Terms of Service
Last modified: May 27, 2021
Welcome to Neverthink! These Terms of Service explain the terms and conditions by which you may use our mobile applications (the “App”), our website (the “Site”), and any and all information, content, services, and products made available on or through them (collectively, the “Service”). The Service is owned and operated by Neverthink Oy, a Finnish company (“we,” “us,” “our,” or “Neverthink”).
1. Accepting These Terms & Arbitration
1.2 You agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND NEVERTHINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. See Section 23 for more information.
2.1 Use of the Service by children under the age of 13 is not authorized and if you are under the age of 13, you are prohibited from using the Service. If you are under the age of 13, or if your use of the Service would violate any applicable law or regulation, you are not eligible to use the Service. If you are not eligible or do not agree to all the terms and conditions of these Terms, you may not access or use the Service.
2.2 By using the Service, you represent and warrant to Neverthink that:
- you are at least 13 years old (or older, as required by certain features of the Service);
- if you are under 18 years old, your parent or legal guardian has affirmatively consented to your access and use of the Service;
- you are not prohibited or restricted from accessing or using any aspect of the Service by any applicable law or regulation;
- you have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party or any laws of any country to which you are a citizen or a resident or from which you are accessing or using the Service; and
- you are not currently restricted from the Service and have not previously been suspended or removed from the Service.
IF YOU ARE UNDER THE AGE OF 13, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICE AT ANY TIME OR IN ANY MANNER.
2.3 If at any time you are not in full compliance with all foregoing provisions of this Section 2, you are in material violation of these Terms, and you must immediately cease all use of and access to the Service.
3. Our Service
We provide a platform with tools for our users to share and watch videos and other content.
4. Changes to These Terms
4.1 We reserve the right to change these Terms from time to time. For example, we may need to change these Terms if we come up with a new feature.
4.2 If we make changes, we will notify you by publishing the revised Terms on this page and revising the date at the top of these Terms and, in some cases, provide you with additional notice (such as adding a statement to the Site or showing a notice when you open an updated version of the App for the first time) or require you to accept the revised Terms before you may continue using the Service. We encourage you to review this page periodically to stay informed about our practices.
4.3 Whenever we make changes to these Terms, they are effective when the revised Terms are posted. Your continued use of the Service after publication of the revised Terms constitutes your acceptance of the revised Terms. If you do not agree to the revised Terms, you are prohibited from using the Service and are required to delete the App from your device.
6. Account and Registration
6.1 To access some features of the Service, you must register for an account. When you register for an account, you are required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will also be asked to provide a password.
6.2 You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com
We reserve the right to determine pricing for the Service, including the introduction of additional charges or modification of any pricing for any feature of the Service. We will notify you of any changes to pricing before those changes go into effect.
8. Content Monetization
8.1 You grant to Neverthink the right to monetize your User Content on or via the Service, including through advertising, sponsorships, collaboration with third-party services, and such other means as may be determined by Neverthink in its sole discretion. Except as described in Section 8.2, these Terms do not entitle you to any payments and Neverthink is entitled to retain 100% of any consideration it generates from your User Content.
8.2 Subject to your compliance with these Terms, you may be eligible to receive compensation in connection with our monetization of your User Content in accordance with our Monetization Policy, which is incorporated into these Terms by this reference. Please see our Monetization Policy.
8.3 This Section 8 does not modify or otherwise affect any other existing agreement you may have with Neverthink separate from these Terms under which you may receive compensation from Neverthink.
Subject to your complete and ongoing compliance with these Terms, Neverthink grants you, for your personal and non-commercial use, a limited, non-exclusive, non-transferable, and revocable license to: (a) install and use one object code copy of the App on a mobile device that you own or control; and (b) access and use the Service. You may only use the App on a device that you control and as permitted by any applicable usage rules of your device’s manufacturer and of the marketplace at which we have made the App available.
