Terms Of Service
Service Connects Promoters with Curators
The Service is a communications platform for enabling the connection between individuals creating media content ("Promoters") and our network of Curators, professional Curators and tastemakers (collectively, "Curators"). References to “You” or “Your” shall encompass both Promoters and Curators in this Agreement. Promoters will pay for the opportunity to have their pre-existing media content reviewed by Fluence’s network of Curators. Media and content is provided via third party sources, including but not limited to, Soundcloud and YouTube media URLs (collectively, “Content”). Promoters may add supporting text, tags and headlines and choose the Curators with whom they want to connect based on various attributes of the Curator including the price per audition quoted by a Curator. The price per audition is set by each Curator. Curators may market their time as measured by an hourly rate. After interacting with the Content, Curators must respond whether they like or dislike it in order to receive payment. Please note that a Curator will not receive the full payment for an audition unless they view and/or listen to the entire length of the Content submitted by the Promoter. If a Curator auditions only a portion of the Content submitted by a Promoter, then the Curator will only receive a corresponding portion of the price per audition. Curators will then submit their ratings and also have the option, but not obligation, to provide text feedback to the Promoters after they have auditioned the Promoter’s Content. Promoters will in turn rate the feedback they receive from Curators.
Fluence Only Provides a Venue
The Service is a communications platform for enabling connections between Promoters and Curators. Fluence does not take part in the interaction between Promoters and Curators other than to encourage Curators to provide additional feedback after they have viewed and/or listened to the Content. Fluence does not have any control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of the Content provided by Promoters, any ratings provided by Curators or Promoters, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Promoters or Curators. Fluence cannot confirm that each Curator is who they claim to be or that such Curator possesses certain experience, connections or qualifications. Fluence does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Service.
When interacting with Curators you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you do not know. NEITHER FLUENCE NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY PROMOTER OR CURATOR OF THE SERVICE. FLUENCE AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE.
Promoters of the Service submit Content to be auditions by the Curators. Fluence will not be a party to any auditions. Fluence facilitates these auditions by supplying a medium for the exchange of money. Fluence will process payment to a Curator at the end of an audition. A Curator will only receive full payment for an audition if they view and/or listen to the entire length of Content submitted by a Promoter. If a Curator auditions only a portion of the Content submitted by a Promoter, then they will only receive a corresponding portion of the full price per audition. Except in limited situations as described below, once a Curator accepts an audition using the Service and saves their sentiment towards the Content, there will be no refunds to a Promoter, even if a Promoter does not agree with or appreciate the Curator’s feedback or lack thereof.
Company has no obligation to provide refunds or credits in any situation, including, but not limited to, any disagreements that might arise between Promoters and Curators regarding the quality and usefulness of an audition interaction. Company may however facilitate a resolution of any such disagreements and in some cases provide refunds, in all cases in Company’s sole discretion.
The Service is only a venue for connecting Promoters with Curators. Because Fluence is not involved in the actual contact between Promoters and Curators or in the process of auditions, in the event that you have a dispute with one or more Promoters or Curators, you release Fluence (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Fluence expressly disclaims any liability that may arise between Promoters and Curators of its Service.
The Service may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (collectively, “Public Areas”) that allow Promoters and Curators to communicate with each other. You may only use such Public Areas to send and receive messages and material that are relevant and proper to the applicable forum. Without limitation, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including the employees, staff and agents of Fluence.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use the Service for any purpose, including, but not limited to auditions, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Advertise or offer to sell any goods or services for any commercial purpose through the Service which are not relevant to the services offered through the Service.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or allow any other person or entity to use your identification to post or view comments.
- Post the same note repeatedly (referred to as ‘spamming’). Spamming is strictly prohibited.
- Download any file posted by another Promoter that a Promoter knows, or reasonably should know, cannot be legally distributed through the Service.
- Restrict or inhibit any other Promoter from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Fluence, without the prior written consent of Fluence.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Service in any manner.
