Welcome to www.nevermet.io (“Site” or “Website”).
The Nevermet website located on www.Nevermet.io (“Site”) and the Nevermet Mobile Applications (“App”) available on Apple App Store (IOS) and Google Play Store (Android), are owned and operated by Cheerio World, Inc. DBA Nevermet from the United States. Throughout the Site, the terms “we”, “us”, “platform”, “Nevermet”, and “our” refer to Cheerio World, Inc. DBA Nevermet. We offer the Nevermet Site and App, including all information, tools, and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here
By visiting our site and/or when using any of our features, you (“User”) engage in our “Service” and agree to be bound by the following terms and conditions (“Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms and Conditions apply to all users of the site, including without limitation users who are browsers, users, customers and/ or contributors of content.
1. App Updates and Functionality
From time to time, updates to the App may be made available through the App Store and Play Store. Depending on the update, and whether you utilized the App Store or Play Store to download and access the App, you may not be able to use the App until you have installed the latest version. In addition, you acknowledge that the App is provided over the Internet and mobile networks and so the quality and availability of the App may be affected by factors outside our reasonable control. Accordingly, we do not accept any responsibility for any connectivity issues that you may experience when using the App. In addition, you acknowledge and agree that you (and not us) are responsible for obtaining and maintaining all telecommunications, broadband and computer hardware, equipment and services needed to access and use the App, and for paying any data charges that may be charged to you by your network provider in connection with your use of the App, including SMS charges for receiving SMS messages from us for any reason.
2. Store Rules
With respect to downloading the App, you agree to comply with the App Store Rules and Play Store Rules, as applicable. You acknowledge that the availability of the App may be dependent on the App Store or Play Store from which you receive the App. You acknowledge these Terms are between you and Nevermet and not with the App Store or Play Store. The App Store and Play Store are not responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You acknowledge that the App Store and Play Store (and their respective subsidiaries) are third party beneficiaries to these Terms and will have the right to enforce these Terms against you.
3. Agreement Acceptance
From time to time, we may make modifications to this Agreement and the Service. This might be for a variety of reasons, such as to reflect changes in the legislation or legal requirements, new features, or changes in business operations. The most recent version of this Agreement will be available on the Service's Settings page as well as on Nevermet.io, and you should check for it on a frequent basis. The most recent version is the one that is in effect. If the changes affect your rights or responsibilities materially, we will tell you in advance (unless we are unable to do so under applicable law) by reasonable methods, which may include communication via the Service or by email. You agree to the amended Agreement if you continue to use the Service after the changes take effect. You acknowledge that this Agreement supersedes all previous agreements (except as expressly stated herein) and governs your entire relationship with Nevermet, including but not limited to events, agreements, and behavior that occurred prior to your acceptance of this Agreement.
By joining up for Nevermet and entering your phone number, you consent to have Nevermet text your phone number for purposes relating to your user account, user safety, and other messages that Nevermet deems relevant.
To establish an account on Nevermet and use the Service, you must be at least 18 years old. By creating an account and using the Service, you represent and warrant that:
- you have the legal capacity to enter into a binding contract with Nevermet;
- you are not a person barred from using the Service under the laws of the United States or any other applicable jurisdiction (for example, you are not on the US Treasury Department's list of Specially Designated Nationals or face any other similar prohibition); and
- you will comply with this Agreement and all applicable local, state, and federal laws..
5. Accounts, registrations and passwords
If you use this Site and such use requires setting up an account and/or password(s), you are solely responsible for maintaining the confidentiality of your account and password(s) and for restricting access to your computer and mobile device. If you open an account, register, or otherwise provide us with any information, you agree to provide us with current, complete, and accurate information as requested by any forms. Nevermet is not responsible for any errors or delays in responding to any inquiry or request caused by any outdated or incorrect information provided by you or any technical problems beyond the control of Nevermet. You acknowledge and agree that any login, identifier, or password issued in connection with this Site (each a "Password") is confidential information and must be kept secure. You may not disclose such a Password to another person or entity or permit another entity to access the Site using such a Password. You must notify Nevermet immediately of any breach of security or unauthorized use of your account. Nevermet cannot be responsible and disclaims all liability in connection with, the use of any information or content that you post or display on this Site.