When accessing or using the Service, you agree not to, and represent and warrant to Neverthink that you are not and will not, do the following:
- modify or otherwise make any derivative uses of all or any portion of the Service;
- use any data mining, robots or similar data gathering or extraction methods to download any content from the Service or gather or extract any other information on the Service;
- attempt to access areas or features of the Service that you are not authorized to access;
- undertake any activity that will compromise the security of the Service;
- reverse engineer or otherwise access or use the Service in order to build a competitive product or service;
- reproduce, distribute, publicly display or publicly perform any portion or element of the Service;
- use the Service in any manner that could damage, disable, overburden or impair the functioning of the Service in any manner; and
- use the Service other than for its intended purposes or in any way that violates or is likely to violate any of the terms and conditions of these Terms.
9.3 If you violate any provision in this Section 9, then Neverthink may immediately suspend or terminate your account, and your access to or use of the Service, or terminate these Terms.
10. Intellectual Property Rights
The Service, including all User Content, texts, scripts, graphics, formatting, graphs, trademarks, service marks, logos, designs, look and feel, HTML, source and object code, format, queries, algorithms, and other interactive features of the Service (collectively, the “Materials”), are owned by or licensed to Neverthink and may be protected by intellectual property and other laws.
Neverthink, to the extent of its rights, reserves all rights not expressly granted in and to the Materials. You agree to not use the Materials other than as expressly permitted by these Terms.
11. User Content
11.1 Certain features of the Service may provide tools for users to submit, upload, publish, share, create, or otherwise transmit content on, to or through the Service, including audio content (including voice, sound recordings, and musical works, whether embodied in sound recordings or otherwise), comments, messages, photos, video (including all sound recordings and musical works embodied in a video), images, folders, data, text, and any other types of works of authorship, and compilations of any of the foregoing (collectively, “User Content”). The Service may also provide tools for a user to create new User Content (that is, derivative works) by reusing or remixing another user’s User Content. You must reproduce any copyright notices and other proprietary rights legends (including watermark) included in another user’s User Content that you use to create new User Content. Subject to the rights granted to Neverthink and other users of the Service, you retain any copyright and other intellectual and proprietary rights you may hold in the User Content that you make available on the Service.
11.2 By providing any User Content to or via the Service, you grant us a worldwide, non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify for the purpose of formatting for display, and to distribute your User Content, in whole or in part, in any media formats and through any media channels now known (including, by way of example and not limitation, through embeddable software players and in-line linking) or hereafter developed, for the purposes of marketing, advertising, promoting, and providing the Service. You waive all moral rights and rights of attribution and integrity or any similar rights with respect to your User Content.
11.3 By providing User Content to or via the Service, you grant other users of the Service a non-exclusive license to access, reproduce, distribute, publicly display, publicly perform, create derivative works of and otherwise use and share your User Content as permitted by these Terms and the authorized functionality of the Service.
11.4 To the extent your User Content includes your, or any other person’s, name, image, likeness, voice or other identifying information, you hereby grant us the right to use such identifying information in connection with our use of that User Content. If your User Content includes a photograph or image (still or moving) that includes one or more persons, you hereby grant those persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid up, worldwide license to reproduce, distribute, and publicly display that photograph or image for personal use and through any online platform or service, including the Service, Facebook, Twitter, and YouTube, but not to sell that photograph or image (still or moving) or to use it to promote any third-party product, good or service.
11.5 The Service may contain links or the ability to share information, including User Content, with third-party websites and services. The rights you grant under these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of those third-party websites and services will not have any separate liability to you or any other third party for your User Content posted to or used on that website or service via the Service.
11.6 If you are a composer or author of a musical work and are either: (a) affiliated with a Performing Rights Organization (“PRO”), such as ASCAP or BMI; or (b) under contract with a music publisher, then you must notify your PRO or music publisher of the licenses you grant under these Terms. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations and any contractual obligations towards your musical publisher, including if your User Content includes any new musical works that may be claimed by your music publisher. If you have assigned your rights to a music publisher, then you must obtain the consent of the music publisher to grant these licenses or have the music publisher enter into these Terms with us. If you wish to upload to the Service a cover song, you are responsible for securing all rights in and to the underlying musical work before doing so. If you are signed to an exclusive agreement with a record label, then you need the consent of your record label before you upload any User Content to the Service that may be owned or controlled by your record label.
