- Getting Started.
Customer as Controller. Customer agrees that if Customer, or any data submitted by Customer to the Nudge Service, is subject to the General Data Protection Regulation (“GDPR”), or related laws including related laws of European Union member states: (i) Customer is the data controller of such data and Nudge is a data processor of such data; and (ii) Customer further represents that Customer has undertaken all requirements to comply with all privacy and data protection laws including but not limited to GDPR. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities.
Legitimate purpose/consent. Customer agrees and represents to Nudge that all personal information Customer collects, provides, or otherwise uses in any way in relation to the Nudge Service is necessary for Customer’s legitimate interest and is not overridden by fundamental rights of the subject individual, and otherwise that Customer has all rights and obtained all necessary consents to collect, provide, manage, all personal information Customer provides to Nudge for any purpose. Customer further represents and warrants that Customer will not collect, provide or otherwise use in any way in relation to the Nudge Service any special category of personal data as described in GDPR.
Access. You can access and use the Nudge Service from any computer or a personal mobile device if you have downloaded the Nudge App. In creating an account for the Nudge Service you agree to keep your password secure and confidential; not permit any one to use your account or use another user’s accounts.
- Subscription Models. The default subscription to the Nudge Service is a free account which provides access to certain features and functionality indicated on the Website. At any time during the term of your subscription you may upgrade to a paid subscription package after payment of the applicable fees as laid out in the Nudge Purchase Order. Fees are non-refundable. You are not permitted to sell or transfer your subscription or account to a third party.
- Pricing and Payments.
The following pricing and payment terms are applicable to the Nudge Service and any Nudge Purchase Order:
- Subscription Fees. Subscription fees may be charged on a monthly or annual basis for certain features and versions of the Nudge Service as indicated on the Website or in the applicable Nudge Purchase Order. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. We reserve the right to modify fees from time to time by providing written notice to your email account and the Website notifying you of the changes. Any change in fees will take effect 30 days after the date of notification and for monthly subscriptions, the new charges will apply from the beginning of the next billing cycle. For annual subscriptions, the change in fees will be reflected through a pro-rated increase in the monthly fees for the remaining term of your then current subscription.
- Invoicing and Payment. Subscription fees will be invoiced in advance on the basis specified in the applicable Nudge Purchase Order executed by the parties. Unless otherwise stated in writing, charges are due net thirty (30) days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Nudge.
- Overdue Payments. Any payments not received from you by the applicable due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Nudge’s discretion, late charges at the rate of 1% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Taxes. Taxes are calculated based on the billing information you provide us at the time of purchase. Unless otherwise stated, Nudge’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes“). You are responsible for paying all Taxes associated with your purchases hereunder, excluding taxes based on Nudge’s net income or property. If Nudge has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide Nudge with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Audit Rights. Nudge shall have the right to use the capabilities of the Service to confirm the number of users using the Nudge Service and your compliance with this Agreement.
- Suspension of Service. If your account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Nudge reserves the right to suspend the Nudge Service provided to you, without liability to you, until such amounts are paid in full.
- User Content. All information, data, text, software, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted to the Website by viewers or users whether in forums or otherwise (“User Content”), is the sole responsibility of such viewers or users. This means that the viewer or user, and not us, are entirely responsible for all such material uploaded, posted, emailed, transmitted or otherwise made available by using the Nudge Service. We do not control or actively monitor User Content and, as such, does not guarantee the accuracy, integrity or quality of such content. You have the ability through Nudge to create private notes that are visible only to you about your contacts but any information which is public about a contact may be visible to other users. Under no circumstances will we be liable in any way for any materials, including, but not limited to, for any errors or omissions in any materials (especially information derived from public sources) or for any loss or damage of any kind incurred as a result of the viewing or use of any materials posted, emailed, transmitted or otherwise made available via the Nudge Service.
