PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY USING OUR SERVICE OR WEB SITE (“SITE”) (THE TERM “SERVICE” SHALL HEREINAFTER REFER TO BOTH THE SITE AND THE SERVICE UNLESS THE CONTEXT INDICATES OTHERWISE) YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN (“TERMS OF SERVICE”). IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU CONFIRM THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION AND THAT THE ORGANIZATION WILL BE BOUND BY THESE TERMS. THE TERM “YOU” or “YOUR” SHALL REFER TO YOU –AND SUCH ORGANIZATION (IF ANY):
This Service is owned by The Fluid App, LLC, (hereinfter “The Fluid App, LLC”, “we” or “us”).
Through this Site, The Fluid App, LLC provides 1. configuration tools, configuration services, The Fluid App publication and maintenance services to non-profit and professional organizations; and 2. Documentation and API to clients and business associates.
You may open an account by completing the information on the registration pages of this Site. You are responsible for maintaining the confidentiality of your password and account. Your username and/or password may not be assigned or transferred to any other person or entity. You are required to provide your email address in order to open an account. Your email address will help us to verify your identity on future visits. In the event that you register using a non-existent email address or an email address that belongs to someone else, we may terminate your account without notice. You will be responsible for any damage caused by unauthorized access resulting from your failure to keep your password secure.
You shall not disclose to any third party any information provided to you by The Fluid App, LLC which is marked “Confidential”.
The Obligations set forth in Section (“Confidentiality”) do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party. Notwithstanding the Confidentiality Obligations set forth in Section, each party may disclose Confidential Information of the other party as permitted by law (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
Unless otherwise indicated, the Service and all content and other materials on this Site including, without limitation, the The Fluid App, LLC trademarks, The Fluid App logo, and all designs, text, graphics, images, information, data, software, documentation, sound files, other files and the selection and arrangement thereof (collectively, the “Service Materials”) are the property of The Fluid App, LLC and are protected by U.S. and international copyright, trade secret and other intellectual property laws.
The following actions are specifically prohibited: (a) any resale, lease or rental of the Site or the Service Materials therein; (b) the distribution, public performance or public display of any Service Materials; (c) modifying or otherwise making any derivative uses of the Site or the Service Materials, or any portion thereof; (d) use of automated means, including spiders, robots, crawlers, offline readers, data mining tools, or the like to download data from the Site or Service or to cause an overload of The Fluid App, LLC servers ; (e) downloading (other than page caching) or copying any portion of the Site, the Service Materials or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to The Fluid App, LLC’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Site; (g) collection or harvesting of any personally identifiable information, including, but not limited to, company names, domain names or account names, from the Service nor to use the communication systems provided by the Service for any commercial solicitation purposes; (h) use of any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (i) any use of the Site or the Service Materials other than for their intended purpose. Any use of the Site or the Service Materials other than as specifically authorized herein, without the prior written permission of The Fluid App, LLC, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Site Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
The Fluid App–Only The Fluid App, LLC may post The Fluid App to the Apple iTunes App Store, Android Market, the web, and any other platform. You shall retain ownership of any and all logos, and all designs, text, graphics, images, information, data, software, sound files, other files and the selection and arrangement thereof (“Customer Materials”) provided by you for incorporation into The Fluid App or provided by you through data feeds to The Fluid App.
Feedback–Any suggestions, ideas or feedback concerning the Service provided by you to The Fluid App, LLC shall become the sole property of The Fluid App, LLC. The Fluid App, LLC shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and circulation thereof for any purpose, without acknowledgment or compensation to you.
Any use of the Service that violates this agreement is strictly prohibited and may result in your exclusion from the Service, and your Fluid App being removed from any network, store or server, and any other platform on which The Fluid App has been published. Unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
USE ONLY BY YOUR ORGANIZATION.
You may not transfer or assign your rights under this Agreement to any third party and any attempt to do so shall be void.
The Fluid App shall only be distributed to end users by The Fluid App, LLC through the app networks, app stores and servers, and any other platform on which The Fluid App, LLC has published The Fluid App has been published, utilizing in every case a form of license acceptable to The Fluid App, LLC. You shall make no other commercial use of The Fluid App without The Fluid App, LLC’s written consent. Violation of the provisions of this Section may result in deactivation of The Fluid App without refund.
All Content included in your data feeds must be viewable on your web site at such time as it is viewable using The Fluid App. You may not make The Fluid App available to another entity for inclusion of their Content and you may not rent, lease, or sell the service to third parties or otherwise provide other entities with the ability to distribute their Content through The Fluid App unless it is branded as your Content. You agree not to resell, republish, duplicate, reproduce or exploit any part of the Service without The Fluid App, LLC’s prior written permission.
DATA FEEDS; RESTRICTIONS ON CONTENT POSTED.
