Terms of Use
1 Acceptance & eligibility
(a) This Agreement is between TGSA Pty Ltd as trustee for Cornerpath Trust (ABN 90 913 873 797) of Level 6 85 George Street, Parramatta, NSW, 2150 (Net Nudge) and the individual or entity (You or Your) that has clicked on the “I agree” button (or similar button or checkbox)(I Agree) that is presented to You prior to accessing the Software.
(b) This Agreement sets out the terms and conditions under which Net Nudge will provide the Services to You. You agree to the terms of this Agreement when You click I Agree.
(c) If you are an individual entering into this Agreement on behalf of your employer or another legal entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such other legal entity to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree to this Agreement on behalf of the employer or legal entity that you represent. If the foregoing sentence is applicable, any references to “You” in this Agreement shall refer to the employer or legal entity that you act on behalf of. If you do not have the legal authority to bind your employer or the applicable legal entity, please do not click I Agree.
(d) You represent and warrant that You are over the age of 18. If You are not over the age of 18, You must not enter into this Agreement nor access or use the Services.
(e) Capitalised terms used in this Terms of Use are defined in the body of this document or otherwise have the meanings given at clause 24.
2 Scope
This Agreement comprises:
(a) the terms specified in the Order completed in accordance with clause 3; and
(b) this Terms of Use.
(a) To use the Services, You must complete and submit an order via Net Nudge’s order page which contains certain terms of Your order for the Services (Order) including:
(i) Your name, contact details and billing information;
(ii) the subscription plan applicable to Your Order for the Services (Plan) including;
(A) the Initial Term;
(B) the Fees payable by You;
(C) the recurring billing period;
(D) the billing method;
(E) the Software’s available features, usage limitations and other restrictions;
(F) the Professional Services; and
(iii) any other relevant terms.
4 Term and Renewal
(a) This Agreement commences on the Commencement Date and shall continue for the period specified in the Order (Initial Term) unless terminated earlier in accordance with the terms of this Agreement.
(b) The Initial Term will automatically renew for additional and consecutive periods equal to the Initial Term (each, a Renewal Term) unless You provide notice to Net Nudge of Your intent to cancel the renewal at least 5 business days prior to expiry of the Current Term.
(c) You shall not be entitled to any refund of the Fees if you cancel Your renewal pursuant to clause 4(b).
5 Free Trial
(a) If the Order specifies that You have subscribed for a ‘free trial’ (or equivalent), You may use the Services for the trial period specified (Trial Period) free of charge in accordance with any feature restrictions, usage limitations or other restrictions specified in the Order, but otherwise in accordance with the terms of this Agreement.
(b) At the end of the Trial Period, the Order will be automatically amended to include a monthly paid Plan and Net Nudge will immediately charge You the applicable Fees for the next billing period in accordance with clause 10 unless You provide notice to Net Nudge of Your intent to cancel the Trial Period at least 5 business days prior to expiry of the Trial Period.
6 Services
6.1 White-label solution
(a) You acknowledge and agree that the Software is a white-labelled software solution owned and operated by the White Label Vendor.
(b) Net Nudge warrants that the White Label Vendor has authorised Net Nudge to resell access to, and use of, the Software using Net Nudge’s own branding.
(c) Net Nudge, in its capacity as an authorised reseller of the Software, shall provide You with access to, and use of, the Software in accordance with, and subject to, the terms of this Agreement.
6.2 Licence
Subject to Your compliance with all of Your obligations under this Agreement:
(b) You may permit Invited Users to access and use the Services subject to the terms of clause 6.2(a).
6.3 Modification to Services
At any time during the Term, Net Nudge or the White Label Vendor may, at their absolute discretion, update, upgrade, change or modify the Software (Update). The terms of this Agreement shall continue to apply to any Update made to the Software.
6.4 Third party applications
(a) The Software may enable You to link to, integrate with, transfer Customer Data to, or otherwise access, Third Party Applications.
(b) Your access to, and use of, any Third Party Applications is subject to a separate agreement between You and the provider of those Third Party Applications.
(c) You acknowledges that Net Nudge does not provide nor control Third Party Applications and is not responsible nor liable for any aspect of Third Party Applications that You may procure, access, use or connect to through the Software.
(d) Subject to clause 11.3, to the maximum extent permitted by law, Net Nudge does not make any warranties with respect to Third Party Applications.
(e) Net Nudge or White Label Vendor may, at their absolute discretion, change, or remove access to, any Third Party Applications. Any such change, or removal of access to, Third Party Applications does not affect Your obligations under this Agreement.
6.5 AI Features
(a) The Services may provide You with access to features or functionality that are provided by third party artificial intelligence systems (AI Systems).
(b) You must comply, and must procure that all Invited Users comply, with the Artificial Intelligence Acceptable Use Policy.
(c) You may provide or make available prompts, data, text, or other input to be processed by AI Systems (Input) and receive data generated and returned by AI Systems based on the Input (Output). Input and Output are treated as Customer Data under this Agreement.
(d) You are responsible for all Input and Output.