Nevermet is always working to enhance the Service and provide you with new features that you will find interesting and helpful. This implies that we may add new product features or upgrades as well as delete some features from time to time, and if these actions do not substantially affect your rights or duties, we may not give you with prior notice. We may even stop the Service altogether, in which case we will warn you in advance unless we are prevented from doing so by exceptional circumstances, such as safety or security concerns.
You can cancel your account at any moment for any reason by emailing your phone number and username to firstname.lastname@example.org and following subsequent instructions. If Nevermet believes you have violated this Agreement, it may terminate your account at any time and without notice.
7. Safety; Your Interactions with Other Members.
Nevermet is not liable for any member's behavior on or off the Service. You agree to use caution in any contacts with other members, especially if you choose to correspond or meet in person outside of the Service. Additionally, before to using the Service, you agree to read and obey Nevermet's Safety Tips. You promise not to offer financial information (such as credit card or bank account numbers) to other members, nor will you wire or otherwise pay money to them.
Certain types of material are not permitted on Nevermet. Nevermet has a strict no-tolerance policy when it comes to offensive content and abusive individuals.
We want our users to be allowed to express themselves freely on Nevermet, however we do have to place limits on some types of content, including:
- contains language or imagery that could be considered offensive or is likely to harass, upset, embarrass, alarm, or annoy another person (including, but not limited to, language that could be considered discriminatory toward an individual's race, color, ethnicity, national origin, religion, disability, sexual orientation, gender expression, gender identity, or physical appearance);
- is obscene, pornographic, highly sexualized, violent, or otherwise offends human dignity (including, but not limited to, language that could be construed as discriminatory based on a person's race, color, ethnicity, national origin, religion, disability, sexual orientation, gender expression, gender identity, or physical appearance);
- is discriminatory, abusive, insulting, or threatening, or promotes or encourages racism, sexism, hatred, or bigotry (including, but not limited to, language that could be deemed discriminatory toward an individual's race, color, ethnicity, national origin, religion, disability, sexual orientation, gender expression, gender identity, or physical appearance);
- promotes any unlawful conduct, including, but not limited to, terrorism, inciting racial hate, or the submission of which is a criminal offense in of of itself;
- is libelous or slanderous;
- involves the transmission of "junk" mail or "spam"; involves commercial activities (including, without limitation, sales, competitions, and advertising, links to other websites, or premium line telephone numbers); involves the transmission of "junk" mail or "spam"; involves the transmission of "junk" mail or "spam"; involves the transmission of "junk" mail or "spam"; involves the transmission of "junk" mail or
- contains any spyware, adware, viruses, corrupt files, worm programs, or other malicious code designed to interrupt, damage, limit, or disrupt the functionality of or disrupt any software, hardware, telecommunications, networks, servers, or other equipment, Trojan horse, or any other material designed to damage, interfere with, incorrectly intercept, or expropriate any data or personal information, whether from Nevermet or elsewhere;
- infringes on the rights of any third party (including, without limitation, intellectual property and privacy rights) by itself or by being posted;
- depicts another person and was developed or disseminated without his or her permission;
- depicts a minor
- is harmful to kids; or impersonates another person, including claiming to be someone else.
For this type of content, Nevermet and Cheerio World, Inc. have a zero-tolerance policy.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT NEVERMET DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS MEMBERS. NEVERMET MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OR COMPATIBILITY OF MEMBERS. NEVERMET RESERVES THE RIGHT TO CONDUCT – AND YOU AUTHORIZE NEVERMET TO CONDUCT – ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) AT ANY TIME USING AVAILABLE PUBLIC RECORDS OBTAINED BY IT OR WITH THE ASSISTANCE OF A CONSUMER REPORTING AGENCY, AND YOU AGREE THAT ANY INFORMATION YOU PROVIDE MAY BE USED FOR THAT PURPOSE.
