Fluicity, a simplified joint-stock company, located at 53, rue du Caire, Paris, France (“Fluicity”), offers online services to connect users with elected officials and other community members according to the following terms and conditions of use (“Terms and Conditions”).
The capitalized terms shall have, either the definition given herein, or the following definition, used in plural or singular.
|Application / App||Means the downloadable mobile application provided by Fluicity/or mobile phones and digital tablets and from the Playstore and App Store platforms.|
|Error||Means any User incident, failure or default to access, use the Interface as described in its description on the Platform, interruption or limited access to the functionalities of the Interface.|
|Dashboard||Means the platform offered and dedicated to the Customer, included in the Service, in order to manage the relationship with the Citizens and the processing and visualization of the data exchanged through the Interface.|
|Citizen||Means any individual who has created an account to use the Services for a non-professional purpose being understood that a Citizen can access several Interfaces.|
|Customer||Means: (i) a local authority, district, city, village, town, community, electoral district or, more generally, any urban area (“Community”); or (ii)an entity or individual (e.g.: an elected official) having an interest in communicating with local residents within a territory, Community (“Project Leader”), that has subscribed to the Services.|
|General Terms and Conditions / GTCs||Has the meaning assigned to it in the Preamble.|
|Specific Terms||Means the specific provisions applicable to the Services as subscribed to by the Customer that sets forth the price payable for the Services, the duration of the subscription, and any terms that shall prevail over the Terms and Conditions.|
|Data||Means all data provided by a User in connection with the access to and use of the Services.|
|Interface||Means the dedicated interface made available by Fluicity to Users, accessible from the Platform and the Application which constitutes a citizen participative network.|
|Party(ies)||Means the Users and Fluicity collectively.|
|Services||Means Fluicity’s services as described below in Section 3.|
|Platform||Means the Fluicity website available at https://www.flui.city/.|
|User||Means any individual or legal entity using the Services, including any non-registered Internet user, Citizen and/or Customer.|
- Purpose and description of the Services
- These GTCs and the Specific Terms as applicable to the Customer, set out the conditions under which Fluicity provides the following Services :
- For Citizens: access and use of the Interface.
- For the Customers:
- access and use of the Interface and the Dashboard; and
- any other or additional services set forth in the Specific Terms.
- By subscribing to the Services, Customer acknowledges having received all necessary information and answers to its questions from Fluicity which has allowed Customer to evaluate the adequacy of the Services to its needs .
- Acceptance and enforceability of the GTCs
- The User hereby agrees to:
- The General Terms and Conditions;
- The Specific Terms with regard to Customers;
- Country Specific Terms, if any; and
- The ethical principles, available here and incorporated herein by reference.
- Any use of the Services requires that the User read and accept the General Terms and Conditions. User acknowledges that the use of these Services requires compliance with all provisions contained herein.
- Registration of the User on the Platform and/or the App and any access and use of the Interface, constitutes the User’s the full and complete acceptance of the General Terms and Conditions in their then current version. User’s acceptance is confirmed by clicking the relevant box by Users when registering or in case of subsequent modifications of the GTCs.
- The User shall have access to the then current version of the General Terms and Conditions which shall be located at the bottom of each page of the Platform and Users may download and/or print them.
- The General Terms and Conditions may be modified at any time and for any reason by Fluicity.
- In case of any modification to the General Terms and Conditions, the revised version of the General Terms and Conditions will be brought to the attention of Users at their next use of the Services through a banner or a pop-up window at which time the revised GTCs will have to be accepted before any further use of the Services. User agrees that any changes to the General Terms and Conditions are effective upon publication on the Platform. Any use of the Services after any changes to the General Terms and Conditions constitutes express acceptance by the User.
- The User may, at any time, stop using the Services. However, the User will remain liable for any prior use.
- Technical requirements
- Before using the Services, the User shall confirm the compatibility of its hardware, equipment, and devices (“Hardware”) with the Services. User hereby confirms that it has internet access with a sufficient speed and Hardware sufficient to access and use the Services. All costs related to access to the Services, are exclusively borne by the User who is solely responsible for the proper functioning of its Hardware and its Internet access and connection.
