Services Agreement


THIS SERVICES AGREEMENT (this “Agreement”) is entered into on this date by and between Nudge, LLC, a Tennessee limited liability company (“Nudge”) and [customer name] (“Customer”).

Nudge is in the business of providing services to businesses and other organizations that promote and support healthy and active lifestyles of clients, employees and other users (the “Services”).  Nudge’s Services are those that are from time to time available on Nudge’s website at (the “Nudge Site”) and via the Nudge mobile application (the “Nudge App”).

In conjunction with the Services, Nudge is offering health coaching services (“Health Coaching Service”) to its end-users (“End Users”) by contracting with independent health coaches and health coaching businesses (“Health Coaches”).

Customer desires to enter into this Agreement with Nudge for the purpose of setting up one or more accounts for its Health Coaches to enable them to offer Health Coaching Services in conjunction with the Services, and Nudge desires to enter into this Agreement with Customer for the corresponding reasons. If you do not agree, do not register with us to provide Health Coaching 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 to be legally bound, hereby agree as follows:


1.  Health Coaching Services.  

During the Term, that number of authorized Health Coaches set forth on Exhibit A shall be entitled (a) to set up an account with Nudge, (b) to access and use the Nudge Site and the Nudge App, (c) invite End-Users to connect with them and purchase Customer’s Health Coaching Services and (d) provide Health Coaching Services in conjunction with the Services.


2.  Representations.  

Customer represents and warrants to Nudge that each Health Coach providing Health Coaching Services in conjunction with the Services has the education, experience and credentials sufficient to provide high quality health coaching services.  Furthermore, that no Health Coach has been convicted, indicted or investigated for any crime constituting a felony or involving moral turpitude.


3.  Other Terms.  

Each Health Coaches’ access to and use of the Nudge Site and the Nudge App shall be subject to Nudge’s terms of service at (“Terms of Service”), Nudge’s privacy policy at (“Privacy Policy”) and any business associate agreement entered into between Nudge and Customer (“Business Associate Agreement”).  In the event of any conflict between the Terms of Service, the Privacy Policy or any Business Associate Agreement and this Agreement, the Terms of Service, Privacy Policy or Business Associate Agreement shall govern.  In the event of any conflict between the Privacy Policy or the Terms of Service and the Business Associate Agreement, the terms of the Business Associate Agreement shall govern.  Customer agrees that it shall instruct each Health Coach to carefully review the Terms of Service, the Privacy Policy and any Business Associate Agreement prior to accessing or using the Nudge Site or the Nudge App.


4.  Health Coaches.  

In order to be a Health Coach, a person must be an individual who is at least 18 years old and an employee, officer, director, contractor or agent of, or otherwise affiliated with, Customer.  Each Health Coach will be required to register on the Nudge Site or the Nudge App, create a username and password and may be required to accept the Terms of Service and the Privacy Policy before accessing or using the Nudge Site or the Nudge App.


5.  Payment.  

The fees for the Nudge Service and any additional Services (the "Fees") are set forth in the Order Form on the Site and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. You agree to provide Nudge with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide Nudge with credit card information, You authorize Nudge to bill such credit card (a) at the time that You order the Nudge Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If Nudge, in its discretion, permits You to make payment using a method other than a credit card, Nudge will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Customer's receipt.


6.  Availability.  

Nudge shall be entitled to from time-to-time upgrade or otherwise modify the Nudge Site and Nudge App without prior notice to Customer.  Nudge will use commercially reasonable efforts to make the Nudge Site and the Nudge App continuously available on the Internet; provided, however, that Nudge cannot guarantee that there will be no interruption of availability of the Nudge Site or the Nudge App.  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 and its Health Coaches shall be solely responsible for its and their Internet connections and computer and server equipment.


7.  Confidential Information.  

Customer agrees, and shall cause each Health Coach to agree, that all information it obtains regarding any End User that is not generally known to the public (“Confidential Information”) shall be held in the strictest confidence, not be disclosed to any third-party or used in any manner other than in connection with the provisions of Health Coaching Services in accordance with this Agreement.  The obligations of nondisclosure set forth herein shall survive the termination or expiration of this Agreement for any reason for as long as such information remains Confidential Information.  If Customer or a Health Coach is compelled to disclose Confidential Information pursuant to a legal proceeding, it shall immediately notify Nudge and the End User whose Confidential Information is subject to the legal proceeding thereof and, at the expense of the requesting party, provide all reasonable assistance to resist such disclosure and shall not disclose the Confidential Information until the requesting party has exhausted all rights of appeal under the laws of the jurisdiction in which disclosure is compelled.


8.  Injunctive Relief.  

Customer acknowledges that, in the event of Customer’s or any Health Coach’s breach of this Agreement with respect to any matter set forth under the Agreement heading “Confidential Information,” Nudge or any applicable End User will not have an adequate remedy in money or damages.  Nudge or any applicable End User 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.


9.  Term and Termination.

(a)  This Agreement shall become effective as of the date first set forth above and shall continue for 12 months unless and until terminated as provided in this Agreement.  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 Health Coaches’ access to the Nudge Site and the Nudge App or terminate this Agreement if Customer or a any Health Coach uses the Nudge Site or the Nudge App: (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 the Terms of Service, the Privacy Policy of or any applicable law.

(d)  Notwithstanding any termination or expiration of this Agreement, Sections 2, 3, 5, 7, 8, 9(d) and 10 shall survive such termination or expiration.


10.  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.

(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 Virginia, and, if jurisdiction does not lie, in the state courts in Richmond, Virginia, 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’ respective addresses as set forth on the signature page hereto.  Any such notice so delivered shall be deemed to have been received by the addressee at the time and date when actually delivered.  The addresses provided herein may be changed at any time on prior written notice.

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

(h)  Customer is an independent contractor and is not and shall not hold itself out as a partner, joint venture, investor, shareholder, affiliate, officer, director or employee of Nudge. Customer shall be solely responsible for payment of all federal and state taxes arising from its activities, including, but not limited to all income and payroll taxes for its Health Coaches.

(i)  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.

(j)  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.