Last Updated: July 14, 2020
IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY OR CAPACITY TO ENTER INTO THEM, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THESE TERMS, AND YOU MUST NOT ACCESS, OR USE THE SERVICES. YOU AGREE AND ACKNOWLEDGE THAT DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE SERVICES IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY.
Changes to these Terms
NDM retains the exclusive right, in its sole discretion, to make changes to these Terms from time to time. Your continued access to and use of the Services constitutes your agreement to be bound by, and your acceptance of, the Terms posted at such time. You acknowledge and agree that you accept these Terms (and any amendments thereto) each time you sign into your Account, access, or use the Services. Therefore, NDM encourages you to review these Terms regularly.
Eligibility and Use Rights
Eligibility. To use the Services, you must be, and represent and warrant that you are, at least 18 years of age and competent to agree to these Terms. If NDM has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
Your Use Rights. Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-assignable, revocable, limited, and personal right and license to access and use the Services, subject to the terms and limitations set forth in these Terms. If you are receiving access to the Services through (or for the benefit of) your employer or other third party (a “Commercial Licensee”), then your use and access of the same may be subject to the agreement between us and such Commercial Licensee (if and as applicable), which may include terms that are additional or different to the ones set forth in these Terms, and which shall expressly apply to you.
Your Use of the Services
Registration Obligations. To access and use the Services, you must register and establish an account (an “Account”). To register for an Account, you must: (i) be at least eighteen (18) years of age or older; (ii) have an active Subscription to the Services (either individually or through a Commercial Licensee); (iii) complete the Account registration form, providing true, accurate, current and complete information in the form requested by us (collectively, the “Registration Data”); and (iv) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If we have reasonable grounds to suspect that any of your Registration Data is untrue, inaccurate, stale or incomplete, we may suspend or terminate your Account and prohibit you from accessing or using the Services.
Password and Username. You are solely responsible for any and all activities conducted under your Account. You agree to notify us immediately of any unauthorized use or any other breach of security on your Account. We shall not be liable for any loss incurred in connection with or resulting from any party’s unauthorized use of a password or an Account. You acknowledge and agree that losses incurred by us or another party due to the unauthorized use of your Account or password are solely at your liability – accordingly, you are solely responsible for maintaining the confidentiality of your Account password, username, and any other credentials relating to your Account. Unauthorized use of another’s Account or password is strictly prohibited.
Use Restrictions. You represent, warrant, covenant, and agree that you have not, and will not, post, upload, share, store, provide, or otherwise make available any User Content (as defined below), otherwise access or use the Services or interact with the Services in a manner that:
- Infringes, misappropriates, or otherwise violates the Intellectual Property Rights or any other rights of anyone else (including NDM);
- Violates any law, rules, or regulation, including, without limitation, any applicable export control laws or privacy laws;
- Is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, libelous, tortious, obscene, indecent, pornographic, vulgar, unlawful, hateful, or threatening to any group defined by race, religion, gender, national origin, or sexual orientation or otherwise offensive or objectionable, or is for any commercial purpose or is used for any purpose not reasonably intended by NDM;
- Jeopardizes the security of your or any other user’s Account (such as allowing someone else to log in to your Account);
- Violates the security of any computer network, or cracks any passwords or security mechanisms or encryption codes, or introduces viruses, worms, Trojan horses, spyware, or other computer code, file, or program that is potentially harmful, invasive, or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;
- Runs a “Mailing List,” “Listserv,” any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interferes with the proper working of the Services (including by placing an unreasonable load on infrastructure);
- Restricts or prohibits any other person from using the Services;
- Frames or mirrors any portion of the Services, or otherwise incorporates any portion of the Services into any product or service, without our express prior written consent;
- Removes or obscures any copyright, trademark, or other proprietary notice from the Services;
- Uses any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or otherwise gather our website content, or reproduce or circumvent the navigational structure or presentation of our website, without our express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in our website’s root directory, NDM grants to the operators of public search engines permission to use spiders to copy materials from our website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. We reserve the right to revoke such permission either generally or in specific cases, at any time and without notice;
- Systematically copies or stores any portion of the content on the Services;
- Decompiles, reverse engineers, disassembles or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services, except to the extent that such restriction is expressly prohibited by applicable law; or
- Displays material that exploits children under 18 years of age or posts, collects, or discloses any personal information (including names) or private information about such children.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
Subscription. The specific modules and features of the Services depend upon the specific subscription package (the “Subscription”) that you, or the Commercial Licensee, select and subscribe to during the signup process with us, which you and us may mutually amend from time to time upon further agreement.