(e) You acknowledge and agree that:
(i) use of AI Systems is at Your own risk;
(ii) Output may contain material inaccuracies;
(iii) Net Nudge has not verified the accuracy of any Output;
(iv) You are responsible for ensuring the accuracy, completeness and reliability of all Output before relying upon it or providing it to other users or any third parties; and
(v) any information (including any Personal Information) that You choose to include within Input, will be disclosed to the AI System.
(f) Subject to clause 11.3, to the maximum extent permitted by law, Net Nudge makes no warranty with respect to the AI Systems and any Output.
6.6 Professional Services
(a) Net Nudge shall perform the Professional Services subject to the terms and limitations specified in the Order.
(b) If Net Nudge’s Personnel are providing any of the Professional Services at Your premises, You must provide a safe and healthy work environment in accordance with applicable WH&S Laws in the state or territory in which the Professional Services are being performed.
(c) Unless Net Nudge provides its written consent, You must not record, stream or otherwise capture any performance or aspect of the Professional Services.
6.7 Net Nudge Materials
(a) Net Nudge may, at its discretion, provide You with (or grant You access to) the Materials.
(c) Subject to the licence granted at clause 6.7(b), You may permit Users to access and use the Materials.
7 Additional Terms for Mobile Applications
(a) If You download the mobile software application version of the Software (Mobile Application) then You acknowledge and agree that:
(i) it may be used by You only via a compatible mobile device that is owned or leased by You;
(ii) You may incur mobile data charges from Your mobile network provider in connection with the Mobile Application, and You are solely responsible for any such charges; and
(iii) Net Nudge and White Label Vendor may, from time to time, issue upgraded versions of the Mobile Application and may automatically electronically upgrade the version of the Mobile Application that You are using on Your mobile device. You hereby consent to such automatic upgrading on Your mobile device.
(b) If You downloaded the Mobile Application from any third-party app store, such as the ‘Apple App Store’:
(i) You acknowledge that this Agreement is between You and Net Nudge only, and not with such third party;
(ii) Your use of such third-party app store must comply with such third party’s then-current app store terms and conditions (or equivalent); and
(iii) such third party is only a provider of the app store where You obtained the Mobile Application. Net Nudge, and not such third party, is solely responsible for the Mobile Application.
8 Product Trials
(a) Net Nudge may, in its sole discretion, make available to You via the Software certain products, features or documentation on a trial basis (Trial Features), and such trial may be designated by Net Nudge as an alpha, a beta, a pilot, a pre-release, a preview, an evaluation, or using another similar term (Product Trial). You may participate in any Product Trial, subject to the terms of this Agreement and any additional terms and conditions Net Nudge makes available to You.
(b) Trial Features are provided to You for testing purposes only.
(c) You acknowledge that Trial Features:
(i) might contain bugs, errors, or omissions;
(ii) might cause the performance of the Software to be deficient in some respects;
(iii) have not been commercially released and are still subject to further development and testing;
(iv) might never be made available for general use or otherwise be provided in a future version of the Software; and
(v) may be discontinued by Net Nudge or Net Nudge may revoke Your access to such Trial Features at any time for any or no reason, in its sole discretion, without any liability to You.
(d) Subject to clause 11.3, to the maximum extent permitted by law, Net Nudge does not make any warranties for the Trial Features.
9 Your Obligations
9.1 General responsibilities
(a) You must:
(i) co-operate with Net Nudge in relation to the provision of the Services;
(ii) You must provide reasonable cooperation to Net Nudge regarding information requests from law enforcement, regulators, or telecommunication providers; and
(iii) provide Net Nudge in a timely manner with all information reasonably requested by Net Nudge to enable it to provide the Services. You must take all reasonable steps to ensure that any information provided in accordance with the foregoing sentence is accurate.
(b) Net Nudge will not be responsible for any delay or deficiency in providing the Services if such delay or deficiency results from Your failure to comply with clause 9.1(a).
(i) use the Software if You are an employee, partner, or director of a Competitor or intend to gain access to the Software in order to compete with the Software;
(ii) give access to the Software to a direct Competitor;
(iii) access or use the Software from a location outside of Australia;
(iv) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to uncover or discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Software;
(v) modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by Net Nudge); and
(vi) remove any proprietary notices or labels.
(i) suspend or terminate Your use of the Software; or
(ii) reduce the amount of data that You are able to use.
9.2 Code of Conduct
(a) You must comply, and must procure that all Invited Users comply, with the Code of Conduct.
(b) Net Nudge may investigate any suspected violation of the Code of Conduct. You must co-operate with any such investigation including by providing Net Nudge in a timely manner with all information reasonably requested by Net Nudge to enable it to conduct the investigation.
(c) In addition to any other rights that Net Nudge has under this Agreement or at law:
(i) Net Nudge has the right to take remedial action if the Code of Conduct is violated, and such remedial action may include removing disabling access to, or modifying any material that violates the Code of Conduct; and
(ii) Net Nudge may suspend Your and any Invited User’s access to, and use of, the Software if Net Nudge reasonably believes that You or any Invited User has breached the Code of Conduct.