- Access to the Services
- To access the Services, a User must log in by using its e-mail address and password (the “Login Details“). If it is not yet registered, the User must create an account and log in by providing a valid email address and a password that will be used to log in, access its account and access and use the Services. When creating the account, the User must fill-in a specific registration form and must complete all mandatory fields. An incomplete registration will not enable a User to access the Services.
- When creating an account, the Citizen shall provide the following personal information: last name, first name, date and place of birth, address and interests. Registration will result in the creation of an account and of a dedicated space that allows the Citizen to use the Services and select an Interface/Page, to publish content, and follow related activities.
- When a Community creates an account, it shall provide the following information: name of the Community, flag or insignia, and the mayor’s contact details.
- The Project Leader, shall provide the following information:
- If it is an entity: the name of the entity, type of entity, contact details of its legal representative, the entity’s registration number as issued by its relevant Secretary of State, the address of its principle place of business, its phone number, contact email address, a certificate of registration and a certificate of good standing issued within the last sixty (60) days; or
- If it is an individual (e.g.: an elected official) a copy of the appointment document, and certificate or letter.
- Login details are personal and shall not be shared with any third party. The User shall keep its discussions and online publications secured. The User shall not disclose to any third party its Login Details. The User agrees to change its password regularly and at least once every ninety (90) days.
- Because Login details allow Customers to access their accounts, including the Dashboard, the Customer may share the same Login Details between several members of the staff, provided that it complies with the conditions provided herein including the confidentiality and security of the Login details.
- Access and use of the Services is free of charge for any Citizen having access to the internet or a mobile network. The registration of a Customer requires subscribing to the Services pursuant to the conditions described below.
- Subscription to the Services for Customers, term, price and payment terms
- The Customer shall elect a subscription plan to the Services as indicated in the Specific Terms.
- Except as otherwise set forth in the Specific Terms, the Customer shall subscribe to the Services for a fixed period of twelve (12) months, which shall be automatically renewed for successive twelve (12) month periods, unless one of the Parties notifies the termination of the subscription by certified letter with acknowledgment of receipt ninety (90) days before the end of the then current period.
- The price for the Services is as set forth in the Specific Terms. Fluicity will send an invoice to the Customer for the period as set forth in the Specific Terms, when the Customer subscribes to the Services. Unless otherwise agreed, Fluicity invoices the Services in advance for the next twelve (12) months. Each renewal results in the issuance of a new invoice sent to the Customer by either mail or email.
- Unless otherwise agreed, Fluicity’s invoices shall be paid by bank transfer within thirty (30) days from the date of invoice.
- In case the Customer disputes an invoice, the notification of dispute must:
- Be sufficiently detailed and based on documented and communicated evidence; and
- Be sent to Fluicity by both certified mail and email within fifteen (15) days of the receipt of the invoice giving rise to the dispute.
- In case of a dispute involving only a portion of the invoice, Customer agrees to and shall pay the undisputed portions of the invoice prior to the due date.
- Pursuant to article L.441-6 of the French Commercial Code, in case of late payment, Fluicity will charge five (5) times the legal interest rate on late payment calculated on a daily basis from the date due for payment until the date payment is made in full plus the applicable VAT as well as a fixed recovery fee of € 40 (forty euros) on top of the fees and expenses actually incurred should these be higher than the above fixed fee, without any prior notice. If the interest rate on late payments defined above was to be lower than the minimum rates set out in Article L441-6 of the French Commercial Code, the surcharge for late payment will be calculated on this minimum rate. Interests are capitalized in accordance with the provisions of article 1343-2 of the Civil Code.
- In case the Client fails to pay on the due date and without prejudice to any action for damages, Fluicity may suspend access to the Services, including access to the Interface and the Dashboard, and even to terminate the subscription, without giving rise to its liability and without prejudice for its right to claim damages.
- Professional services
Fluicity may, in its sole discretion, provide additional services to a Customer, such as support during its digital transformation or training. Any additional services such as training, shall be subject to separate terms and conditions and shall onlybe ordered via a specific order form and/or a specific invoice on the basis of Fluicity’s then applicable prices.
- Access to the Services and availability
- The Interface and the Services are available twenty four (24) hours a day and seven (7) days a week, except in case of a Force Majeure Event (as defined in Section 23.3 below)..