- Hack or interfere with the Service, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the Service for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Fluence.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
All submissions made to Public Areas will be public, and Fluence will not be responsible for the action of other Promoters or Curators with respect to any information or materials posted in Public Areas.
Account, Password and Security
You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password provided by you or Fluence for accessing the Service. You are solely and fully responsible for all activities that occur under your password or account. Fluence has no control over the use of any Promoter’s or Curator’s account and expressly disclaims any liability derived therefrom. Please contact Fluence immediately if you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security.
Links to Other Web Sites
Links (such as hyperlinks) from the Service to other sites on the Web do not constitute the endorsement by Fluence of those sites or their content. Such links are provided as an information service, for reference and convenience only. Fluence does not control any such sites, and is not responsible for their content. The existence of links on the Service to such websites (including without limitation external websites that are framed by the Service as well as any advertisements displayed in connection therewith) does not mean that Fluence endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
The Service may not be used to solicit for any other business, website or service. You may not solicit, advertise for, or contact in any form Promoters or Curators for employment, contracting, or any other purpose not related to the Service facilitated through Fluence.
You may not use the Service to collect usernames and/or email addresses of promoters or Curators by electronic or other means without the express prior written consent of Fluence.
Generated Content and Your Likeness
“Generated Content” is defined as any information and materials other than the Content that you provide to Fluence, Promoters or Curators in connection with your use of the Service, and any information that is posted or transmitted for use in Public Areas. You are solely responsible for your Content and Generated Content, and we act merely as a passive conduit for your online distribution and publication of the Content and Generated Content. You hereby represent and warrant to Fluence that your Content and Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Fluence or cause Fluence to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The Service hosts the Generated Content. Any reviews and feedback of a Promoter or Curator are the opinions of the party making such comments and not the opinion of Fluence, have not been verified by Fluence and each Promoter or Curator, as the case may be, should undertake their own research to be satisfied that a specific Promoter or Curator is the right person for an audition. You agree that Fluence is not liable for any Content or Generated Content.
You hereby grant Fluence a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in your Generated Content, in any media now known or not currently known in order to perform and improve upon the Service.
Each Promoter or Curator that provides any Generated Content to Fluence, in exchange for the right to use the Service, hereby irrevocably grants to Fluence the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Use any Generated Content that such Promoter or Curator provides to Fluence, and use, reproduce, modify, or creative derivatives of such Promoter’s or Curator’s picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively, “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any Generated Content in connection with the Service.
- Use, and permit to be used, such Promoter’s or Curator’s Physical Likeness in the advertising, marketing, and/or publicizing of the Service in any media.
- Use, and permit to be used, such Promoter’s or Curator’s name and identity in connection with the Service.
Each Promoter and Curator hereby waives all rights and releases Fluence from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of any Generated Content, identity, likeness or voice in connection with the Service.
Each Promoter and Curator acknowledges that Fluence shall not owe any financial or other remuneration for using the Content or Generated Content to operate the Service other than to pay amounts owed to Curators for viewing and/or listening to the Content.
Termination and Suspension
Fluence may terminate or suspend your right to use the Service at anytime for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.
Without limitation, Fluence may terminate or suspend your right to use the Service if you breach any term of this Agreement or any policy of Fluence posted through the Service from time to time, or if Fluence otherwise finds that you have engaged in inappropriate and/or offensive behavior. If Fluence terminates or suspends your right to use the Service for any of these reasons, you will not be entitled to any refunds. In addition to terminating or suspending your account, Fluence reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Service is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all use of the Service. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Promoters and Curators see or read through the Service is owned by Fluence, excluding (i) Content and (ii) Generated Content that Fluence has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Fluence owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Promoters may not copy, download, use, redesign, reconfigure, or retransmit anything from the Service without Fluence’s express prior written consent and, if applicable, the holder of the rights to the Content or Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Fluence and, if applicable, the holder of the rights to the Content or Generated Content.
