Terms of Service
BETA / DEMO VERSION: Please understand that the current builds of the NeverEnding Services provide an early test, or demo of anticipated future services. By using the NeverEnding Services, you agree and understand that the NeverEnding Services’ performance is not guaranteed, and the Services at times, may not reflect the functionality that may be advertised.
During the course of the Beta and Demo version, you may, at times be asked for feedback. Please understand that any feedback you give is completely voluntary, is not being made in trust or in confidence, and in no way creates or implies any contractual, confidential, or fiduciary relationship. NeverEnding is under no obligation to compensate or credit you with any ideas or recommendations that you submit that may be later adopted.
NeverEnding, Inc. is a Delaware corporation that provides a software solution for the creation, production, and distribution of entertainment content (“Content”), and allows users to upload their own materials (“User Materials”), and to create, post, share, send, and receive Content through the NeverEnding Services.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
As used herein, the following capitalized terms shall have the meanings set forth as follows:
"Content" means and includes, without limitation, photos, images, artwork, graphics, videos, audios, animations, text, editorials, comments, writings, personal information, music, liner notes, lyrics, and other elements and materials, in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog, or otherwise.
"Collaborative Content" means any customized Content that results from users incorporating their own User Materials into NeverEnding Content (as defined below) or as created with the NeverEnding Services.
"NeverEnding Content" means any and all Content (excluding User Materials) made available through the NeverEnding Services, including any software or applications, and Content owned or controlled by NeverEnding and/or its corporate affiliates, as well as Content licensed or otherwise provided to NeverEnding by Licensors/Suppliers (as defined below).
"Licensors/Suppliers" means any and all third parties that make available to NeverEnding, pursuant to a license or otherwise, their Content, products, or services for use, display, performance, and/or distribution with the NeverEnding Services.
“Trademarks” means any and all marks, brands, logos, designs, character names, location names, slogans, catchwords, business and tradenames, trade dress, packaging designs, label designs, phrases, webpage layouts, look and feel, and any other indication of source, origin or identification, both registered and unregistered, owned or controlled by NeverEnding, its affiliates, and/or Licensors/Suppliers. All Trademarks owned or controlled by NeverEnding, both registered and unregistered, including without limitation the words NeverEnding, “Be Never Ending”, logos, and the layout and design of the website and web applications are referred to herein as “NeverEnding Trademarks”.
“User Materials” means any Content which the users upload, submit, record, stream, distribute, or otherwise make available through the NeverEnding Services, but excluding any and all NeverEnding Content.
“Subscription Terms” means the terms pertaining to your subscription to the NeverEnding Content and NeverEnding Services. Users may subscribe to different levels or tiers of access to the NeverEnding Services and NeverEnding Content which may modify these terms of service.
These Terms of Services shall remain in full force and effect for as long as you use the NeverEnding Platform and NeverEnding Services, whether as a visitor, Free Account Holder, or Subscriber. You may terminate your account or membership at any time and for any reason, by following the instructions on your User Profile. NeverEnding reserves the right to terminate your free account or membership, at any time and for any reason, including by not limited to violation of these terms, and/or violation of NeverEnding’s community guidelines, effective immediately, upon sending you notice at the email address provided by you during your account creation, or any other such contact information that you provide subsequently. If NeverEnding terminates your account due to a breach of these Terms of Service or NeverEnding’s community guidelines, you shall not be entitled to a refund of any unused portion of your subscription fee (if any). These Terms of Service shall remain in full force and effect even after your account is terminated, except however, that User Materials uploaded or created by you may no longer be accessible through the NeverEnding Services once your account has been terminated.
Notwithstanding the foregoing, you acknowledge that any license granted to Us to use User Material uploaded by you that is integrated into Collaborative Content, shall extend in perpetuity.