8. Rights Nevermet Grants You.
Nevermet offers you a non-assignable, nonexclusive, revocable, and non-sublicensable personal, worldwide, royalty-free license to access and use the Service. This license is only for the purpose of allowing you to use and enjoy the advantages of the Service as Nevermet intended and as authorized by this Agreement. As a result, you agree to refrain from:
Without our explicit permission, you may not use the Service or any of its content for any commercial purposes.
Without Nevermet's prior written consent, you may not copy, modify, transmit, make any derivative works from, use, or reproduce in any way any copyrighted material, images, trademarks, trade names, service marks, or other intellectual property, content, or proprietary information accessible through the Service.
convey or suggest that Nevermet endorses any remarks you make
access, retrieve, index, "data mine," or in any way recreate or circumvent the navigational structure or presentation of the Service or its contents using any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy, or other manual or automated device, technique, or process.
use the Service in any way that might cause the Service, or the servers or networks linked to it, to be disrupted, interfered with, or negatively affected.
uploading viruses or other harmful programming, or otherwise jeopardizing the Service's security
forge headers or otherwise modify identifiers to conceal the source of any information delivered to or via the Service
Without Nevermet's prior written permission, you may not "frame" or "mirror" any portion of the Service.
utilize meta tags, code, or other devices that contain any reference to Nevermet or the Service (or any trademark, trade name, service mark, logo, or slogan of Nevermet) to send anybody to any other website for any reason.
Any component of the Service may not be modified, adapted, sublicensed, sold, reverse engineered, deciphered, decompiled, or otherwise disassembled by you or anyone.
Without our explicit permission, you may not use or build any third-party apps that interact with the Service or other members' Content or information.
Without our express permission, you may not use, access, or publish the Nevermet application programming interface.
probe, scan, or test the security of our Service, or any other system or network.
support or promote any behavior that is in violation of the Terms of Service.
In response to unlawful and/or unauthorized uses of the Service, Nevermet may investigate and take any applicable legal action, including terminating your account.
Any software we offer you with may download and install upgrades, updates, or other new features for you automatically. You may be able to change the frequency of these automatic downloads in your device's settings.
9. Rights you Grant Nevermet.
By creating an account, you grant Nevermet a royalty-free, worldwide right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify, and distribute any information you authorize us to access from third parties such as Facebook, Google, or Apple, as well as any information you post, upload, display, or otherwise make available (collectively, "post") on the Service or transmit to other members (collectively, "Conte"). Nevermet's license to your Content is non-exclusive, except for derivative works developed via use of the Service, in which case Nevermet's license is exclusive. Nevermet, for example, would have an exclusive license to Service screenshots including your Content. Furthermore, you allow Nevermet to intervene on your behalf with respect to infringing uses of your Content obtained from the Service by other members or third parties, so that Nevermet can restrict its use outside of the Service. This clearly includes the right, but not the responsibility, to issue notifications on your behalf under 17 U.S.C. 512(c)(3) (i.e., DMCA Takedown Notices) if your Content is stolen and utilized outside of the Service. Our license to your Content is limited to operating, developing, providing, and improving the Service, as well as researching and developing new ones, and is subject to your rights under applicable law (for example, laws regarding personal data protection to the extent any Content contains personal information as defined by those laws). You acknowledge and agree that any Content you post or permit us to post on the Service may be read by other members as well as anyone visiting or engaging in the Service (such as individuals who may receive shared Content from other Nevermet members).
You agree that all information you provide when creating your account is true and honest, and that you have the authority to publish Content on the Service and give Nevermet the license described above. You agree, for the avoidance of dispute, that you have the right to display photographs of the 3D Avatars included in your submitted Content.