(d) Net Nudge may report any activity that it suspects violates any Law to any appropriate law enforcement bodies and regulators.
9.3 Accounts and invited users
(a) You must register for an account in order to access and use the Software (Account) by providing, at a minimum, Your full legal name, phone number, email address and registered business address.
(b) You:
(i) may, subject to the terms of the applicable Order, invite Invited Users to access and use the Software who must create an account in order to access and use the Software (Invited User Account);
(ii) must procure that all Invited Users comply with the terms of this Agreement. Any breach of the terms of this Agreement by an Invited User (whether or not authorised by You) is deemed to be a breach of this Agreement by You;
(iii) must identify all Invited Users and any subset of Invited Users to be designated as administrators, who may create, approve and revoke access for other Invited Users; and
(iv) must control against unauthorised access to the Software by all Invited Users.
(c) You are responsible for:
(i) maintaining the confidentiality of the Account and all Invited Users Accounts including all names, passwords and account information that are created using the Software (Credentials); and
(ii) all activities that occur using the Account and all Invited Users Accounts and otherwise as a result of Your or Invited Users’ access to the Software, whether or not authorised by You.
(d) You must immediately notify Net Nudge of:
(i) any unauthorised access to, or use of, the Software using any Credentials; and
(ii) any loss, theft or unauthorized use of any Credentials.
(e) If multiple entities claim to be the “owner” of a particular Account, Net Nudge will deem the owner to be the person who can demonstrate their ownership (in whole or in part) of the underlying business entity for which the Account was created by providing government-issued documentation of such ownership. If Net Nudge is unable to determine the rightful owner of the Account, Net Nudge reserves the right to suspend or terminate the Account until the disputing parties have mutually agreed on ownership or until a court has ordered Net Nudge to grant access to a specific individual.
9.4 Compliance
(a) You are solely responsible for Your use of the Software, including:
(i) the quality and integrity of any Customer Data;
(ii) securing and maintaining proper insurance policies; and
(iii) compliance with all applicable Laws.
(b) Net Nudge is not responsible for your compliance with Laws and does not represent that your use of the Software will comply with any Laws.
10 Fees
10.1 Billing and payment
(a) You must pay the fees for the Services as specified in the Order (Fees).
(b) All Fees must be paid by You:
(i) immediately in advance in accordance with the recurring billing period specified in the Plan; and
(ii) in accordance with the billing method that You selected when placing the Order (Billing Method).
(c) If the Billing Method is by way of direct debit to Your credit card, debit card or bank account (Card):
(i) You authorise Net Nudge to arrange for the Fees to be debited from the Card using a third-party provider (Processor) which stores Your Card information and processes payment.
(ii) You must provide all Card information directly to the Processor;
(iii) Fees will be debited from the Card at the commencement of each recurring billing period specified in the Plan; and
(iv) You must ensure that there are sufficient clear funds available on the Card to allow for the Fees to be debited in accordance with this clause 10 and the Order.
10.2 Changes to fees
(a) Subject to clause 10.2(b), Net Nudge may, from time to time, change the Fees payable by You (Fee Change) upon the provision of at least 90 days’ notice to You.
10.3 Changing Plan
(a) If You have a current Plan that includes Customer Relationship Management, You may amend the Plan (Downgraded Plan) to substitute Customer Relationship Management with Reputation Management by providing notice to Net Nudge. The Downgraded Plan will become effective at the commencement of the next billing period following the date that Net Nudge receives Your foregoing notice and You must pay the Fees applicable to the Downgraded Plan on and from this date in accordance with clause 10.1. For the avoidance of doubt, You shall not be entitled to receive a refund of any Fees or receive any credit if You amend Your Plan in accordance with this clause 10.3(a).
(b) If You have a current Plan that includes Reputation Management, You may amend the Plan (Upgraded Plan) to substitute Reputation Management with Customer Relationship Management by providing notice to Net Nudge. The Upgraded Plan will become effective at the commencement of the next billing period following the date that Net Nudge receives Your foregoing notice and You must pay the Fees applicable to the Upgraded Plan on and from this date in accordance with clause 10.1.
10.4 GST
Unless otherwise stated, all Fees are inclusive of GST (if applicable). A Party must pay GST (If applicable) on a Taxable Supply made to it under this Agreement, in addition to any consideration (excluding GST) that is payable for that Taxable Supply. It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply. A Party making a Taxable Supply to another Party under this Agreement must issue a Tax Invoice to the other Party, setting out the amount of the GST (if applicable) payable by that other party. For the purposes of this Agreement, “GST”, “Taxable Supply” and “Tax Invoice” shall have the meaning attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
11 Warranties
11.1 Mutual warranties
Each Party represents and warrants to the other that:
(a) it has full authority to enter into this Agreement; and
(b) it has, and will maintain throughout the Term, all necessary powers, authority and consents to fully perform its obligations and duties under this Agreement.
