Terms of Service

Last Updated: June 10, 2020

1. GENERAL

Welcome to nerDigital. These Terms of Services (the “Terms”, “TOS”, or “Agreement”) are a contract between nerDigital, Inc. (“nerDigital”, “We”, “Our”, or “Us”) and You (“You” or “Your”) and govern Your use of Our internet properties and all of the Services We offer. As such, please read these Terms carefully.

Your use of the main nerDigital website or Our other related internet properties (collectively, “Site”), toolbars, widgets, applications or distribution channels from which We may operate, and Your use of any of Our Services (including without limitation the software, programs, code, technology, offerings, tools, plug-ins, components, upgrades, updates and all related applications, available now or in the future, collectively Our “Services”), whether such Services are accessed through the Site or via another point of access to Our Services (each, a “Non-nerDigital Access Point”), are subject to and conditioned upon Your assent to and compliance with these Terms.

BY ACCESSING THE SITE AND/OR USING THE SERVICES, YOU CONFIRM AND ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND ITS CONTENT, AND (3) THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED THIS AGREEMENT, INCLUDING ANY ANCILLARY TERMS LIKE OUR PRIVACY POLICY.

If You do not agree to be bound by the terms and conditions of this Agreement, do not use or access the Site or use any of the Services. Use of Our Site or Services is void where prohibited.

2. CHANGES

nerDigital may make changes to the Services at any time. From time to time, nerDigital may amend this Agreement, in its sole discretion, by posting updated versions at http://www.nerDigital.co/terms. nerDigital shall notify You by electronic mail at least 15 days prior to any such changes (“Notice Period”) and may also provide similar notices on the nerDigital Site. All modifications to the Agreement shall become effective immediately following the Notice Period, or earlier as described below. You may terminate this Agreement before the expiry of the Notice Period. By creating or requesting new websites, functionalities, or Services after nerDigital has updated the Terms, You agree to all the updated Terms. You also acknowledge and agree that these Terms may be superseded by expressly-designated legal notices or terms located on particular features of the Service (“Additional Terms”) that we may make available from time to time through our internet properties, including any applicable limitations on damages and resolution of disputes. These expressly-designated legal Additional Terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.

3. CONTRACTUAL RELATIONSHIP

You represent and warrant that You are of age under the laws of Your jurisdiction (the Services are not designed for or directed at children. For more information please refer to our Privacy Policy) and lawfully able to enter into contracts. If You are not legally able to enter into contracts, You may not use the Services at any time or in any manner or submit any information to nerDigital or the Services. If You are entering into this Agreement on behalf of a business entity, You represent and warrant that You have the legal authority and capacity to bind such business entity. If You are not authorized nor deemed by law to have such authority, You assume sole personal liability for the obligations set out in this Agreement.

4. SERVICES

We provide various website solutions and products for Our clients, including but not limited to the following, each included as part of the Services that We offer: Responsive Website Builder (conversion and creation of responsive websites that work on desktop, tablet and mobile), Mobile Website Builder (mobile website conversion from existing desktop websites and mobile website creation), the nerDigitalAPI (application programming interface for Responsive Website Builder and Mobile Website Builder), and the nerDigital App Store (a platform providing access to applications and services developed by a third party). You may use the Services for Your personal use or internal business use in the organization that You represent, so long as You are in compliance with all provisions of this Agreement.

In connection with Your use of the Site or the Services, You may be made aware of services, products, offers and promotions provided by third parties. Portions of the Services provided by third parties may be subject to such entity’s terms and conditions, and Your use of such entity’s services is subject to and conditioned upon Your acceptance of such additional terms and conditions. If You decide to use such third-party services, You are responsible for reviewing and understanding the terms and conditions governing such third-party services, and acknowledge that the third party is responsible for the performance of such services. (Please see Sec. 22, Third Party Services)

In providing the Services, We obtain and rely on certain information from third parties and third-party software and applications. We cannot guarantee the accuracy or completeness of data provided by third parties.

It is Your obligation to ensure that You fully comply with all applicable laws, regulations and directives with regard to the use of the Site and the Services. For the avoidance of doubt, the ability to access Our Site or the Services does not necessarily mean that Your use thereto are legal under relevant laws, regulations and directives.

5. LICENSES

General Public License. All of the WordPress Plugins We offer (such as the nerDigital inSite WordPress Plugin) are released under the GNU General Public License version 3.0 (“GPLv3”), available at https://www.gnu.org/licenses/gpl-3.0.html. All other nerDigital Services and associated code including but not limited to images, HTML, cascading style sheets, and JavaScript elements are released under the “nerDigital Proprietary Use License”.

(a) nerDigital Proprietary Use License. All other nerDigital Services and associated code are released under this Agreement, which Terms comprise the “nerDigital Proprietary Use License” and not under the GPL. The nerDigital Proprietary Use License is a GPL compatible license that applies to the images, cascading style sheets, JavaScript files and all other code produced by Us and contained in the Services. These elements are the copyrighted intellectual property of nerDigital and may not be redistributed, repackaged or used in any fashion other than as provided and explicitly set forth in this Agreement. Any violation of the nerDigital Proprietary Use License may result in suspension or termination of Your account and You may be refused any and all current or future access to and use of the Services.

