Nudgy Terms and Conditions of Service

General

Nudgy websites (“Websites”), mobile applications (“Apps”), and related services (together with the Websites and Apps, the “Service”) are operated by Homo Ludens GmbH (“Nudgy,” “us,” or “we”). Access and use of the Service are subject to the following Terms and Conditions of Service (“Terms and Conditions”). By accessing or using any part of the Service, you represent that you have read, understood, and agree to be bound by these Terms and Conditions including any future modifications. Nudgy may amend, update, or change these Terms and Conditions. If we do this, we will post a notice that we have made changes to these Terms and Conditions on the Websites for at least 7 days after the changes are posted and will indicate at the bottom of the Terms and Conditions the date these terms were last revised. Any revisions to these Terms and Conditions will become effective the earlier of (i) the end of such 7-day period or (ii) the first time you access or use the Service after such changes. If you do not agree to abide by these Terms and Conditions, you are not authorized to use, access, or participate in the Service.

PLEASE NOTE THAT THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS. VIEW THESE TERMS HERE.

Description of Website and Service

The Service allows users to access and use a variety of personal and professional development services, including micro-learnings and behavioral nudges. Nudgy may, in its sole discretion and at any time, update, change, suspend, make improvements to or discontinue any aspect of the Service, temporarily or permanently.

Acceptable Use of the Services

You are responsible for your use of the Services, and for any use of the Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Services, you must comply with our Community Guidelines.

Additional Terms

Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.

Registration

In connection with registering for and using the Service, you agree (i) to provide accurate, current and complete information about you and/or your organization as requested by Nudgy; (ii) to maintain the confidentiality of your password and other information related to the security of your account; (iii) to maintain and promptly update any registration information you provide to Nudgy, to keep such information accurate, current and complete; and (iv) to be fully responsible for all use of your account and for any actions that take place through your account.

Your Representations and Warranties

You represent and warrant to Nudgy that your access and use of the Service will be in accordance with these Terms and Conditions and with all applicable laws, rules, and regulations of the relevant jurisdictions, including those regarding online conduct or acceptable content, and those regarding the transmission of data or information exported from the jurisdiction in which you reside. You further represent and warrant that you have created or own any material you submit via the Service (including Activity Materials and Content) and that you have the right, as applicable, to grant us a license to use that material as set forth below or the right to assign that material to us as set forth below.

Submission of Content

As a condition of submitting any ratings, reviews, information, data, text, photographs, audio clips, audiovisual works, translations, flashcards, or other materials on the Service (collectively, “Content”), you hereby grant to Nudgy a fully-paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, transferable, and sublicensable license to use, reproduce, copy, adapt, modify, merge, distribute, publicly display, and create derivative works from the Content; incorporate the Content into other works; and sublicense through multiple tiers the Content. You acknowledge that this license cannot be terminated by you once your Content is submitted to the Service. You represent that you own or have secured all legal rights necessary for the Content submitted by you to be used by you, Nudgy, and others as described and otherwise contemplated in these Terms and Conditions. You understand that other users will have access to the Content and that neither they nor Nudgy have any obligation to you or anyone else to maintain the confidentiality of the Content.

You will not upload, display, or otherwise provide on or through the Service any Content that: (i) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive, or otherwise violates any law or infringes upon the right of any third party (including copyright, trademark, privacy, publicity, or other personal or proprietary rights); (ii) in Nudgy’s sole judgment, is objectionable, restricts or inhibits any other person from using the Service, or may expose Nudgy or its users to any harm or liability of any kind; or (iii) violates Nudgy’s Community Guidelines

Indemnification of Nudgy

You agree to defend, indemnify and hold harmless Nudgy and its directors, officers, employees, contractors, agents, suppliers, licensors, successors and assigns, from and against any and all losses, claims, causes of action, obligations, liabilities and damages whatsoever, including attorneys’ fees, arising out of or relating to your access or use of the Service, any false representation made to us (as part of these Terms and Conditions or otherwise), your breach of any of these Terms and Conditions, or any claim that any translation we provide to you is inaccurate, inappropriate or defective in any way whatsoever.