11.2 Exclusion of warranty
Subject to clause 11.3, to the maximum extent permitted by law, Net Nudge does not make any warranties for the Services. For the avoidance of doubt, Net Nudge:
(a) disclaims all implied warranties, including any implied warranty of merchantability, satisfactory quality or fitness for a particular purpose;
(b) provides the Services on an "as is" and "as available" basis; and
(c) does not warrant that:
(i) the Services will be performed error-free or uninterrupted;
(ii) the Services will be compatible with any hardware or software;
(iii) Net Nudge will correct all or any errors; or
(iv) the Services will meet Your requirements or expectations.
11.3 Australian Consumer Law
(a) Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of Net Nudge in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or Services. For the purposes of this clause 11.3, “goods” and “services” have the meanings given under the Australian Consumer Law.
(b) If Net Nudge is liable to You in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 the Australian Consumer Law that cannot be excluded, Net Nudge’s total liability to You for that failure is limited to, at Net Nudge’s option:
(i) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(ii) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
12 Confidential Information
(a) Subject to clause 12(b), a Party receiving Confidential Information (Recipient) from the other Party (Discloser):
(i) must keep the Confidential Information of the Discloser secret, and not disclose or permit its disclosure to any person, except to:
(A) its employees, officers and agents who require access to it for the purposes of this Agreement; or
(B) to its professional advisers,
provided that they are informed of, and comply with, the same obligations of confidentiality regarding that Confidential Information as specified under this clause 12(a);
(ii) must only use the Confidential Information of the Discloser for the purposes of this Agreement; and
(iii) is responsible for any misuse by its employees, officers, agents or professional advisers of the Discloser’s Confidential Information.
(b) Notwithstanding clause 12(a), a Recipient may disclose Confidential Information of the Discloser:
(i) if a disclosure is required by Law, but the Recipient intending to make the disclosure must first notify the Discloser and the Discloser may take action to object to that disclosure; or
(ii) to the extent such disclosure is authorised by this Agreement or is necessary for the Recipient to exercise and perform its rights and obligations under this Agreement.
(c) All Confidential Information disclosed by a Discloser remains the property of the Discloser.
13 Privacy
(a) Net Nudge handles Personal Information that You disclose to it in accordance with its Privacy Policy. The Privacy Policy is subject to change at Net Nudge’s discretion and any such change will become effective on the date that it is posted on the Website.
(b) You must:
(i) make all necessary notifications required by applicable Privacy Law to; and
(ii) obtain all necessary consents required by applicable Privacy Law from,
the individuals whose Personal Information You shall disclose to Net Nudge in the course of this Agreement to enable to Net Nudge to lawfully use the Personal Information in order to exercise and perform its rights and obligations under this Agreement.
(c) You acknowledge that Net Nudge is reliant on You for direction as to the extent to which Net Nudge is entitled to use Personal Information disclosed to it in the course of, and for the purpose of, this Agreement.
14 Customer Data
14.1 Your grant of rights
(a) You grant to Net Nudge, its third-party services providers and the White Label Vendor a non-exclusive right to use, modify, develop, display, process, publish, disclose and transmit Customer Data to the extent necessary for Net Nudge to provide the Services and to exercise its rights in accordance with this Agreement.
(b) You acknowledge that the Software relies on software, systems, networks and facilities supplied by third parties, including those provided by the White Label Vendor. Net Nudge may supply Customer Data to such third parties to the extent necessary to enable Net Nudge to provide the Services and to exercise its rights under this Agreement.
14.2 Storage and access
(a) Customer Data is digitally stored in third-party data storage centres located in the United States of America.
(b) Where Net Nudge provides support services to You, this may require access by Net Nudge to Customer Data from locations around the world.
14.3 Third party applications and customer data
You acknowledge that when You enable or use Third Party Applications in conjunction with the Software, Net Nudge may allow the providers of those Third Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Software. Net Nudge will not be responsible nor liable for any use, disclosure, modification or deletion of Customer Data resulting from any such access by providers of Third Party Application.
14.4 Backups and deletion
(a) Net Nudge has no responsibility or liability for the deletion or failure to store any Customer Data maintained or transmitted on or through the Software.
(b) You are solely responsible for preparing and maintaining backups of all Customer Data. Net Nudge is under no obligation to backup or recover any Customer Data.
14.5 Customer data warranties
You represent and warrant that:
(i) Net Nudge to provide the Services;
(ii) You to grant the rights pursuant to this Agreement; and
(c) the Customer Data complies with all applicable Laws.
14.6 Prohibitions
Customer Data must not:
(a) be unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, tortious, invasive of another’s privacy, or include graphic descriptions of sexual or violent content;
(b) victimise, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or otherwise; or
(c) breach the security of, compromise or otherwise allow access to secured, protected or inaccessible areas of the Software, or attempt to gain access to other networks or servers via the Account.
15 Intellectual Property
(a) Net Nudge, the White Label Vendor and their respective licensors retain all ownership of, and all Intellectual Property Rights in, the Services.
