Fluency, Inc. Terms of Service

Internet Interpreter Scheduling System Mobile Version

These Terms of Service define the terms by which users may use the cloud-based, interpreter scheduling and management solution and any associated applications, webpages, and software services (collectively, “Service”). These Terms of Service represent an agreement between you, who is currently and actively working as an authorized spoken language and/or American Sign Language interpreter for a commercial interpreting agency, non-profit interpreting service organization, and/or public government entity’s interpreting operation and is hereinafter referring to you as (the “Authorized Interpreter User”) AND Fluency, Inc., a California corporation, having its principal place of business at 5921 Sutter Avenue, Carmichael, CA 95608 (the “Company”), who may each individually be referred to as a “Party” or collectively as the “Parties.” By subscribing to use the software solution and the software services, you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service, as well as any applicable laws hereunder. Do not use or access the Service if you do not agree to the following Terms of Service.

INTELLECTUAL PROPERTY
1. Subscription. For the Term and any Renewal Periods as defined in Section 3 below, Company grants to Subscriber Agency the non-exclusive, non-transferable right to permit for Subscriber Agency’s own business purposes to access, use, display, and run the Software Services in accordance with the Permissions designated to the Subscriber Agency by the Company, (Terms of Service for Language Agencies).
  1. “Subscriber Agency” shall be defined as the spoken language or American Sign Language interpreting organization, you as Authorized Interpreter User currently provide spoken language and/or American Sign Language interpreting services to on an ongoing basis.
  2. “Applications(s)” shall be defined as the downloadable software application(s), which when run and operated, will access the Software and manage the features associated with such Software. For the avoidance of doubt, the Application comprises the current version of the downloadable software application, along with any updates, upgrades, or improvements made thereto.
  3. “Authorized Interpreter User” shall be defined as any third party employee, independent contractor, or other individual whom the Subscriber Agency expressly authorizes to access the Software in order to support, manage and fulfill interpreting assignments on an ongoing basis.
  4. “Permissions” shall be defined as the specific access rights granted to each Authorized Interpreter User as designated by Subscriber Agency.
  5. “Services” shall be defined as all of the Software Services as well as any supporting hardware services, if any, which Company makes available to Subscriber Agency.
  6. “Software” shall be defined as the cloud-based version of the Software, developed, hosted, and maintained by Company for use by Subscriber Agency.
  7. “Software Services” shall be defined as the Application which is made available by Company to Subscriber Agency and Subscriber Agency in turn makes available to the Authorized Interpreter User.
  8. “Client Requesters” shall be defined as all of the individual clients of the Subscriber Agency who request an on-site interpreter either online via the Software Services or by other means spoken and/or American Sign Language interpreting services for their Limited English, Deaf and hard of hearing patients and clients.
2. Licenses.
  1. Application License. Company shall make available to Subscriber Agency and Authorized Interpreter Users the Application(s) for download pursuant to the applicable end user license agreement associated with the Application(s) (“EULA”).
3. Ownership of Software, Database, Application, and API. Authorized Interpreter User acknowledges and agrees that no right, title, or interest in the Software, Database, Application, or application program interface (“API”) is transferred to Authorized Interpreter User under these Terms of Service. Authorized Interpreter User further acknowledges that all right, interest, title and full ownership rights in and to the Software, Database, Application, and API will remain the exclusive property of Company. Authorized Interpreter User agrees not to remove any trademark, copyright, or other proprietary notices on the Application or Documentation as delivered, and to reproduce all such notices on and in all authorized copies.
  1. “API” shall be defined as the application programming interface that integrates with both Quickbooks, MapQuest, Google Maps, Microsoft Office, Adobe Acrobat Reader, and the Software Platform.
  2. “Database” shall be defined as the copyrightable database organizing the data for the Software.
4. Restrictions. Authorized Interpreter User may not share, distribute, resell, rent, lease, sublicense, transfer, create derivative works of the Applications or Software, or otherwise permit any third party to access, use, or display the Applications or Software. The Software Services and the Application contain Company’s trade secrets, and in order to protect those trade secrets, Authorized Interpreter User agrees not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivative works of the Software or Application, in whole or in part, nor to permit any third party to do so. Any use of the Software, Application, or Software Services by Authorized Interpreter User that exceeds the license grants, the scope of the subscription and/or the policies and procedures of the Subscriber Agency shall constitute a breach of these Terms of Service.
5. Ownership of Logos and Trademarks. Authorized Interpreter User acknowledges and agrees that Company owns all right, title, and interest in the logos and trademarks used by Company in conjunction with the marketing and advertising of the Software, Application, and Software Services, and that no right to use any such logos and trademarks is granted herein. Company acknowledges and agrees that Subscriber Agency owns all right, title, and interest in the logos and trademarks used by Subscriber Agency in conjunction with the marketing and advertising of Subscriber Agency’s business.
6. Data. Subscriber Agency shall own all data generated, input and/or imported into the Software by either Subscriber Agency, Authorized Interpreter User, or Client Requester and shall retain ownership of all right, title, and interest in any trade secret rights in the data generated by or imported into the Software Platform by Subscriber Agency or any Authorized Interpreter User or by Client Requester.
SUBSCRIBER AND AUTHORIZED USER OBLIGATIONS
1. Acceptable Use Policy Compliance. Subscriber Agency and Authorized Users shall be responsible for fully complying with the terms of Company’s Acceptable Use Policy posted at this webpage [[[insert website link]]] and incorporated herein by reference.
2. Hardware Device Security Obligations. Subscriber Agency and Authorized Interpreter Users shall be responsible for ensuring and maintaining the security of any hardware device to which an Application or Software Services are downloaded. Subscriber Agency and Authorized Interpreter Users acknowledge and agree that they have received a copy of Company’s [name of document giving minimum security recommendations] and taken steps to implement at least the minimum recommendations set forth therein.
TERM AND TERMINATION