3. User of NeverEnding Services
Use of the NeverEnding Services is void where prohibited by law. By creating an account, either as a Free Account Holder of Subscriber, you represent and warrant that: (a) all registration information submitted by you, either directly, or through any third-party sign-on services that NeverEnding may employ, is truthful and accurate and you agree to maintain the accuracy of any such information; (ii) you are at least 16 years of age; and (iii) you use of the NeverEnding Services does not violate any applicable law or regulation. If it is discovered that you have misrepresented any of the foregoing, your account may be subject to deletion without warning. We, in our sole discretion, may refuse to offer the NeverEnding Services to any user or entity that does not meet our eligibility criteria, and we reserve the right to change such eligibility criteria at any time without notice.
Subject to your compliance with these Terms of Service, NeverEnding grants you, except where your Subscription Terms may differ, a limited, personal, non-exclusive, non-commercial, revocable, non-assignable, and non-transferable license to use, access, or view the NeverEnding Services (excluding any source and object code) for your personal use, in accordance with your Subscription Terms. This license is subject to you: (i) maintaining all copyright and other proprietary notices contained in the NeverEnding Services, and NeverEnding Content, or on any copy of the NeverEnding Content that you use; (ii) not using the NeverEnding Services and NeverEnding Content in a manner that suggests an association with NeverEnding or any of its Licensors/Suppliers, or affiliates; (iii) not modifying any of the NeverEnding Services; (iv) no allowing or aiding any third-party to copy, adapt, reverse engineer, decompile, modify, or attempt to copy, adapt, reverse engineer, decompile, modify the source or object code associated with any of the NeverEnding Services; and (v) not manipulating the NeverEnding Services in any way that affects the experience of other users.
You also agree that you will not: (i) use any robot, spider, scraper, rover, or any other data mining process or technology to monitor, cache, frame, mask, extract, copy, or distribute any NeverEnding Content, nor will you; (ii) modify, frame, reproduce, archive, lease, sell, exchange, or create derivative works from, publish by hard or soft copy, publicly perform, display, disseminate, broadcast, retransmit, distribute, or circulate to any third-party, or otherwise use the NeverEnding Content in any way for corporate or commercial purpose except as expressly permitted by these Terms of Service, or by your Subscription Terms
4. User Conduct
NeverEnding seeks to provide our users with the tools to create their own stories. However, we ask that all our users do their part in making NeverEnding an inclusive and inviting community for all users. You are solely responsible for all User Materials, including any email messages, messages, and Collaborative Content, either posted to your account, or distributed by you, or any content resulting from your use of the NeverEnding Services.
We want all our users to feel safe while using our services and ask that you act in a responsible manner. You agree not to, without limitation: (i) violate any applicable law or regulation; (ii) submit or upload any materials that conflict with any of your representations and warranties set forth in Section 15 of these Terms of Service; (iii) infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity, and/or contractual rights; (iv) use any content or information available through the NeverEnding Services for any unauthorized purpose; (v) mislead users as to the features, functionality, origin, or capabilities of the NeverEnding Services; (vi) interfere with or damage any of the NeverEnding Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing of electronic mail address information, or similar methods or technology; (vii) use any of the NeverEnding Services to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others, personal contact information, or account numbers, or any defamatory materials of any kind, except where you have obtained express permission from such other person or entity in connection with any of the foregoing; (viii) use any of the NeverEnding Services in connection with the distribution of unsolicited commercial e-mail ("Spam") or advertisements; (ix) "stalk" or harass any other user of the NeverEnding Services; (x) collect or store any information about any other user other than in the course of the permitted use of the NeverEnding Services; (xi) use any of the NeverEnding Services for any commercial purpose whatsoever (including, without limitation, to research, advertise, market, promote, sell, or otherwise exploit any product or service); (xii) sell or otherwise transfer any user information (e.g., user profiles) or other user’s User Materials); or (xii) assist any third party in doing any of the foregoing.
