, macros, and micronutrient estimates. ### 4. AI Health Chat Ask questions about your sleep, recovery, strain, nutrition, stress, fitness, and health trends so you can better understand your data. ## Pricing - **Free:** Free download with core health dashboards, daily insights, scores, metrics, trends, and limited AI access. - **Pro:** Ness Pro unlocks higher AI usage limits, longer-term trend history, and advanced features. ## Frequently asked questions ### What is Ness? Ness is an AI health coach for iPhone that helps you understand sleep, recovery, strain, nutrition, stress, workouts, and health trends from your Apple Health data. ### Does Ness work with Apple Health? Yes. Ness uses Apple Health data to power daily scores, trend views, AI insights, and summaries that help you understand what your body is telling you. ### What health insights does Ness provide? Ness provides daily sleep, recovery, and strain scores, AI-powered health summaries, stress monitoring, workout and fitness trends, nutrition insights, and metric graphs in one place. ### Can I track nutrition with AI? Yes. Ness supports AI nutrition tracking with photo, voice, and text food logging to help estimate calories, macros, and micronutrients faster than traditional manual tracking. ### Can I ask questions about my health data? Yes. AI Health Chat lets you ask questions about your sleep, recovery, strain, nutrition, stress, fitness, and health trends so you can better understand your data. ### Is Ness free? Ness is free to download and includes core health dashboards, daily insights, scores, metrics, trends, and limited access to AI features. Ness Pro unlocks higher AI usage limits, longer-term trend history, and advanced features. ### Is Ness privacy-first? Yes. Ness uses your health data to power scores, insights, and AI features, and does not sell or train upon your personal data or health data. All AI features are processed with a Zero Data Retention policy. ### Is Ness medical advice? No. Ness is not a medical device and is not intended to diagnose, treat, cure, monitor, or prevent any disease or medical condition. It provides general health and wellness information only. ## Recent changelog ### 2026-07-26 — v1.2.6 Personalized onboarding targets, a new Apple Watch complication, improved nutrition sync, and refreshed Ness branding. ### 2026-07-15 — v1.2.5 Strain Targets, a Home Screen widget, Lock Screen quick logs, and an Apple Watch companion app. ### 2026-06-16 — v1.2.4 Refreshed nutrition page, dark mode improvements, and email sign-in fixes. ### 2026-06-09 — v1.2.3 Redesigned sleep timeline with easy-to-read sleep stages, plus nutrition and performance fixes. ### 2026-05-31 — v1.2.2 Dark mode, a nutrition overhaul with per-ingredient macros, web search in AI Chat, and multiple bug fixes. ### 2026-05-18 — v1.2.1 Made recent nutrition entries more accessible and easier to use, plus various bug fixes and performance enhancements. For the full release history, see [the changelog page](https://ness-health.com/changelog) or subscribe to the [RSS feed](https://ness-health.com/changelog.xml). ## Links - [Home page](https://ness-health.com/) - [Changelog](https://ness-health.com/changelog) - [Changelog RSS feed](https://ness-health.com/changelog.xml) - [Download on the App Store](https://apps.apple.com/us/app/ness/id6758977081) - [Privacy Policy](https://ness-health.com/privacy) - [Terms of Service](https://ness-health.com/terms) - [Discord](https://discord.gg/uk6NrrCkZN) - [Instagram](https://www.instagram.com/ness.health/) - [TikTok](https://www.tiktok.com/@ness_health) - [YouTube](https://www.youtube.com/@nesshealth) ## Legal documents (full text) ### Privacy Policy (full text) # Privacy Policy Last Updated: July 26, 2026 This Privacy Policy ("Privacy Policy") describes and governs the manner in which Ness ("we", "us", "our" or the "Company") collects, uses, maintains and discloses information about you when you visit our website and use our mobile application and other online services (the "Services"). Please read this Privacy Policy carefully before you start to use the Services. By accessing and/or using the Services, you accept and agree to be bound and abide by this Privacy Policy, and our terms of use available here in this document (the "Terms of Use") incorporated herein by reference and to comply with all applicable laws, rules and regulations (collectively, "Applicable Law"). If you do not want to agree to this Privacy Policy, and the Terms of Use, you must not access or use the Services. ## Personal Information We Collect We may collect personal information from you in a variety of ways, including the following key categories and types of personal information: Contact information and profile data: First and last name, email address, username, password, as well as any photographs or information you choose to include in your profile. User-generated information: Information you provide directly through the Services, such as workout logs, dietary information, and activity history. Health information: See "Third-Party Health Information" below. Payment and transactional data: Information about any transaction you conduct using our Services, including transaction details and history. We do not have access to payment card numbers; our payment processors collect and process that information under their own agreements and privacy policies. Conversations with Ness AI: As further described below. Geolocation data: The general region or area from which you access our Services. Inferences: We may make inferences based on the information we collect. ## Third-Party Health Information With your permission, our Services connect to third-party applications and services (the "Third-Party Applications"), which may include Apple Health, laboratory and testing services and other providers for whom you offer us permission to connect our Services. We connect to these Third-Party Applications solely for the purpose of importing certain health information about you. Such health information may include the following: heart rate, sleep information, movement and exercise activity, blood oxygen levels, respiratory rate, height, weight and age. If you permit our Services to access certain laboratory and testing services, then imported health information may include your results from such services, for example, blood test results. The health information you permit us to access in connection with the Services is collectively referred to as "Health Information." See "Where Your Information Is Stored" below for information regarding where your Health Information is stored. ## How We Collect Your Personal Information We collect personal information from the following sources: Directly. We collect personal information directly from you. When you register for the Services, submit information in an online form, request information from us, or otherwise communicate with us or our support personnel, you may provide us with information, for example, your name and email address. We also collect Health Information about you by importing information from the Third-Party Applications (see above). By providing us with this information or allowing us access to the Third-Party Applications, you consent to your information being collected, used, disclosed, processed and stored by us in accordance with this Privacy Policy. From Third-Party Applications. We may collect Health Information about you by importing information from Third-Party Applications, if you permit us to do so. Imported Health Information is generally stored and processed on your device, except where you opt in to features (such as Ness AI) that require cloud processing. By providing us with this information or allowing us access to the Third-Party Applications, you consent to your information being collected, used, disclosed, processed, and stored by us in accordance with this Privacy Policy. ## Where Your Information Is Stored Personal information and user-generated data. Contact information (such as name, email, phone, and profile data) and non-biometric user-generated data (such as logged workouts, diet, and activity history) are stored using secure third-party cloud hosting providers so that this information can sync across devices and support your use of the Services. Health Information. Imported biometric Health Information (such as heart rate, sleep, blood oxygen, and respiratory rate) is, by default, stored and processed locally on your device. Unless you enable Ness AI, we do not store or access such imported biometric Health Information in the ordinary course of providing the Services. Ness AI. If you enable the optional Ness AI feature, certain biometric Health Information (excluding