Terms of Service

Nudge is in the business of providing services to businesses and other organizations that promote and support healthy and active lifestyles of employees and other users. These Terms of Service (this “Agreement”) is entered into by and between Nudge, LLC, a Tennessee limited liability company (“Nudge”) and any party submitting credit card information and selecting “I agree” (the “Customer”) thereby subscribing to the services provided by Nudge (the “Services”) available on Nudge’s website at nudgeyourself.com (the “Nudge Site”). In addition to the Services, Customer will also be able to generate certain reports related to the Services. Customer desires to subscribe for the Services on the terms and conditions set forth below.

Nudge reserves the right to change this Agreement from time to time at its sole discretion. Any such change, update or modification will be effective immediately upon posting the revised Agreement on the Nudge Site. Nudge will provide no other notice. It is Customer’s responsibility to review this page from time to time to ensure continued agreement with all of its terms. If Customer no longer agrees to these Terms of Service after a change, Customer must notify Nudge by phone or email in order to cancel this Agreement and cease using the Nudge Site and the Services.

NOW, THEREFORE, in consideration of the premises and mutual agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby irrevocably acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:

 

1. Services.

During the Term, authorized representatives of Customer (“Representatives”) and that number of individual users for which Customer subscribes (“Participants”) 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 Representatives and 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 the terms of use and privacy policy posted on the Nudge Site.

 

2. Reports.

During the Term, the Representatives shall be entitled to generate reports at the request of Customer showing certain key metrics that summarize usage and performance of the Participants at the conclusion of each competition or other event (the “Reports”). Following the expiration of the Term, Customer may obtain copies of any Reports that could have been generated during the Term. To obtain any such Reports, Customer will be required to requests such Reports from Nudge in a writing that identifies the applicable Reports. Nudge shall be entitled to charge a fee for the production of such Reports. The generation and use of the Reports will at all times be subject to the terms of use and privacy policy posted on the Nudge Site.

 

3. Participants.

In order to be a Participant, a person must be an individual who is at least 13 years old and an employee, officer, director, contractor or agent of, or otherwise affiliated with, Customer. Each Participant will be required to register on the Nudge Site, create a username and password and accept Nudge’s terms of use and privacy policy before accessing the Services.

 

4. Representatives.

In order to be a Representative, a person must be an individual who is at least 13 years old and an employee, officer, director or other authorized legal representative of Customer. Each Representative will be required to register as a Representative on the Nudge Site, create a username and a password and accept Nudge’s terms of use and privacy policy before accessing the Services and generating the Reports.

 

5. Payment.

In consideration for the access to, and use of, the Nudge Site, the Services and the Reports, a valid credit card is required to (the “Fees”). Nudge will charge Customer for the amount (the “Fees”) as set forth on the transaction page. Nudge shall be entitled to charge interest on any past due amounts at the rate of 1% per month (or the highest legally permissible rate, if less) or to suspend or terminate the Services upon Customer’s failure to pay the Fees as set forth herein. If Customer does not cancel the account within 30 days of entering credit card information, Customer will be billed monthly starting on the 31st day. If Customer cancels prior to the processing of the first invoice on the 31st day, Customer will not be charged. The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service or refunds for months unused. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. For any adjustment in plan level, Customer credit card will automatically be charged the new rate on your next billing cycle.

 

6. Availability.

Nudge shall be entitled to from time-to-time upgrade or otherwise modify the Nudge Site, the Service offering and the Report offering without prior notice to Customer. Nudge will use commercially reasonable efforts to make the Nudge Site, the Services and the Reports continuously available on the Internet; provided, however, that Nudge cannot guarantee that there will be no interruption of availability of the Nudge Site, the Services and the Reports. Nudge will use commercially reasonable efforts to schedule any maintenance work, upgrades or modifications during nights and weekends; provided, however, that certain maintenance work may under unusual circumstances be required to be performed during regular business hours. Customer acknowledges and agrees that access to the Internet cannot be guaranteed by Nudge and that Customer, the Representatives and the Participants shall be solely responsible for its Internet connections and computer and server equipment.