While using the NeverEnding Services, we ask that you exercise good judgement and uphold our company values, which we feel will help us foster a kind, and accepting community
We reserve the right, in out sole discretion and without prior notice to you, to limit the amount of NeverEnding Content and Collaborative Content, you may access, or share, and the number of recipients to whom you may send such NeverEnding Content and Collaborative Content. If we determine, in our sole discretion, that you are in violation of any of the foregoing rules, or community values, or that you are infringing on the rights of any third-party, we may terminate your account and/or subscription, as appropriate, and may prohibit you from creating any new accounts or subscriptions on the NeverEnding platform. You will be solely responsible for any harm or damages resulting from your interactions with others while using the NeverEnding Services and NeverEnding Content, and NeverEnding takes no responsibility for any harm or damages resulting from your conduct.
We reserve the right, but shall have no obligation, to monitor your use of the NeverEnding Services, and your interactions with other users, and may take any action in good faith to restrict access to, or the availability of, any material that NeverEnding or another user of the NeverEnding Services may consider to be obscene, lewd, defamatory, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Your privacy is extremely important to us. The NeverEnding Services allow, among other things, users who are 16 or older to upload User Materials which may contain personal content (e.g., photographs and possibly identifying information about themselves and others for whom they have the authority or permission to post photos and information) to be shared, sent, and/or posted both in public forums and through private messaging. Accordingly, by submitting personal content through any of the NeverEnding Services, you hereby waive any and all privacy expectations (including the privacy expectations of any other individual who appears in the submitted content) with respect to NeverEnding’s use of such content. If you do not wish to have personal content viewable by others, you should not use the NeverEnding Services.
6. Ownership of User Materials
You retain all right, title, and interest in and to the User Materials uploaded by you hereunder (including, without limitation the copyrights therein and thereto). However, you grant to NeverEnding a worldwide, royalty-free, non-exclusive, sublicensable, transferable, assignable license for the Term of these Terms of Service (and in perpetuity, with respects to any Collaborative Content) to: (i) to prepare and encode your User Materials, or any portion thereof for electronic, digital, and/or other transmission, manipulation, and exhibition in any format and by any means now known or hereafter devised; (ii) to display, copy, reproduce, create derivative works of, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of your User Materials, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to NeverEnding hereunder include the rights to make your User Materials available through the NeverEnding Services, third-party websites, and electronic devices); (iii) to modify, adapt, change, or otherwise alter and create derivative works of the User Materials; and (iv) to license and/or sublicense to any third party any of the foregoing rights in your User Materials, or any part or element thereof, subject to the terms and conditions of these Terms of Service.
To the extent that any of your User Materials contain your name, likeness or biographical materials, you hereby grant to NeverEnding a worldwide, royalty-free, non-exclusive, sublicensable, transferable, assignable license for the Term of these Terms of Service (and in perpetuity, with respects to any Collaborative Content) to use (a) your name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials (to the extent contained or embodied in your User Materials) and (b) any other individual’s name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials, where such other individual appears in your User Materials, in connection with the distribution, exploitation, promotion, marketing, and advertising of your User Materials. You also agree not to assert any rights to privacy, publicity, or any moral or similar rights, under the laws of the United States and any other country in connection with the exploitation of such User Materials.
You understand that your continued sole ownership applies only to your User Materials, and you do not own, and hereby disclaim all ownership to any Collaborative Content that may be created by you, or by NeverEnding that may comprise your User Materials.
You hereby agree not to assert any right, title, or interest in any and all Trademarks and NeverEnding Content or Collaborative Content with which your User Materials may be combined or into which all or any portion of your User Materials may be incorporated. You acknowledge and agree that all right, title, and interest (including, without limitation, copyright, trademark, and other intellectual property rights) in and to any and all Trademarks and NeverEnding Content shall remain the sole and exclusive property of NeverEnding and/or Licensors/Suppliers (as the case may be).