reproductive health information unless you expressly opt in) may be transmitted through third-party cloud hosting and artificial intelligence ("AI") technology providers in order to generate AI-powered responses and coaching. Only the minimum relevant information necessary to generate a response will be transmitted. Once such data is processed through those third-party providers, it is subject to their systems and safeguards. To provide the Services, we store and process your personal data in the United States, where the Company is based. By using the Services or otherwise providing information to us, you understand and consent to having any personal information transferred to and processed in the United States. If you reside in the European Union (the "EU"), we will transfer your personal information pursuant to EU data protection laws. You understand that the United States may not provide the same level of protections as the laws in your country. United States data protection and other relevant laws may not be the same as those in your jurisdiction. In certain circumstances law enforcement or regulatory agencies, courts or security authorities in the United States may be entitled to access your personal information. ## How We Use Collected Information We may collect and use your personal information for the following purposes: To provide the Services. We use personal data and your imported Health Information referenced above for purposes of providing our Services. To perform analysis. We may use your imported Health Information to benefit you and improve the insights we provide with our Services. When feasible, we do this using data that has been processed to protect your privacy. To provide and improve customer service. We use your contact information to answer your questions and respond to your requests and inquiries, notify you of changes to the Services and improve and maintain functionality of our Services For analytical purposes. We may also use your activity on our Services in an anonymized and aggregate way in order to improve our Services. We may also use your information to protect the Company, our Services and our website, and to prevent fraud, theft and misconduct. Restrictions. We do not use Health Information for advertising or marketing purposes. ## To Whom We Share Your Personal Information With service providers. We share information with vendors and contractors who help us provide, maintain, and improve the Services, such as cloud hosting providers, technology partners, customer support providers, and email marketing services. If you choose to enable Ness AI, we may also share certain Health Information with third-party AI technology providers to generate AI-powered responses. Except as described above (e.g., for cloud storage to support your use of the Services, or for AI processing if you opt in), we do not share your Health Information with third parties. When shared, Health Information is limited to what is reasonably necessary to provide the feature or service, and, where possible, is anonymized or de-identified. With partners for research and development. We may share your information with third-party partners who help us in developing and improving the Services. Information shared for such purpose shall be anonymized and the third parties in which we share such information shall be subject to non-disclosure obligations. With third parties at your direction or to support transactions. We may share your information with third parties with your consent or as requested by you, or in connection with a transaction you engage in through the Services. As required by law. We may share your information with the appropriate authorities if we believe disclosure is in accordance with, or required by, any applicable law, including lawful requests by public authorities to meet national security or law enforcement requirements. In corporate transactions. In the event of a financing, reorganization, merger, or sale of the Company, we may transfer your personal information to the relevant third parties involved in the transaction. Any such recipients will be required to protect your information under a nondisclosure agreement or comparable confidentiality obligation. ## How We Share Your Information With your consent. We may disclose or share your information with your consent. We may obtain your consent in writing; online, through "click-through" agreements; when you accept the terms of use on our website; orally, either in person or on the phone; or by other means. In a business transfer. We may disclose or share your information as part of a corporate business transaction, such as a merger or acquisition, joint venture, corporate reorganization, financing, or sale of company assets, or in the unlikely event of insolvency, bankruptcy, or receivership, in which such information could be transferred to third parties as a business asset in the transaction. To non-affiliated third parties. We may disclose or share your information with certain non-affiliated third parties for a variety of business purposes, including but not limited to facilitate your access and use of our Services. Those third parties may include, but may not be limited to internet service providers and other related professionals, advertising networks, data analytics providers, governmental entities, operating systems and platforms, social media networks, and service providers who provide us a service. To subsidiaries and affiliates. We may disclose or share your information with our subsidiaries and affiliates to further facilitate your use of our websites and Services. For legal process and protection. We may disclose or share your information to satisfy any law, regulation, legal process, governmental request, or where we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to: Protect our rights or interests, property or safety or that of others; In connection with claims, disputes, or litigation - in court or elsewhere; and Protect users of our website and Services and other carriers or providers from fraudulent, abusive, or unlawful use of such Services. ## Ness AI & Third-Party Artificial Intelligence Technology When enabled, Ness AI processes Health Information you authorize us to access, including biometric information from Third-Party Applications. By default, reproductive health information is not transmitted to Ness AI; you may separately opt in if you wish the feature to use that data. Ness AI is a generative AI feature that is intended to help you understand and make progress to your goals, provide educational guidance, and integrate with the rest of your experience using our Services. To provide this feature, we leverage third-party cloud hosting providers and AI technology from our large language model partners. Your Health Information will be transmitted to, and processed by, these third parties solely for the purpose of generating responses and guidance. We take the following steps to protect your privacy: We only share Health Information in a format intended to minimize direct identifiability. We may retain the history of your conversations with Ness AI so you can review past exchanges and so the feature can provide continuity and context in future interactions. Certain data used to generate conversations, which may include biometric or other sensitive information, may be retained for up to thirty (30) days for debugging and quality assurance purposes and is then deleted from our servers. After that period, only the conversation history itself remains available to you, unless you request its deletion. To access your information or request deletion, please contact us at [performant.me@gmail.com](mailto:performant.me@gmail.com). Please note that Ness AI generates responses based on your inputs and Health Information, and those responses may be inaccurate, incomplete, or inconsistent. Ness AI does not provide medical advice and should never be relied upon as a substitute for professional medical care, diagnosis, or treatment. You should always consult a qualified physician or other licensed healthcare provider with any questions you may have regarding your health, medical conditions, or wellness decisions. ## We Do Not Sell Your Personal Information We do not sell or rent your personal information, and only share your personal data with certain trusted service providers and partners so that we can provide and improve our services, to provide partner services and other offerings, and to operate our business. ## Third-Party Links and Websites Our Services may contain advertising, links or other content from the websites and services of our partners, suppliers, advertisers, sponsors, licensors and other third parties (collectively, the "Third-Party Services"). We do not control the content or links that appear on these Third-Party Services and are not responsible for the practices employed by such Third-Party Services. In addition, these Third-Party Services may have their own privacy policies and customer service policies. Browsing and interacting on any of these Third-Party Services are subject to such Third-Party Services' own terms and policies. ## Our Content on Third-Party Services Our Services may be provided on or hosted on a third-party platform or otherwise make use of Third-Party Services. We do not control the content or links that appear on these Third-Party Services and are not responsible for the practices employed by such Third-Party Services. Your browsing and interacting on any of these Third-Party Services are subject to such Third-Party Services' own terms and policies. Any visit you make to those other services is at your own risk. Such third parties' use of any information you share is governed by the third party's privacy policy. The Services may also use third-party service remarketing services to advertise to previous visitors to the Services on such Third-Party Services. Such third parties may use tracking technology (e.g., cookies) to serve ads to you based on your past activity on our Services and other websites and applications, subject to their own privacy policies. ## Your Choices You have certain choices on how we treat your personal information, described below: Modifications to Personal Information. You may review and request modifications to your personal information by editing your profile directly on our website or by contacting us at [performant.me@gmail.com](mailto:performant.me@gmail.com). Please note that we will retain data for as long as it is reasonably necessary to fulfill the purpose for which it has been collected or as required or permitted by applicable law. If you provide us with updated information, we will do our best to keep your information accurate and up-to-date. We will make good-faith efforts to make requested changes in any active database as soon as practicable. Marketing Communications. You can opt out of promotional marketing communications by contacting us at [performant.me@gmail.com](mailto:performant.me@gmail.com). We may give choices about other emails and communications you receive from us. If you opt out, we may still send you non-promotional communications, such as those about your account or our ongoing business. Ness AI. You can choose whether or not to enable and interact with Ness AI. We will only share your anonymized Health Information with our third-party cloud hosting providers/large language model partners that power Ness AI if you enable and engage with the feature. If you no longer wish to use Ness AI, you can simply not interact with the feature, or you can disable the feature entirely from our mobile application by accessing the settings at any time. Please note, however, that any information you previously shared with Ness AI may already have been transmitted to and stored within those third-party systems, and disabling the feature may not delete or retract that past information. Ad Choices. Some advertisements and other content may be delivered by third-party advertising networks and advertisers that may use cookies and similar and/or your advertiser ID for mobile devices to collect and track information such as demographic information, inferred interests, aggregated information, and activity to assist them in delivering advertising that is more relevant to your interests. To find out more about third-party advertising networks and similar entities that use these technologies, see [www.aboutads.info](http://www.aboutads.info/). If you would like to opt-out of such ad networks' and services' advertising practices, go to [www.aboutads.info/choices](http://www.aboutads.info/choices) to opt out in desktop and mobile web browsers. You may download the AppChoices app at [www.aboutads.info/appchoices](http://www.aboutads.info/appchoices) to opt out in mobile applications. Tracking Technology. You may turn off part or all of our tracking software that has been placed on your computer by following the instructions on your browser. On a mobile device, you may turn off part or all of mobile tracking through your mobile device settings. However, if you prevent the use of tracking software or tracking through your mobile device, it will be more difficult, and may be impossible, for you to use the Service or portions of the Services. Location and Analytics. If we use Third-Party Services to automatically collect your personal information, such Third-Party Services may offer you a choice to stop the automatic collection of your information. Please see our "How we collect your personal information" above with respect to our tracking tools. Cookies. Most web browsers are set by default to accept cookies. You can usually set your browser to remove or reject cookies. Please note if you choose to reject, this could affect the availability and functionality of our Services. Not Providing Personal Information. You may choose not to provide personal information to us. However, if you do not provide personal information, we may not be able to offer you all or part of our Services. ## Information Security We use commercially reasonable security technologies and procedures to help protect your personal information from unauthorized access, use or disclosure. However, we cannot guarantee the complete safety of your information. It is your responsibility to keep your information confidential. ## How Long We Keep Your Information We retain, store and use your information for least amount of time necessary for our relationship with you and to provide you access to our Services and in accordance with data retention policies and applicable law. ## Our Services Are Not Intended For Children Our Services is not directed to children under the age of 18. We do not knowingly collect information, including personal information, from children. If we obtain actual knowledge that we have collected such information from children, then we will promptly delete it. If you believe we have mistakenly collected information from children listed above, please contact us at [performant.me@gmail.com](mailto:performant.me@gmail.com). ## U.S. State-Specific Privacy Information If you reside in any of the following states, you may be entitled to specific rights under applicable state data privacy laws: California, Colorado, Connecticut, Delaware, Iowa, Maryland, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, Oregon, Tennessee, Texas, Utah, and Virginia. Information: This Privacy Policy explains the categories of personal data we collect (including "Personal Information" as that term is defined under applicable law) in the section titled "Personal Data We Collect," as well as the sources from which that data is obtained, described in the section "How We Collect Your Personal Information." The ways in which we use and disclose this information are described in "To Whom We Share Your Personal Information" and "How We Share Your Information." Access: You can request a copy of the personal information that we hold about you. Deletion: You can ask to delete personal information we have collected from you. Correction: You may request that we correct or update any inaccuracies in your personal information. Opt-out of sale and sharing of your personal information: You may direct us not to sell or share your personal information, or to stop processing it for purposes such as targeted advertising or profiling that produces legal or similarly significant effects. Instructions for exercising these choices are provided in the "Ad Choices" section of this Privacy Policy. Appeal: If we deny a request you have made, you may be permitted to appeal our decision. In addition, California law requires that we disclose, for the 12 months preceding the date of this Privacy Policy, whether we have "sold" or "shared" personal information. During that period, the Company has not sold any personal information. The Company has only disclosed personal information in the manner described in this Privacy Policy. You have the right to exercise the choices described above without being subject to discriminatory treatment. ## Exercising Your Rights (if applicable) To exercise the rights set forth in the "U.S. State-Specific Privacy Information" section above, you can submit requests as follows: To request access to, correction of, or deletion of personal information collected via your use of the Services, please either email us at [performant.me@gmail.com](mailto:performant.me@gmail.com). To learn how to opt-out