11.7 We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content to or via the Service. By providing User Content, you affirm, represent, and warrant to us that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Neverthink and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Neverthink, the Service, and these Terms;
- your provision of User Content to the Service is in compliance with all applicable laws and regulations, and you are solely responsible for determining the applicability of any law, including any intellectual property law;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) require Neverthink to obtain any licenses from or pay any royalties to any third parties; or (iv) cause us to violate any law or regulation; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
11.8 You are solely responsible for editing and controlling your User Content. We will not be in any way responsible or liable for your User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable to us. You understand that when using the Service, you will be exposed to User Content from a variety of sources, and you acknowledge that User Content may be inaccurate, offensive, indecent, objectionable, inappropriate, or otherwise unsuited to your purpose. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content (subject to our obligations under Section 12), which we reserve the right to do at any time and without notice. For clarity, Neverthink does not permit copyright-infringing activities on the Service.
12. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
12.1 Notification. We respect the intellectual property of others and take the protection of intellectual property very seriously, and we ask our users do to the same. Infringing activity will not be tolerated on the Service. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Neverthink with the user alleged to have infringed a right you own or control, and you hereby consent to Neverthink making such disclosure. Your communication must include substantially the following:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
12.2 Designated Agent Contact Information. Neverthink’s designated agent for a receipt of Notification of Claimed Infringement (“Designated Agent”) can be contacted at:
Via Email: firstname.lastname@example.org
Via Postal Service:
Attn: Legal Department (Copyright Notification)
Kaikukatu 4 C, 00530 Helsinki, Finland
12.3 Repeat Infringer Policy. Neverthink’s intellectual property policy is to: (a) remove or disable access to material that Neverthink believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Service; and (b) remove any User Content uploaded to the Service by “repeat infringers.” Neverthink considers a “repeat infringer” to be any user that has repeatedly infringed or repeatedly been charged with infringing the rights of third parties by uploading User Content to the Service for which Neverthink has received takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Neverthink has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Neverthink’s own determination.
12.4 Counter Notification. If you receive a notification from Neverthink that material you uploaded to the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Neverthink with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Neverthink’s Designated Agent through one of the methods identified in Section 12.2 above and include substantially the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Neverthink may be found, and you will accept service of process from the person who provided notification in accordance with Section 12.2 above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
12.5 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Neverthink in response to a Notification of Claimed Infringement, then Neverthink will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Neverthink will replace the removed User Content or cease disabling access to it in 10 business days, and Neverthink will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Neverthink’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Neverthink’s system or network.
12.6 False Notifications of Claimed Infringement or Counter Notifications. The U.S. Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Neverthink] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Neverthink reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
For clarity, and notwithstanding anything in this Section 12 to the contrary, Neverthink in its sole discretion may (but has no obligation to) disclose publicly any and all Notices of Claimed Infringement and Counter Notifications.
13.1 We may suspend or terminate your rights with respect to the Service if you violate any of these Terms or for any other reason or for no reason at all and with or without notice at our sole discretion, without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved. Suspension and termination may include banning you from or restricting your access to and use of the Service.
13.2 If you are suspended by us, you must cease using the Service during suspension, and we will not be responsible or liable for any resulting loss of User Content by you. You acknowledge and agree that Neverthink is under no obligation to restore any of your User Content or any other content, or to re-enable your access to the Service.
13.3 Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account, your User Content, or the Service; and © Sections 1, 9, 10, 12, 13.3, and 16–29 will survive.
14. Access and Security
14.1 You can access the Service by downloading the App to your mobile device and tapping “start” or by otherwise accessing the Site.
14.2 If you install the App, then you agree to:
- not allow others to use the installation of the App on your device;
- be responsible for any action performed through the App on your device;
- keep access to your device secure and accept all risks of unauthorized access to the installation of the App on your device; and
- refrain from using other users’ installations of the App.