7. NeverEnding's Proprietary Rights
You acknowledge and agree that all NeverEnding Services, Trademarks, and NeverEnding Content are the property of NeverEnding and/or Licensors/Suppliers (as the case may be) and are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Except as expressly authorized by NeverEnding and/or Licensors/Suppliers (as applicable), you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from, any Trademark or NeverEnding Content, or otherwise use any Trademark or NeverEnding Content in any way, except as expressly permitted by your Subscription Terms. You also agree not to retrieve data or other content or any materials from the NeverEnding Services to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots," or otherwise. You further agree not to use any Trademark or NeverEnding Content as metatags on other web sites.
8. Third-Party Content
The NeverEnding Services may contain Content of third parties, including Content provided by Licensors/Suppliers and users (collectively "Third-party Content"), as well as links to third-party web sites ("Third-party Sites"). NeverEnding does not control Third-party Content and Third-party Sites and makes no representations or warranties about them. You understand that by using the NeverEnding Services, you may be exposed to Third-party Content or Third-party Sites that are false, offensive, indecent, or otherwise objectionable. Under no circumstances will NeverEnding be liable in any way for any Third-party Content or Third-party Sites, including, without limitation, any errors or omissions in any Third-party Content or Third-party Sites or any loss or damage of any kind incurred as a result of the use of any Third-party Content or Third-party Sites. You agree to bear all risks associated with using or relying upon Third-party Content or Third-party Sites, including without limitation, profiles of other users.
9. Collaborative Content
Your use of any Collaborative Content is subject to the following additional terms and conditions: (i) the permission for you to use NeverEnding Content to generate Collaborative Content or otherwise in association with your User Materials is expressly limited to NeverEnding Content specifically made available by NeverEnding for that purpose and may be revoked by NeverEnding at any time without notice or liability to you; (ii) your use of Collaborative Content is subject to these Terms of Service and any additional terms and conditions as NeverEnding may from time to time prescribe; (iii) you may NOT make any commercial use of any Collaborative Content or of any NeverEnding Content embodied in any Collaborative Content, in whole or in part, or sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber, or otherwise exploit same, in whole or in part, EXCEPT as expressly permitted by your Subscription Terms or other express licenses that you may purchase from time to time.
10. Third-Party Affiliates
11. Linking Content
We want you to share all the fun Content available through the NeverEnding Services, you may link from your own website to one or more NeverEnding Services, PROVIDED, however that you: (i) must NOT frame or create a browser or border environment around any of the Content on the linked NeverEnding Services or otherwise mirror any part of the linked NeverEnding Services; (ii) must NOT imply that NeverEnding and/or any of its Licensors/Suppliers or the linked NeverEnding Services are endorsing or sponsoring you, your site, or any of your products or services, unless expressly authorized in writing by NeverEnding and/or its Licensors/Suppliers; (iii) must NOT present false information about or disparage, tarnish, or otherwise, in NeverEnding’s sole opinion, harm NeverEnding and/or any of its Licensors/Suppliers in any way; (iv) must NOT use any NeverEnding Trademarks without the prior written permission of NeverEnding or use any Licensors/Suppliers Trademarks without the prior written permission of their respective owners; and (v) must NOT contain Content that could be construed as distasteful, offensive, controversial, or otherwise objectionable (in NeverEnding’s sole opinion). Further, you may not monetize access to your linked Content, except where otherwise expressly permitted by your Subscription Terms.