You shall be solely responsible for establishing, and maintaining a connection to the Internet, and providing the required data feeds to support proper function of The Fluid App. In providing The Fluid App, LLC with Customer Materials, you grant The Fluid App, LLC an irrevocable, perpetual, royalty-free, fully sub-licensable, fully paid up, worldwide license to use, copy, transmit, publicly perform, digitally perform, publicly display, and distribute them through Fluid Apps on any platform, network, store,server, or the web. This license is non-exclusive, except you agree that The Fluid App, LLC shall have the exclusive right to practice this license to the extent of combining Customer Materials with a Fluid App. You represent and warrant that you have all rights needed to authorize The Fluid App, LLC to use, copy, transmit, publicly perform, digitally perform, publicly display and distribute the Content provided through such data feeds.
You may not use the Service in a prohibited manner or include in the data feed any Content that is prohibited. The Fluid App, LLC reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Content served through The Fluid App and terminating the violator’s Service without refund. The following is deemed unacceptable.
References to illegal activity, malpractice, false advertising, purposeful overcharging, or health code violations (i.e. food poisoning, foreign objects in food, etc.).
Harassment or perceived harassment of another person.
Unsolicited mass mailings or “spam”.
Content determined by The Fluid App, LLC to be illegal, or to violate any local, state or federal law or regulation or the rights of any person or entity.
Harmful, offensive and abusive language, including but not limited to: hate speech, expletives, harassment, obscenities, vulgarities and sexually explicit language.
Content that is inappropriate based on the subject matter.
Any content that is encrypted or that contains viruses or any other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system or information.
Any content that violates intellectual property rights of any person.
You agree that you will only provide Content that you believe to be true and you will not purposefully provide false or misleading information.
You further agree that you will not:
modify, adapt, translate, or reverse engineer any portion of the Service;
take any action that creates an unreasonably large load on our IT infrastructure;
use the Service to violate the security of any computer network, crack passwords or security encryption codes; transfer or store illegal material including that are deemed threatening or obscene;
create user accounts by automated means or under false or fraudulent pretenses;
collect information about other users for any improper purpose;
CONSENT TO RECEIVE EMAILS.
By using the Service, you consent to receive emails from The Fluid App, LLC, which may include commercial emails. We will not use your information to send you news and product updates, unless you “opt in” to receiving such communications. In addition, you may “opt out” of receiving marketing or promotional email from The Fluid App, LLC by following “unsubscribe” instructions or using “unsubscribe” links within communications we send. Please note, however, that as long as you maintain an account, you may not “opt out” of receiving service or account-related emails from The Fluid App, LLC.
RIGHT TO UPGRADE SERVICE.
The Fluid App, LLC reserves the right to upgrade and/or change the Service at any time without notice.
Your total configuration fee shall be as shown in the Statement of Work (if any), which incorporates all of the terms and conditions of the Terms of Service already agreed to by the parties. Upon your acceptance of the Statement of Work, you authorize The Fluid App, LLC to bill your credit card for a deposit of the configuration amount (Setup Fee) and The Fluid App, LLC shall begin configuring a Fluid App according to the specifications in the Statement of Work. When you authorize The Fluid App, LLC to charge your credit card for the monthly service fees associated with the Service Plan selected by you, The Fluid App, LLC will submit The Fluid App for publication on the platform you selected. After the first year of Service, The Fluid App, LLC shall charge your credit card the agreed monthly fee each month in advance. You represent and warrant that all credit card and related information that you provide to The Fluid App, LLC for such purposes shall be true and correct. In the event that The Fluid App, LLC chooses to increase rates, it shall provide you with email notification of such increase at least thirty (30) days in advance and you may elect to terminate the Service prior to such increase becoming effective by contacting The Fluid App, LLC by email. You must promptly inform The Fluid App, LLC of any changes in your credit card information. You may make changes to your credit card information on your User Profile webpage. All payments shall be made in U.S. dollars. The charges included here do not include taxes. If The Fluid App, LLC is required to pay any federal, state or local sales, use, property or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to you, unless you are able to provide proof of appropriate, qualifying tax exempt status. The Fluid App, LLC shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by you. Upon your failure to pay monthly fees, you authorize The Fluid App, LLC to remove The Fluid App from any and all platforms on which The Fluid App has been published. Prepaid fees are non-refundable.
For a period of two years from the date Your account expires or is terminated, You will not solicit those vendors or customers of The Fluid App, LLC that did business with The Fluid App, LLC during the twelve months prior to the termination of Your account nor will You divert or attempt to divert from the The Fluid App, LLC any business The Fluid App, LLC enjoyed or solicited from its customers during the twelve months prior to the termination of Your Account.
NONINTERFERENCE WITH The Fluid App, LLC EMPLOYEES.
During the time that Your account is active and for two (2) years following, You agree that You will not:
induce, or attempt to induce, any The Fluid App, LLC employee to quit the The Fluid App, LLC’s employ,
recruit or hire away any The Fluid App, LLC employee, or
hire or engage any The Fluid App, LLC employee or former employee whose employment with the The Fluid App, LLC ended less than one year before the date of such hiring or engagement.