- Fluicity may, without notice, nor compensation, close or suspend temporarily or definitively all or parts of the Services to implement updates, conduct maintenance operations, modifications or make changes to operational methods, repair servers, etc. This list is not limitative.
- Fluicity shall make good faith efforts to provide the Services and shall not be held liable for damages of any kind that may result from these changes and/or temporary unavailability or the definitive suspension of all or part of the Services.
- In case of disruption of the Services, the User may contact Fluicity’s customer service for information, by e-mail at the following address: email@example.com.
- In addition, Fluicity retains the right to change, improve or modify, at any time, its Services in its sole discretion. If new features are added, Fluicity will inform the Client that any new features may be subject to additional fees.
- When Fluicity provides maintenance services to the Customer, it does not include any diagnosis and/or corrections of any Error that would result from:
- Any use of the Services or the Interface that does not comply with the description of the Services on the Platform or the provisions herein;
- A modification or change of the Interface or any attempt to modify or change by the Customer or a third party;
- The failure to follow a recommendation or to implement any fix provided by Fluicity in response to one or more Error(s);
- The recovery of data that has been deleted or modified without any cause or fault of Fluicity;
- Any loss or damage resulting directly or indirectly from an act or inaction of the Customer;
- An Error or incident arising from: (i) third-party software or application, its updates, or new releases or versions; (ii) third party equipment; (iii) network or Internet access problem; and or (iv) Hardware; or
- A change of Hardware or equipment or a problem affecting the Customer’s computer or IT system.
- Fluicity may, in its sole discretion, provide maintenance for the foregoing situations, and provide any service or assistance that is not expressly included in the Services or for which it has not expressly committed to act. In these cases, any maintenance will be invoiced at Fluicity’s then applicable rates when the maintenance is provided.
- Maintenance does not include the correction of an Error that cannot be duplicated by Fluicity.
- Customer shall inform Fluicity of all Errors as soon as they are detected and provide Fluicity with all information necessary to duplicate the Error.
- Use of the Services
- Fluicity grants the User a personal and non-assignable access to and use of the Services and solely for their internal purposes. As such, a User may only publish content on the Interface under the conditions specified below.
- Under no circumstances will the User make the Platform available to any third party. A User shall not make any other use, including but not limited to, any adaptation, modification, translation, arrangement, dissemination, or attempt at reverse engineering of the Platform.
- The User agrees that these GTCs do not convey any transfer of ownership of any intellectual property rights. The User shall not infringe any intellectual property rights relating to the elements of the Platform and shall not reproduce, display, modify, adapt, translate, extract and / or reuse any part of it.
- Users acknowledge that they have the status of publisher as defined in the June 21, 2004 French Law for trust in the digital economy and as such they are directly liable for the content they publish on the Interfaces. Consequently, it is agreed that Fluicity cannot be considered as liable for the publication of content on the Interfaces. As the administrator of the Interface, Customer shall ensure that Citizens do not use the Services for purposes different than those provided for herein and undertakes to notify Fluicity of any misuse and / or content that may not be compliant, legal or that is likely to be considered as non-compliant or illegal.
- User’s Obligations
- Obligations relating to the use of the Services
The User agrees to create only one account and to access and use the Services pursuant to the conditions defined herein and in addition :
- Shall not hijack the use of Services for personal advertising purposes or the sale of products or services;
- Shall not send Users any commercial/advertising message;
- Shall not reproduce, download, display modify, all or part of any content on which a third party holds any rights, intellectual property rights or otherwise;
- Shall not use or cause to be used any “robot” or a “spider” ; and
- Shall not interfere directly or indirectly with the proper functioning of the Services or access to the Services, and in particular not to introduce viruses or any other technology harmful to the Application, or to the Services provided therein.
In the event that the User’s account is removed by Fluicity for any of the reasons set out in the “Unsubscribe and Termination of Subscriptions” section below, the User shall not to create another account without the prior authorization of Fluicity.
In addition to the above obligations, Customer agrees to:
- cooperate actively and in good faith with Fluicity;
- use the Services only for its dedicated purposes and for the sole uses set out herein; and
- prohibit the broadcast of any content as part of the Services that may infringe or encourage the infringement of intellectual property rights, or jeopardize the privacy and protection of personal data.