- Messaging Features. Through Nudge you will receive recommendations for articles or news topics that may be of interest to your contacts. If you wish to send a “nudge’ to a contact with an article attachment, you may use the messaging features of Nudge to create a template draft message which will be populated in your messaging client of choice (eg., Twitter, Linkedin, etc.) based on the identities you have of your contacts. You can then choose to modify or send the message ‘as is’ to the intended recipient. In using the messaging features of Nudge, you acknowledge and agree that you are solely responsible for the content of your message and for ensuring you have appropriate consents to send such messages to your contacts. You acknowledge that there is no guarantee that the recipient of a message will welcome that message and it is your obligation to ensure that when you send messages they must be compliant with applicable anti-spam laws and it is your obligation to know the law and comply with it and if your contacts do not wish to receive future communications from you through Nudge.
- copy any content unless expressly permitted to do so herein;
- upload, post, email, transmit or otherwise make available any content or material that:
- You do not have a right to make available under any law or under a contractual relationship;
- is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable;
- infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including privacy rights);
- is or contains unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any users or viewers of the Website or that compromises a user’s privacy; or
- contains any falsehoods or misrepresentations or create an impression that You know is incorrect, misleading, or deceptive, or any material that could damage or harm minors in any way;
- impersonate any person or entity or misrepresent their affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted to or through the Website or impersonate another person or organization;
- interfere with or disrupt the Website or servers or networks connected to the Nudge Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- intentionally violate any applicable local, state, national or international law or regulation;
- collect or store personal data about other users or viewers except as expressly permitted through Nudge for the purpose of receiving the Nudge Service;
- license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit Nudge;
- modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Nudge App or any software provided as part of the Website, except to the extent the foregoing restrictions are expressly prohibited by applicable law;
- access the Nudge Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Nudge Service; or
- License of Content. By submitting, posting or displaying User Content on or through the Nudge Service, you grant us (and our agents) a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to store and use such User Content in order to provide the Nudge Service and a perpetual irrevocable right to analyze use and commercialize aggregated non-personal information about use of the Nudge Service. This license may include certain Customer Data as defined in Section 8 below, whose use shall be governed in accordance with that section. We will not be responsible or liable for any use of User Content in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content that you submit. Pursuant to this license, we may grant other users access to certain content and information in accordance with this Agreement, your settings and degree of connection with them.
- Public Data. Certain data within the Nudge service that is used to assist in developing needed relationships is sourced using a combination of crowdsourced, public, and paid sources. This data, which is available to all users of the Nudge service includes only information categories that are generally available with an online search such as company information, names, titles, and derived information such as job level and role within the organization. Information such as email addresses and phone numbers are NOT included in the category of public data.
- Shared Data. Certain data within the Nudge service can be shared by a user with other individuals, amongst a team, or across the entire Nudge user base. Examples include explicitly shared lists of public data (contacts or companies), and edits and contributions to Public Data which are available to the Nudge user base.
- Customer Data. Customer Data means all electronic data or information explicitly submitted by you and / or your users (the “Customer”) to the Nudge Service that is not included in either of the Public Data or Shared Data categories. As between Nudge and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement as defined below. Nudge shall not access Customer Data, including User Content, except as provided for generally in these Terms. Nudge may access Customer Data to respond to service or technical problems or at Customer’s request or as necessary for the operation of the Service, billing, or product design. Customer hereby grants Nudge a non-exclusive license for the Term (and for thirty (30) days thereafter) to use and otherwise utilize the Customer Data as reasonably required to provide the Nudge Service. The forgoing license shall include the right for Nudge to use Customer Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Nudge Service use and other service and user parameters and characteristics (“Aggregated Statistics”), provided that the license in respect to Aggregate Statistics shall be perpetual, irrevocable and unlimited.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of pricing and other terms reflected in a Nudge Purchase Order hereunder, the Customer Data, the Nudge Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission.
- Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
- End User License. Except for User Content and Customer Data, the Nudge App, this Website, and the information and materials that it contains or incorporates by reference, are the property of Nudge Software Inc. and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property laws. Subject to the terms of this Agreement, we grant you a non-transferable, non-exclusive, license to (a) use Nudge for your own use, and (b) download, install and use one copy of the Nudge App on a mobile device that you own or control for your use (the “License”). The Nudge App is licensed to you and not sold. Nothing in the Terms gives you a right to use the Nudge names, trademarks, logos, domain names, and other distinctive brand features without our prior written consent. You shall not attempt to override or circumvent any of the usage rules or restrictions contained in Nudge. Any future release, update, or other addition to functionality of the Nudge Service or Nudge App shall be subject to the terms of these Terms.
- Feedback. If You provide us with any suggestions, comments or other feedback relating to any aspect of Nudge (“Feedback”), we may use such Feedback in the Website, the Nudge Service, Nudge App or in any other products or services we offer or may offer (collectively, “Nudge Offerings”). Accordingly, You agree that: (a) we are not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the Feedback to us, (c) we (including all of its successors and assigns and any successors and assigns of any of the Nudge Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Nudge Offerings, and (d) You are not entitled to receive any compensation or re-imbursement of any kind from us or any of the other users of the Website in respect of the Feedback.
- Advertising. You acknowledge and agree that Nudge may contain advertisements. If You elect to have any business dealings with anyone whose products or services may be advertised on the Website, You acknowledge and agree that such dealings are solely between You and such advertiser and You further acknowledge and agree that we will not have any responsibility or liability for any losses or damages that You may incur as a result of any such dealings. You shall be responsible for obtaining access to the Website and acknowledge that such access may involve third-party fees (such as Internet service provider access or data fees). You shall be solely responsible for any such fees and also for obtaining any equipment that is required to access the Website. It is your responsibility to ascertain whether any information or materials downloaded from the Website are free of viruses, worms, Trojan Horses, or other items of a potentially destructive nature.
- Links & Third-Party Websites. The Nudge Service may contain recommendations and links to other websites (eg. articles that might be of interest to your contacts). These websites are not owned or controlled by us. In no event shall any reference to any third party, third party product or service be construed as an approval or endorsement by us of that third party, third party product or service. We are also not responsible for the content of any linked websites. Any third-party websites or services accessed from the Website are subject to the terms and conditions of those websites and or services and You are responsible for determining those terms and conditions and complying with them. The presence on the Website of a link to any other website(s) does not imply that we endorse or accept any responsibility for the content or use of such websites, and You hereby release us from all liability and/damages that may arise from Your use of such websites or receipt of services from any such websites.
- DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS. THE WEBSITE, NUDGE SERVICE, NUDGE APP AND ALL MATERIALS PROVIDED THEREIN ARE PROVIDED “AS IS.” WE SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF NUDGE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH MATERIAL. WE DO NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE WEBSITE OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE WEBSITE. WE WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THE NUDGE SERVICE.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE NUDGE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE NUDGE SERVICE, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE WEBSITE OR NUDGE APP, OR (V) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE. THESE LIMITATIONS SHALL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID US IN THE PRIOR 12 MONTHS (IF ANY) THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Availability & Updates. We may alter, suspend, or discontinue the Nudge Service if required to by law or due to unforeseeable forecasts. Where possible we will endeavor to give you advance notice of the same. The Website, Nudge Service and/or the Nudge App may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. We may periodically add or update the information and materials on Nudge without notice.
- Security. Information sent or received over the Internet is generally unsecure and Nudge cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of personal or other information. You are responsible for safeguarding the password that you use to access the Nudge Service and you are responsible for any activities or actions under your password. You agree to keep your password secure. We will not be liable for any loss or damage arising from your failure to comply with these requirements.
If you have any questions about these Terms or if you wish to make any complaint or claim with respect to the Nudge App, our Website or the Nudge Service, please contact us at: firstname.lastname@example.org.
Last Updated: June 4, 2019.