The Fluid App, LLC does not guarantee acceptance of Fluid Apps or data by Apple, Inc. or gatekeepers of other platforms, networks, stores or servers. If the app is rejected by them for code defects, The Fluid App, LLC will correct them and re-submit them as soon as reasonably possible. If the app is rejected for any other reasons (content, feeds, branding, etc.), The Fluid App, LLC will use the allocated consulting hours to work with you to fix and resubmit the app. This warranty to you shall be null and void if you are in default under this Agreement.
Closing your account shall not relieve you of the obligations and/or restrictions stated herein. Prepaid fees are non-refundable.
DISCLAIMER OF WARRANTIES. EXCEPT AS STATED ABOVE, THE SITE, THE SERVICE MATERIALS AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS ABOVE, The Fluid App, LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. The Fluid App, LLC DOES NOT REPRESENT OR WARRANT THAT SERVICE MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SITE, OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. The Fluid App, LLC DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL The Fluid App, LLC OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SERVICE, THE CONTENT OR THE SERVICE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM The Fluid App, LLC OR THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO The Fluid App, LLC’S RECORDS, PROGRAMS OR SERVICES. THE AGGREGATE LIABILITY OF The Fluid App, LLC, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SITE OR THE SERVICE MATERIALS, SHALL NOT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO The Fluid App, LLC FOR ACCESS TO OR USE OF THE SERVICE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH\, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to indemnify, defend and hold The Fluid App, LLC, its subsidiaries, affiliated companies and their respective shareholders, directors, officers, employees, agents, attorneys, successors and/or assigns, (the “Indemnified Parties”) harmless from and to reimburse the Indemnified Parties for any claims, cost, expenses, losses, demands, damages, legal fees and costs, penalties, and/or liabilities of any kind or nature, resulting from or relating in any way to your use of our Service. You further agree to indemnify, hold harmless and defend The Fluid App, LLC against any claims asserted or threatened against The Fluid App, LLC by your end users related to or arising in any way out of your breach of warranties or representations, services, operation of your organization, use of our Service, or failure to provide services. We may defend any such claim, at our option, and you must pay our attorney fees and costs. This indemnity will continue in full force after expiration or termination of this Agreement.
APPLICABLE LAW AND VENUE.
These Terms of Service and your use of the Service shall be governed by and construed in accordance with the laws of the United States of America and the State of Washington applicable to agreements made and to be entirely performed within the State of Washington (even if your use is outside of the State of Washington), without resort to its conflict of law provisions. You agree that with respect to any disputes or claims not subject to arbitration (as set forth below), any action at law or in equity arising out of or relating to the Service or these Terms of Service shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
You and The Fluid App, LLC agree that except as otherwise specifically provided in this paragraph, any controversy or claim arising out of or relating in any way to these Terms of Service, or the breach thereof , or to the Site and/or the Services shall be settled exclusively by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules and, in the case of consumer disputes, with the AAA’s Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) before a single arbitrator in Seattle, WA, and that judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. (Notwithstanding the foregoing, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, then the parties acknowledge that arbitration is not an adequate remedy at law and that without waiving any remedy under these Terms of Service, injunctive or other appropriate relief may be sought from any court specified in the preceding Section. The allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules.) To the fullest extent permitted by applicable law, no arbitration or claim shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted. In no event shall any claim, action or proceeding by you related in any way to the Service be instituted more than two (2) years after the cause of action arose. In the event that any term of this Section (Arbitration) is held to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified automatically to comply with such provision and the remainder of this Section shall not be affected.
If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. If there is any overlap or similarities with other previous agreements between You and The Fluid App, LLC, these Terms of Service shall supersede those other agreements.
One or more patents owned by, or patent applications submitted, by The Fluid App, LLC may apply to this Service and to the features or services accessible via the Service.
ACCREDITATION AND PROMOTION.
The Launch screen of The Fluid App shall bear a copyright notice and the branding of The Fluid App, LLC or it’s affiliated brands in the form, size and location chosen by The Fluid App, LLC in its discretion. The Software’s graphical user interface shall display copyright information and the following credit “Designed + Developed by The Fluid App, LLC” or similar credit in the form, size and location chosen by The Fluid App, LLC in it’s discretion. The Fluid App, LLC retains the right to reproduce, publish and display static screen shots, motion demos, and other representations of The Fluid App with Your name and logo in The Fluid App, LLC-owned and affiliated portfolios and websites, and in galleries, design periodicals and other media or exhibits for purposes of publicity. In the app stores and marketplaces, keywords “The Fluid App, LLC” and “The Fluid App” must be included. Also credit must be mentioned in the description. In all other places where The Fluid App is marketed or distributed, You shall add the following statement “designed and built by The Fluid App, LLC. Copyright © 2019 The Fluid App, LLC” or similar credit in the form, size and location chosen by The Fluid App, LLC in it’s discretion, and include a link to the The Fluid App, LLC web site if the statement is made in electronic format.
Revision 1.3 Jan 2019