The service marks and trademarks of Fluence, including without limitation Fluence and Fluence logos are service marks owned by Fluence. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Copyright Complaints and Copyright Agent
Fluence respects the intellectual property of others, and expects Promoters and Curators to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to Fluence’s Copyright Agent at: Fluence, Inc., 395 Page Mill Road, 3rd Floor, Palo Alto, California 94306 or email email@example.com:
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow Fluence to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail 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;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Fluence and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Fluence in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Fluence upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all of Fluence’s trade secrets, confidential and proprietary information and all other information and data of Fluence that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, “look and feel” of the Service, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FLUENCE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. FLUENCE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR OTHER ADVERTISING AND FLUENCE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER FLUENCE NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY AUDITION, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER FLUENCE NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY PROMOTER OR CURATOR.
NEITHER FLUENCE NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
FLUENCE AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
EACH PROMOTER IS RESPONSIBLE FOR SELECTING THEIR CURATOR(S) AND FLUENCE DOES NOT RECOMMEND ANY PARTICULAR CURATOR. FLUENCE DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY CURATOR’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENCE.
YOU ACKNOWLEDGE AND AGREE THAT FLUENCE IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD FLUENCE, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY PROMOTER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY PROMOTER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY FLUENCE OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF GENERATED CONTENT.
UNDER NO CIRCUMSTANCES WILL FLUENCE, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
FLUENCE DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OF ANY AUDITION OR ANY REVIEWS OR FEEDBACK SUBMITTED VIA THE SERVICE.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT FLUENCE OR ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO FLUENCE DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Fluence, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with your use or inability to use the Service. Fluence reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Fluence.
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Fluence agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Fluence. Fluence’s address for such notices is Fluence, Inc., 395 Page Mill Road, 3rd Floor, Palo Alto, California 94306 Attention: Legal.
BINDING ARBITRATION. If you and Fluence are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If your claim for damages does not exceed $10,000, Fluence will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Fluence may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in Santa Clara County, California with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and Fluence agree that any arbitration will be limited to the Dispute between Fluence and you individually. YOU ACKNOLWEDGE AND AGREE THAT YOU AND FLUENCE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Fluence otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” Section will be deemed null and void.
LOCATION OF ARBITRATION. Arbitration will take place in Santa Clara County, California. You and Fluence agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the California state and Federal courts located in Palo Alto, California have exclusive jurisdiction and you and Fluence agree to submit to the personal jurisdiction of such courts.
Promoters or Curators Based Outside of the U.S.
INTERNATIONAL USE. We are based in the United States but we may have Promoters and Curators outside the United States in other jurisdictions, including, but not limited to, the United Kingdom and/or Europe. Fluence is limited by the rights that our Promoters and Curators grant to us. Using technologies to access the Content from territories where Fluence does not have rights or does not offer services is prohibited.
EXPORT CONTROLS. Software and the transmission of applicable technical data, if any, in connection with the Service are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
You and Fluence agree that, other than as set forth under the subsection entitled “Waiver Of Right To Be A Plaintiff Or Class Member In A Purported Class Action Or Representative Proceeding” above, if any portion of the prior section entitled “Dispute Resolution” is found illegal or unenforceable, that portion will be severed and the remainder of the section will be given full force and effect. Notwithstanding the foregoing, if the subsection entitled “Exceptions to Alternative Dispute Resolution” in the prior section is found to be illegal or unenforceable, neither you nor Fluence will elect to arbitrate any Dispute falling within that portion of that subsection that is found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Palo Alto, California, and you and Fluence agree to submit to the personal jurisdiction of that court.
Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.
Fluence may from time to time provide certain promotional opportunities, sweepstakes and contests to Promoters or Curators. All such promotions will be run at the sole discretion of Fluence, and can be activated, modified or removed at anytime by Fluence without advance notification.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Failure by Fluence to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. This Agreement constitutes the entire agreement between you and Fluence with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement will inure to the benefit of Fluence, its successors and assigns.
Changes to this Agreement and the Service
Effective Date: October 24, 2013
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