You acknowledge and agree that any Content you publish as part of a Service may be monitored or reviewed by us. We reserve the right to remove any Content, in whole or in part, that we believe violates this Agreement or may harm the Service's reputation.
You promise to be kind and considerate while talking with our customer service professionals. We retain the right to immediately delete your account if we believe your behavior against any of our customer service agents or other employees is threatening, harassing, or insulting at any time.
You agree that we, our affiliates, and our third-party partners may post advertising on the Service in exchange for Nevermet allowing you to use it. By providing Nevermet with recommendations or feedback about our Service, you accept that Nevermet may use and disseminate the information or content for any reason without paying you.
You agree that Nevermet may access, preserve, and disclose your account information and Content if required by law or in the good faith belief that such access, preservation, or disclosure is reasonably necessary, such as to: I comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of Nevermet or others.
10. Community Rules.
By using the Service, you agree that you will not:
- use the Service for any purpose that is illegal or prohibited by this Agreement.
- use the Service for any harmful or nefarious purpose.
- use the Service in order to damage Nevermet.
- violate our Community Guidelines, as updated from time to time.spam, solicit money from or defraud any members.
- impersonate any person or entity or post any images of another person without his, her or their permission.
- bully, “stalk,” intimidate, assault, harass, mistreat or defame any person.
- post any Content that violates or infringes anyone’s rights, including rights of publicity, privacy, copyright (including the copyright of your Avatar), trademark or other intellectual property or contract right.
- post any Content that is hate speech, threatening, sexually explicit or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
- post any Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual.
- solicit passwords for any purpose, or personal identifying information for commercial or unlawful purposes from other users or disseminate another person’s personal information without his or her permission.
- use another user’s account, share an account with another user, or maintain more than one account.
- create another account if we have already terminated your account, unless you have our permission.
Nevermet reserves the right to investigate and/or terminate your account without a refund of any purchases if you have violated this Agreement, misused the Service or behaved in a way that Nevermet regards as inappropriate or unlawful, including actions or communications that occur on or off the Service.
11. Other Members’ Content.
Although Nevermet reserves the right to review and remove Content that violates this Agreement, such Content is the sole responsibility of the member who posts it, and Nevermet cannot guarantee that all Content will comply with this Agreement. If you see Content on the Service that violates this Agreement, please report it within the Service or contact us at email@example.com.
Generally. From time to time, Nevermet may offer products and services for purchase (“in app purchases”) through the App Store, Google Play Store, carrier billing, Nevermet direct billing or other payment platforms authorized by Nevermet. If you choose to make an in app purchase, you will be prompted to confirm your purchase with the applicable payment provider, and your method of payment (be it your card or a third party account such as Google Play Store or the App Store) (your “Payment Method”) will be charged at the prices displayed to you for the service(s) you’ve selected as well as any sales or similar taxes that may be imposed on your payments, and you authorize Nevermet or the third party account, as applicable, to charge you.
Auto-Renewal. If you purchase an auto-recurring periodic subscription, your Payment Method will continue to be billed for the subscription until you cancel. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to access your third party account (or Account Settings on Nevermet, if applicable) and follow the instructions to cancel your subscription, even if you have otherwise deleted your account with us or deleted the Nevermet application from your device. Deleting your account on Nevermet or deleting the Nevermet application from your device does not cancel your subscription; Nevermet will retain all funds charged to your Payment Method until you cancel your subscription on Nevermet or the third party account, as applicable. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term, and your subscription will not be renewed after your then-current term expires.
Additional Terms that apply if you pay Nevermet directly with your Payment Method. If you pay Nevermet directly, Nevermet may correct any billing errors or mistakes that it makes even if it has already requested or received payment. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, Nevermet may terminate your account immediately in its sole discretion.