of interest-based ads and other online tracking, see the "Ad Choices" section of the Privacy Policy. To verify your identity prior to responding to your requests, we may ask you to confirm information that we have on file about you or your interactions with us. Where we ask for additional personal data to verify your identity, we will only use it to verify your identity or your authority to make the request on behalf of another consumer. You can empower an "authorized agent" to submit requests on your behalf. Your authorized agent may submit requests in the same manner, although we may require the agent to present signed written permission to act on your behalf, and you may also be required to independently verify your identity with us and confirm that you have provided the agent permission to submit the request. Please note that we are only required to honor requests to know twice in a 12-month period. ## California Shine the Light This Privacy Policy describes how we may share your personal data for marketing purposes. If you are a California resident, the Shine the Light law permits you to request and obtain from us once per calendar year information about any of your personal information shared with third parties for their own direct marketing purposes, including the categories of information and the names and addresses of those businesses with which we have shared such information. To request this information and for any other questions about our privacy practices and compliance with California law, please contact us at [performant.me@gmail.com](mailto:performant.me@gmail.com). ## "Do Not Track" Policy as Required by California Online Privacy Protection Act ("CalOPPA") Our Services do not respond to Do Not Track ("DNT") signals. However, some third-party websites do keep track of your browsing activities. If you are visiting such websites, you can set your preferences in your web browser to inform websites that you do not want to be tracked. You can enable or disable DNT by visiting the preferences or settings page of your web browser. ## Information for European Economic Area Residents If you are a resident of the European Economic Area ("EEA"), you have certain rights and protections under applicable law regarding the processing of your personal information. The term "personal information" has the meaning given to it by the European General Data Protection Regulation ("GDPR"). When we process your personal information as described in this Privacy Policy, we will only do so when we have a lawful basis for doing so. Lawful bases for processing include consent, contractual necessity and our legitimate interests (for example, our legitimate interest in providing the Services, responding to your inquiries, or sending you marketing communications) or the legitimate interest of others but will depend on the type of personal data and the specific context in which we process it. Additionally, you may have certain rights with respect to your personal data, including: Access. You can request more information about the personal data we hold about you and request a copy of such personal data. Rectification. If you believe that any personal data we are holding about you is incorrect or incomplete, you can request that we correct or supplement such data. You can also correct some of this information directly by logging into your account. Erasure. You can request that we erase your personal data from our systems. Withdrawal of consent. If we are processing your personal data based on your consent (as indicated at the time of collection of such data), you have the right to withdraw your consent at any time. Please note, however, that if you exercise this right, you may have to then provide express consent on a case-by-case basis for the use or disclosure of certain of your personal data, if such use or disclosure is necessary to enable you to utilize some or all of our Services. Portability. You can ask for a copy of your personal data in a machine-readable format. You can also request that we transmit the data to another controller where technically feasible. Objection. You can contact us to let us know that you object to the further use or disclosure of your personal data for certain purposes. Restriction of processing. You can ask us to restrict further processing of your personal data. Right to file a complaint. You have the right to lodge a complaint about our practices with respect to your personal data with the supervisory authority in the relevant EEA member state, UK or Switzerland, as applicable, where you reside. For contact details of your local Data Protection Authority, please see: [http://ec.europa.eu/justice/data-protection/article-29/structure/data-protection-authorities/index_en.htm](http://ec.europa.eu/justice/data-protection/article-29/structure/data-protection-authorities/index_en.htm). Obtain a copy of any Standard Contractual Clauses or other international data transfer agreement we may use to transfer your personal data outside of Europe. For more information about these rights, or to submit a request, please email [performant.me@gmail.com](mailto:performant.me@gmail.com). Please note that in some circumstances, we may be allowed to wholly or partially decline your request in accordance with applicable data protection laws (including the GDPR), but in those circumstances, we will still respond to notify you of such a decision in accordance with the timescales under such laws. In some cases, we may also need you to provide us with additional information, which may include personal data, if necessary to verify your identity and the nature of your request. ## Usage and Deletion of Personal Information You may request what personal information we have collected, used and disclosed about you as well as the identity of the third parties to which we have disclosed your personal information. You may also request deletion of your personal information. Please note that we may not delete all of your information if: (1) we need it to complete a service as requested by you or perform under a contract we have with you; (2) we need such information to repair any errors to our Services or detect data security violations; or (3) we need such information to protect against fraud or illegal activity or to comply with applicable law. Please note that if we delete your personal information, we may not be able to provide you the Services with the same functionality. To make any request for personal information or deletion, please send an email to [performant.me@gmail.com](mailto:performant.me@gmail.com). ## Changes to this Privacy Policy We have the discretion to update this Privacy Policy at any time. We encourage you to frequently check this page for any changes. You acknowledge and agree that it is your responsibility to review this Privacy Policy periodically and become aware of modifications. Subject to applicable law, your continued use of our Services shall be deemed an acceptance of our revised policy. ## Contact Us If you have any questions about this Privacy Policy, you can email us at [performant.me@gmail.com](mailto:performant.me@gmail.com) ### Terms of Service (full text) # Terms of Service Last Updated: July 26, 2026 Welcome and thank you for your interest in Ness! These Terms of Use (this "Agreement" or these "Terms") describe the terms and conditions applicable to your use of the site (the "Site"), the Ness mobile application (the "Mobile App"), and your use of our services and software provided on our Site, Mobile App, or any services, content, communications, and product features relating to the Site and Mobile App and as set forth in these Terms (collectively with the Site and Mobile App, the "Services"). The Site and Mobile App are owned and operated by Ness and its affiliates and subsidiaries (collectively the "Company", "we" or "us"). PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS BY USING OUR SERVICES. These Terms of Use (this "Agreement" or these "Terms") form a binding agreement between you as a user ("you" or "your") and us and shall be the equivalent of a written paper agreement between you and us. The effective date of this Agreement is when you accept or are deemed to accept this Agreement as discussed below. NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION WITH A CLASS ACTION WAIVER AND A WAIVER OF THE RIGHT TO A JURY. PLEASE REVIEW SECTION 25 BELOW BEFORE ACCESSING OR USING OUR SERVICES. We reserve the right to make modifications to these Terms at any time and for any reason. Please check these Terms regularly to ensure you are aware of any modifications made by us. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to these Terms of Use, you must immediately stop using our services. ## Platform Services Our Services include the following: (i) integrating user inputs from Apple Health accounts and other third-party providers of health data and information (hereinafter referred to as "Third-Party Sources"); and (ii) utilizing data from the Third-Party Sources to generate health scoring metrics and general reference information, facilitating users in accessing their health-related data and reference information conveniently through our Services. You acknowledge and consent to our discretion in modifying, updating, or otherwise altering these Services. Please be aware that the availability and functionality of Third-Party Sources are governed by their respective terms of use. ## Acknowledgement and Disclaimers By using our Services, you acknowledge and agree to the following: Our Services are for general health, fitness, and wellness information purposes only. You should not rely on this information as a substitute for, nor does it replace medical advice, diagnosis, or treatment. Nothing stated or posted on our Services or provided by us is intended to be, and must not be taken to be, the practice of medical, mental health, physical therapy, professional or counseling care. You acknowledge that information on our platform does not come from licensed medical doctors and that we do not diagnose or treat any illnesses, injuries or diseases, or prescribe medicine for treatment of any disease. The Services, including all information, text, photographs, images, illustrations, graphics, audio, video, and audio-video clips, and other materials, whether provided by us or via Third-Party Sources, is not intended to be and should not be used in place of (a) the advice of your physician or other medical professionals, or a (b) a visit, call, or consultation with your physician or other medical professionals. Should you have any health-related questions, please call or see your physician or other medical provider promptly. You should never disregard medical advice or delay in seeking medical advice because of any information presented on the Services, and you should not use the Services or any information provided in the Services for diagnosing or treating a health problem. The transmission and receipt of Services, in whole or in part, or communication via the internet, email, or other means does not constitute or create a doctor-patient, therapist-patient, or other healthcare professional relationship between you and us. You should always consult a physician before making any changes to your sleep or activity based on information provided through the Services, or if you have any questions regarding a medical condition. We are not responsible for any health problems that may result from information you learn about through the Services. If you make any change to your sleep or activity based on the Services, you agree that you do so fully at your own risk. It is important to be sensitive to your body's responses. For example, if you feel unexpected, repeating, or long-term pain, or fatigue or discomfort due to having made changes to your sleep or activity, it is recommended that you consult a physician before continuing with such changes. The information in the Services may be misleading if your physiological functions and responses differ significantly from population averages due to medical conditions or rare natural differences. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL "911" OR YOUR RELEVANT EMERGENCY NUMBER IMMEDIATELY. ## General Subject to the terms of this Agreement, you are responsible for your use of the Services, and for any information, content, reports, data, databases, graphics, interfaces, web pages, text, files, software, product names, company names, trademarks, logos and trade-names (collectively, the "Content") you post to the Services, any Content you access from the Services, and for any consequences thereof. ## Privacy By accessing or using the Services, you intend to and expressly agree to be bound by all the terms and conditions of this Agreement and our Privacy Policy (available on request) (the "Privacy Policy"), which is incorporated herein by reference. If you do not agree to these terms and conditions, you may not use the Services. Any information that you provide to us is subject to the Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use of your information as set forth in the Privacy Policy. ## Accounts Some Services offered by the Company require you to create an account. If you create an account, you agree that all the information you provide will be true and accurate, and that you have the authority to create the account. You are responsible for keeping your account information secure and confidential. You agree to inform us immediately if you suspect that your account or login information has been compromised. If you provide the Company an email address as part of an account creation, the Company may furnish you with written correspondence regarding your account and/or other Company related material, including promotional materials. ### Eligibility You may provide access to the Services to other users within your organization as authorized by us and/or by your subscription level to our Services in place from time to time (each, an "Authorized User"). You are solely responsible for Authorized User activities and interaction with the Services. You agree to ensure all Authorized Users are aware of all restrictions of use in these Terms, the Privacy Policy, and any other rules or requirements applicable to the Services. You agree to cause Authorized Users to comply with such provisions. You are solely responsible for all actions taken by and interactions with Authorized Users, including providing any disclosures governing an Authorized User's interaction with the Services, and any applicable Privacy Policy or further obligations required by us or any applicable law. Any obligation imposed on you by these Terms shall be applicable to you and to any Authorized User. By using our Services, you represent and warrant that you and each Authorized User: - If an individual, are at least 18 years old; - Are legally qualified to enter a binding contract with us; - Are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; - Are not on any list of individuals prohibited from conducting business with the United States; - Are not prohibited by law from using our Services; - Do not have more than one account on our Services; and - Have not previously been removed from our Services by us, unless you have our express written permission to create a new account. If at any time you cease to meet these requirements, we reserve the right to delete your account with us, to revoke all credentials held by you and any of your Authorized Users and to delete all Content uploaded by you to our Services. Failure to meet these minimum requirements may be grounds for the Company to deny you access to the Services. The Company shall have sole discretion to mandate, interpret, and enforce any such minimum requirements. ## Content Our Services may enable you, or your Authorized Users to provide feedback, text, photos, information, and other content (collectively, "Content"). By providing Content, in whatever form and through whatever means, you, or your Authorized Users, grant us a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, and otherwise exploit, that Content, without limitation. If Content includes personal information, our Privacy Policy describes how we use that personal information. You are solely responsible for all Content that you, or your Authorized Users, provide and warrant that you either own it or are authorized to grant us the rights described in these Terms. You are responsible and liable if any of your, or your Authorized User's Content violates or infringes the intellectual property or privacy rights of any third party. You hereby represent and warrant that any Content you, or your Authorized Users provide: - Is not created solely for the purpose of advertising or other commercial content, including company logos, links or company names; - Does not contain spam, unwanted contact, or content that is shared repeatedly in a disruptive manner; - Does not endorse or promote illegal or harmful activity, is not sexually explicit, violent, graphic, threatening, or harassing; - Does not attempt to impersonate another person, account, or entity, including a representative of the Company; - Is not illegal and does not violate another person's or entity's rights, including intellectual property rights and privacy rights; - Does not contain another person's private or confidential information, including content that is sufficient to identify a