 

7. Ownership.

a. Nudge is the sole and exclusive owner of (i) the Nudge Site, the Services and the 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 the Reports 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, the Services or the Reports shall be deemed to transfer title, or grant a license (except as set forth in Section 1) to the Nudge Intellectual Property (or any component thereof).

b. Notwithstanding subsection 7(a), Customer shall be the sole and exclusive owner of the data contained in the Reports; provided, however, that Nudge shall be permitted to aggregate, analyze, use, distribute and resell data contained in the Reports as long no such data is personally identifiable.

c. Customer 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, the Services or the Reports; (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.

 

8. Confidential Information.

Each party agrees (s) 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 (b) 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 this Agreement 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 this Agreement 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.

 

9. Injunctive Relief.

Each party acknowledges that, in the event of the other party’s breach of this Agreement with respect to any matter set forth under the Agreement 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.

 

10. Term and Termination.

a. This Agreement shall become effective as of the submission by Customer of credit card information and selection of “I agree.” The term of this Agreement shall thereafter automatically renew for consecutive one-month periods until either party notifies the other party that this Agreement shall be terminated at the end of the then current term. The period during which this Agreement is effective is the “Term.”

b. Either party (the “Terminating Party”) may terminate this Agreement upon written notice to the other party (the “Breaching Party”) in the event of a breach of any material obligation hereunder by such Breaching Party that is not cured by such Breaching Party within thirty (30) days (ten (10) days in the case of a payment default) after its receipt from the Terminating Party of written notice calling attention to such breach and demanding cure thereof.

c. Without limiting any rights or remedies otherwise available to it, Nudge shall have the right to immediately and without notice disable the Customer’s and/or any or all of the Participants access to the Nudge Site, the Services or the Reports or terminate this Agreement if Customer or a Participant uses the Nudge Site, the Services or the Reports: (i) with respect to any activity that does (or may) constitute a crime in any jurisdiction; (ii) in a manner that does (or could) expose Nudge to fines or damages or that may harm the reputation or business relationships of Nudge; or (c) in violation of Nudge’s policies, terms and conditions or procedures from time-to-time in effect or any applicable law.

d. Notwithstanding any termination or expiration of this Agreement, Sections 7, 8, 9, 10(d), 11, 12 and 14 shall survive such termination or expiration.

 

11. 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. Customer’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, THE SERVICES AND THE REPORTS 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, THE SERVICES AND THE REPORTS WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE NUDGE SITE, THE SERVICES AND THE REPORTS WILL MEET CUSTOMER’S REQUIREMENTS.

 

12. LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL NUDGE BE LIABLE TO CUSTOMER 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 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 Customer.

 

13. Force Majeure.

Neither party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to act of God, fire, explosion, vandalism, act of terrorism, cable cut, flood, storm, extreme weather condition, natural disaster, law, order, regulation, direction, action or request of the any governmental entity having jurisdiction over either one of the parties, act of any civil or military authority; national emergency, insurrection, riot, war, act of war, strike, lock out, work stoppage or other similar event.

 

14. General Provisions.

a. Except as expressly provided herein, no amendment, change, waiver, or discharge with respect to this Agreement shall be valid unless in writing and executed by the parties.

b. This Agreement, 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 this Agreement or any terms, conditions or policies posted on the Nudge Site, the terms of this Agreement shall prevail.

c. This Agreement 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 this Agreement, 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 by execution and delivery of this Agreement, each party hereby (i) submits to the jurisdiction of the foregoing courts with respect to any legal action or proceedings brought under this Agreement, (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. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one and the same instrument.

f. Any notice that is required to be given hereunder shall be in writing and delivered by electronic mail or by courier service to the parties’. Any such notice so delivered shall be deemed to have been received by the addressee at the time and date when actually delivered.

g. The section headings in this Agreement are provided for convenience only and have no substantive effect on the construction of this Agreement.

h. The failure of either party to enforce in any one or more instances any of the terms and conditions of this Agreement shall not be construed as a waiver of future performance of any such term or condition. Waiver of any term or condition shall only be deemed to have been made if expressed in writing by the party granting such waiver.

i. If any provision of this Agreement 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.

 

15. Legal Binding Contract.

Agreement of Terms of Service constitutes a legally binding contract. Customer agrees that by the affirmative act of selecting “I agree,” Customer is subscribing to the Services and that this action constitutes Customer’s electronic signature to this Agreement.