(b) As between You and Net Nudge, You and your licensors retain all ownership of, and all Intellectual Property Rights in, the Customer Data.
(c) If the Software is found to violate any third-party Intellectual Property Rights, Net Nudge may, at its option:
(i) obtain the right for You to continue to use the Software as contemplated by this Agreement;
(ii) seek that the White Label Vendor modify or replace the Software, in whole or in part, to make the Software non-infringing; or
(iii) require You to immediately cease any use of the Platform.
16 Analyses & Monitoring
(a) Net Nudge and White Label Vendor may access, collect, analyse, and use the data, information, or insights generated or derived from the provision, use and performance of the Software, and related software, programs, and technologies (Usage Data). Net Nudge and White Label Vendor retain all ownership of, and all Intellectual Property Rights in, the Usage Data.
(b) If Net Nudge or White Label Vendor desire to disclose any Usage Data, then they will anonymise all Usage Data in such disclosure and disclose such Usage Data in aggregate form only in a manner that does not identify You and would not permit a third party to identify You.
(c) Net Nudge and White Label Vendor may access and monitor your Account and Invited User Accounts for support and security purposes, for Net Nudge to perform its obligations under this Agreement and for Net Nudge to enforce this Agreement.
17 Feedback
(a) If you provide Feedback, You acknowledged and agree that submission of Feedback is voluntary, non-confidential, and gratuitous, and Net Nudge has no obligation to use the Feedback.
(b) You grant to Net Nudge and White Label Vendor a royalty free, worldwide, perpetual, sublicensable, irrevocable, transferable right to use, modify, distribute, reproduce, prepare derivative works, combine with other works, translate, display, perform and incorporate into the Software (without attribution of any kind) any Feedback.
18 Indemnification
Except to the extent caused or contributed to by Net Nudge’s negligent act or omission, Net Nudge’s wilful misconduct or Net Nudge’s breach of this Agreement, You indemnify and holds harmless Net Nudge and its Related Bodies Corporate (those indemnified) from and against all Loss incurred or sustained by those indemnified, or for which those indemnified may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill) that is caused by, in connection with, or as a result of:
(a) Your breach of clause 14.5(a), 14.5(b) or 14.5(c)(customer data warranties);
(b) Your breach of any applicable Law; or
(c) Your infringement of the Intellectual Property Rights of Net Nudge, the White Label Vendor or their respective licensors.
19 Liability
(a) Except for Your indemnification obligations pursuant to clauses 18, to the maximum extent permitted by law, in no event will a Party or its Related Bodies Corporate be liable to the other Party for any special, indirect or consequential loss arising under, or in connection with, this Agreement including any:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of production;
(iv) loss of agreements or contracts;
(v) loss of business opportunity;
(vi) loss of anticipated savings;
(vii) loss of or damage to goodwill;
(viii) loss of reputation;
(ix) loss of data; or
(x) loss of use or corruption of software, data or information.
(b) Subject to clause 19(a) and except for:
(i) Your indemnification obligations pursuant to clauses 18;
(ii) Your breach of the Code of Conduct or the Artificial Intelligence Acceptable Use Policy;
(iii) Your obligation to pay the Fees;
(iv) fraud committed by a Party,
to the maximum extent permitted by law, the aggregate liability of a Party (and its Related Bodies Corporate) to the other Party in respect of any Loss arising under, or in connection with, this Agreement whether in contract, tort, or otherwise shall not exceed an amount equal to the total Fees actually paid by You to Net Nudge under this Agreement during the six (6) month period immediately preceding the date of the event giving rise to such liability.
20 Termination
20.1 Termination for cause
(a) Either Party may immediately terminate this Agreement by notice to the other Party:
(i) if the other Party commits a material breach of this Agreement that is not rectifiable;
(ii) if the other Party commits a material breach of this Agreement that is rectifiable but is not rectified within 20 days of the breaching Party receiving notice from the non-breaching Party requiring it to rectify the breach;
(iii) in accordance with clause 21(c)(force majeure); or
(iv) if an Insolvency Event occurs to the other Party.
(b) Net Nudge may immediately terminate this Agreement by notice if:
(i) any payment (including any Fees) due from You under this Agreement remains unpaid 14 days after it is due;
(ii) You breach clause 9.1(c) or 9.1(d)(general responsibilities);
(iii) You breach clause 14.5(a), 14.5(b) or 14.5(c)(customer data warranties);
(iv) You breach clause 13 (privacy);
(v) You breach the Code of Conduct or Artificial Intelligence Acceptable Use Policy; or
(vi) You infringe the Intellectual Property Rights of Net Nudge, White Label Vendor or their respective licensors.
20.2 Termination for convenience
Net Nudge may terminate this Agreement without cause by providing at least 60 days’ notice to You. Termination will become effective upon the expiry of the Current Term that immediately follows the end of the foregoing notice period.