(b) Your Grant of Licenses to Us. By accessing the Site or using a Service, You hereby grant to nerDigital a world-wide, royalty-free, transferrable, sub-licensable and non-exclusive license to use, reproduce, modify, adapt and publish the Content for the purpose of, including but not limited to, displaying, distributing and promoting Your website(s), sharing or promoting nerDigital or a Service, and storing it on Our servers. This license exists only for as long as You continue to be Our client and shall be terminated only upon receiving written notice from You.

Your use of the Services on the Site or from a Non-nerDigital Access Point that enables You to access and use the Services, including without limitation any offerings, programs, files, images, and data is licensed to You by Us or third-party licensors for Your personal use, commercial use or internal business use in the organization that You represent. You shall keep intact all copyright and other proprietary notices and Your use of such Service is strictly subject to the terms of this Agreement and any agreement accompanying the Software.

6. CONTENT

We do not own nor do We claim ownership of the content submitted to be included in and/or displayed on Your responsive website, mobile website or included/displayed in any other Service (as between you and us, “Your Content”). Your Content includes, but is not limited to: information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials included on any site you host via the Service. You are responsible for all of Your Content that is uploaded, posted, transmitted or otherwise made available via Our Services. We do not control Your Content or any Content You post via Our Services and You are responsible for any such Content that may be lost or unrecoverable through use of the Services. You are responsible for archiving and backing up Your Content regularly and frequently.

nerDigital’s Services allow You to import or link certain Content hosted on third-party websites into the Services. This third-party Content isn’t owned by nerDigital, and thus if it is no longer available or accessible to a user, then those portions of Your creation that reference such third-party Content will not work.

The Services provide You with the ability to embed images, animations, videos, audio, fonts, and other Content owned or provided by You or other third parties into the Services. The use of such third party Content shall be subject to the compliance with the provisions of these Terms and if applicable, the terms of use and/or end user license agreement provided by the third party owning or providing the third-party Content.

nerDigital does not warrant that any Content embedded in a website, either generated via automatic import, or placed manually by You, is licensed for use in Your jurisdiction. You are responsible for ensuring You have the appropriate licenses, usage rights or meet the requirements for Fair Use, and/or other laws and rights in Your jurisdiction, that may be required for using any Content.

Through Our Services, We may provide certain Content that is subject to proprietary rights of third parties. nerDigital shall have the right, at any time, at is sole and exclusive discretion to remove such Third-Party Content from the Services and/or disable access to Third-Party Content.

The following restrictions apply to all images made available to You via the Service.

You shall not use any image:

• except solely as incorporated into your responsive website, mobile website, Web Personalization created using the Service.
• together with pornographic, defamatory, or unlawful content or in such a manner that it infringes upon any third party’s trademark or intellectual property rights.
• portraying any person depicted therein (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) as endorsing a political party, candidate, elected official, or opinion; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
• as a trademark, service mark, or logo.

Additional terms related to usage and licensing of images can be found here.

By using the Services, You may be exposed, and hereby assume all associated risks of being exposed, to Content that You may find offensive, indecent, harmful, inaccurate, deceptive or objectionable. Under no circumstances will We be liable for Your Content or the Content of any third party, including, but not limited to, for any errors or omissions in Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that We do not pre-screen Content, but that We shall have the right (but not the obligation) to refuse, move or delete any Content that is available via the Service. We shall also have the right to remove any Content that violates these Terms or is otherwise objectionable in Our sole discretion. You bear all risks associated with the use of any Content. You acknowledge and agree that We may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect Our rights, property, or personal safety and those of Our users and the public.

NERDIGITAL SHALL HAVE THE RIGHT TO DISABLE THE ACCESS TO ANY CONTENT AND/OR DELETE IT AT ITS SOLE AND EXCLUSIVE DISCRETION, WITH NO LIABILITY TO NERDIGITAL, AND YOU SHALL NOT BE ENTITLED TO ANY REIMBURSEMENT OF ANY AMOUNT PAID BY YOU.

7. REGISTRATION AND ACCOUNT MANAGEMENT

Some functions of the Services require registration, and as part of the process You will be requested to provide certain information, including among others: Your name, email address, company name, field of business and website URL (“Registration Data“).

The scope of information we collect is described in this section 7, and with regard to Personal Data, in section 8 and our Privacy Policy, which forms part of this Agreement. If You wish to access or manage any of your Content and/or information, including your Personal Data, You may do so at any time using Your account settings and as further described in our Privacy Policy. You may also contact Us directly via your nerDigital account representative or via the email address provided below.

By using the Services, You agree to:

• Provide true, accurate, current and complete Registration Data as prompted by the registration process;
• Maintain and promptly update the Registration Data to keep it accurate, current and complete;
• Maintain the security and confidentiality of Your password and any other security or access information used by You to access the Site or Services;
• Ensure that You log out of the Services at the end of each session using the Services.
• Refrain from transferring Your user account on the Services to any other party without Our prior written consent (for more information, please see the “Transfer of Accounts and Sites” sub-section below);
• Refrain from impersonating any person or entity or misrepresent Your identity or affiliation with any person or entity, including using another person’s username, password or other Registration Data; and
• Immediately notify Us in writing if You become aware of any loss, theft or use by any other person or entity of any of Your Registration Data in connection with the Site or the Services or any other breach of security that You become aware of involving or relating to the Site.