- Obligations related to the contents published on the Interface
As indicated above, Users are required to comply with local applicable laws and regulations and are responsible for the contents of all types (texts, sounds, images, and videos) they publish on the Interface.
Users commit in particular not to publish any content that (is) or likely to (be):
- untrue, misleading, fraudulent or irrelevant to the purpose of the Services;
- Breach public order and morality (in particular, apology for crimes against humanity, hate speech, child pornography, etc.);
- contrary to applicable laws and regulations;
- qualified as a criminal offense (ex: Defamatory, insulting, displaced, insulting and in particular: Hateful, racist, xenophobic, pedophile, homophobic, revisionist or violating the honor or reputation of others, threatening persons or group of people);
- Infringing or encouraging the infringement of third party’s intellectual property rights;
- Devaluating Fluicity’s image, the Customer, and / or another Citizen or third party, and / or constitute acts of unfair or parasitic competition towards to Fluicity or any other third.
Users undertake not to broadcast or create any hypertext links on the Interface without Fluicity’s prior consent and undertakes to withdraw any link upon receipt of a simple request from Fluicity.
Users are fully liable for their contents and expressly undertake to comply with these provisions, otherwise risking having their criminal or civil liability triggered.
In the event that the content published does not comply with these principles and that Fluicity is informed, Fluicity may immediately and without notice:
- Suspend, delete, request the change of any infringing content;
- Ask a User to modify the content;
- Block, suspend or delete the account of the User;
- Send to the competent authorities all required information.
Users cannot, in such a case, claim any damages. In addition, the Parties agree that Users will bear personally the consequences of having published or shared such content (imprisonment and/or fines), in addition to the possibility of having to pay damages.
In case of dispute between Users due to the content shared by one of them, Users need to get in touch with each other and try to settle their dispute between them. Fluicity does not have to take part and will not take part in the resolution of such disputes. Fluicity therefore may refuse to answer to the complaint of a User that would be addressed to Fluicity, without triggering its liability in this respect.
More generally Fluicity may suspend or terminate the access and use of the Services to any User who does not comply with these GTCs.
- Warranties of the Parties
- User Warranty
Citizen acknowledges that it is of legal age and has the full legal capacity to agree and to be bound by these GTCs.
Customer warrants and represents that the individual that has subscribed to the Services is duly authorized to subscribe to such Services in the name and on behalf of the Customer. As such, it indemnifies Fluicity against any action, claim and opposition from third parties claiming a right of any kind relating to the information transmitted and published on the Interface. Customers undertake to fully indemnify Fluicity in the event that its liability is triggered on this ground.
The User warrants and represents that all information provided to Fluicity is accurate and complete. The User shall update all personal information without notice or delay in case of change.
The User is solely liable for the relationships they create and the information it communicates or disseminates. The User User shall conduct itself professionally and with politeness and courtesy in dealing with other Users and Fluicity’s service providers.
The User agrees not to access the Application by any means other than downloading it from the legal available platforms.
13.2 Fluicity Warranty
Fluicity expressly disclaims any and all other representations and warranties, other than the conformity of the Service to its written presentation on the Platform and any other document issued by Fluicity relating to the Services. The User agrees that Fluicity cannot, does not, and shall not be required to guarantee the fitness of the Services for a particular purpose. The Customer agrees that Fluicity has asked all questions and provided all necessary information and responsive answers to the Customer prior to subscribing. Fluicity expressly disclaims any warranty regarding the functioning of the Services without any interruption, error, or viruses.
Notwithstanding the foregoing, Fluicity warrants that it has all rights necessary to provide the Services.
- Intellectual property
- The Platform, Application, Interface, Dashboard, trademarks, drawings, models, images, texts, pictures, logos, graphic charts, software, programs, data bases, sounds, videos, domain names, design or any other component of the Services are the exclusive property of Fluicity and are protected by intellectual property rights, except for the elements provided or posted by a User and/or belonging to third parties on which the User grants a license to use Fluicity for the purpose of being able to render the Services. Any reproduction and / or representation, total or partial of any of these elements, without the express permission of Fluicity is prohibited.