User Content and Feedback
Uploading Content. The Services enables you to upload content, including information, text, files, and other materials and to share that User Content with others. Anything that you upload or otherwise make available on the Services is referred to as “User Content.” You are solely responsible and liable for the User Content you upload or submit to the Services. Except as expressly provided in this Agreement, nothing shall be deemed to grant to us any rights or licenses to the Intellectual Property Rights to User Content, which shall be owned solely and exclusively by you or by the Commercial Licensee if you are accessing and/or using the Services on such Commercial Licensee’s behalf and/or for its benefit.
Responsibility for User Content. All User Content that you upload or submit is your sole responsibility and liability. You are solely responsible and liable for all content of any nature that you upload, display, or make available via the Services, including without limitation all activity generated in connection with your Account. You represent and warrant that: (a) you own the User Content or have the right to utilize the User Content, and to grant the rights and licenses to the same as required in these Terms; and (b) the User Content and use by us of the User Content as licensed herein does not and will not violate, misappropriate or infringe on the rights of any third party.
How NDM Can Use Your Content. You grant to us a non-exclusive, royalty-free, fully-paid-up, transferable, sublicensable, assignable, worldwide license, while this Agreement is in effect, for the purpose of providing Services to you, to use, store, display, reproduce, save, modify, create derivative works from, distribute at your direction, and perform operations relating to, your User Content. We reserve the right to remove or delete User Content if we in our sole discretion identify such User Content as being in violation of these Terms or any other policies relevant thereto.
Feedback. The Services may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to NDM and share such Feedback with other users, or the public. By submitting Feedback through the Services, you grant NDM a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other NDM marketing materials and where required to do so by law or to comply with legal process requirements). We reserve the right to remove any Feedback posted on the Services for any reason at our sole discretion.
User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that NDM does not control, and is not responsible for, User Content or Feedback, and that by using the Services, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. User Content and Feedback from other users can contain errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless NDM for all claims resulting from User Content or Feedback you submit through the Services. We reserve the right to assume the exclusive defense and control of such disputes at our own expense, and in any event, you will cooperate with us in asserting any available defenses.
Intellectual Property Rights
Ownership of the Services. We expressly and exclusively reserve for ourselves any and all registered and unregistered rights (whether or not registrable), granted, applied for, or otherwise now or hereafter in existence under or related to any patent or patentable subject matter, copyright or copyrightable subject matter, trademark or trademarkable subject matter, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “Intellectual Property Rights”) that are created, generated, acquired, or used in connection with the Services. Nothing herein shall be deemed to grant any rights or licenses to our Intellectual Property Rights to you.
These content standards (“Content Standards”) apply to any and all User Content and your use of the Services. You agree that all User Content shall comply with applicable national, federal, state, provincial, and local laws and regulations. Without limiting any of the foregoing, you are prohibited from, and must not upload any materials to the Services that:
- violate any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
- are deceptive, fraudulent, illegal, obscene, sexually explicit, defamatory, libelous or threatening, or that constitute hate speech, harassment, or stalking;
- contain any personal information of minors;
- contain viruses, bots, worms, or similar harmful materials; or
- contain information that you do not have a right to make available, whether under law or a contractual or fiduciary duty.
We retain sole and final decision-making power hereunder to remove User Content, decline provision of Services, deny further access to the Services and impose other penalties under this Section 7 and these Terms but shall have no obligation to act in any specific instance.
Privacy and Security
Security. While we work to protect the security of your Account in accordance with high industry standards, we cannot guarantee -=that unauthorized third parties will not be able to defeat the security measures and gain unauthorized access to the Services. You expressly agree to use best efforts and practices to keep your Account and password secure. You agree to notify us immediately of any compromise or unauthorized use of your Account.
Third Party Links, Sites, and Services
Closure of Your Account by You. You may close your Account by providing us with written notice of your intent to do so at [email protected]. Your Account may also be closed or terminated by or at the request of the Commercial Licensee through which you were provided access to, or use of, the Services. Upon our confirmation to you (or to the Commercial Licensee, if and as appropriate) of the closure of your Account, you will have no further rights to access or use the Services.
Termination of Your Account by Us. We may terminate your Account and/or Services access at any time for any reason (or no reason) in our sole and absolute discretion. Reasons for termination may include, but are not limited to (i) your violation of the Terms or of any terms and conditions or policies applicable to the Services or any of our other websites or services or those of our affiliates or partners; (ii) abuse of the Services or other NDM resources or attempt to gain unauthorized entry to the Services or its resources through your Account; (iii) use of your Account or Services in a manner inconsistent with the intended purpose as a user hereunder; or (iv) as required by law, regulation, court or governing agency order. The termination of your access to the Services may be effective immediately. We shall not be liable to you or any other third party for termination of your Account.