You represent that any communications and all other activities through use of Your Registration Data were sent or authorized by You, and You agree and understand that You are fully responsible for all activities that occur under Your Registration Data.

The sending of unwanted messages from one user to another is strictly forbidden. Personal Data of another user obtained through Your use of the Site or the Services may only be used by You for the purpose for which such information was provided to You and strictly in accordance with this Agreement, or otherwise subject to such user’s prior written consent.

We may, in Our sole discretion and without liability to You or any third party, suspend or terminate Your account and refuse any and all current or future access to and use of the Services (or any portion thereof). Grounds for such termination may include, but are not limited to, extended periods of inactivity, loss, theft or unauthorized use of Your Registration Data, violation of the letter or spirit of this Agreement, violation of the USER CONDUCT guidelines (clause 10), providing content including without limitation Registration Data that is inappropriate or offensive in Our discretion, or if We have reasonable grounds to suspect any of the Registration Data that You provided is inaccurate, not current or incomplete.

You declare that by providing Your Registration Data to Us, You hereby consent to, Us sending, and You receiving, by means of telephone, facsimile, SMS or e-mail, communications containing content of a commercial nature relating to Your use of the Site, the Services and related services, including further information and offers from Us that We believe You may find useful or interesting, such as newsletters, marketing or promotional materials. We shall immediately cease to send any such further communications should You notify Us in writing that You do not wish to receive such commercial content anymore.

Transfer of Accounts and Sites
In order to request the transfer of your site(s) and/or account to another person or legal entity please contact your nerDigital account representative, or contact us using the contact details provided below.

Please note that:

• You may only request the transfer of sites or accounts of which you are the legal owner and/or holder of rights to;
• All transfers of sites and/or accounts are subject to Our sole discretion and written approval. Under no circumstances shall nerDigital be obliged to comply with such request.
• Under no circumstances shall nerDigital act as an intermediary, arbiter, or adjudicator between You and any third party. If your transfer request affects third parties, such in cases where accounts and/or sites are managed by You on behalf of third parties (e.g. your clients), We may ask for, and Your request may be subject to, such third parties’ consent.
• Any transfer is subject to the transferee entering into a substitute legal agreement with Us and accepting any terms, policies, guidelines and requirements as we may deem applicable, at our sole discretion.

By providing nerDigital with an account or site transfer order, you represent and warrant that: (i) you are allowed to request the transfer of such account or site; and (ii) that you release and forever waive any claims against nerDigital from any and all claim, suit, liability, damage, loss, cost or expense of any nature whatsoever arising out of or in connection thereto. Furthermore, You shall hold nerDigital harmless from any and all claims, suites, proceedings, by any third party, and indemnify nerDigital from any and all fines, costs, expenses (including reasonable attorney’s fees), losses or damages, arising from or connected to the transfer of such account and/or site.

8. PRIVACY AND DATA PROTECTION

For the purposes of this Agreement:

“Site Visitor” means Your end-user, such as a visitor to Your Site.

“Site Visitor Data” means any and all data and content from a Site Visitor, including but not limited to words, music, images, and videos.

“Data Protection Laws” shall mean all national, foreign, state or local laws, regulations or, ordinances, or other government standards relating to the privacy, confidentiality or security of Personal Data, including but not limited to the Electronic Communications Directive 2002/58/EC (and respective local implementing laws) (together with relevant national implementing legislation), the EU General Data Protection Regulation (2016/679) (“GDPR”) and the California Consumer Privacy Act of 2018, (commencing with §1798.100 of the California Civil Code), and any regulations enacted thereunder (the “CCPA“).

“Personal Data” shall have the meaning ascribed to this term in Data Protection Laws and shall include information (regardless of the medium in which it is contained and whether alone or in combination) that directly or indirectly identifies an individual and is Processed (as defined below) by You or by nerDigital, pursuant to this Agreement, including Registration Data and Site Visitor Data.

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by nerDigital pursuant to this Agreement and that is likely to result in a risk to the rights and freedoms of natural persons.

“Process”, “Processed” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automated means, including but not limited to the collection, recording, organization, structuring, alteration, use, access, disclosure, copying, transfer, storage, deletion, combination, restriction, adaptation, retrieval, consultation, destruction, disposal, or other use of Personal Data.

“Transfer”, “Transferred” or “Transferring” means, whether by physical or electronic means both (a) the moving of Personal Data from one location or person to another, and (b) the granting of access to Personal Data by one location or person to another.

Your Representations

By using the Services You hereby represent and warrant that:

8.1 You comply with all applicable Data Protection Laws and that Personal Data has been and will continue to be collected, processed and transferred by You in accordance with the relevant provisions of the Data Protection Laws.

8.2 You shall provide nerDigital only with Personal Data that is required for nerDigital’s Services under this Agreement and not request or require that nerDigital Process Personal Data in any way that would violate applicable Data Protection Laws. Notwithstanding the forgoing, You are strictly prohibited from uploading to and/or using the Services in connection to Personal Data which includes Special Categories of Personal Data (as defined in article 9 to the GDPR), or any type of Personal Data which is considered sensitive and/or restricted in nature under applicable Data Protection Laws (“Prohibited Data”), including but not limited to:

• data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership;
• genetic or biometric data;
• data concerning health;
• data concerning a person’s sex life or sexual orientation;
• Social Security Number (SSN), Driver’s Identification Number;
• financial data (including but not limited to credit card information, credit rating information etc.);
• information pertaining to minors under 16 years of age.