20.3 Consequences of termination
(a) Subject to the remainder of this clause 20.3, on expiry of the Term or earlier termination of this Agreement pursuant to clause 20.1 or clause 20.2:
(i) Net Nudge immediately ceases to have any further obligations to provide the Services and You (and all Invited Users) must immediately cease all access to, and use of, the Services;
(ii) You must immediately pay to Net Nudge all outstanding unpaid Fees; and
(iii) You must immediately return all Materials in Your possession or control (whether in digital or physical form) to Net Nudge.
(b) In addition to clause 20.3(a), if:
(i) Net Nudge terminates this Agreement pursuant to clause 20.1, then you shall forfeit any Fees that You prepaid for the period following the date of termination; or
(ii) You terminate this Agreement pursuant to clause 20.1, then Net Nudge shall, within 30 days, refund any Fees that You prepaid for the period following the date of termination.
(c) Any expiry or termination of this Agreement will not affect:
(i) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination; and
(ii) the provisions specified in clause 23.1 which survive termination.
21 Force Majeure
(a) If a Force Majeure Event occurs and a Party is not able to partially or wholly perform its obligations (Affected Party) under this Agreement, then, the Affected Party’s obligations under this Agreement will be suspended to the extent that the Affected Party is prevented from performing its obligations by the Force Majeure Event, provided that a Force Majeure Event does not relieve or suspend Your obligation to pay Fees pursuant to this Agreement.
(b) The Affected Party must notify the other party as soon as practicable after the Force Majeure Event arises of the occurrence of the Force Majeure Event. The Affected Party must use its reasonable efforts to take steps to overcome the effects of the Force Majeure Event and to resume its obligations under this Agreement as soon as practicable.
22 Dispute resolution
(a) A Party claiming that a dispute has arisen in connection with this Agreement (Dispute) must notify the other Party in writing by giving details of the Dispute (Dispute Notice).
(b) The Parties must, prior to commencing legal proceedings, attempt to resolve the Dispute by convening a meeting (Meeting) within 21 days of the date of receipt of Dispute Notice between director-level representatives appointed by each Party to discuss the possible means and terms of a resolution. If a Party fails to attend the Meeting, the other Party may commence legal proceedings.
(c) Nothing in this clause 22 will limit a Party’s rights to seek interim injunctive relief in a court of law.
23 Other Terms
23.1 Survival
The following clauses of this Agreement survive termination or expiry of this Agreement; clause 12 (confidential information), clause 17 (feedback), clause 18 (indemnification) clause 19 (liability), clause 20.3 (consequences of termination), clause 22 (dispute resolution), clause 23 (other terms) and clause 24 (definitions).
23.2 Interpretation
(a) Nothing in this Agreement is to be interpreted against a Party solely on the ground that the Party prepared this Agreement or a relevant part of it.
(b) The following rules apply to interpreting this Agreement:
(i) Headings are for convenience only and do not affect interpretation.
(ii) Mentioning anything after includes, including, or similar expressions, does not limit what else might be included.
(iii) The singular includes the plural, and the converse also applies.
(iv) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(v) A reference to legislation or to a provision of legislation includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(vi) The singular includes the plural, and the converse also applies.
(vii) A reference to dollars and $ is to Australian currency.
23.3 Subcontractors
Net Nudge may at its discretion appoint or engage any subcontractor in connection with the performance of its obligations under this Agreement (including the provision of the Services).
23.4 Assignment
Neither Party may novate, assign or transfer any of its rights and/or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Net Nudge may, upon notice to You, assign or novate any of its rights and/or obligations under this Agreement without Your consent to: (a) a Related Body Corporate; or (b) a third party that acquires all or substantially all of Net Nudge’ business or assets; or (c) a third party that participates in a merger with Net Nudge. You must execute and deliver any further documents and do all acts and things as may be required by Net Nudge to give effect to an assignment or novation pursuant to this clause 23.4.
23.5 Relationship
The relationship between the Parties under this Agreement is that of independent contractors. This Agreement does not create any joint venture, partnership, agency or employment relationship between the Parties.
23.6 Notices
(a) Unless specified otherwise, a notice, consent, waiver or other communication (notice) in connection with this Agreement must be in writing and must be given by email to the receiving Party’s current address for service for notices as follows:
Net Nudge: hello@netnudge.com.au
You: The email address that You provided in the Order
(b) A notice is regarded as given and received the next business day after the time it is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
23.7 Amendment
(a) Net Nudge may, from time to time, amend the terms of this Agreement (excluding the Fees)(Amendment) by providing You with at least 90 days’ notice (Period).
(b) Amendments will take effect at the beginning of Your next Renewal Term immediately following the expiry of the Period.
23.8 No waiver
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
23.9 No reliance
No Party has relied on any statement, representation, assurance or warranty made or given by any other Party, except as expressly set out in this Agreement.
23.10 Entire agreement
This Agreement embodies the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.
23.11 Governing law
This Agreement is governed by the substantive and procedural laws of the State of New South Wales, Australia and the Parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in New South Wales, Australia in any dispute relating to this Agreement.
23.12 Severability
If anything in this Agreement is unenforceable, illegal or void, then it is severed and the rest of this Agreement remains in force.