listing's location. In connection with Content, you further agree that you will not submit material that is copyrighted, protected by trade secret, or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us the necessarily rights granted in these Terms. You agree to defend, indemnify, and hold us harmless for all damage or liability we incur because of your violation of this section. ## Your Interactions with Other Users YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS, AND YOU AGREE TO TAKE ALL REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT THE COMPANY DOES NOT CONDUCT SCREENINGS OF ITS USERS, OTHER THAN AS SET FORTH IN THESE TERMS. THE COMPANY ALSO DOES NOT CONDUCT CRIMINAL BACKGROUND OR IDENTITY VERIFICATION CHECKS ON ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR INTERESTS, AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY INJURY POTENTIALLY INCURRED BY ITS USERS. THE COMPANY RESERVES THE RIGHT TO CONDUCT ANY SCREENINGS OF ITS USERS AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS. ## Compliance with Laws You agree to use the Services only for lawful purposes, and to conduct your business and any transaction that uses the Services, in accordance with all applicable laws and regulations, including all federal and state laws and regulations relating to taxes, banking, money laundering, securities and counterterrorism. You will not use the Services for any fraudulent or illegal activity. ## Fees In general, we make money by charging fees relating to use of our Services. By using our Services, you agree to pay all fees. Subject to applicable law and as authorized by our agreements with you, we reserve the right to adjust our pricing and fees at any time. We may offer you the opportunity to purchase subscriptions that provide access to the Services, certain content, or products for a specified period of time. Access to the Services, certain content, or products included in subscription may change from time to time, as we introduce new features, develop our existing offering and sometimes retire features that are not working out as planned. You may purchase a subscription on a recurring basis disclosed to you prior to your purchase directly from the Company or through a third party by paying a subscription fee plus applicable taxes in advance. The features and content contained in the Mobile App may differ by country, language, relevant store, version or device. ## Subscriptions The Company may offer users the ability to purchase a subscription for the Services through the Apple App Store, or other external services authorized by the Company (each, an "External Service," and any purchases made thereon, an "External Service Purchase"). If you purchase a subscription, it will automatically renew until you cancel, in accordance with the terms disclosed to you at the time of purchase, as further described below. If you cancel your subscription, you will continue to have access to your subscription benefits until the end of your subscription period, at which point it will expire. If you are a California resident, this section serves as a clear and conspicuous notice pursuant to California's "Automatic Renewal Law" (Cal. Bus. & Prof. §17600, et seq) that discloses to you the terms of your subscription renewal, our cancellation policy, and instructions on how to cancel your subscription. If you are a New York resident and choose to establish automatic renewals of your subscription for a period of one year or longer, you acknowledge and agree that we are required to provide you with notice of upcoming automatic renewals between 15-45 days prior to the cancellation deadline for such renewals. This notice will include instructions on how to cancel the automatic renewal. By utilizing our automatic renewal services, you consent to receive such notifications in compliance with applicable New York law. ### External Service Purchases and Subscriptions If your External Service Purchase includes an automatically renewing subscription, then your external account associated with the External Service Purchase ("External Service Account") will continue to be periodically charged for the subscription until you cancel. After your initial subscription commitment period, and again after any subsequent subscription period, the subscription will automatically continue for the price and time period you agreed to when subscribing. ### To cancel a subscription If you do not want your subscription to renew automatically, or if you want to change or terminate your subscription, you must log in to your External Service Account and follow instructions to manage or cancel your subscription, even if you have otherwise deleted your account with us or if you have deleted the Mobile App from your device. For example, if you subscribed using your Apple ID, cancellation is handled by Apple, not the Company. To cancel a purchase made with your Apple ID, go to Settings > iTunes & App Stores > [click on your Apple ID] > View Apple ID > Subscriptions, then find your Company subscription and follow the instructions to cancel. You can also request assistance from Apple Support. If you initiate a chargeback or otherwise reverse a payment made with your External Service Account, the Company may terminate or downgrade your account immediately in its sole discretion, on the basis that you have determined that you do not want a Company paid subscription. ## Your License to the Services Subject to your payment of applicable fees and continued compliance with this Agreement and any separate agreements we may have with you, we hereby grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to access the Services as authorized in these Terms. Except for the limited license to access the Services identified in the preceding paragraph, you acknowledge that nothing contained in these Terms shall be construed as granting or conferring to you, by implication, estoppel or otherwise, any right, title, or interest to any intellectual property of the Company, our third-party service providers or any other third party, including any (i) inventions (whether patentable or not in any country), patents, patent applications, invention disclosures, improvements, trade secrets, proprietary information, know how, information, or technical data; (ii) copyright protected works, copyright registrations, mask works, mask work registrations or applications in the United States or any foreign country; (iii) trademarks, trademark registrations, service marks, logos or applications therefor in the United States or any foreign country; (iv) trade secrets; or (v) any other tangible or intangible proprietary rights anywhere in the world. ## Restrictions On Use You agree that you will not: - distribute the Services for any purpose, including, without limitation, compiling an internal database, redistributing or reproducing the Services by way of the press or media or through any commercial network, cable or satellite system; - create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, bundle, sell, sublicense, export, merge, transfer, adapt, loan, rent, lease, assign, share, outsource, host, publish, make available to any person or otherwise use, either directly or indirectly, the Services in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise; - permit, allow or do anything that would infringe or otherwise prejudice the proprietary rights of the Company or its licensors or allow any third party to access the Services; - probe, scan or test the vulnerability of the Services and any system or network; - breach or otherwise circumvent any security or authentication measures; - access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you have not been invited to; - access, search, or create accounts for the Services by any means other than our publicly supported interfaces; - promote or advertise products or services other than your own without appropriate authorization; - circumvent storage space, usage, or transaction limits for improper means, including attempting to circumvent our fees; - publish or share materials that are unlawful or indecent, or that contain extreme acts of violence or terrorist activity; - advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual orientation, disability, or impairment; - harass or abuse our personnel or representatives or agents performing services on behalf of the Company; - store, publish or share material that is fraudulent, defamatory, or misleading; or - violate the law in any way. ## License Grant to Your Content Except for your non-public personal information, you hereby grant to the Company the perpetual, unlimited, royalty-free, worldwide, non-exclusive, irrevocable, transferable license to