You hereby represent and warrant that: (i) You understand and agree to act in accordance with the above restriction; and (ii) You acknowledge that nerDigital shall not be responsible or liable to you or to any Site Visitor for any action taken in contravention thereof; and (iii) You shall indemnify and hold nerDigital harmless from any and all fines, damages, expanses (including reasonable attorney’s fees), and/or the commencement of any action, suit, proceeding or investigation, in connection to any Processing of Prohibited Data.

8.3 Throughout the duration of the Agreement, You agree and warrant that the processing of Personal Data by You, as well as any instruction to nerDigital in connection with the processing of the Personal Data, has been and will continue to be carried out in accordance with the relevant provisions of the Data Protection Laws.

8.4 You have informed data subjects of the processing and transfer of Personal Data pursuant to this Agreement and obtained the relevant consent thereto (including without limitation any consent required in order to comply with the Processing Instructions and those purposes detailed herein).

Our Representations

8.5 nerDigital will Process Personal Data only (a) in accordance with this Agreement or on written instructions by You; or (b) as otherwise permitted by law or required by law, in which case nerDigital will inform You of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

8.6 nerDigital will not use Personal Data for any use other than as expressly provided herein. Processing any Personal Data outside the scope of this Agreement will require an additional prior written agreement between You and nerDigital, and will include any additional fees that may be payable by You to nerDigital for carrying out such instructions. Notwithstanding the foregoing, nerDigital shall be entitled to use the Personal Data for statistical and financial purposes provided however that any personal attributes shall be removed from such Personal Data or otherwise if such is maintained on an aggregated basis.

8.7 nerDigital will ensure that any persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

8.8 nerDigital will implement appropriate technical and organizational measures to ensure a level of security of Personal Data, appropriate to the risk, including, as deemed appropriate by nerDigital: (a) pseudonymisation or encryption of Personal Data; (b) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of systems and services Processing Personal Data; (c) the ability to restore availability of and access to Personal Data in a timely manner in the event of a security incident; and (d) a process to regularly test, assess, and evaluate the effectiveness of technical and organizational measures for ensuring the security of the Processing. The aforementioned measures are subject to technical progress and development and nerDigital may update or modify them from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

8.9 You provide a general consent to nerDigital to engage onward secondary processors, provided that nerDigital will not disclose, transfer and/or grant access to personal data to another processor (“Sub-processor“) unless it: (a) executes a written agreement with each Sub-processor that contains the same or substantially similar data protection obligations imposed on nerDigital by this Agreement; and (b) remains liable, subject to the provisions of Sections 17, 18 and 19 hereunder, for all the acts and/or omissions of the Sub-processor with respect to the processing of the personal data.

8.10 If nerDigital receives any requests from individuals or applicable data protection authorities relating to the disclosure or Processing of Personal Data under the Agreement, including requests from individuals seeking to exercise their rights under Data Protection Laws, nerDigital will promptly redirect the request to You. nerDigital will not respond to such communication directly without Your prior authorization, unless legally compelled to do so. If nerDigital is required to respond to such a request, nerDigital will promptly notify You and provide You with a copy of the request, unless legally prohibited from doing so. nerDigital will, insofar as is reasonably achievable and taking into account the nature of the Processing, assist You by appropriate technical and organizational measures for the fulfillment of Your obligations to respond to requests from data subjects regarding their rights under the GDPR. It is hereby clarified that if no such response is received from You within three (3) business days (or otherwise any shorter period as dictated by the relevant law or authority), nerDigital shall be entitled to respond and provide such information. If nerDigital receives a request from a Consumer (as this term is defined in the CCPA) regarding Personal Data that nerDigital Processes on Your behalf, it shall inform the Consumer that it should submit the request directly to You and, when feasible, provide the Consumer with Your contact information.

8.11 nerDigital will notify You without undue delay after becoming aware of a Personal Data Breach. Where required for compliance with its obligations under Data Protection Laws, nerDigital will include in its notification, to the extent required and known to it: (a) a description of the nature of the Personal Data Breach, including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned; (b) the name and contact details of the data protection officer or other contact point where more information can be obtained; (c) a description of the likely consequences of the Personal Data Breach; and (d) the measures taken or proposed to be taken by nerDigital to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects. For purposes of this Section. For the avoidance of doubt, where notification regarding a Personal Data Breach is required to individuals or governmental authorities under applicable Data Protection Laws, You will provide such notifications.

8.12 Upon written request from You, and taking into account the nature of Processing and the information available to nerDigital, nerDigital will assist You in ensuring compliance with Your data protection impact assessment and prior consultation requirements under Articles 35-36 of the GDPR subject to You bearing nerDigital’s reasonably incurred costs for the provision of such assistance.

8.13 Upon written request from You, and no more than once per calendar year, nerDigital will make available to You all information necessary to demonstrate compliance with its obligations under the GDPR and allow for, and contribute to audits, including inspections, conducted by You or another auditor mandated by You. Any reviews of information, audits, or inspections conducted pursuant to this section shall be at Your sole expense.