Survival Upon Termination. Upon the closure of your Account by you, or termination of the same by either us or by the Commercial Licensee through which you were provided access to, or use of, the Services, you continue to be bound by these Terms that survive termination, either expressly or by reasonable construction of their nature.
You shall indemnify, defend, and hold harmless NDM, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any and all claims, demands, costs, liabilities, losses, expenses, and damages including reasonable attorney’s and collection fees (“Losses”) arising out of: (a) third-party claims alleging that the User Content uploaded to the Services (or any other materials provided by you to NDM for use in connection with the Services) infringes or violates any intellectual property rights of a third party; (b) failure by you to comply with any applicable laws, regulations, and rules, including in connection with the use of the Services or any associated services; (c) failure by you to obtain any required authorizations or consents from the Commercial Licensee through which you were provided access to, or use of, the Services, as may be applicable, or any third party from whom authorization is required; (d) claims made by any User in connection with your misuse or unlawful use of the Services, including without limitation any activity ascribed to your Account; or (e) the violation by you of these Terms.
Disclaimer of Warranties. NEITHER NDM, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO YOU OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES, ANY ASSOCIATED SERVICES IN CONNECTION HEREWITH, OR OTHERWISE REGARDING THESE TERMS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR THE PERMITTED USES SET FORTH HEREUNDER ONLY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE TIMELY, ERROR FREE, OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEMS OR DATA, WHETHER OR NOT PROVIDED BY NDM, OR THAT THE SERVICES’ FUNCTIONALITY WILL OTHERWISE MEET ANY SPECIFIC USER EXPECTATION OR USE CASE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND YOUR RELIANCE UPON ANY CONTENTS THEREOF ARE SOLELY AT YOUR OWN RISK AND RESPONSIBILITY.
Responsibility for Data. AS BETWEEN YOU AND US, YOU AGREE THAT YOU SHALL BE SOLELY AND FULLY RESPONSIBLE AND LIABLE FOR ANY DAMAGE, LOSS OF DATA, LOSS OF USER CONTENT, DISCLOSURE OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION CAUSED BY YOU OR ANY PERSON USING YOUR ACCOUNT. NDM CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY INTERNET OR SERVER CONNECTION OR MIS-CONNECTION, OR FOR YOUR USE OR MIS-USE OF ANY PERSONAL INFORMATION, ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICE.
Limitation of Liability
NDM SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, DISCLOSURE OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES OR ANY ASSOCIATED SERVICES; (B) ANY CONDUCT OR CONTENT OF ANY USER OR ANY OTHER THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, NDM’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THE SERVICES, USER CONTENT, OR ANY ASSOCIATED SERVICES, IN ANY EVENT, SHALL NOT EXCEED THE GROSS TOTAL AMOUNT OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms. These Terms constitute the legal, valid and binding obligations of each such party, enforceable against each such party in accordance herewith. You agree and acknowledge that your downloading, installing, accessing, or using any portion of the Services in any manner constitutes your acceptance of these Terms.
Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Delaware, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court having jurisdiction. With respect to any other proceeding that is not subject to arbitration under these Terms, the federal and state courts located in Fulton County, Georgia will have exclusive jurisdiction. You waive any objection to venue in any such courts.
No Conflicts. These Terms shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
Communications. All communications required or otherwise provided under these Terms shall be in writing and shall be deemed given when delivered by electronic mail (with read receipt or other tracking mechanism to confirm receipt), to the respective email address set forth by you in your Account, or if to us then, upon our actual receipt, to: [email protected]
Assignment. These Terms are binding upon and inure to the benefit of the permitted successors and assigns of each party. You may not assign, subcontract, delegate or otherwise convey these Terms, or any of your rights and obligations hereunder (including without limitation, your rights to access and use the Services) to any third party. Any assignment or attempted assignment of these Terms by you shall be void ab initio. Notwithstanding anything to the contrary in these Terms, we may assign, transfer, and delegate these Terms and any of its obligations hereunder, in whole or in part, at any time, in our sole discretion.
Severability. In case any one or more of the provisions of these Terms should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Entire Agreement. These Terms constitute the entire agreement between you and us concerning the Services and supersede all written or oral prior agreements or understandings with respect thereto.
Waiver. No failure or delay to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Force Majeure. NDM shall not be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, epidemic or pandemic, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of any User or any third party.
No Third-Party Beneficiaries. These Terms are personal to you and to us, and no third party shall be considered a beneficiary hereof, for any purpose.
Equitable Relief. You acknowledge and agree that your breach of these Terms would cause irreparable harm to us, for which money damages alone would be inadequate. In addition to damages and any other remedies to which we may be entitled, you acknowledge and agree that we may seek and shall be entitled to injunctive relief hereunder to prevent the actual, threatened or continued breach of these Terms.