Effective Aug 10, 2023
ACCEPTANCE
Your access, browsing and use of the Fluently Inc.’s website, Fluently’s products and services (collectively, the “Fluently Services”) are subject to the following terms and conditions which include Your agreement to arbitrate claims. (“Terms of Service”). References to “You” or “Your” shall mean the individual users of the Fluently Services depending on the context in which those terms are used.
BY CHECKING THE BOX AND CLICKING THE “I AGREE” BUTTON, ACCESSING AND/OR USING THE FLUENTLY SERVICES, YOU ARE FULLY ACCEPTING AND AGREEING TO THESE TERMS, CONDITIONS AND DISCLAIMERS CONTAINED IN THESE TERMS OF SERVICE AND FLUENTLY’S PRIVACY POLICY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE THE FLUENTLY SERVICES. In the event You are required to order Services through an on-line order page or an order form (each an “Order Form”) and the Order Form contains additional terms and conditions regarding the Fluently Services those additional terms are hereby incorporated into this Agreement unless expressly excluded in such Order Form. In addition, Your use of Fluently Services is subject to all applicable third party rights, laws and regulations. Fluently Services may integrate with products or services of a 3rd party not affiliated with Fluently (“3rd Party Services''). You should review the terms of agreements with such 3rd Party Services to ensure they are acceptable to You.
INFORMATION ON THIS WEBSITE
The contents of the Fluently Services are the sole and exclusive property of Fluently, protected by law, including, but not limited to United States copyright law and international treaties. The material and functionality provided herein are used for information and convenience purposes only and do not constitute advice, recommendations or counsel. The contents should not be relied upon in any way other than informational purposes. The contents are subject to change without notice to You. Fluently makes no representation that the materials on this Fluently Services are accurate, appropriate or available for use in all locations. You should seek advice from the appropriate professional prior to making any decisions based on the information contained herein. Integration with other platforms - check their terms of service and privacy policy.
FLUENTLY ACCOUNT SETUP
Eligibility
To be eligible to use the Fluently Services, You must be at least 18 years old, reside in a country which Fluently provides services and register for a Fluently Account. There are certain features which may or may not be available to You depending on Your location and other criteria.
Registration of Fluently Account
You must register for a Fluently account to use the Fluently Services (a "Fluently Account"). By registering or using a Fluently Account You agree and represent that You have created Your Fluently Account and You will use Your Fluently Account only for Yourself and all information provided is accurate, and not on behalf of any third party, unless You have obtained prior written approval from Fluently. You are fully responsible for all activity that occurs under Your Fluently Account. We may, in our sole discretion, refuse to open a Fluently Account, suspend or terminate any Fluently Account, suspend or terminate Your use of the Fluently Services for any reasonable purpose and at any time.
Consent to Access, Processing and Storage of Your Personal Data & Video Sessions.
During registration for Your Fluently Account, or at any other time deemed necessary by Fluently, You agree to provide us with the information we request for the purposes of identity verification, providing Fluently Services to You. You consent to us accessing, processing and retaining any personal information You provide to us for the purpose of us providing Fluently Services to You. This consent is not related to, and does not affect, any rights or obligations we or You have in accordance with data protection laws, privacy laws and regulations. You can withdraw Your consent at any time by closing Your account with us. However, we may retain and continue to process Your personal information if we reasonably believe it is necessary in order to comply with laws or regulations. You agree to keep us updated if any of the information You provide changes. See our Privacy Policy and Cookie Policy for more information on how we process Your personal data and the rights You have in respect of this.
Access to Fluently Services.
The Fluently Services can be accessed directly using the Fluently Site or the Fluently app. Access to Fluently Services may become degraded or unavailable during times of significant volatility or volume. This could result in significant support response time delays. Although we strive to provide You with excellent service, we do not represent that the Fluently Site or other Fluently Services will be available without interruption and we do not guarantee that any order will be executed, accepted, recorded, or remain open. Fluently shall not be liable for any losses resulting from or arising out of delays in processing transactions, inability to execute transactions, or lack of timely response from Fluently customer support. For example, if You are locked out of Your Fluently Account, it is possible that the price of the Digital Assets in Your account might go down before Your access is restored. Fluently shall not be liable for any alleged losses that You suffer from a drop in Digital Asset prices.
USE RESTRICTIONS
Recordings
You warrant that You will be compliant with all video and voice recording laws including obtaining consent of third parties prior to recording their image or voice. By using Fluently Services, You consent to Fluently to store audio and video recordings of You during Your video meetings in Fluently systems.
Prohibited Use
You agree You will not: (i) use Fluently Services in violation of any third parties rights including activity that is illegal, obscene, indecent, offensive, fraudulent or violates any privacy rights or intellectual property rights; (ii) modify, disassemble, decompile, reverse engineers or prepare derivative works of the Fluently Services or attempt to gain access to the source code of the Fluently Services; (iii) use Fluently Services in a manner that does or is intended to harm, disable, or adversely affect the Fluently Services in any way.