8.14 nerDigital has certified its adherence to the EU-U.S. Privacy Shield Framework, as administered by the U.S. Department of Commerce and detailed at https://www.privacyshield.gov. However, due to the invalidation of the Privacy Shield Framework by the Court of Justice of the European Union (decision 2016/1250), and to the extent nerDigital transfers your Personal Data outside the European Union, nerDigital shall only do so to a jurisdiction approved by the European Commission as providing sufficient protection to the processing of Personal Data, and/or rely on appropriate safeguards, including where applicable, the standard contractual clauses for the transfer of personal data adopted by the European Commission.

8.15 nerDigital agrees to notify You promptly if it becomes unable to comply with the terms of this Agreement and take reasonable and appropriate measures to remedy such non-compliance.

8.16 nerDigital will only retain Personal Data for as long as Services are provided to You in accordance with this Agreement or as otherwise permissible under applicable laws. Following expiration or termination of the Agreement, nerDigital will delete or return to You all Personal Data in its possession as provided in the Agreement except to the extent nerDigital is required by applicable law to retain some or all of the Personal Data (in which case nerDigital will implement reasonable measures to prevent the Personal Data from any further Processing). The terms of this agreement will continue to apply to such Personal Data.

Notwithstanding the foregoing, nerDigital shall be entitled to maintain Personal Data following the termination of this Agreement for the exercise or defense from legal claims, and for statistical and/or financial purposes provided always that nerDigital maintains such Personal Data on an aggregated basis or otherwise after having removed all personally identifiable attributes from such Personal Data.

8.17 In addition to the above privacy principles and these Terms, Your use of the Site and the Services is also subject to Our Privacy Policy which informs You of Our policies and procedures regarding the collection, use and disclosure of information We receive when You visit Our Site and use any part of Our Services. By using or accessing the Site and the Services, You consent to the collection and use of information, including Personal Data, as described herein and in Our Privacy Policy, as may be amended by Us from time to time. Our Privacy Policy is hereby incorporated by reference into this Agreement, and Your consent to these Terms shall be deemed Your consent to Our Privacy Policy.

9. PRICING, PAYMENTS, REFUNDS AND TAXES

By using the Services, You agree to pay all associated set-up and subscription fees. In order to ensure that You do not experience any interruption or loss of services due to the lapse of any particular subscription period, the Services operate with automatic renewal, on a recurring-fees basis (except where explicitly stated otherwise). Accordingly, where applicable, nerDigital will attempt to automatically renew the applicable Services for a renewal period equal in time to the original subscription period for such Service, and automatically charge You the applicable fees using the payment method You have on file with nerDigital.

nerDigital reserves the right to establish the price for every Service We offer. We may change the price of any Service at any time, in Our sole discretion. We reserve the right to charge a price for a Service that was previous offered for free. If We decide to increase the price of Service for which You are subscribed, We will make every effort to communicate this pricing change to You via email. We do not need to notify You if We decide to raise the price of a Service for which You are not subscribed.

Please review the payment and billing terms for each Service carefully. Each Service may have different billing requirements and billing timeframes as described in the terms provided with such Service.

For customers on the Basic, Team, or Agency account plans, payments for each Service purchased will be added to your next monthly invoice. You will be billed for the full amount of the subscription upon your next billing date.

For customers on the Enterprise account plan, payments for each Service purchased will be applied to your next charge and will be charged in full upon next invoice date (usually at the end of each month). Charges for Apps purchased will always appear on the next invoice and be charged for a full term (annual or monthly), even if the service is canceled before the next invoice date.

For most subscription Services, We generally offer a full, thirty (30) day money-back guarantee. If You provide written notification of Your request for cancellation of the subscription Services within the first thirty (30) days of Your original purchase of a subscription-based Service, the fees that nerDigital has received from You will be refunded. No refunds will be provided for subscription-based Services after the thirty (30) day guarantee period. For monthly subscription Services, You are welcome to cancel at anytime without obligation to pay for additional monthly payments.

Some products and services are not eligible for refund; unless otherwise provided by law, all purchases of these types of products and services are final and non-refundable:

• All set-up fees, one-time or annual, in connection with Services, including but not limited to hire-a-pro and custom website design services and the nerDigitalAPI;
• Premium Images; and
• Any other product or service marked with a designation such as “Non-Refundable.”

If and when participating in a free trial of a Service, You shall have the right to use the Service for the duration of the free trial without charge until the expiration date of the trial at which point Services shall be discontinued if You do not elect to purchase a subscription to the Service. If You do elect to purchase a subscription to the Service, the free-trial period shall be considered concurrent with the thirty (30) day guarantee period and no further thirty (30) day guarantee period will be offered.

You are and shall be fully responsible for the payment of any taxes that apply to Your use of the Site or the Services.

The Services, including without limitation payment processing, may be handled directly by Us or by online third parties. Where a third party handles a payment, the payment is subject to the terms of use and privacy policy of such third party (including among others payment methods, tax liability, collection and use of Your Personal Data, and support levels). We recommend that You review the terms of use and privacy policy of such third parties before submitting any Personal Data and using such third parties’ services.