- Therefore, Fluicity agrees at its expense to defend Users against any third party claim to the extent such claim alleges that the Services infringes or misappropriates any third party’s rights, or an act of unfair competition, that tends to limit or prevent their use. Fluicity commits to indemnify and hold harmless the User of all costs and damages finally awarded against End User by a court of competent jurisdiction resulting from a breach of this section. This warranty only exist pursuant to (i) the written notification of the existence of such claim, action by the User within eight (8) days pursuant to the claim/action, (ii) the possibility for Fluicity to ensure the defense of its own interests and those of the User, and (iii) that the User has loyally to said defense by providing all the elements, information and assistance necessary to carry out such a defense.
- The User hereby warrants and represents that the content it publishes shall be:
- Created by it ; and/or;
- That it has the rights to publish such content.
- User grants Fluicity the right to make and retain back-up copies in perpetuity of any and all User provided content.
- Hypertext links and content claims
- Content displayed on the Interface may contain hypertext links giving access to third party websites.
- User hereby acknowledges that the websites to which it can access via hypertext links do not belong to Fluicity.
- Fluicity is not liable or responsible for the content or the information provided on these sites and their privacy policies. Users agree not to hold Fluicity liable in case of loss or damage of any kind resulting from the use of these hypertext links.
- Should a User wish to inform Fluicity of the presence on the Platform or the Interface, of false/wrong/fake information, of malicious content or of a hypertext link redirecting towards a malicious website, the User shall send this notice by e-mail to firstname.lastname@example.org stating its name and providing a clear and detailed description of the content that appears to be wrong or unlawful and the corresponding basis.
- In any event, the Parties agree that the fact of reporting an erroneous or illegal content in order to obtain the withdrawal and / or to cease its broadcasting, while knowing that this report is groundless, is punished by law and also exposes this User to criminal and / or civil proceedings.
- Fluicity’s liability may only be triggered if Users can proves Fluicity’s default and the existence of a causal relation, pursuant to French civil liability rules.
- The User agrees that, Fluicity’s liability shall be limited to direct damage to the exclusion of any other damage of any nature whatsoever under contracts or torts, including but not limited to, indirect, incidental, consequential, punitive damages or for any damage to the User’s reputation or image. Fluicity shall not be liable for any damage suffered by Users or by a third party resulting directly or indirectly from:
- The non-compliance with any of their obligations herein, or a fault
- A User’s negligence or fault,
- The use of the Services not in accordance with the General Terms and Conditions or their purposes,
- The content edited and published by Users on the Interface; or
- A force majeure.
- To the extent permitted by law, Fluicity’s liability shall not exceed an amount equal to 50% of the total amounts paid by the Customer in the case where the request comes from a Customer, or the sum of 500 € for a Citizen.
Both Parties represent and warrant that they have an insurance policy with a reputable insurance company for the consequences of their professional civil liability for any damages resulting from the execution of the Agreement and more generally their activities. The Parties commit to maintain this insurance policy in force during the term of the Agreement and to be able to provide the corresponding insurance certificate to the other Party, upon request.
- Customer agrees to keep and maintain confidential all confidential information including any documents that it receives from Fluicity (including the provisions and content of the General Terms and Conditions).Customer shall: (i) not disclose Fluicity’s confidential information to any third party, other than employees or subcontractors on a need to know basis; and (ii) only use Fluicity’s confidential information in performing its obligations hereunder. The confidentiality obligations will remain in force for a period of three (3) years at the end of the subscription period of the Services.
The Customer shall not to develop, directly or indirectly, any similar service to the Services during the term of the subscription and for a period of one (1) year at the end of the subscription to the Services, within the locations where Fluicity renders the Services.
- Personal data
- Unsubscribing and termination of the Services
- A Citizen may at any time, unsubscribe from the Services by sending an e-mail request to: email@example.com. The subscription will be terminated within twenty-four (24) working hours from the receipt of the request. The termination of the subscription will result in the deletion of the Citizen’s account and the anonymization of all the content published online by the Citizen.
- Should a User not comply with the provisions set out herein and in particular with the articles: “Subscription to the Services”, “Term”, “Price and payment terms”, ” Users Obligations “, “Warranties”, “Intellectual Property” Fluicity may close the account of the User and terminate the Services with or without notice. In the event of termination of the subscription by the Customer, all the sums set forth in the Specific Terms shall be due and owing to Fluicity, without prejudice to the right for Fluicity to claim damages.