Limitations on Use
You may not reproduce, resell, or distribute the Fluently Services or any reports or data generated by the Services for any purpose. You will not use the Fluently Services to develop competing products or services. You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
INTELLECTUAL PROPERTY
Copyrights
Fluently owns all copyrights in all material provided in Fluently Services. None of the material may be copied, reproduced, distributed, republished, downloaded, displayed, or posted or transmitted in any form or by any means, including but not limited to, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of Fluently. Any unauthorized use of any material contained in Fluently Services may violate laws of the United States and other territories, including without limitation copyright laws, trademark laws, the laws of privacy or publicity, and communications’ regulations and statutes.
Trademarks
The trademarks, service marks, and logos (the “Trademarks”) used and displayed on this Fluently Services are the Trademarks of Fluently and others. Nothing in Fluently Services should be construed as granting, by implications, estoppels, or otherwise, any license or right to use any Trademark displayed on the Fluently Services, without the express written permission of the Trademark owner. The name of Fluently or the Fluently logo may not be used in any way without prior, written permission from Fluently. Fluently prohibits use of the Fluently logo as a “hot” link to the Fluently Services unless the establishment of such a link is approved in advance by Fluently in writing.
DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, ALL CONTENT, INFORMATION, SERVICES AND TOOLS IN FLUENTLY SERVICES ARE PROVIDED ON AN "AS IS", AND "AS AVAILABLE" BASIS. USE OF FLUENTLY SERVICES IS SOLELY AT YOUR OWN RISK. FLUENTLY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. FLUENTLY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FLUENTLY MAKES NO WARRANTY THAT THE CONTENT AND SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE.
INDEMNIFICATION
You will indemnify, defend, and hold Fluently (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim, action, or other proceeding instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of Your representations, warranties, or obligations set forth in these Terms of Service; (b) Your wrongful or improper use of Fluently Services; (c) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) Your violation of any law, or regulation of the United States or any other country; and (f) any other party’s access and/or use of Fluently Services with Your unique name, and password.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND HEREBY AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY STATED AND TO THE EXTENT APPLICABLE BY LAW, IN NO EVENT WILL FLUENTLY AND ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM, RESULTING FROM ANY USE OF FLUENTLY SERVICES, OR THE CONTENTS THEREOF OR OF ANY HYPERLINKED 3RD PARTY SERVICES INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, FAILURE OF PERFORMANCE, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS OR EQUIPMENT OR NETWORK FAILURE OR OTHERWISE, EVEN IF THERE IS NEGLIGENCE BY FLUENTLY OR FLUENTLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT COLLECTED UNDER THIS AGREEMENT.
CLASS ACTION WAIVER
Any proceeding(s) to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither You nor Fluently will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and Fluently also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account, if Fluently is a party to the proceeding. You are giving up Your right to participate as a class representative or class member on any class claim You may have against us including any right to class arbitration or any consolidation of individual arbitrations.
TERMS OF USE REVISIONS
Fluently may at any time revise these Terms of Use by updating this posting. By continuing to use this Fluently Services, You agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current Terms of Use to which You are bound.
JURISDICTION
These Terms of Use shall be governed by the laws of the state of California without regard to its conflict of laws provisions. You agree that any disputes or claim arising out of or in connection with the Terms of Use shall be adjudicated in the state and federal courts located in San Francisco, California.
GENERAL
You and Fluently agree that any and all disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST FLUENTLY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
Informal Dispute Resolution
Before an arbitration is commenced, You or Fluently agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms of Service. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Fluently should be sent by mail to: 300 Delaware Ave, Ste 210 #721, Wilmington, DE 19801.
Any Notice sent to You will be sent to the address on file for Your account. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration.
Scope of Arbitration
If the parties not able to resolve the dispute by informal negotiation or, as provided below, in a small claims court, all disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Commercial Arbitration Rules for that forum, except You and Fluently will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms of Service (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Small Claims Court
Subject to applicable jurisdictional requirements, either party may elect to pursue a dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the dispute heard in small claims court. At that time, the AAA will close the arbitration and the dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
Arbitration Procedures
The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in San Francisco, California, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Fluently values Your privacy, particularly with respect to Your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
Opt Out
You shall not assign or delegate any of your rights or obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section shall be deemed null and void. No assignment or delegation shall relieve you of any of your obligations hereunder. The Company may freely assign or delegate its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns.
13.7 Export Laws.
You may reject this provision, in which case only a court may be used to resolve any dispute. To reject this provision, You must send us an opt-out notice (the “Opt Out”) within thirty (30) days after You create a Fluently account or we first provide You with the right to reject this provision.