10. USER CONDUCT

You may access and use the Site and Services only for purposes as intended by the normal functionality of the Site and Services, and so long as You are in compliance with all provisions of this Agreement. In connection with Your use of the Site and the Services, You agree to abide by all applicable local, state, national and international laws and regulations and not, nor allow or facilitate a third party to, violate or infringe any rights (including without limitation copyrights, rights of publicity or privacy and trademarks) of others, Our policies or the operational or security mechanisms of the Services, and without limiting the foregoing, You may not:

• use (i) the Site, (ii) the Services, or (iii) any Content, services, features, data, information, text, images, photographs, graphics, scripts, sounds, video, music, sound recordings, programming, logos, trademarks, services marks, HTML code, compilation of content, format, design, user interface and software made available through or which appears on the Site or Services to promote, conduct, or contribute to fraudulent, obscene, pornographic, inappropriate or illegal activities as determined by us at our sole discretion, including without limitation deceptive impersonation, in connection with contests, pyramid schemes, surveys, chain letters, junk e-mail, spamming, phishing or any duplicative or unsolicited messages (commercial or otherwise);
• interfere with the access, use or enjoyment of this Site or the Services by others (including without limitation causing greater demand on the Services than is deemed by Us reasonable, attacks such as “flaming” other participants in a manner that might incite or perpetuate a conflict or argument, and creating usernames to attack other participants’ identities); harass or defame others; or promote hatred towards any group of people;
• harvest or otherwise collect non-public information about another user obtained through the Site or the Services (including without limitation email addresses), without the prior written consent of the holder of the appropriate rights to such information;
• add an email address to Your email or physical mailing list without their consent after adequate disclosure, or use their email address or contact details for antisocial, disruptive, or destructive purposes, including “flaming,” ”phishing,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the internet;
• use any Content except for the intended purposes of the Services and Site, subject always to the terms of this Agreement. You may not display, import or export feedback information relating to the Site or use it for purposes unrelated to the Services without Our prior written consent;
• alter, modify, delete, forge, frame, hyper-link, create derivative works or otherwise interfere with or in any manner disrupt, circumvent, or compromise any part of the Site, the Services, any Content, or features;
• access or attempt to access any of Our systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Services;
• decompile, disassemble, reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of the Site or the Services except if and to the extent permitted by applicable law;
• copy, distribute, transmit, broadcast, publicly display, publicly perform, rent or sell any portion of the Services, the Site or the Content;
• use any robot, spider, other automated device or any tool-bar, web-bar, other web-client, device, software, routine or manual process, to monitor or scrape information from this Site or the Services, or bypass any robot exclusion request (either on headers or anywhere else on the Site);
• fail to deliver timely payment for Your purchases;
• use any meta tags or any other “hidden text” utilizing any trademarks or intellectual property owned or licensed by Us;
• create or provide any other means through which the Services may be accessed, for example, through server emulators, whether for profit or not;
• ‘deep-link’, redistribute or facilitate the redistribution of Content; and
• abuse or use any other means to affect or manipulate the Services in general or the prices quoted through the Services
• Engage in activity or use language that is threatening, abusive, harassing, defamatory, libelous, offensive, profane against any of our customers, users, employees, representatives, or any third party as determined by us in our sole discretion

We are not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to any Content, other than Content provided by Us.

11. PROPRIETARY RIGHTS

You acknowledge that Our Site and the Services, including without limitation the Software, the trademarks, service marks and logos contained on the Site (“Marks”), are protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to individual content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to the Site and the Services, and all nerDigital Content contained therein, are reserved by Us and Our licensors.

You acknowledge that nerDigital’s Content is protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to individual Content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to nerDigital’s Content, the Site and the Services not expressly granted herein are reserved.

12. CONVERSION

As part of Responsive Website Builder and Mobile Website Builder, the Services enable You to convert Your existing website or other web presence into a nerDigital-built desktop website, tablet website or mobile website. You understand that as part of this conversion process, some Content may not transfer to the nerDigital-built desktop website, tablet website or mobile website or such Content may be modified or transformed during the conversion process. nerDigital is not and shall not be responsible for any such missing or modified Content. You also understand and agree that if You use the Services to convert Your existing website or other web presence into a nerDigital-built desktop website, tablet website or mobile website, nerDigital is not responsible for any decrease in web traffic, SEO ranking, or any related impact on Your business, financial or otherwise. You bear all risks associated with the conversion Your existing website or other web presence into a nerDigital-built desktop website, tablet website or mobile website.

13. RELEASE & DISPUTES WITH OTHERS

You are solely responsible for Your interaction with other users of the Services and other parties with whom You come in contact through Your and their use of Our Site or the Services. We reserve the right, but have no obligation, to monitor and/or manage disputes between You and other users of the Services. If You have a dispute with one or more users of the Site or the Services, You release Us (and Our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

14. LINKS TO THIRD-PARTY WEBSITES

The Site contains links and references to websites belonging to other entities. We may, from time to time, at Our sole discretion, add or remove links to other entity’s websites. These links are provided solely as a convenience to You, and access to any such websites is at Your own risk. We encourage You to be aware when You leave the Site, and to read the terms and conditions and privacy policy of each other entity’s website that You visit. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such websites. In no event shall nerDigital be responsible for the information contained in such websites, their practices or for Your use of or inability to use such websites, or transmissions received from such websites. You expressly relieve Us from any and all liability arising from Your use of any third-party website.