License to Apps

Subject to the terms of these Terms and Conditions, Nudgy grants you a non-transferable, non-exclusive license to download, install, and use one copy of each App in object code form only on an interactive wireless device that you own or control. You may not derive or attempt to derive the source code of all or any portion of any App, permit any third party to derive or attempt to derive such source code, or reverse engineer, decompile, disassemble, or translate any App or any part thereof. Nudgy and its licensors own and shall retain all intellectual property rights and other rights in and to the Apps, and any changes, modifications, or corrections thereto.

The following terms and conditions apply to you only if you are using the Apps from the Apple App Store. To the extent the other terms and conditions of these Terms and Conditions are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to Apps from the Apple App Store. You acknowledge and agree that these Terms and Conditions are solely between you and Nudgy, not Apple, and that Apple has no responsibility for the Apps or content thereof. Your use of any App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and Conditions. You and Nudgy acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apps or your possession and/or use of any App, including, but not limited to: (i) product liability claims; (ii) any claim that an App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Nudgy acknowledge that, in the event of any third-party claim that any App or your possession and use of that App infringes that third party’s intellectual property rights, Nudgy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and Conditions. You must comply with applicable third party terms of agreement when using any App. You and Nudgy acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and Conditions as they relate to your license of the Apps, and that, upon your acceptance of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary thereof.

In-App Purchases

If you purchase an auto-renewing periodic subscription through the Service, your Nudgy account will be billed continuously for the subscription until you terminate it as set forth below. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew for an additional equivalent period. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your Nudgy account and follow instructions to terminate or change your subscription, even if you have deleted your account.

You agree to pay all fees and applicable taxes incurred by you or anyone using a Nudgy account registered to you. Nudgy may revise the pricing for the goods and services offered through the Service at any time. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.

Payment Processors

All financial transactions made in connection with the Service will be processed by a third party in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. We encourage you to learn about the practices of such third party. In no event will Nudgy be responsible for the actions or inactions of any third party payment processor, including, but not limited to, system downtime or payment service outages.

Refund Policy

All payments are nonrefundable. There are no refunds or credits for Virtual Items or partially used membership periods. However, Nudgy may grant refunds or credits on a case-by-case basis at our sole discretion. Nudgy’s grant of a refund or credit in one instance does not obligate Nudgy to provide a refund or credit in the future, under any circumstances. If you cancel your periodic subscription to a paid Nudgy service, you will continue to have access to the service through the end of your current billing period.

Third-Party Links, Sites, and Services

The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Nudgy. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third party website, service, or content from Nudgy, you understand that these Terms and Conditions and our Privacy Policy do not apply to your use of such sites. You expressly acknowledge and agree that Nudgy shall not be responsible or liable, directly or indirectly, for any damage or loss arising from your use of any third-party website, service, or content.

The Service may include advertisements, which may be targeted to the Content or information on the Service, or other information. The types and extent of advertising by Nudgy on the Service are subject to change. In consideration for Nudgy granting you access to and use of the Service, you agree that Nudgy and its third party providers and partners may place such advertising in connection with the display of content or information submitted by you or others.

No Representations or Warranties by Nudgy

THE SERVICE, INCLUDING ALL IMAGES, AUDIO FILES AND OTHER CONTENT THEREIN, AND ANY OTHER INFORMATION, PROPERTY AND RIGHTS GRANTED OR PROVIDED TO YOU BY NUDGY ARE PROVIDED TO YOU ON AN “AS IS” BASIS. NUDGY AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, EITHER EXPRESS OR IMPLIED, AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUDGY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND RELATING TO ACCURACY, SERVICE AVILABILITY, COMPLETENESS, INFORMATIONAL CONTENT, ERROR-FREE OPERATION, RESULTS TO BE OBTAINED FROM USE, OR NON-INFRINGEMENT. ACCESS AND USE OF THE SERVICE MAY BE UNAVAILABLE DURING PERIODS OF PEAK DEMAND, SYSTEM UPGRADES, MALFUNCTIONS OR SCHEDULED OR UNSCHEDULED MAINTENANCE OR FOR OTHER REASONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Limitation on Types of Damages/Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NUDGY BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY) FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE ACCESS OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SERVICE OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO THE LOSS OF USE OF THE SERVICE, INACCURATE RESULTS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR DAMAGES STEMMING FROM LOSS OR CORRUPTION OF DATA OR DATA BEING RENDERED INACCURATE, THE COST OF RECOVERING ANY DATA, THE COST OF SUBSTITUTE SERVICES OR CLAIMS BY THIRD PARTIES FOR ANY DAMAGE TO COMPUTERS, SOFTWARE, MODEMS, TELEPHONES OR OTHER PROPERTY, EVEN IF NUDGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUDGY’S LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO NUDGY FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.