1. Suspension of Services; Survival Clauses. Upon any expiration or termination of this subscription or renewal subscription, Company shall have the right to immediately and permanently suspend the performance of all Services. In addition, upon expiration or termination, Subscriber Agency and Authorized Users shall have no further right to install, use, display, or run Applications. The following terms and conditions shall survive any expiration or termination of this subscription until such time as they are exhausted: Sections 1 (c-f), 4, 5, 6, 7, and 8.
CONFIDENTIAL INFORMATION
1. “Confidential Information” shall be defined as all the proprietary, non-public information of either Party disclosed pursuant to or in furtherance of this relationship including but not limited to all Technical Information as defined herein, all pricing information, and all data uploaded by Subscriber Agency or Authorized Interpreter User generated by the Software. Notwithstanding the foregoing, “Confidential Information” shall not include any information that the recipient can demonstrate through its records (i) was in its knowledge or possession prior to disclosure by the discloser, (ii) was in the public domain at the time of disclosure or subsequently entered the public domain through no fault of recipient, or (iii) was disclosed to recipient by a third party with the right to make such a disclosure. Confidential Information shall also include Protected Health Information (“PHI”) which is any information about health status, provision of health care, that can be linked to a specific individual. Authorized Interpreter Users will only have access to the minimum amount of PHI necessary for the purpose of reviewing, accepting and completing assignments, confirming and reporting finish times for the audit and/or financial purposes necessary for the Subscriber Agency to effectively conduct their business.
2. “Technical Information” shall be defined as all proprietary or non-public information, know-how, trade secrets, data, materials, inventions, source code, or discoveries owned by Company that are necessary or useful to the Software Services or Application and are in the possession of Company.
WARRANTY AND LIABILITY
1. Company Warranty. Company warrants and represents that (i) all Services provided under this the Terms of Service will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards; and (ii) the Software Services and Application(s) will perform substantially in accordance with the Documentation for the Term and any Renewal Period and will be free from any material defects; and this warranty shall not apply to problems affecting the Software Platform or Application(s) due to (i) electrical work, network, or other problems external to the Software Platform or Application(s); (ii) modifications to the Software Platform or Application other than those performed by Company; (iii) or misuse of the Software Platform of Application; or (iv) interoperability issues between the Application(s) and third party software applications on any hardware to which they are downloaded. Upon receipt by Company of Subscriber Agency’s written notice of any breach of this warranty, Company’s liability and Subscriber Agency’s sole remedy shall be to the following: (A) in the case of the Application or the Software Platform, using reasonable commercial measures to correct the material non-conformity or providing a work-around to avoid the non-conformity, taking into account the severity of the non-conformity, or (B) in the case of nonconforming Services, using reasonable commercial measures at Company’s expense to re-perform or correct the performance or delivery of the Services so that the Services meet the standards set in the warranty.
2. Disclaimer of Other Warranties. THE SOFTWARE SERVICES, APPLICATION(S), AND SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS. USE AND RELIANCE ON THE SOFTWARE SERVICES, APPLICATION(S), AND THE SOFTWARE IS AT THE SUBSCRIBER AGENCY’S AND AUTHORIZED INTERPRETER’S OWN RISK. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE PLATFORM OR ACCESS TO THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, BUG-FREE, ERROR-FREE, VIRUS-FREE, FREE OF DEFECTS, FREE OF TECHNICAL PROBLEMS, THAT THE SOFTWARE PLATFORM OR SERVICES WILL MEET ALL OF SUBSCRIBER AGENCY’S AND AUTHORIZED INTERPRETER USER’S NEEDS, OR THAT DATA UPLOADED OR GENERATED BY THE SOFTWARE WILL NEVER BE LOST. WITH THE EXCEPTION OF THE WARRANTY STATED IN SECTION 6(a) ABOVE, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, APPLICATION(S), AND THE SOFTWARE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. COMPANY DISCLAIMS ANY WARRANTY THAT ALL ERRORS, BUGS, OR DEFECTS CAN OR WILL BE CORRECTED OR THAT THE SOFTWARE PLATFORM, APPLICATION, OR SERVICES WILL OPERATE BUG-FREE, ERROR-FREE, CONTINUOUSLY, OR UNINTERRUPTED. SUBSCRIBER AGENCY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, AND HARDWARE DEVICES AND AS SUCH, COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR OTHER PROBLEMS OR DAMAGES RESULTING THEREFROM. COMPANY RESERVES THE RIGHT TO PERFORM SCHEDULED AND UNSCHEDULED EMERGENCY MAINTENANCE ON THE SOFTWARE SERVICES, AND WILL USE REASONABLE EFFORTS TO NOTIFY SUBSCRIBER AGENCY AND AUTHORIZED INTERPRETER USER IN ADVANCE.
3. Consequential Damages. THE PARTIES SHALL IN NO EVENT BE LIABLE TO EACH OTHER FOR ANY PERSONAL INJURY, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, LOSS OF BUSINESS OPPORTUNITIES, COSTS OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE, PERFORMANCE, OR INTERRUPTION OF THE SOFTWARE PLATFORM, THE APPLICATIONS, OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, THIRD PARTY CLAIMS, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES; THIS SECTION APPLIES ONLY TO THE EXTENT AVAILABLE BY APPLICABLE LAW.
4. Limitation of Liability. Company’s total cumulative liability to Authorized Interpreter User from all causes of action and under all theories of liability in the aggregate shall be limited to the total amount of all fees paid by Subscriber Agency in the six (6) month period immediately preceding the claim. This limitation shall apply notwithstanding the failure of the essential purpose of any remedy thereunder.
5. Indemnification. Authorized Interpreter User shall defend, indemnify, and hold harmless Company and its directors, officers, employees, independent contractors, and agents from and against any and all liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees, court costs, and notification expenses), fines, or penalties, as a result of a claim, action, lawsuit, legal proceeding, judgment, or settlement arising from (a) a breach of data attributable to Subscriber Agency, Client Requester or Authorized Interpreter User; (b) a federal or state investigation or legal proceeding involving data uploaded by Subscriber Agency or Client Requester or Authorized Interpreter User to the Software Services, to the extent attributable to Subscriber Agency or Client Requester or Authorized Interpreter User, including but not limited to any proceeding initiated by a state attorney general or federal regulatory agency; (c) the infringement by Subscriber Agency or Client Requester or Authorized Interpreter User of any Company intellectual property or the disclosure of Confidential Information in violation of these Terms of Service; (d) any failure by Subscriber Agency or Client Requester or Authorized Interpreter User and their agents, employees, officers, representatives and subcontractors to comply with any applicable law or regulation; (e) any claim of death, bodily injury, and/or property damage as a result of an act or omission by Subscriber Agency or Client Requester or Authorized Interpreter User, except to the extent that such claim arose as a direct result of the negligence of Company; or (f) any breach of a warranty, representation, or obligation set forth in these Terms of Service.
  