15. LINKS TO THIS SITE

Subject to the terms of this Agreement and so long as this Agreement is not terminated, We grant to You a nonexclusive, non-transferable, non-sublicensable right to display on Your website a link to the Site’s homepage, as long as Your use is not misleading, illegal or defamatory, or Your website is not obscene, pornographic, inappropriate or illegal. You may display the logo only in the form and size provided to You. You may not use the logo in any way that suggests that We endorses or sponsors Your site, or that tarnishes, blurs or dilutes the quality of Our trademarks or any associated goodwill, including without limitation displaying the logo on any page that contains infringing, misleading or illegal content. All use of and goodwill associated with the logo shall inure to Our benefit.

16. YOUR FEEDBACK

Any feedback You may provide nerDigital, including without limitation, images, words, ideas, knowledge, techniques, marketing plans, information, questions, answers, suggestions, emails comments, and the like shall be considered non-confidential nor of a proprietary nature. In providing this material, You authorize Us to use it and any images, developments or derivatives thereof, according to Our needs as determined in Our sole discretion, including for public relations and promotion of the Site and the Services in the online and offline media, and all without requirement of any additional permission from You or the payment of any compensation to You. You also agree that (i) by submitting unsolicited ideas to Us or any of Our or representatives, You automatically forfeit Your right to any intellectual property rights in these ideas; and (ii) unsolicited ideas submitted to Us or any of Our employees or representatives automatically become the property of nerDigital. You hereby assign and agree to assign all rights, title and interest You have in such feedback and ideas to nerDigital together with all intellectual property rights therein.

17. DISCLAIMERS OF ALL WARRANTIES

NERDIGITAL’S CONTENT, THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT.

WITHOUT LIMITING THE ABOVE, (I) WE MAKE NO WARRANTY THAT THE SITE, THE SERVICES OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, ACCURATE, CORRECT, COMPLETE OR AVAILABILE; (II) WE DO NOT ENDORSE OR APPROVE ANY CONTENT PROVIDED BY ANY THIRD-PARTY OR BY YOU AND DISCLAIM ALL LIABLITY WHATSOEVER THERETO; AND (III) WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THIS SITE, THE SERVICES OR THE CONTENT IN TERMS OF ITS CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE.

18. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THIS SITE OR THE SERVICES (INCLUDING WITHOUT LIMITATION THE USE OF ANY CONTENT, INACCURACIES OR ERRORS OF INFORMATION AS A RESULT OF ACCESSING THIS SITE OR THE SERVICES), (II) ACTION OR INACTION IN CONNECTION WITH THIS AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) STATEMENTS OR CONDUCT OF YOU OR ANY THIRD PARTY ON THIS SITE OR YOUR SITE OR MOBILE WEBSITE, INCLUDING WITHOUT LIMITATION ANY SUBMISSIONS THEREON; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.

All of the above limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between Us and You. You agree that any claim or cause of action arising out of or in connection with the Site, the Services, the Content or the Agreement must be filed within thirty (30) days after such claim or cause of action arose or be forever barred.

In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, You agree that Our aggregate liability shall not exceed the amount paid by You to Us pursuant to this Agreement.

19. INDEMNIFICATION

YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL CLAIMS, LIABILITIES, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED) RELATED TO IN ANY WAY TO: (I) YOUR USE OF, ACCESS TO OR RELIANCE ON THIS SITE, THE SERVICES OR THE CONTENT, (II) YOUR CONTENT, OR (III) YOUR VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS OR REGULATIONS.

We will provide You with written notice of such claim. You will not enter into any settlement or compromise of any such claim without Our prior written consent. We may assume the exclusive defense and control of any matter subject to indemnification by You. In all events, You shall cooperate fully in the defense of any claim.

20. REDIRECT CODE AND OTHER SCRIPT

As one of the final steps to publishing Your mobile website on the Mobile Website Builder Service, You may be required to install or have installed in the code of Your website a certain section of code that redirects Site Visitors to Your mobile website (“Redirect Code”) when viewing Your website on a mobile device. In rare cases, installing Redirect Code incorrectly can cause a website to be impaired, malfunction or function differently.

Similarly, when accessing a Service from a Non-nerDigital Access Point, it may be necessary for a certain section of code (“Script”) to be added to Your website to ensure proper integration and functionality of the Service within Your website.

You understand and acknowledge at the Agreement’s Limitation of Liability (Sec. 18) and Indemnification (Sec. 19) apply to all foreseen and unforeseen situations arising from Your installation of Redirect Code and other Script insertion; in no way shall nerDigital be responsible for any related claims, liabilities, loss or damages.

21. GOOGLE TRANSLATE

When using our multi-language feature, You will have the option of translating the existing Content of the website using Google Translate. Google would like You to be aware of the following disclaimer:

“THIS SERVICE MAY CONTAIN TRANSLATIONS POWERED BY GOOGLE. GOOGLE DISCLAIMS ALL WARRANTIES RELATED TO THE TRANSLATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.”

