TERMS OF SERVICE
- General. Fluent Forever websites (“Websites”) and mobile applications (“Apps”) and related services (together with the Websites, the “Product”), are operated by Fluent Forever Inc. (“Fluent Forever,” “us,” or “we”). Access and use of the Product is subject to the following Terms of Service (“Terms of Service”). By accessing or using any part of the Product, you represent that you have read, understood, and agree to be bound by these Terms of Service including any future modifications. Fluent Forever may amend, update or change these Terms of Service. If you do not agree to abide by these Terms of Service, you are not authorized to use, access or participate in the Product. PLEASE NOTE THAT THESE TERMS OF SERVICE 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.
- The Product. The Product allows users to access and use a variety of educational services, including learning or practicing a language, and creating and viewing flashcards on the App. Fluent Forever may, in its sole discretion and at any time, update, change, suspend, make improvements to or discontinue any aspect of the Product, temporarily or permanently.
- Registration and Submission of Content. In connection with registering for and using the Product, you agree (i) to provide accurate, current and complete information about you and/or your organization as requested by Fluent Forever; (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 Fluent Forever, 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.
- User’s Representations and Warranties. You represent and warrant to Fluent Forever that your access and use of the Product will be in accordance with these Terms of Service and with all applicable laws, rules and regulations of the United States and any other relevant jurisdiction, including those regarding online conduct or acceptable content, and those regarding the transmission of data or information exported from the United States and/or the jurisdiction in which you reside. You further represent and warrant that you have created or own any material you submit via the Product and that you have the right, as applicable, to grant us a license to use that material as set forth above or the right to assign that material to us as set forth below. You represent and warrant that (1) you are not organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions (i.e., an embargo) or (2) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (3) otherwise the target of U.S. sanctions.
- Inappropriate Use. You will not upload, display or otherwise provide on or through the Product any content that:
- infringes any patent, trademark, trade secret, copyright, right of publicity, right of privacy or other right of any other person or entity;
- is unlawful, harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable;
- impersonates any person or entity;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
- contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program, uses any manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any part of the Product;
- attempts to decompile, reverse engineer, or otherwise attempt to obtain the source code of the Product;
- take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third-party providers’) infrastructure;
- interfere or attempt to interfere with the security or proper working of the Product; or
- otherwise take any action in violation of our guidelines and policies.
- Indemnification of Fluent Forever. You agree to defend, indemnify and hold harmless Fluent Forever 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 Product, any false representation made to us (as part of these Terms of Service or otherwise), your breach of any of these Terms of Service, or any claim that any translation we provide to you is inaccurate, inappropriate or defective in any way whatsoever.
- License. Subject to the terms of these Terms of Service, Fluent Forever grants you a non-transferable, non-exclusive license to download, install, and use the Product in object code form only on a device that you own or control. Fluent Forever 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.
- Proprietary Rights.
- Ownership by Fluent Forever. All content available through the Product, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (the “Product Content“), are the proprietary property of Fluent Forever or its licensors. No Product 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 of Service.
- User Generated Materials. As between you and Fluent Forever, all data, information and materials generated from your access and use of the Product, including content generated by you (collectively, the “User Generated Materials”), shall be exclusively owned by Fluent Forever, and you shall not have any right to use such User Generated Materials except as expressly authorized by these Terms of Service. By using the Product, you hereby assign to Fluent Forever any and all rights, title and interest, including any intellectual property rights or proprietary rights, in the User Generated Materials. All rights of Fluent Forever or its licensors that are not expressly granted in these Terms of Service are reserved to Fluent Forever and its licensors.
- Royalty Free Perpetual License. To the extent rights to the User Generated Materials cannot be assigned to Fluent Forever, you hereby grant to Fluent Forever a royalty free, perpetual, irrevocable, worldwide, nonexclusive, transferable, and sublicensable license to use, reproduce, copy, adapt, modify, merge, distribute, publicly display, create derivative works from, incorporate such User Generated Materials into other works; sublicense through multiple tiers the User Generated Materials, and acknowledge that this license cannot be terminated by you once your User Generated Materials are submitted to the Product. You represent that you own or have secured all legal rights necessary for the User Generated Materials submitted by you to be used by you, Fluent Forever, and others as described and otherwise contemplated in these Terms of Service. You understand that other users will have access to the User Generated Materials and that neither they or Fluent Forever have any obligation to you or anyone else to maintain the confidentiality of the User Generated Materials.
- Subscription. If you purchase an auto-renewing periodic subscription through the Product, your Fluent Forever account will be billed continuously for the subscription until you terminate it. 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 Fluent Forever account and follow instructions to terminate or change your subscription. Deleting the Product from your devices will not delete your Fluent Forever account and will not cancel your subscription. You agree to pay all fees and applicable taxes incurred by you or anyone using a Fluent Forever account registered to you. Fluent Forever may revise the pricing for the goods and services offered through the Product at any time. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Product 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 Product 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.
- Termination. Fluent Forever may terminate your access and use of the Product immediately at any time, for any reason, and at such time you will have no further right to use the Product. You may terminate your Fluent Forever account at any time by following the instructions available through the Product. The provisions of these Terms of Service relating to the protection and enforcement of Fluent Forever’s proprietary rights, your representations and warranties, disclaimer of representations and warranties, release and indemnities, limitations of liability and types of damages, ownership of data and information, governing law and venue, and miscellaneous provisions shall survive any such termination.
- No Refunds. In the event that Fluent Forever suspends or terminates your use of the Product or these Terms of Service or you close your account voluntarily, you understand and agree that you will receive no refund or exchange of any kind.