15. Push Services
It is highly recommended that you allow notifications for the App to work properly. This way you will get the latest information about new content waiting for you, or if there are other news around the App like new features or special channels. However, you may at any time opt-out of receiving any further notifications by turning these notifications off in your device’s notifications settings.
16. Consent to Electronic Communications
16.1 By using the Service, you agree that we may communicate with you electronically regarding administrative, security, and other issues relating to your access to and use of the Service.
16.2 You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
16.3 To withdraw your consent from receiving electronic notice, please notify us at email@example.com
17. Modifications to The Service
17.1 We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, any or all of the Service (including any Materials on the Service) with or without notice to you.
17.2 You agree that Neverthink will not be liable to you or any third party for any modification or discontinuance of the Service (including any Materials on the Service).
18. Third-Party Rights
18.1 Neverthink may provide tools through the Service that enable you to export information and content to third-party services (collectively, “Third-Party Service”), including through features that allow you to link your account on the Service with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “share” buttons). By using one of these tools, you agree that Neverthink may transfer that information to the applicable Third-Party Service. Third-Party Services are not under Neverthink’s control, and, to the fullest extent permitted by law, Neverthink is not responsible for any Third-Party Service’s content or its use of your exported information.
18.2 The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
18.3 You acknowledge and agree: (a) that the availability of the Service (including any content on the Service) is dependent on third parties; (b) to abide by any third-party terms that apply to any Third-Party Services or Third-Party Components, as well as any usage rules for the Service (including with respect to the Site, the App, or any content on the Site or the App).
18.4 This Section 18.4 only applies to the extent you are using our App on an iOS device. You acknowledge that these Terms are between you and Neverthink only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or © claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
We welcome and encourage you to provide us with feedback, comments and suggestions for the Service (collectively, “Feedback”). By submitting Feedback to us, you acknowledge and agree that:
- your Feedback does not contain any third party’s confidential or proprietary information;
- Neverthink is not under any obligation of confidentiality, expressed or implied, with respect to the Feedback;
- you hereby irrevocably assign to Neverthink all rights to your Feedback and Neverthink will be entitled to freely use, disclose, reproduce, license, distribute, and otherwise commercialize any Feedback for any purpose, in any way, in any media worldwide; and
- you are not entitled to any compensation or reimbursement of any kind for the Feedback from Neverthink under any circumstances
20. Disclaimer of Warranties
20.1 THE SERVICE (INCLUDING ALL MATERIALS AND CONTENT MADE AVAILABLE TO YOU ON OR THROUGH THE SERVICE) ARE PROVIDED “AS IS” OR “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE OR OTHERWISE IN CONNECTION WITH THESE TERMS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, TRADE, OR CUSTOM. WE DO NOT MAKE ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR THAT ACCESS TO THE SERVICE WILL BE CONTINUOUS OR UNINTERRUPTED, AND WE DO NOT WARRANT THAT ANY ISSUES OR ERRORS WITH THE SERVICE WILL BE CORRECTED.
20.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE (INCLUDING ALL MATERIALS INCLUDED OR OTHERWISE MADE AVAILABLE TO YOU ON OR THROUGH THE SERVICE) OR OTHERWISE FROM US WILL CREATE ANY WARRANTY REGARDING US OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER USER OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CONTENT.
20.3 THE DISCLAIMERS IN THIS SECTION 20 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NEVERTHINK DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT NEVERTHINK IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
21. Limitation of Liability
21.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NEVERTHINK AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (COLLECTIVELY, “NEVERTHINK PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING OR RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES; © ANY CONTENT OBTAINED FROM, INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE; AND (D) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON WARRANTY, STRICT LIABILITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF A NEVERTHINK PARTY HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
21.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE NEVERTHINK PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICE, AND YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, ANY PORTION OF THE SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US$100.
21.3 THE LIMITATIONS OF LIABILITY IN THIS SECTION 21 SHALL NOT APPLY IN CASE OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE AS WELL AS IN CASE OF DEATH OR PERSONAL INJURY AND OTHER CASES PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
22.1 If any third party brings a claim against us in connection with or arising out of: (a) your breach of these Terms; (b) your breach of any applicable law of regulation; © your infringement or violation of the rights of any third parties (including, but not limited to, intellectual property rights); (d) your User Content; or (e) your use of the Service, then you agree to defend, indemnify and hold us harmless from and against all costs, damages, liabilities, loss and expenses (including legal fees and costs) arising from or related to such claim.