22. THIRD PARTY SERVICES

The Services enable You to engage, install, add and/or procure certain third party services and tools, including apps, images and domain registrars from which You may purchase a domain name for Your website, (collectively, “Third Party Services”).

You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to You (bundled with certain nerDigital Services, offered separately by nerDigital or otherwise offered anywhere on the Services), nerDigital merely acts as an intermediary platform between You and such Third Party Services, and does not in any way endorse any such Third Party Services, or shall be in any way responsible or liable with respect thereto. nerDigital will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between You and any Third Party Services.

Any and all use of such Third Party Services shall be done solely at Your own risk and responsibility, and may be subject to such legal terms which govern such Third Party Services, which You are encouraged to review before engaging with them.

Among the Third Party Services mentioned above is the YouTube API, which is subject to YouTube’s Terms of Service (https://www.youtube.com/t/terms). By using nerDigital’s Services alongside the YouTube API you agree to be bound by YouTube’s Terms of Service.

While we hope to avoid such instances, nerDigital may, at any time and at its sole discretion, suspend, disable access to or remove from Your account and/or the Services, any Third Party Services – whether or not incorporated with or made part of Your account and/or website(s) at such time – without any liability to You or to any end users.

23. COPYRIGHTED MATERIALS, INFRINGEMENT NOTICES AND TAKEDOWN

YOU SHALL NOT USE THE SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. We have adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of nerDigital users who infringe or are believed to be infringing the rights of copyright holders:

If You believe that any material contained on this Site infringes Your copyright, You should notify this Site’s Designated Agent listed below by mail or email with the following information required under 17 U.S.C. § 512:

Attn:

nerDigital Legal

30 N Gould St Ste R, Sheridan

legale@nerDigital.com

Your notice to the Designated Agent should be in English and contain the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed; (b) a description of such copyrighted work(s) and an identification of what material in such work(s) is claimed to be infringed; (c) a description of the exact name of the infringing work and the location of the infringing work on the Services; (d) information sufficient to permit Us to contact You, such as Your physical address, telephone number and e-mail address; (e) a statement by You that You have a good faith belief that the use of the material identified in the manner complained of is not authorized by the copyright owner, its agent, or the law; (f) a statement by You that the information in the notification is accurate and, under penalty of perjury that You are authorized to act on the copyright owner’s behalf.

The Copyright Agent will only respond to any claims involving alleged copyright infringement. Notwithstanding this section, We reserve the right at any time and in Our sole discretion, to remove content which in Our sole judgment appears to infringe the intellectual property rights of another person.

24. COMPLAINTS HANDLING; MEDIATION; GOVERNING LAW AND EXCLUSIVE COURTS

Internal Complaint Handling

If You have a complaint regarding Our Services concerning any of the issues described below, you can lodge your complaint using our Internal Complaint Handling System:

1. Alleged non-compliance by Us with our obligations under (EU) 2019/1150 (the Platform to Business, or P2B, regulation), and this alleged non-compliance affects You;
2. Technological issues related directly to the provision of our Services and affecting You;
3. Measures taken by Us, or Our behavior, insofar as it relates directly to the provision of our Services, and affecting You.

We attempt to resolve all complaints as swiftly and as effectively as possible, and try to address any issues raised to the best of our ability, taking into account the importance and complexity of the issue raised. Once we have reviewed your complaint, we will communicate to you the outcome of the review. We also publish information regarding the functioning and effectiveness of our Internal Complaint Handling System here.

In case of any dispute which is not related to one of the matters mentioned above or which remains unresolved after using our Internal Complaint Handling System, the parties will first attempt in good faith to negotiate a written resolution of the matter directly. if the matter remains unresolved for sixty (60) it will be deemed a “dispute” and each party shall first refer the dispute to proceedings under the ICC Mediation Rules, or the JAMS Mediation Rules, as mutually agreed. Unless otherwise agreed to in writing, the parties shall conduct the mediation in Santa Clara County California, USA and select a mutually agreeable mediator. If the parties are unable to agree upon a mediator, the parties agree that ICC or JAMS, as applicable, shall select a mediator from its panels consistent with its mediation rules. The mediation shall be conducted in English and each party shall bear its own fees, costs and expenses. Each party shall designate a business executive to have full and complete authority to resolve the dispute and to represent its interests in the mediation, and each party may, in its sole discretion, include any number of other representatives in the mediation process.

This Agreement will be governed by laws of the State of California without regard to its choice of law or conflicts of law principles. You hereby consent to the exclusive jurisdiction and venue in the courts in Santa Clara County, California, USA, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court.

25. MISCELLANEOUS

No waiver of any term of this the Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under the Agreement shall not constitute a waiver of such term. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Us without restriction. You agree that no joint venture, partnership, employment, franchise or agency relationship exists between You and Us as a result of the use of the Site or the Services. This Agreement comprises the entire agreement between You and Us, states Our and Our suppliers’ entire liability and Your exclusive remedy with respect to the Site and Services, and supersedes all prior agreements pertaining to the subject matter thereof. If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect. The section titles in this Agreement are solely used for the convenience and have no legal or contractual significance. No provision of the Agreement shall be construed against Us but rather shall be construed in a neutral and fair manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement.

26. CONTACTING US

If You have any questions about these Terms, please contact Us via email at legal@nerDigital.com.