You may edit your Payment Method information by visiting Nevermet and going to Settings or settings in your account’s respective App Store or Play Store. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your subscription, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If you reside outside of the Americas, you agree that your payment to Nevermet will be through Cheerio World, Inc..
Virtual Items. From time to time, you may be able to purchase a limited, personal, non-transferable, non-sublicensable, revocable license to use “virtual items,” which could include virtual products or virtual “coins” or other units that are exchangeable within the Service for virtual products (collectively, “Virtual Items”). Any Virtual Item balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license. Virtual Items do not incur fees for non-use, however, the license granted to you in Virtual Items will terminate in accordance with the terms of this Agreement, when Nevermet ceases providing the Service, or your account is otherwise closed or terminated. Nevermet, in its sole discretion, reserves the right to charge fees for the right to access or use Virtual Items and may distribute Virtual Items with or without charge. Nevermet may manage, regulate, control, modify or eliminate Virtual Items at any time. Nevermet shall have no liability to you or any third party in the event that Nevermet exercises any such rights. Virtual Items may only be redeemed through the Service. ALL PURCHASES AND REDEMPTIONS OF VIRTUAL ITEMS MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE. The provision of Virtual Items for use in the Service is a service that commences immediately upon the acceptance of your purchase of such Virtual Items. YOU ACKNOWLEDGE THAT NEVERMET IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
Refunds. Generally, all charges for purchases are nonrefundable, and there are no refunds or credits for partially used periods. We may make an exception if a refund for a subscription offering is requested within fourteen days of the transaction date, or if the laws applicable in your jurisdiction provide for refunds.
To request a refund:
If you subscribed using your Apple ID, refunds are handled by Apple, not Nevermet. To request a refund, go to the App Store, click on your Apple ID, select “Purchase history,” find the transaction and hit “Report Problem”. You can also submit a request at https://getsupport.apple.com.
If you subscribed using your Google Play Store account or through Nevermet directly: please contact customer support with your order number for the Google Play Store (you can find the order number in the order confirmation email or by logging in to Google Wallet) or Nevermet (you can find this on your confirmation email). You may also mail or deliver a signed and dated notice which states that you, the buyer, are canceling this Agreement, or words of similar effect. Please also include the email address or mobile number associated with your account along with your order number. This notice shall be sent to firstname.lastname@example.org.
Nevermet operates a global business, and our pricing varies by a number of factors. We frequently offer promotional rates - which can vary based on region, length of subscription, bundle size and more. We also regularly test new features and payment options.
13. Notice and Procedure for Making Claims of Copyright Infringement.
If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please submit a takedown request by emailing us at email@example.com.
If you contact us regarding alleged copyright infringement, please be sure to include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service (and such description must be reasonably sufficient to enable us to find the alleged infringing material);
- your contact information, including address, telephone number and email address, and the copyright owner’s identity;
- a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Nevermet will terminate the accounts of repeat infringers.
NEVERMET PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEVERMET DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, (B) ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, OR (C) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICE WILL BE ACCURATE.
NEVERMET TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU OR ANOTHER MEMBER OR THIRD PARTY POSTS, SENDS OR RECEIVES THROUGH THE SERVICE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK.
NEVERMET DISCLAIMS AND TAKES NO RESPONSIBILITY FOR ANY CONDUCT OF YOU OR ANY OTHER MEMBER, ON OR OFF THE SERVICE.
15. Third Party Services.
The Service may contain advertisements and promotions offered by third parties and links to other web sites or resources. Nevermet is not responsible for the availability (or lack of availability) of such external websites or resources. If you choose to interact with the third parties made available through our Service, such party’s terms will govern their relationship with you. Nevermet is not responsible or liable for such third parties’ terms or actions.
16. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEVERMET, ITS AFFILIATES, EMPLOYEES, LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) THE CONDUCT OR CONTENT OF OTHER MEMBERS` OR THIRD PARTIES ON, THROUGH OR FOLLOWING USE OF THE SERVICE; OR (III) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT, EVEN IF NEVERMET HAS BEEN ADVISED AT ANY TIME OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL NEVERMET’S AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO NEVERMET DURING THE TWENTY-FOUR (24) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT YOU FIRST FILE A LAWSUIT, ARBITRATION OR ANY OTHER LEGAL PROCEEDING AGAINST NEVERMET, WHETHER IN LAW OR IN EQUITY, IN ANY TRIBUNAL. THE DAMAGES LIMITATION SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE APPLIES (i) REGARDLESS OF THE GROUND UPON WHICH LIABILITY IS BASED (WHETHER DEFAULT, CONTRACT, TORT, STATUTE, OR OTHERWISE), (ii) IRRESPECTIVE OF THE TYPE OF BREACH OF OBLIGATIONS, AND (iii) WITH RESPECT TO ALL EVENTS, THE SERVICE, AND THIS AGREEMENT.
THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL WITH RESPECT TO THEIR ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS MAY NOT APPLY TO YOU.
17. Retroactive and Prospective Arbitration, Class-Action Waiver, and Jury Waiver.
Except where prohibited by applicable law:
- The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), or the Service, regardless of the date of accrual and including past, pending, and future claims, shall be BINDING ARBITRATION administered by JAMS under the JAMS Streamlined Arbitration Rules & Procedures, except as modified by our Arbitration Procedures. The one exception to the exclusivity of arbitration is that either party has the right to bring an individual claim against the other in a small claims court of competent jurisdiction, or, if filed in arbitration, the responding party may request that the dispute proceed in small claims court instead if the claim is within the jurisdiction of the small claims court. If the request to proceed in small claims court is made before an arbitrator has been appointed, the arbitration shall be administratively closed. If the request to proceed in small claims court is made after an arbitrator has been appointed, the arbitrator shall determine whether the dispute should remain in arbitration or instead be decided in small claims court. Such arbitration shall be conducted by written submissions only, unless either you or Nevermet elect to invoke the right to an oral hearing before the Arbitrator. But whether you choose arbitration or small claims court, you agree that you will not under any circumstances commence, maintain, or participate in any class action, class arbitration, or other representative action or proceeding against Nevermet.
- By accepting this Agreement, you agree to the Arbitration Agreement in this (subject to the limited one-time right to opt out within thirty (30) days belonging to members who first created an account or used the Service prior to May 9, 2018 (such members, “Legacy Members"), discussed below). In doing so, BOTH YOU AND NEVERMET GIVE UP THE RIGHT TO GO TO COURT to assert or defend any claims between you and Nevermet (except for matters that may be properly taken to a small claims court and are within such court’s jurisdiction). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING, including, without limitation, any past, pending or future class actions.
- If you assert a claim against Nevermet outside of small claims court (and Nevermet does not request that the claim be moved to small claims court), your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all claims and all issues regarding the arbitrability of the dispute. The same is true for Nevermet. Both you and Nevermet are entitled to a fair hearing before the arbitrator. The arbitrator can generally grant the relief that a court can, including the ability to hear a dispositive motion (which may include a dispositive motion based upon the parties’ pleadings, as well as a dispositive motion based upon the parties’ pleadings along with the evidence submitted), but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
As you decide whether to agree to this Arbitration Agreement, here are some important considerations:
- Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties under the JAMS Streamlined Arbitration Rules & Procedures. Arbitration does not limit or affect the legal claims you as an individual may bring against Nevermet. Agreeing to arbitration will only affect where those claims may be brought and how they will be resolved.
- Arbitration is generally considered to be a more rapid dispute resolution process than the judicial system, but that is not always the case. The Arbitrator will typically determine whether Nevermet or you will be required to pay or split the cost of any arbitration with Nevermet, based on the circumstances presented.