You understand and agree that we have set our prices and entered into these Terms and Conditions with you in reliance upon the limitations of liability set forth in these Terms and Conditions, which allocate risk between us and form the basis of a bargain between the parties.

Termination

Nudgy may terminate your access and use of the Service immediately at any time, for any reason, and at such time you will have no further right to use the Service. You may terminate your Nudgy account at any time by following the instructions available through the Service. Sections 1, 6, 8, and 10-28 of these Terms and Conditions shall survive any termination.

Proprietary Rights in Service Content and Activity Materials

All content available through the Service, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (“Service Content”), are the proprietary property of Nudgy or its licensors. No Service Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, other than as expressly permitted in these Terms and Conditions. You may not use any data mining, robots, scraping, or similar data gathering or extraction methods to obtain Service Content. As between you and Nudgy, all data, information, and materials generated from your access and use of the educational activities made available on or through the Service, including translated content generated by you (“Activity Materials”), shall be exclusively owned by Nudgy, and you shall not have any right to use such Activity Materials except as expressly authorized by these Terms and Conditions. By using the Service, you hereby assign to Nudgy any and all rights, title, and interest, including any intellectual property rights or proprietary rights, in the Activity Materials. All rights of Nudgy or its licensors that are not expressly granted in these Terms and Conditions are reserved to Nudgy and its licensors.

Trademarks

“Nudgy” and all other trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or service marks of Nudgy or their respective owners, and certain of them are registered with the relevant trademark authorities. Access and use of the Service does not grant or provide you with the right or license to reproduce or otherwise use the Nudgy name or any Nudgy or third-party trademarks, service marks, graphics, or logos.

Privacy

Use of the Service is also governed by our Privacy Policy, a copy of which is located at https://nud.gy/privacy/. By using the Service, you consent to the terms of the Privacy Policy.

Promotion Code Terms

Nudgy may offer codes that can be redeemed for certain Services (“Promotion Codes”). Unless otherwise advertised, Promotion Codes are subject to the following terms, in addition to all other Terms and Conditions. By using or redeeming a Promotion Code, you accept and agree to all applicable terms.

Code Providers

In some cases, you may receive your Promotion Code from an authorized third party, such as your employer or another business (“Code Provider”).

Your Code Provider may set additional limitations on your eligibility for the Promotion Code and may terminate your use of the Promotion Code. For example, if you obtained a prepaid subscription to Nudgy by redeeming a Promotion Code provided by your employer, your employer may terminate your prepaid subscription if your employment ceases. If your Code Provider terminates your use of the Promotion Code, you will retain control of your Nudgy account and data, and may subscribe to Nudgy on your own.

If you redeem a Promotion Code from a Code Provider, you understand and agree that Nudgy may share data relating to your use of the Promotion Code with your Code Provider, including both anonymized, aggregate data, and individual usage data.

Types of Promotion Codes

Nudgy may offer the following types of Promotion Codes:

Promotion Codes for an Extended Free Trial of a Nudgy Subscription Plan: Existing Nudgy subscribers are not eligible to redeem Extended Free Trial Codes. Furthermore, you may redeem only one Extended Free Trial Code per calendar year.
Promotion Codes for a Prepaid Subscription to a Nudgy Subscription Plan: Existing Nudgy subscribers are not eligible to redeem Prepaid Codes.

Automatic Renewal Terms for Extended Free Trial Codes

To redeem an Extended Free Trial Code, you will be required to select a subscription plan for after your extended free trial and submit valid payment details that are accepted by Nudgy.

If you redeem an Extended Free Trial Code, unless you cancel at least 24 hours before your extended free trial ends, you will automatically become a recurring subscriber to the subscription plan you selected after your extended free trial ends. The payment method you provided will then automatically be charged for the subscription price you selected. If you cancel during your extended free trial, you will lose access to the subscription service at the end of the free trial.

Terms Applicable to All Promotion Codes

Promotion Codes have no dollar value, and may not be redeemed for cash or a refund on an existing subscription or past purchase.