12. User Warranties and Representations
You represent and warrant that:
- you have the full right and power to enter into and perform these Terms of Service and to grant NeverEnding and Licensors/Suppliers all rights to use your User Materials (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in these Terms of Service, including, without limitation, the license grants in Section 6 of these Terms of Service;
- you exclusively own and/or control all right, title, and interest (including, without limitation, copyright) in and to your User Materials, and have secured all necessary third-party consents, rights, licenses, and permissions, if any, required in order for you to enter into and perform these Terms of Service and to grant NeverEnding and Licensors/Suppliers all rights to use your User Materials (including individuals names, likenesses, voices, and other elements of identity embodied therein) as contemplated in these Terms of Service (including, without limitation, consents, and permissions from owners of any elements that are used or otherwise incorporated into your User Materials);
- your User Materials (and NeverEnding’s use thereof as contemplated under these Terms of Service) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity, or moral rights of any third party;
- all information that you have provided or will provide to NeverEnding is true and complete;
- your User Materials do not and will not violate any law, statute, ordinance, or regulation;
- your User Materials do not and will not: (i) be defamatory, libelous, slanderous, or threatening; (ii) contain sexually explicit content that is pornographic, obscene, harmful to minors or constitute violations of child pornography or child sexual exploitation laws; (iii) denigrate any ethnic, racial, sexual, or religious group by stereotypical depiction or otherwise; (iv) exploit images or the likeness of any individual other than yourself (except where you have obtained express permission from such other individual(s) for such exploitation); (v) encourage or otherwise depict glamorized drug use; (vi) make use of offensive language or images; (vii) promote physical harm of any kind against any individual or group or characterize violence as acceptable, glamorous, or desirable; (viii) contain your or any other individual’s personal contact information; (ix) promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; (x) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (xi) solicit passwords or personal identifying information for commercial or unlawful purposes from other users; and/or (xii) engage in any commercial activities whatsoever and/or sales without NeverEnding’s prior written consent; and
- your User Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of NeverEnding or any third party.
You agree to defend, indemnify, reimburse, and hold NeverEnding and its parents, subsidiaries and affiliated entities, its Licensors/Suppliers, and its and their respective members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees, and assigns harmless from and against any and all liability, loss, damages, judgments, costs, and expenses (including reasonable attorney’s fees, costs and expenses, and court costs) arising out of or related to: (i) your use of the NeverEnding Services; (ii) NeverEnding’s use of your User Materials; (iii) any breach or alleged breach of your representations and warranties and/or any breach, alleged breach, or violation of the notices, terms, and conditions hereof; and (iv) your violation or alleged or threatened violation of any laws, rules or regulations, or any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, defamation, right of privacy or publicity, or moral rights of any third party, arising from the submission and/or use of your User Materials as contemplated hereunder.
14. NeverEnding's Performance
NeverEnding strives to provide you with the best possible experience, but we cannot guarantee that there will be no errors or interruptions on our end. You acknowledge and agree that the operation of the NeverEnding Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and NeverEnding shall not be responsible to you or others for any such interruptions, errors, or problems or an outright discontinuance of the NeverEnding Services. There are no assurances whatsoever that any of your User Materials or any part or element thereof shall be utilized through any of the NeverEnding Services or if so utilized continue to be available for any particular time. NeverEnding has the right, in NeverEnding’s sole and absolute discretion, to remove from the NeverEnding Services at any time your User Materials or any part thereof and/or to revoke any sublicense granted by NeverEnding to any affiliate or unaffiliated third party. Notwithstanding the foregoing, NeverEnding does not control the content of any User Materials and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content submitted through the NeverEnding Services. The NeverEnding Services may be discontinued at any time, with or without reason and without any liability to you or to any third party for any modification or discontinuance of the NeverEnding Services.
Users are responsible for backing up all of their Collaborative Content, and User Materials, and you agree and acknowledge that NeverEnding has no obligation to maintain your Collaborative Content and User Materials if your account is terminated, either by the User, or by NeverEnding, such as, for example, failure to make payments in accordance to your Subscription Terms.
15. NO WARRANTY
ALL OF THE NEVERENDING SERVICES AND NEVERENDING CONTENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEVERENDING AND ITS LICENSORS/SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE NEVERENDING SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE NEVERENDING SERVICES.
IN ADDITION, ALTHOUGH NEVERENDING INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS INTO THE NEVERENDING SERVICES, AND WHETHER OR NOT NEVERENDING IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, NEVERENDING DOES NOT WARRANT THAT THE NEVERENDING SERVICES, ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE NEVERENDING SERVICES IS FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS OF SERVICE.