use, display, reproduce and store any Content or other information you provide on or through the Services or which is sent to the Company by email or other correspondence. The Company shall not be obligated to provide you compensation of any sort for such license. The Company is not subject to any obligations of confidentiality regarding any such Content or information unless specifically agreed to by the Company in writing or required by law. You represent and warrant that you have the right to grant the license set out above. ## Suspension of Transactions and Services Without limiting our ability to terminate under this Agreement or our right to change, modify, suspend or discontinue the Services at any time as set forth elsewhere in these Terms, we also reserve the right to cancel or suspend transactions and/or our Services due to fraud or compliance-related concerns. ## Third-Party Links and Services Our Services may contain links to other sites. The Company does not assume responsibility for the accuracy or appropriateness of the information, data, opinions, advice or statements contained at such sites, and when you access such sites, you are doing so at your own risk. In providing links to the other sites, the Company is in no way acting as a publisher or disseminator of the material contained on those other sites and does not seek to monitor or control such sites. A link to another site should not be construed to mean that the Company is affiliated or associated with same. The Company does not recommend or endorse any of the content, including without limitation any hyperlinks to, or content found, on other websites. The mention of another party or its product or service on this website should not be construed as an endorsement of that party or its product or service. The Company will not be responsible for any damages you or any third party may suffer because of the transmission, storage or receipt of confidential or proprietary information that you make or that you expressly or implicitly authorize the Company to make, or for any errors or any changes made to any transmitted, stored or received information. ## Feedback If you or any of your Authorized Users sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback and any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, without any attribution or compensation to any party, although we are not required to use any Feedback. ## Beta Services You may choose to use Services or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings ("Beta Services") in your sole discretion. If you choose to use any Beta Services, you acknowledge and agree that: (a) Beta Services may not be supported and may be changed at any time without notice; (b) Beta Services may not be as reliable or available as the Services; (c) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected; and (d) WE WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK. In exchange for using Beta Services, you acknowledge and agree that we may contact you or your Authorized Users to obtain feedback regarding Beta Services. Beta Services are confidential until officially launched by us. You agree to take reasonable measures to keep information regarding the Beta Services confidential, including at least those measures you take to protect your own confidential information of a similar nature. You agree not to disclose information regarding Beta Services to any third parties and will keep new features and functionality confidential until officially launched by us. You may disclose information regarding Beta Services to the extent required by law or regulation if you give us reasonable advance written notice, to the extent permitted, so we can seek to prevent or limit the disclosure. ## Assumption of Risks; Release You understand, acknowledge, and freely assume all risks, including physical, psychological and emotional risks (whether or not foreseeable to us or you), relating to your access or use of our Services. You assume personal responsibility for any injury or harm of any kind (including, but not limited to, physical, psychological or emotional injuries), illness, damage, loss, claim, liability or expense, of any kind or nature, that your person or property may suffer arising out of or in connection with the access or use of our Services. You understand and acknowledge there is no guarantee that personal information and transactions on our Services or on the internet will be maintained confidential and secure. Your access or use of the Services is at your own risk, and that to the maximum extent permitted by applicable law we assume no liability or responsibility pertaining to our Services, your use of the Services or the receipt, storage, transmission or other use of your personal information. By accessing or using our Services, you agree to fully release, indemnify, and hold harmless, including costs and attorneys' fees, us from any claim or liability whatsoever and for any damage or injury, personal, financial, emotional, psychological or otherwise, arising at any time out of or in relation to your access or use of our Services. ## California Residents To the maximum extent permitted by law, if you are a California resident, then you expressly agree to waive California Civil Code Section 1542, which states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." Residents of California are entitled to the following specific consumer rights information: you may contact the Consumer Information Center at (800) 952-5210 or by email to the California Department of Consumer Affairs for consumer inquiries, or you may write to the Department of Consumer Affairs at the following address: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Boulevard, Suite N 112, Sacramento, CA 95834. ## Indemnity You always agree to indemnify, defend and hold harmless the Company, its agents, suppliers, licensors, affiliates and their respective directors, officers and employees (collectively, the "Indemnified Parties") against all losses, liabilities, suits, claims, actions, costs, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) sustained, incurred or paid by any Indemnified Party directly or indirectly resulting from, arising out of, relating to or in connection with: (i) violation of these Terms by you, any Authorized User or other person using your account or credentials; (ii) your or any Authorized User's access to or use of the Services, (iii) any information used, stored, or transmitted in connection with your account or credentials; (iv) breach of the rights of any third party, including but not limited to privacy, publicity, intellectual property, or other proprietary rights, by you, any Authorized User or anyone using your account or credentials; or (v) violation of any law, regulation, or other legal requirement. This paragraph is intended to be applicable to the maximum extent allowed by law. ## Limitations on Liability and Disclaimers NO WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN A SEPARATE AGREEMENT WITH YOU, THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS, OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO UNINTERRUPTED OR ERROR-FREE OPERATION, AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, LEGALITY, SUITABILITY, PRIVACY, SECURITY, MERCHANTABILITY, QUALITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. NO SPECIAL DAMAGES. IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMIC OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF USE, LOST PROFITS OR LOST SAVINGS, EVEN IF THE COMPANY OR ANY OF ITS LAWFUL AGENTS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. ADDITIONAL LIMITATION. IN NO EVENT WILL COMPANY, ITS AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE FOR DAMAGES OR LOSSES RESULTING FROM: VIRUSES, DATA CORRUPTION, FAILED MESSAGES, TRANSMISSION ERRORS OR PROBLEMS; TELECOMMUNICATIONS SERVICE PROVIDERS; LINKS TO THIRD PARTY WEBSITES; THE INTERNET BACKBONE; PERSONAL INJURY; THIRD PARTY CONTENT, PRODUCTS OR SERVICES; DAMAGES OR LOSSES CAUSED BY YOU OR YOUR RESPECTIVE EMPLOYEES, AGENTS OR SUBCONTRACTORS; LOSS OF USE OR LACK OF AVAILABILITY OF FACILITIES, INCLUDING COMPUTER RESOURCES, ROUTERS AND STORED DATA; THE USE OR INABILITY TO USE THE SERVICES; ANY OTHER WEBSITE ACCESSED TO OR FROM THE SERVICES; OR EVENTS BEYOND THE REASONABLE CONTROL OF THE COMPANY, EVEN IF THE COMPANY OR ANY OF ITS LAWFUL AGENTS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. AGGREGATE LIABILITY. IN NO CASE WILL THE COMPANY, ITS AFFILIATES', AGENTS', LICENSORS', SUPPLIERS' AND THEIR RESPECTIVE DIRECTORS', OFFICERS' AND EMPLOYEES' CUMULATIVE TOTAL LIABILITY FOR ANY CAUSE WHATSOEVER (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE OR OTHERWISE) ARISING