  Company shall notify Subscriber Agency promptly upon receipt of notice of any claim, action, lawsuit, or other proceeding and reasonably cooperate in the investigation and defense of any such claim, action, lawsuit, or other proceeding (at Subscriber Agency’s expense). Subscriber Agency shall have the right to select defense counsel, subject to Company’s approval, not to be unreasonably withheld, and to direct the defense or settlement of any claim, action, lawsuit, or other proceeding. If representation of Company by the same legal counsel in any lawsuit or claim would be a conflict of interest for such counsel, Company will retain independent counsel (at Subscriber Agency’s expense) to eliminate such conflict.
ACCESS AND USE
1. User Accounts. In order to use these Services, you must be an Authorized Interpreter User or Subscriber Agency registered for active user account ("Account"). Account registration requires you to submit to Company certain information, including but not limited to Subscriber Agency name and address as well as, Authorized Requester information as well as Authorized Interpreter User name and address. Subscriber Agency agrees to maintain accurate, complete, and up-to-date information in Account. Failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access or use the Software Services, or may cause errors in executing services. Authorized Interpreter Users are responsible for all activity that occurs under their Account, and Authorized Interpreter User agrees to maintain the security and secrecy of their Account username and password at all times.
2. User Requirements and Conduct. Authorized Interpreter User may not authorize a third party to access their Account. Authorized Interpreter Users agree to comply with all applicable laws when accessing or using the Software Services, and may only access or use the Software Services for lawful purposes and only in support of managing their interpreting assignments and affiliated work directly associated with their Subscribing Agency.
3. Network Access and Devices. Authorized Interpreter Users are responsible for obtaining the data network access necessary to use the Software. The Authorized Interpreter User’s mobile network's data and messaging rates and fees may apply if accessing or use the Software from a device. The Authorized Interpreter User is responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto, currently the Services are available only on Android and Apple devices. Company does not guarantee that the Software, Software Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Software and Software Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
ARBITRATION
Authorized Interpreter User and Company agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) Authorized Interpreter User’s access to or use of the Services at any time, whether before or after the date agreed to the Terms, will be settled by binding arbitration between Authorized Interpreter User and Company and not in a court of law.