BY ACCESSING OR USING ANY OF THE NEVERENDING SERVICES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE SUCH NEVERENDING SERVICES.
16. NO LIABILITY FOR THIRD-PARTIES USAGE
NEVERENDING DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE USER MATERIALS MADE AVAILABLE THROUGH THE NEVERENDING SERVICES BY YOU PURSUANT TO THESE TERMS OF SERVICE. YOU SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF YOUR USER MATERIALS BY A THIRD PARTY AND NOT FROM NEVERENDING OR ANY OF ITS LICENSORS/SUPPLIERS. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS YOUR USER MATERIALS FROM NEVERENDING (WHETHER OR NOT WITH NEVERENDING’S PERMISSION) AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED HEREUNDER, YOU WILL SEEK REDRESS FROM THAT OTHER PERSON AND NOT FROM NEVERENDING OR ANY OF ITS LICENSORS/SUPPLIERS, AND THAT YOU WILL NOT HOLD NEVERENDING OR ANY OF ITS LICENSORS/SUPPLIERS RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
17. EXCLUSION OF DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL NEVERENDING, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES, OR LICENSORS/SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES), WHETHER OR NOT NEVERENDING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE USE OR PERFORMANCE OF THE NEVERENDING SERVICES. IN NO EVENT SHALL NEVERENDING’S TOTAL LIABILITY TO YOU UNDER THESE TERMS OF SERVICE FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $200.00 USD. YOU EXPRESSLY WAIVE ANY AND ALL RIGHT TO SEEK OR OBTAIN EQUITABLE OR INJUNCTIVE RELIEF RELATING IN ANY WAY TO THESE TERMS OF SERVICE, THE NEVERENDING SERVICES, AND/OR ANY USER MATERIALS (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY USE OF YOUR USER MATERIALS BY NEVERENDING). THE PARTIES ACKNOWLEDGE AND AGREE THAT NEVERENDING HAS ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN YOU AND NEVERENDING AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
18. Export Controls
Software that may be made available through the NeverEnding Services is further subject to United States export controls. No software may be downloaded through the NeverEnding Services or otherwise exported or re-exported (a) into (or to a national or resident of) any Country to which the U.S. has embargoed goods or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
NeverEnding shall have the right to assign these Terms of Service in whole or in part to any person or business entity. You may not assign your rights or delegate your obligations under these Terms of Service without the prior written consent of NeverEnding. The transfer of the billing ownership may be requested by contacting support@beNeverEnding.com. NeverEnding may honor this request at our sole discretion.
All notices, requests, and other communications ("Communications") under these Terms of Service must be in writing and sent to NeverEnding, at 1515 East 108th Street, Cleveland, OH 44106. Communications shall be deemed received: (i) for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt as indicated on the return receipt; (ii) for Communications sent by personal delivery, on the date of personal delivery; and (iii) for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt. No other form of notice shall be accepted under these Terms of Service.
21. Choice of Law and Governance
You and NeverEnding each agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern your use and purchase of products and services, these Terms of Service, and any dispute of any sort that might arise between you and NeverEnding or any of our affiliates.
You and NeverEnding each agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Cuyahoga County, Ohio, and BOTH YOU AND NEVERENDING IRREVOCABLY consent to, and waive all defenses of, lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts located in Cuyahoga County, Ohio.
22. Entire Agreement
NeverEnding reserves the right to change the terms of these Terms of Service from time to time in its sole discretion. In the event of such changes, NeverEnding will post the changes on the NeverEnding Services and/or notify you via email. Also, NeverEnding may ask you to review and acknowledge or consent to the changes at the time of your next account login or at the time of your next usage of the NeverEnding Services. By continuing to use any of the NeverEnding Services, you agree to be bound by the changes to these Terms of Service and the new terms of the Terms of Service shall govern all prior and future submissions of your User Materials.
Last updated: September 09, 2020