UNDER OR RELATING TO THE SERVICES BE MORE THAN THE VALUE OF THE FEES ACTUALLY PAID TO US BY YOU DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM GIVING RISE TO SUCH LIABILITY. ## Term and Termination We may, at any time and in its sole discretion, without prior notice, and without any liability to you, modify or discontinue any portion of our Services, either temporarily or permanently. At any time and in our sole discretion, without prior notice, and without any liability to you, we may (i) cancel or deactivate your account; or (ii) temporarily or permanently, suspend, restrict, or terminate access to any or all of Services for any reason or for no reason. We are under no obligations to disclose its reason for any termination or suspension of the Service to you or generally. In the event of any termination of this Agreement, discontinuation of all Services, or termination of your right to access all Services: (i) all fees and amounts payable to us by you shall immediately become due, (ii) we may delete any of your user data without any liability to you, provided that we also reserve the right to retain your user data for seven (7) years following termination; and (iii) we may cancel any open order, trades, or transactions that are pending at the time of the termination of your right to access all Services or discontinuation of the Services. We reserve the right to retain aggregated anonymized user data for longer to improve Services, prevent fraud and produce aggregated statistics. The provisions of these Terms relating to indemnification, our limitations of liability and disclaimers, your warranties and any other provisions which by their terms should reasonably survive termination, shall survive termination of the Services or this Agreement. ## Separate Agreement From time to time, we may enter into separate agreements to govern your use of the Services. Except otherwise replaced by the terms of such separate agreements, these Terms shall govern and control with respect your use of the Services. ## Notices We may provide you with notices in any of the following methods: (1) via the Services, including by a banner or pop-up within the applicable Site, Account or elsewhere; (2) by e-mail, sent to the e-mail address you provided us; and/or (3) through any other means, including any phone number, SMS or text message or physical address you provided us. Such notice to you will be deemed received and effective upon receipt or twenty-four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice. If we choose to notify you through electronic communication, you agree to receive such communications, including but not limited to our applicable policies, statements, reports, invoices, receipts, disclosures, legal or regulatory statements or documents via electronic delivery. ## Binding Arbitration PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF, AND REQUIRES YOU ARBITRATE DISPUTES WITH US. If you have a dispute with us, we will first seek to resolve such a dispute through our support team. Except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of intellectual property, copyrights, trademarks, trade names, logos, trade secrets or patents, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by binding arbitration. The location of the arbitration will be determined by the Company to be in either (i) the state of your residence or (ii) the county and state of our chosen legal counsel at the time of the dispute. The arbitration will be administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. Disputes will not be resolved in any other forum or venue. You agree that any arbitration will be conducted by a sole arbitrator. Pre-arbitration discovery will be limited to the greatest extent provided by the rules of AAA, the arbitration award will not include factual findings or conclusions of law, and no punitive damages will be awarded. Notwithstanding any other rules, no arbitration proceeding brought against the Company will be consolidated with any other arbitration proceeding without the Company's written consent. Judgment may be entered upon any award granted in any arbitration in any court of competent jurisdiction in the county and state in which the Company maintains its principal office at the time the award is rendered, in the county and state where the Company is organized or incorporated or in any other court having jurisdiction. The arbitrator will, in the award, allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing party, against the party who did not prevail. NOTICE: BOTH YOU AND THE COMPANY ARE AGREEING TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY AGREEING TO THIS ARBITRATION AGREEMENT, BOTH YOU AND THE COMPANY ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. BY AGREEING TO ARBITRATION, YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. THIS ARBITRATION AGREEMENT EVIDENCES A TRANSACTION IN INTERSTATE COMMERCE, AND THUS TO THE EXTENT APPLICABLE, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION. BOTH YOU AND THE COMPANY CONFIRM THEIR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. ## Governing law This Agreement shall be governed pursuant to the laws of the State of New York, USA, without regard to principles of conflict of laws. you agree that the Company may initiate a proceeding related to the enforcement or validity of the Company's intellectual property rights in any court having jurisdiction. With respect to any proceeding that is not subject to arbitration under this Agreement or policies incorporated herein, you agree that any proceedings shall be in the federal or state courts located in New York. You waive any objection to venue and to submit to personal jurisdiction in any such courts. ## Interpretation The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. In this Agreement, words importing the singular number include the plural and vice versa; words importing gender include all genders; and words importing persons include individuals, sole proprietors, partnerships, corporations, trusts and unincorporated associations. ## Entire Agreement This Agreement as it may be amended from time to time in accordance with these Terms, and all other legal notices and policies on this website, constitutes the entire agreement between you and the Company with respect to the use of the Services. ## Amendment and Waiver The Company reserves the right, in its discretion, to amend this Agreement at any time by posting amendments on this website. You are responsible for periodically reviewing the amendments on this website, and you are deemed to be aware of such amendments. If you do not agree to the amended terms and conditions, you shall immediately stop using this website. Access to this website or use of this website after any amendments have been posted shall constitute your acknowledgement and acceptance of the amended terms and conditions. No supplement, modification or amendment to this Agreement and no waiver of any provision of this Agreement shall be binding on the Company unless executed by the Company in writing. No waiver of any of the provisions of this Agreement shall be deemed to be or shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. ## Severability Any provision of this Agreement which is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in such jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability and shall otherwise be enforced to the maximum extent permitted by law, all without affecting the remaining provisions of this Agreement or affecting the legality, validity or enforceability of such provision in any other jurisdiction. ## Inurement This Agreement shall inure to the benefit of and be binding upon each of us and our respective successors and permitted assigns. You acknowledge having read this Agreement before accepting it, having the authority to accept this Agreement and having received a copy of this Agreement. ## Assignment You shall not assign or transfer any of your rights or obligations under this Agreement without our prior written consent, which we may withhold at our sole and absolute discretion. Any actual or attempted assignment hereof by you contrary to the terms of this Agreement shall be null and void. We may, at its discretion, assign some or all our rights or obligations to a third party, without your consent or approval. If we are acquired by, sold to, or merged with a third-party entity, we reserve the right to transfer or assign all your user data as part of such merger, acquisition, sale, or change of control. ## Support Please direct questions, complaints, or issues to [performant.me@gmail.com](mailto:performant.me@gmail.com). Hours of support are Mon to Fri 10:00 am — 6:00 pm ET.