- In the event of breach by Fluicity with a material term, namely the non-compliance with the provisions relating to the indemnification, to the security of the data, the total unavailability of the Dashboard or the essential features of the Services for a period longer than five (5) days and failing to remedy these breaches within fifteen (15) days of receipt of a formal notice sent by the Customer, the Customer may immediately terminate its subscription.
- The provisions relating to price, terms of payment, confidentiality, liability, evidence and jurisdiction shall continue to apply despite any cancellation, or termination of the Services or these Terms and Conditions.
- Fluicity shall use commercially reasonable efforts in accordance with standard practices in the industry to secure any Data.
- The User shall inform Fluicity of any failure, breach or lack of access of the Services.
- The User acknowledges that Data transmitted on the internet is not always secure or protected. The User acknowledges that Data transmitted on the internet is subject to hijack or leaks. As such, the User agrees to take all appropriate measures to protect their own content, data and / or software from any contamination by possible viruses on the Internet.
- General provisions
- Commercial reference
The Customer hereby authorizes and grants Fluicity the right to use, reproduce Customer’s name, commercial name, trademark and logo, for commercial purposes on all media and for all occasions for a marketing, commercial, and advertising purposes. Any other use shall be subject to the Customer’s prior agreement.
- Force Majeure Event
As a first step, the liability of one or the other Parties cannot be triggered if the performance of its obligations has been prevented or is delayed because of a force majeure event as defined by the French civil code and case law, that suspends the performance of the General Terms and Conditions.
If either access to or the performance of the Services is prevented or delayed for a continuous period of two (2) months, either Fluicity or Customer may terminate the Services or the subscription immediately upon written notice to the other party.
Customer agrees that failure of Fluicity to exercise any of its rights hereunder or to enforce any provision of these GTCs shall not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. No waiver under these GTCs is effective unless it is in writing and signed by the party to be charged.
- Independence of the Parties
Customer agrees that the GTCs do not create a partnership, joint venture, association, or any other kind of entity aiming at sharing skills, profits, or employer-employee relationship.
Customer may not assign any of its rights or delegate any of its obligations without Fluicity’s prior written consent.
If any provision of this Agreement (or part of any provision) is held to be void or otherwise unenforceable by any court of competent jurisdiction, such provision (or part) shall, to the extent necessary to ensure that the remaining provisions of this Agreement are not void or unenforceable, be deemed to be deleted and the validity and/or enforceability of the remaining provisions of this Agreement shall not be affected.
- Entire agreement
The General Terms and Conditions, and the Specific Terms constitute the entire agreement. They supersede and replace any previous negotiation, declaration, representations or agreements either written or oral relating to the same purpose between the Parties.
Computerized records stored in computer systems shall be stored pursuant to reasonable security conditions and considered as evidence of communications between the Parties. The archiving of the contractual documents and invoices is carried out on a reliable and durable media so as to constitute to a faithful and sustainable copy in accordance with article 1358 of the Civil Code. The choice of mode of exchange implies an agreement in relation to proof pursuant to article 1368 of the Civil Code.
- Applicable law and Jurisdiction
These GTCs and the relationship between the Parties are governed by French law.
Any dispute between Fluicity and a Citizen may be brought before a consumer mediator, as provided for by the L6111 and following provisions of the Consumer Code and as indicated on the Platform. To do this, it will be necessary to bring the claim before the mediator either via the form available here (http://www.mediateur-telecom.fr/reclamation/creez_your_dossier/) or by mail to the address: Le Médiateur des communications Electroniques CS 30342 – 94257 Gentilly Cedex FRANCE and to send a request for mediation describing the claim. The Citizen can consult the mediator’s website at the following address: http://www.mediateur-telecom.fr. Any dispute may also be brought to the online European Dispute Resolution platform available at:
Failing for the Parties to reach an amicable settlement, the dispute will be submitted to the competent court of the place where the Citizen is located, or the place of performance of the service, or the place of the harmful event or the place in the jurisdiction which the damage has been suffered, at the choice of the User.
Regarding disputes with a Client, failing for the Parties to reach an amicable settlement by signing a settlement agreement within thirty (30) days following the notification by a Party of the existence of the dispute and making an express reference to this provision, the Parties shall submit their dispute to the Paris commercial court that will have exclusive jurisdiction to settle the dispute.