- IMPORTANT: THERE ARE NOW, AND MAY BE IN THE FUTURE, LAWSUITS AGAINST NEVERMET ALLEGING CLASS AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF INCLUDING BUT NOT LIMITED TO CLASS ACTIONS DESCRIBED IN THIS WHICH IF SUCCESSFUL, COULD POTENTIALLY RESULT IN SOME MONETARY OR OTHER RECOVERY TO YOU, IF YOU ELECT TO OPT OUT OF THE RETROACTIVE APPLICATION OF THIS ARBITRATION AGREEMENT. THE MERE EXISTENCE OF SUCH CLASS AND/OR REPRESENTATIVE LAWSUITS, HOWEVER, DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED, OR, EVEN IF SUCCESSFUL, THAT YOU WOULD BE ENTITLED TO ANY RECOVERY.
- You will be precluded from bringing any class or representative action against Nevermet, unless you timely opt out of the retroactive application of this Arbitration Agreement, and you will also be precluded from participating in any recovery resulting from any class or representative action brought against Nevermet, in each case provided you are not already bound by an arbitration agreement and class action waiver previously agreed to with Nevermet.
WHETHER TO AGREE TO THIS ARBITRATION AGREEMENT IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD TAKE CARE TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.IF FOR ANY REASON THIS ARBITRATION AGREEMENT IS FOUND TO BE INVALID, YOU WILL NEVERTHELESS STILL BE BOUND BY ANY PRIOR VALID ARBITRATION AGREEMENT THAT YOU ENTERED INTO WITH NEVERMET.
Limited One-Time Right To Opt Out Of The Retroactive Application of the Arbitration Agreement
You may opt out by sending an e-mail to firstname.lastname@example.org within 30 days after the first date on which you login to Nevermet or use the Service. The e-mail opt out must contain the following to be effective: your full name, address, email address and/ or phone number associated with your Nevermet account, and a statement that you are opting out of the Retroactive Application of this Arbitration Agreement. Should you not opt out of the retroactive application of this Arbitration Agreement within such 30 day period, you and Nevermet shall be bound by the terms of this Arbitration Agreement, including its retroactive effect. You have the right to consult with counsel of your choice (at your cost) concerning this Arbitration Agreement. IF YOU OPT OUT OF THE RETROACTIVE EFFECT OF THIS ARBITRATION AGREEMENT, YOU WILL STILL BE SUBJECT TO AND BOUND BY ANY PRIOR ARBITRATION AGREEMENTS/ PROVISIONS YOU PREVIOUSLY AGREED TO WITH NEVERMET AS WELL AS THIS ARBITRATION AGREEMENT ON A GOING FORWARD BASIS.
18. Governing Law.
Except where our arbitration agreement is prohibited by law, the laws of California, U.S.A., without regard to its conflict of laws rules, shall apply to any disputes arising out of or relating to this Agreement, the Service, or your relationship with Nevermet. Notwithstanding the foregoing, the Arbitration Agreement in the above shall be governed by the Federal Arbitration Act.
Except for claims that may be properly brought in a small claims court of competent jurisdiction, all claims arising out of or relating to this Agreement, to the Service, or to your relationship with Nevermet that for whatever reason are not submitted to arbitration will be litigated exclusively in the federal or state courts of San Francisco County, San Francisco, U.S.A. You and Nevermet consent to the exercise of personal jurisdiction of courts in the State of California and waive any claim that such courts constitute an inconvenient forum.
20. Indemnity by You.
You agree, to the extent permitted under applicable law, to indemnify, defend and hold harmless Nevermet, our affiliates, and their and our respective officers, directors, agents, and employees from and against any and all complaints, demands, claims, damages, losses, costs, liabilities and expenses, including attorney’s fees, due to, arising out of, or relating in any way to your access to or use of the Service, your Content, or your breach of this Agreement.
21. Entire Agreement; Other.
22. Contact Us
For any questions or further information, get in touch with our customer support team at email@example.com