You may redeem each Promotion Code only once.

Some Promotion Codes may be subject to expiration dates or an overall limit of allowed redemptions.

Nudgy may modify, suspend, or terminate a Promotion Code at any time for any reason.

Reselling or transferring Promotion Codes is strictly prohibited. Any Promotion Codes that have been resold or transferred are null and void.

If any Promotion Code is redeemed or used in violation of this Section or other applicable terms, Nudgy may invalidate that Promotion Code and terminate any Services obtained from that Promotion Code, without refund or exchange of any kind. Furthermore, if Nudgy determines that a user has abusively violated any applicable terms, Nudgy may ban that user from redeeming or using Promotion Codes.

Notice for Claims of Copyright Violations and Agent for Notice

If you are a copyright owner and have a good faith belief that any material available through the Service infringes upon your copyrights, you may submit a copyright infringement notification to Nudgy pursuant to the Digital Millennium Copyright Act by providing us with the following information in writing:

an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

Please consult your legal counsel for further details or see 17 U.S.C. §512(c)(3). Nudgy’s Agent for Notice of claims of copyright infringement can be reached as follows:

By mail: Homo Ludens GmbH, Richard-Dehmel-Straße 12, 22587 Hamburg, Germany. By email: meik@homo-ludens.gmbh

For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.

If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:

Your physical or electronic signature;
Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the judicial district in which you reside, or if you reside outside of the United States, then of the federal court in Hamburg, Germany, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification, we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

Governing Law

These Terms and Conditions shall be governed by and construed under the laws of Germany, excluding any conflict of laws provisions, regardless of your country of origin or where you access the Service.

Choice of Forum

Subject to Section 24 (Dispute Resolution & Arbitration), all judicial proceedings relating to or arising out of these Terms and Conditions or the Service shall be brought in the courts of Hamburg,Germany. Both parties hereby consent to the personal jurisdiction of the courts sitting in Germany and waive any objections to venue in those courts.

Dispute Resolution & Arbitration

ANY DISPUTE OR CLAIM RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICE AND SEEKING MONETARY RELIEF SHALL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS ACCORDING TO THIS SECTION.

Prior to initiating any arbitration, the party seeking arbitration (“Claimant”) must first send a written Notice of Claim to the other party (“Respondent”) by email or certified mail. This Notice must contain the Claimant’s name, address, and contact information; the identity of counsel (if any); the nature and basis of the claim; and the specific relief sought. Within thirty (30) days of receipt of the Notice, the parties shall engage in at least one good-faith settlement conference by telephone or video conference. An individual party must be personally present at this settlement conference, and an entity party must be present at this settlement conference through an employee with settlement authority, though both parties may bring counsel as well. Arbitration shall be initiated only if no settlement can be reached at this settlement conference.

The arbitration shall be conducted by a single arbitrator and administered by a mutually agreed arbitration service, according to its rules and the provisions of this section. Where they conflict, the provisions of this section shall take precedence over any arbitration service rules. The arbitration shall be conducted in the German language.

If a claim is within the jurisdiction of a small claims court, either party may choose to have the case heard in the small claims court on an individual basis, instead of arbitration.

If twenty-five (25) or more similar Demands for Arbitration are filed against or on behalf of the same party or related parties, and if representation of the parties is consistent or coordinated across the cases, then the arbitration service’s supplementary rules for multiple case filings shall apply. There shall be no class or collective arbitration, or joinder of claims, except as provided for in the arbitration service’s supplementary rules for multiple case filings.

If you do not want to arbitrate disputes with Nudgy and you are an individual, you may opt out of this arbitration agreement by sending an email to meik@homo-ludens.gmbh within 30 days of the day you first access or use the Service.

Notwithstanding the above, either party may apply for and obtain non-monetary, injunctive remedies or urgent relief in court without engaging in any arbitration or informal dispute resolution process.

Language

This agreement was originally written in English (US) and German. To the extent any translated version of this agreement conflicts with the English version, the English version controls.

California Resident

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

Miscellaneous

These Terms and Conditions constitute the entire agreement between Nudgy and you concerning the subject matter hereof. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect. A waiver by Nudgy or you of any provision of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Nudgy may assign its rights or obligations under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of Nudgy and you, and Nudgy’s and your respective successors and permitted assigns.