These Terms of Service apply to all visitors to or users of the www.nudgeyourself.com website (the “Nudge Site”) and services provided by Nudge, LLC (“we,” “us” or “our”) or our affiliates or agents relating to the Nudge Site (the “Services”). BY USING THE NUDGE SITE AND/OR THE SERVICES, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE, DO NOT VISIT THIS NUDGE SITE, SET UP AN ACCOUNT OR USE THE NUDGE SITE OR THE SERVICES.
We reserve the right to change these Terms of Service from time to time at our sole discretion. Any such change, update or modification will be effective immediately upon posting the revised Terms of Service on the Nudge Site. We will provide no other notice to you. It is your responsibility to review this page from time to time to ensure that you continue to agree with all of its terms. If you no longer agree to these Terms of Service after a change, you must cease using the Nudge Site and the Services.
1. Services.
(a) During the Term, all individuals receiving this communication are hereby authorized by Nudge as users of the Nudge Site (“Participants”) and shall be entitled to access and use the Nudge Site and the Services and Nudge shall make the Nudge Site and the Services available to the Participants. The Nudge Site sets forth the Services that are offered by Nudge. The use of the Services and the Nudge Site will at all times be subject to these Terms of Service and the privacy policy posted on the Nudge Site.
(b) Please do not rely on the Nudge Site or the Services to make lifestyle, provider or medical decisions. These decisions are personal to you and should be made in consultation with your individual healthcare providers. Nudge does not dispense medical, diagnosis or treatment advice.
2. Participants. In order to be a Participant, a person must be an individual who is at least 13 years old and authorized by Nudge. Participant will be required to register on the Nudge Site, create a username and password and accept Nudge’s terms of service before accessing the Services.
3. Ownership.
(a) Nudge is the sole and exclusive owner of (i) the Nudge Site, the Services and the reports created in connection therewith (“Reports”), (ii) all content, software (source code and object code), processes, designs, techniques, concepts, improvements, modifications, inventions and discoveries related to the Nudge Site, the Services and (iii) all trademarks, copyrights, service marks, patents, applications therefore, trade secrets and other intellectual property rights appurtenant thereto and any derivate works thereof (collectively, the “Nudge Intellectual Property”). No use of the Nudge Site or the Services shall be deemed to transfer title, or grant a license to the Nudge Intellectual Property (or any component thereof).
(b) Notwithstanding subsection 3(a), Participant shall be the sole and exclusive owner of the data entered into the Nudge Site by the Participant; provided, however, that Nudge shall be permitted to aggregate, analyze, use, sell and otherwise distribute the data so long as no such data is personally identifiable. Portions of Participant data, including aggregate data derived from Participant registration information, may remain on our production servers indefinitely. Participant data may also remain on a backup server or media. Nudge reserves the right to use any aggregated or anonymous data derived from or incorporating your personal information.
(c) Participant shall not itself nor permit any other party to (i) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the Nudge Site or the Services; (ii) alter, modify, or prepare derivative works based on the Nudge Site, the Services or the Reports; or (iii) use any part of the Nudge Site, the Services or the Reports to create, invent or develop any computer program or other invention, work or device that performs, replicates, or utilizes the same or substantially similar functions as the Nudge Site, the Services or the Reports.
4. Confidential Information. Each party agrees, subject to the rights of Nudge under paragraph 3(b), (a) to hold any information of the other party that is competitively sensitive or not generally known to the public (“Confidential Information”) in the strictest confidence (b) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer any Confidential Information to any third party and (c) not to make use of any Confidential Information. The obligations on nondisclosure herein shall survive for five (5) years after the termination or expiration of these Terms of Service for any reason, provided further, that the obligations of non-disclosure hereunder with respect to trade secrets shall continue for the longer of five (5) years after termination or expiration of these Terms of Service or for so long as such information remains a trade secret. Confidential Information shall not include any information which: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault or negligence of the receiving party; (ii) was known to the receiving party, without restriction on its disclosure or use, at the time of disclosure; (iii) is disclosed by the receiving party with the prior written approval of the disclosing party; or (iv) is compelled to be disclosed pursuant to a legal proceeding; provided however that the party being compelled to disclose Confidential Information shall, if requested, provide the other party with all reasonable assistance to resist such disclosure, at the expense of the party that owns the Confidential Information sought to be disclosed and shall not disclose the Confidential Information until the other party has exhausted all rights of appeal under the laws of the jurisdiction in which disclosure is compelled.
5. Injunctive Relief. Each party acknowledges that, in the event of the other party’s breach of these Terms of Service with respect to any matter set forth under these Terms of Service headings “Ownership” and/or “Confidential Information,” such party will not have an adequate remedy in money or damages. Such party shall therefore be entitled to seek and obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Such party’s right to obtain injunctive relief shall not limit its right to seek further remedies.
6. Limited Warranty.
(a) Nudge warrants to the Customer that the Services will perform substantially and materially as described on the Nudge Site, under normal use and circumstances, and for the intended purposes.
(b) Participant’s exclusive remedy for any breach of the foregoing warranty shall be the return of the fees paid for the Services during the three (3) month period preceding the breach. The limited warranty set forth above is void if failure of the Services has resulted from an accident, abuse, misapplication, abnormal use or a virus.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE NUDGE SITE AND THE SERVICES ARE PROVIDED “AS IS – WHERE IS” AND NUDGE MAKES NO WARRANTY AS TO THEIR USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, NUDGE MAKES NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, NON-INTERRUPTION OF SERVICES, DATA SECURITY OR FITNESS FOR A PARTICULAR PURPOSE. NUDGE MAKES NO WARRANTY THAT THE NUDGE SITE AND THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE NUDGE SITE AND THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.
7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL NUDGE BE LIABLE TO PARTICIPANT OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN NO EVENT SHALL NUDGE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID IN RESPECT OF THE PARTICIPANT FOR THE SERVICES DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT TRIGGERED ANY LIABILITY, EVEN IF NUDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to Participant.
8. General Provisions.
(a) Except as expressly provided herein, no amendment, change, waiver, or discharge with respect to these Terms of Service shall be valid unless in writing and executed by the parties.
(b) These Terms of Service, as well as any terms, conditions or policies posted on the Nudge Site, constitutes the entire agreement between the parties relating to the subject matter hereof and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter hereof. If there is any discrepancy between these Terms of Service or any terms, conditions or policies posted on the Nudge Site, these Terms of Service shall prevail.
(c) These Terms of Service shall be a contract under, and shall be construed and enforceable (both as to validity and performance), and the rights and obligations of the parties shall be determined in accordance with, the laws and procedures and provisions of the State of Tennessee (other than conflict of law rules which might result in the application of the laws of any other jurisdiction).
(d) Each party hereby irrevocably consents and agrees that any legal action or proceedings brought under these Terms of Service, shall be brought in the United States District Court for the Eastern District of Tennessee, and, if jurisdiction does not lie, in the state courts in Chattanooga, Hamilton County, Tennessee, and each party hereby (i) submits to the jurisdiction of the foregoing courts with respect to any legal action or proceedings brought under these Terms of Service, (ii) irrevocably agrees to be bound by any final judgment (after any appeal) of any such court with respect thereto, and (iii) irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venues of any suit, action or proceedings with respect hereto brought in any such court, and further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceedings brought in any such court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner to the extent provided by law.
(e) If any provision of these Terms of Service shall be held by a court of law of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be reformed, construed and enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect.
9. Legal Binding Contract. These Terms of Service is a legally binding contract. You agree that the affirmative act of selecting “I agree,” registering an account or using the Nudge Site or the Services constitutes your electronic signature to these Terms of Service.
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