24 Definitions
The following definitions apply:
Agreement means, collectively, this Terms of Use and the Order.
Artificial Intelligence Acceptable Use Policy means the policy attached at Schedule 2 of this Terms of Use.
Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Claim means any claim, action, proceeding or investigation.
Code of Conduct means the code of conduct attached at Schedule 1 of this Terms of Use.
Commencement Date means the date that You click I Agree.
Competitor shall include, but is not limited to, any entity carrying on a business of a marketing and sales platform, any entity offering one or more services offered by the Software, or any entity carrying on a business similar to the business of the White Label Vendor, as determined by Net Nudge in its sole discretion.
Confidential Information means any information disclosed in the course of this Agreement which is confidential or proprietary in nature to a Party including any: (a) Customer Data (in Your case); or (b) information relating to a Party’s operations, processes, plans, know-how, designs, trade secrets, market opportunities and customer lists. Confidential Information does not include information that: (a) is in the public domain (unless it entered the public domain through breach of confidentiality by a Party); (b) is already known by the other Party at the time of disclosure and has not been obtained by the other Party either directly or indirectly from the disclosing party; or (c) is obtained lawfully from a third party without any restriction on the disclosure.
Corporations Act means the Corporations Act 2001 (Cth).
Current Term means the current term of this Agreement being the Initial Term or a subsequent Renewal Term (as applicable).
Customer Data means: (a) all Input and Output; and (b) all data (including Personal Information), text, information, images, audio, video, photographs, and other content and material, in any format, provided by You or Invited Users that is uploaded, stored in, or run through, the Services. Customer Data does not include any Confidential Information of Net Nudge.
Customer Relationship Management means the Plan that makes available the customer relationship management features and functionality of the Software.
Feedback means ideas You provide to Net Nudge or White Label Vendor regarding improvements, enhancements, new features, new products, or other concepts related to the Software, or other services, products, matters related to White Label Vendor’s business. Feedback includes any ideas posted to Net Nudge’s or White Label Vendor’s ideaboard.
Force Majeure Event means any act, event or cause, other than lack of funds, affecting a Party that is outside that Party’s reasonable control, including, but not limited to: war; acts of God; natural disasters; epidemics; pandemics; boycotts; labour strikes; industrial disturbances; internet outages; or telecommunications outage.
Insolvency Event in relation to a Party, means anything that reasonably indicates that there is a significant risk that that Party is or will become unable to pay its debts as they fall due. This includes: (a) a meeting of the Party’s creditors being called or held; (b) a step being taken to make the Party bankrupt or to wind the Party up; (c) the appointment of a controller or administrator as defined in section 9 of the Corporations Act; (d) the Party entering into any type of arrangement with, or assignment for the benefit of all or any of its creditors; (e) the Party being made subject to a deed of company arrangement; or (f) a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the Party or any of its assets.
Intellectual Property Rights means all present and future intellectual property or other proprietary rights including copyright, registered and unregistered trademarks, designs, patents and any rights in respect of inventions, circuit layouts, computer programs, business or domain names, know how, trade secrets, arising anywhere in the world and whether registered or unregistered and includes any moral rights.
Invited Users means Your employees, consultants, contractors and agents who are authorised by You to use the Services pursuant to this Agreement.
Law means any statute, regulation or other statutory provision.
Loss means any loss, damage, liability, penalty, charge, claim, expense or cost (including legal fees) of any nature or kind.
Materials means any documents, guidebooks, instruction manuals, onboarding material, training documentation, training videos, support resources, knowledge articles or other material that Net Nudge provides (or grants access) to You in connection with the Services.
Party means a party to this Agreement and “Parties” means both of them.
Personal Information has the same meaning as under the Privacy Law.
Personnel means any employee, officer, agent, contractor or subcontractor of a Party.
Privacy Law means the Privacy Act 1988 (Cth)(including the Australian Privacy Principles) as amended from time to time.
Professional Services means any general consulting, configuration, implementation, technical support and development services related to the Software that are specified in the Order (if any).
Related Body Corporate has the same meaning as under the Corporations Act. “Related Bodies Corporate” is to be interpreted accordingly.
Reputation Management means the Plan that makes available the third-party platform customer review management features and functionality of the Software.
Schedule means a schedule to this Terms of Use.
Services means, collectively, the Software and Professional Services (if any).
Software means the ‘Net Nudge’ branded white-labelled mobile and web-based software-as-a-Services application suite that provides marketing and customer relationship management functionality to its users (among other things). The Services excludes Third Party Applications.
Term means, collectively, the Initial Term and subsequent Renewal Term(s) (if any).
Terms of Use means this Terms of Use (including the Schedules).
Third Party Applications means applications, software, AI Systems, websites, integrations or services provided by an entity other than Net Nudge or White Label Vendor that interoperate with the Software or may be accessed or downloaded through, within, or in conjunction with Your use of the Software.
Website means www.netnudge.com.au.
White Label Vendor means the third-party owner and operator of the Software that has granted Net Nudge the right to resell access and use of the Software to Net Nudge’s customers using its own brand.