Authorized Interpreter User acknowledges and agrees that Authorized Interpreter User and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both Authorized Interpreter User and Company otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, Authorized Interpreter User and Company each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
MISCELLANEOUS
1. Entire Understanding. These Terms of Service contain the entire understanding of the Parties with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral. There are no restrictions, promises, covenants, or understandings other than those expressly set forth herein, and no rights or duties on the part of either Party are to be implied or inferred beyond those expressly provided for.
2. Export Control. Subscriber Agency and Authorized Interpreter User may not use or otherwise export or re-export the Software or Database. Subscriber Agency and Authorized Interpreter User also agrees not to use the Database, or Software for any purposes prohibited by applicable law.
3. Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to conflicts of law principles.
4. Disputes. Any disputes, actions, claims, or causes of action arising out of or in connection with these Terms of Service or the Software Services shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Sacramento County, California. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THESE TERMS OF SERVICE.
5. Severance. If any provision of these Terms of Service is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. The Parties agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the Parties as expressed in these Terms of Service, if any invalid or unenforceable provision affects the consideration of either Party.
6. Modifications and Additions. No modifications or additions to the terms and conditions of these Terms of Service shall be binding unless in writing and signed by both Parties. Notwithstanding the foregoing, Company reserves the right to modify any policy or policies within its reasonable discretion from time to time, and such modification shall be effective upon notice to Authorized Interpreter User via the Software Platform.
7. Assignment. These Terms of Service shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign the terms of any subscription or renewal subscription to a third party except upon the prior written consent of the other Party, which may be withheld by Company in the exercise of its sole discretion. Company shall have the right to assign the terms of the subscription to (a) a parent or subsidiary of Company; (b) a purchaser of all or substantially all of Company’s assets; or (c) any successor in interest of Company. Any purported assignment in violation of this Section 8(g) shall be void. Any change in control of Subscriber Agency that results in a third party directly or indirectly owning or controlling 50% or more of Subscriber Agency shall constitute an assignment. No change in control of Company, however effectuated, shall constitute an assignment under these Terms of Service.
8. Notices. Any notice to be given by Company may be given, at Company’s option, by means of a general notice on the Software Platform, electronic mail to Subscriber Agency’s electronic mail address on record as provided in writing to Company, or by hard copy written communication sent by nationally recognized overnight delivery service or first class mail or prepaid post to Subscriber Agency’s address on record as provided in writing to Company. Subscriber Agency may give notice to Company at any time by any of the following: letter sent by nationally recognized overnight delivery service or first class postage prepaid mail to Company at 5921 Sutter Avenue, Carmichael, California, USA 95608 or via email at support@gofluently.com. Any notice delivered in accordance with this section shall be deemed to have been given on actual receipt, or the expiration of 5 days (Company Holidays and weekends excepted) after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email to Subscriber Agency).
9. Waiver. No waiver by either Party of any breach, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege.
10. Publicity. Subscriber Agency agrees that Company may issue a press release and develop case studies or other marketing materials highlighting Company’s partnership with Subscriber Agency. In the event Company issues a press release, Company shall first seek the prior written approval of Subscriber Agency to the proposed press release, which approval shall not unreasonably be withheld.
11. Conflicts. In the event of any conflict between these Terms of Service and the terms of any webpage incorporated herein, the terms and conditions set forth in these Terms of Service shall be controlling.

Application Terms of Service

Internet Interpreter Scheduling System Mobile Version