- No Representations or Warranties by Fluent Forever. The Product, including all images, audio, and other content therein, and any other information, property and rights granted or provided to you by Fluent Forever are provided to you on an “as-is” basis. Fluent Forever and its suppliers make no representations or warranties of any kind with respect to the Product, either express or implied, and all such representations and warranties, including warranties of merchantability, fitness for a particular purpose or noninfringement, are expressly disclaimed. Fluent Forever makes no warranty or representation that the content accessed, displayed, or used in connection with the Product will be appropriate for all users. Without limiting the generality of the foregoing, Fluent Forever does not make any representation or warranty of any kind relating to accuracy, service availability, completeness, informational content, error-free operation, results to be obtained from use, or non-infringement. Access and use of the Product may be unavailable during periods of peak demand, system upgrades, malfunctions or periods of maintenance or for other reasons.
- Limitation on Damages and Liability. In no event will Fluent Forever 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 Product or any portion thereof, including but not limited to the loss of use of the Product, inaccurate results, loss of profits, business interruption, or damages stemming from loss or corruption of data or 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 Fluent Forever has been advised of the possibility of such damages. Fluent Forever’s liability to you or any third party claiming through you for any cause whatsoever, and regardless of the form of action, is limited to the amount paid, if any, by you to Fluent Forever in the twelve (12) months prior to the initial action giving rise to liability. This is an aggregate limit. The existence of more than one claim will not increase such limit.
- Trademarks. “Fluent Forever” and all other trademarks, service marks, graphics and logos used in connection with the Product are trademarks or service marks of Fluent Forever or their respective owners, and certain of them are registered with the United States Patent and Trademark Office. Access and use of the Product does not grant or provide you with the right or license to reproduce or otherwise use the Fluent Forever name or any Fluent Forever or third-party trademarks, service marks, graphics or logos.
- Digital Millennium Copyright Act. If you are a copyright owner and have a good faith belief that any material available through the Product infringes upon your copyrights, you may submit a copyright infringement notification to Fluent Forever 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 Product, with enough detail that we may find it on the Product;
- 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.
Procedure to Deliver Counter-Notice:
If any user believes any material removed is either not infringing or that such user has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the user must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the user;
- Identification of the material that has been removed and the location at which the material appeared before it was removed;
- A statement that the user has a good faith belief that the material was removed as a result of mistake or a misidentification of the material; and
- The user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the user’s address is located, or if the user’s address is located outside the United States, for any judicial district in which Fluent Forever is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Fluent Forever will forward a copy of the counter-notice to the original complaining party informing that person that Fluent Forever may restore the removed material following 10 days. The original complaining party will then have 10 days to notify us that he or she has filed legal action relating to the allegedly infringing material. If Fluent Forever does not receive any such notification within 10 days, we may restore the material, at our discretion.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for Fluent Forever at: [Catherine: email@example.com]
Please consult your legal counsel for further details or see 17 U.S.C. §512(c)(3).
- Governing Law; Arbitration; No Class Action. These Terms of Service, its subject matter and Fluent Forever’s and your respective rights under these Terms of Service, as well as and any claim, cause of action or dispute (“claim”) arising out of or related to these Terms of Service, shall be governed by and construed under the laws of the State of Delaware, United States of America, excluding the conflict of law provisions of that or any other jurisdiction, regardless of your country of origin or where you access the Product. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS OF SERVICE OR THE PRODUCT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except for Fluent Forever’s right to seek injunctive relief as set forth below. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding.
If you do not want to arbitrate disputes with Fluent Forever and you are an individual, you may opt out of this arbitration agreement by sending an email to [firstname.lastname@example.org] within 30 days of the day you first access or use the Product.
If you intend to seek arbitration you must first send written notice to Fluent Forever of your intent to arbitrate (“Notice”). The Notice to Fluent Forever should be sent by any of the following means: (i) electronic mail to [email@example.com]; or (ii) sending the Notice by U.S. Postal Service certified mail to Fluent Forever Inc., Attention: [FLUENT FOREVER INC % GABRIEL WYNER | 16192 COASTAL HWY | LEWES, DE 19958]. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought; and (z) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you.
The arbitration will be conducted before a neutral single arbitrator in the Cook County, Illinois, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes, as modified by these Terms of Service. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of these Terms of Service. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. We will reimburse all other AAA filing, administration and arbitrator fees paid by you, unless the arbitrator determines that the arbitration was frivolous or brought for an improper purpose, in which case the payment of all such fees shall be governed by the AAA rules. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. For any claim where the potential award is reasonably likely to be $10,000 or less, either you or Fluent Forever may elect to have the dispute resolved through non-appearance-based arbitration.
To the fullest extent permitted by applicable law, YOU AND FLUENT FOREVER EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration, YOU AND FLUENT FOREVER EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Fluent Forever agree that all claims arising out of or related to these Terms of Service must be resolved exclusively by a state or federal court located in the Cook County, Illinois, and you and Fluent Forever each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such claims. Notwithstanding the above, you agree that Fluent Forever shall still be allowed to apply for and obtain injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
- Language. This agreement was originally written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
- COPPA Compliance. To the extent that the Children’s Online Privacy Protection Act 1998 is deemed to apply to us, the Product does not seek to collect personal information from children under 13. You may request access and/or rectification of your data or data relating to your children at all times via our support email address, firstname.lastname@example.org.
- Miscellaneous. These Terms of Service constitute the entire agreement between Fluent Forever and you concerning the subject matter hereof. In the event that any of the Terms of Service 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 of Service shall otherwise remain in full force and effect. A waiver by Fluent Forever or you of any provision of these Terms of Service or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Fluent Forever may assign its rights or obligations under these Terms of Service without condition. These Terms of Service will be binding upon and will inure to the benefit of Fluent Forever and you, and Fluent Forever’s and your respective successors and permitted assigns.