WH&S Laws means any Laws relating to the health, safety or welfare of employees and other persons at a workplace.
Schedule A – Code of Conduct
You must not, and must not permit any Invited User or any other person to, do any of the following in connection with the Software:
(a) Use the Software in any way that violates any applicable Law.
(b) Use the Software in a country that prohibits or restricts the use of artificial intelligence.
(c) Use the Software to exploit, harm, or attempt to exploit or harm anyone in any way.
(d) Use the Software to send, receive, upload, download, use, or re-use any material that does not comply with this Agreement.
(e) Use the Software to transmit, or procure the sending of any unlawful advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
(f) Impersonate or attempting to impersonate Net Nudge, a Net Nudge employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
(g) Engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Software.
(h) Engage in any conduct that may, as determined by Net Nudge, harm Software users or Net Nudge, or expose either to liability.
(i) Use the Software in any manner that could disable, overburden, damage, or impair the Software or interfere with any other party's use of the Software, including their ability to engage in real time activities through the Software.
(j) Use of any robot, spider or other automatic device, process or means to access the Software for any purpose, including monitoring or copying any of the material in the Software.
(k) Use of any manual process to monitor or copy any of the material in the Software or for any other unauthorised purpose without Net Nudge’s prior written consent.
(l) Use of any device, software or routine that interferes with the proper working of the Software.
(m) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
(n) Attempt to gain unauthorised access to, interfere with, damage, or disrupt any parts of the Software, the server on which the Software is stored, any server, computer, or database connected to the Software.
(o) Attack the Software via a denial-of-service attack or a distributed denial-of-service attack.
(p) Attempt to interfere with the proper working of the Software.
(q) Upload or disseminate child sexual exploitation or abuse content.
(r) Upload or disseminate sexually explicit content.
(s) Generate hateful, harassing, or violent content.
(t) Engage in abusive or fraudulent conduct.
(u) promote or facilitate the generation or distribution of spam, fraudulent activities, scams, phishing, or malware.
(v) Compromise cybersecurity systems or gaining unauthorised access to violate the integrity of any user, network, computer or communications system, software application, or network or computing device.
(w) Violate any natural person’s rights, including privacy rights as defined in applicable Privacy Law;
(x) Appropriate confidential or Personal Information;
(y) Impersonate a human by presenting results as human-generated;
(z) Engage in disinformation campaigns;
(aa) Astroturf, or generate fake grassroots support or fake review information;
(bb) Plagiarise or engage in other forms of academic dishonesty.
(cc) Provide illegal or highly regulated goods or services content, or engage in other activity that has a high risk of economic or physical harm. This includes but is not limited to:
(i) engaging in any illegal activity;
(ii) providing instructions on how to commit or facilitate any type of crime;
(iii) gambling;
(iv) payday lending;
(v) crypto mining practices;
(vi) automatic determinations of eligibility for credit, employment, educational institutions, or public assistance services;
(vii) engaging in the unauthorised practice of law or seeking unreviewed legal advice;
(viii) engaging in the unauthorised practice of medicine or seeking unreviewed medical advice;
(ix) providing unauthorised financial advice;
(x) law enforcement application or criminal justice decisions;
(xi) military or warfare application, weapons development;
(xii) management or operation of critical infrastructure in energy, transportation, and water; or
(xiii) political campaigning or lobbying in violation of campaign laws.
Schedule B – Artificial Intelligence Acceptable Use Policy
If You use the AI Systems, you must comply with all of the following:
(a) AI Systems must not be used in any manner contrary to any applicable Laws and industry standards, including, but not limited to: data protection and privacy regulations; financial industry guidelines (e.g., PCI DSS); as a part of automated decision making process with legal or similarly significant effects; or in violation of any Intellectual Property Rights or geographical restriction.
(b) AI Systems may not be used to discriminate against any person or groups on grounds of religion, race, sexual orientation, gender, national/ethnic origin, political beliefs, disability, health status, trade union membership, age, criminal convictions or engage in any biased, intimidating, defamatory, harassing, bullying or otherwise inappropriate behaviours.
(c) AI Systems may not be used for generating individualized advice that in the ordinary course of business would be provided by a licensed professional including but not limited to medical, financial, tax, or legal advice. You must disclose to your Invited Users and customers when they are interacting with an AI-based voice or chatbot.
(d) All assets created through the use of AI Systems must be professional and respectful. You may not use offensive or abusive language and may not engage in any behaviour that could be considered discriminatory, harassing, or biased when applying generative techniques.
(e) You must take necessary steps to protect confidential and sensitive information of Invited Users and customers.
(f) Use of AI Systems AI must not damage, disable, overburden, or impair any websites or launch any automated system, including “robots,” “spiders,” or “offline readers,” that send more request messages to any servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser.
(g) AI Systems may not be used to spread misinformation, engage in malicious activities, or any other uses that could harm individuals or society.
(h) AI Systems may not be used in any manner which is prohibited by this Agreement or the Code of Conduct.
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