22.2 Neverthink will use reasonable efforts to notify you of any such claim for which it seeks an indemnification from you upon becoming aware of it, but if Neverthink is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding Neverthink’s inability to contact you in a timely manner. Neverthink reserves the right, in its sole discretion, to assume the exclusive defense and control of any matter that is subject to indemnification under this Section at your sole expense if Neverthink reasonably concludes that you are unable or unwilling to defend Neverthink’s interests. In such case, you agree to cooperate with any reasonable requests to assist with Neverthink’s defense of such matter.
23. Governing Law & Dispute Resolution
23.1 These Terms, including the arbitration clause, and any dispute, claim or controversy arising out of or relating to these Terms, or the breach, termination or validity of these Terms, are governed by the laws of Finland without regard to its principles and rules on conflict of laws. Notwithstanding the foregoing sentence, Section 12 and the parties’ compliance with it will be interpreted in accordance with the federal laws of the United States of America and the laws of the State of California without regard to its principles and rules on conflict of laws.
23.2 For users located outside of the United States, any dispute, controversy or claim arising out of or relating to these Terms, or the breach, termination or validity thereof, will be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators will be one. The seat of arbitration will be Helsinki, Finland. The language of the arbitration will be English. However, evidence may be submitted and witnesses may be heard in Finnish, to the extent the arbitral tribunal deems it appropriate.
23.3 For users located in the United States, the following terms in this Section 23.3 apply.
- Generally. In the interest of resolving disputes between you and Neverthink in the most expedient and cost effective manner, and except as described in Section 23.3(b) and 23.3©, you and Neverthink agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NEVERTHINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 23.3(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 23.3 within 30 days after the date that you agree to these Terms by sending a letter to Neverthink Oy, Attention: Legal Department - Arbitration Opt-Out, Kaikukatu 4 C, 00530 Helsinki, Finland, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Neverthink receives your Opt-Out Notice, this Section 23.3 will be void and any action arising out of these Terms will be resolved as set forth in Section 23.1. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and Neverthink will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Neverthink Oy, Kaikukatu 4 C, 00530 Helsinki, Finland. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Neverthink may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Neverthink must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
- Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or © by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND NEVERTHINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Neverthink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 23.3(g) or the entirety of this Section 23.3 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 23.3 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 23.1 will govern any action arising out of or related to these Terms.
24.1 Failure of either party to insist upon strict performance of any provision of these Terms and the failure of either party to exercise any right or remedy to which that party is entitled under these Terms will not constitute a waiver of these Terms and will not cause a diminution of the obligations under these Terms.
24.2 No waiver of any of the provisions of these Terms will be effective unless it is expressly stated in writing and signed by both parties.
25. Assignment and Transfer of Rights
25.1 You may not assign, transfer, or delegate any rights or obligations under these Terms to any third party. Any purported assignment, transfer, or delegation will be ineffective.
25.2 You acknowledge and agree that Neverthink may: (a) freely assign, transfer, or delegate any or all of our rights and obligations under these Terms to any third party at any time without providing you with notice; and (b) substitute, by way of unilateral notation, effective upon notice to you, any third party that assumes our rights and obligations under these Terms.
26. Entire Agreement
These Terms are the entire and exclusive agreement between Neverthink and you regarding the Service, and these Terms supersede and replace any prior agreements between Neverthink and you regarding the Service unless such other agreement specifically states that it supersedes some or all of these Terms.
If any provision of these Terms is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, then that provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision. If a court or arbitrator finds the modified provision invalid, illegal, void, or unenforceable, then the validity, legality, and enforceability of the remaining provisions of these Terms will not be affected in any way.
You are always welcome to contact us with any questions, complaints or claims you may have related to the Service. Please direct your requests to: firstname.lastname@example.org
29. Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.