US Country specific TERMS AND CONDITIONS OF USE
For Citizens or Customers located in the United States, the following provisions shall apply in lieu of the provision of Fluicity’s GENERAL TERMS AND CONDITIONS OF USE.
Section 7 Subscription to the Services for Customers, term, price and payment terms
Section 7.7 is replaced by the following sentence:
“In case of late payment, Customer agrees to pay Fluicity a late fee of one and a half percent (1.5%) of the outstanding amount per month in addition to a one-time late payment service fee of one hundred dollars ($100.00).”
Section 11 Use of the Services
Section 11.4 is replaced by the following sentence :
“Fluicity shall not be liable for the publication of content on the Interfaces. Customer warrants and represents that the Citizens shall not use the Services for purposes different than those provided for herein and shall notify Fluicity of any use contrary to these Terms and Conditions.”
Section 12 Users’ obligation
Section 12.2 is replaced by the following paragraphs:
“The User shall comply with any and all local, state, and federal laws and regulations. The User is responsible for all content published on the Interface.
A User shall not publish any content that I or likely to be :
- Untrue, misleading, fraudulent, or defamatory;
- Breach public order and morality ( such as post hate speech, child pornography, etc.);
- Contrary to applicable laws and regulations;
- Constitute a criminal offense;
- Infringe or encourage the infringement of any third party’s intellectual property rights; or
- Tarnish images or the reputation of Fluicity, any Customer, and / or any Citizen or third party.
The User agrees not to broadcast or create any hypertext links on the Interface without Fluicity’s prior consent and shall withdraw any link upon receipt of an email request from Fluicity.
The User shall be liable for all content posted and agree to comply with these provisions.
In the event that any content published does not comply with these Terms and Conditions, Fluicity may immediately and without notice and without liability:
- Suspend, delete, and/or request the change of any content;
- Require a User to modify any content; and
- Block, suspend or delete the account of the User.
The User agrees that Fluicity may suspend or terminate the access and use of the Services to any User who does not comply with these GTCs.”
Section 15 Hypertext links and content claims
Section 15.5 does not apply.
Section 16 Liability
The section 16 is replaced by the following paragraphs:
“The User agrees that, Fluicity’s liability shall be limited to direct damage to the exclusion of any other damage of any nature whatsoever under contracts or torts, including but not limited to, indirect, incidental, consequential, punitive damages or for any damage to the User’s reputation or image. Fluicity shall not be liable for any damage suffered by Users or by a third party resulting directly or indirectly from:
- The non-compliance with any of their obligations herein, or a fault;
- A User’s negligence or fault;
- The use of the Services not in accordance with the General Terms and Conditions; The content edited and published by Users on the Interface; or
- A Force Majeure Event (as defined in Section 23.3).
The User agrees that Fluicity’s liability shall not exceed an amount equal to the total amounts paid by the Customer for the previous twelve (12) months of the subscription.”
Section 21 Unsubscribing and termination of the Services
Section 21.2 is replaced by the following sentences:
“Should a User not comply with any provision of these GTCs, Fluicity may close the account of the User and terminate the Services with or without notice. In the event of termination of the subscription by the Customer, all the sums set forth in the Specific Terms shall be due and owing to Fluicity, without prejudice to the right for Fluicity to claim damages.”
23.2 Force Majeure Event
Section 23.2 is replaced by:
“Any delay or failure of Fluicity to perform any of its obligations shall be excused to the extent that the delay or failure was caused by an event beyond Fluicity’s control, without Fluicity’s fault or negligence. Such events shall include but are not limited to, natural disasters, embargoes, riots, strikes, and acts of war or terrorism (“Force Majeure Event”).
If either access to or the performance of the Services is prevented or delayed for a continuous period of two (2) months, either Fluicity or Customer may terminate the Services or the subscription immediately upon written notice to the other party.”
Section 23.8 does not apply.
24 Applicable law and jurisdiction
Section 24 is deleted and replaced by:
“These GTCs and the relationship between the Parties are governed by the laws of the State of New York.
If a dispute arises from or relates to these Terms and Conditions or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The place of arbitration shall be New York, New York. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.”