Agreement to Terms
These Terms set forth an agreement between you and Fluency and Fitness®. By using the Services, you agree to be bound by these Terms.
Under these Terms, Fluency and Fitness® offers users the ability to (i) use the Site; (ii) use the Applications; and (iii) provide feedback and/or other material to Fluency and Fitness®. By accessing, browsing, linking, and/or downloading information from the Site, creating an account, and/or using the Applications, you and, as applicable, the entity or organization that You represent (“You” or “Your”) are each deemed to have read, understood, and agreed to be bound by each of the terms, conditions, and notices in this Agreement (the “Agreement”). If You have provided Your consent to Your child’s registration with the Application, You agree to be bound by this agreement with respect to Your child’s use of the Site and Applications.
If you have entered into this Agreement on behalf of an educational institution (an “Institution”), You represent that You have the necessary authority to bind that Institution to this Agreement. If You do not have the necessary authority, or if You do not agree with any of these Terms, then You may not use the Service.
This Agreement constitutes the entire agreement between You and Fluency and Fitness® with respect to any use of the Services, and it supersedes all prior and contemporaneous agreements or arrangements between Fluency and Fitness® and You in relation to the Services.
Changes to Terms
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let You know either by posting the modified Terms on the Site and in the Application, or through other communications as required by law. It’s important that You review the Terms whenever we modify them because if You continue to use the Site or Applications after we have posted modified Terms on the Site, You are indicating to us that You agree to be bound by the modified Terms. If You don’t agree to be bound by the modified Terms, then You may not use the Site or Applications anymore.
You acknowledge that all Services and trademarks, service marks and logos, as well as all text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that we post or make available through the Services (collectively, “Materials”) are owned by or licensed to Fluency and Fitness® and are protected by copyright and other intellectual property rights, and that You have no rights to transfer or reproduce the Services or prepare any derivative works with respect to, or to disclose confidential information pertaining to, the Services or Website.
Fluency and Fitness®You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Grant of License
So long as You comply with these Terms, we grant You a limited, non-exclusive, non-transferable, non-sublicenseable license to view and use the Services for non-commercial purposes. All rights not granted herein are reserved by Fluency and Fitness®. Your usage of the Services are subject at all times to these Terms and the licenses Fluency and Fitness® grants to You.
The licenses granted to You are conditioned upon Your proper conduct and compliance with these Terms at all times, as judged by Fluency and Fitness® in its sole discretion and judgment. We reserve the right to suspend or deny, in our sole discretion, Your access to all or any portion of the Site or any Application.
You grant to us a non-exclusive, limited, worldwide license to use documents, information, content and other materials uploaded by you to the Services solely for the purpose of providing the Services to you. You are solely responsible for obtaining all rights and permissions for any information you upload to the Services.
Use of the Services
You are responsible for using the Services in accordance with this Agreement, and for all activity that occurs under Your account, and the account of Your child or the students for whom You authorize registration. For Your account and the account(s) of any children or students for whom you authorize registration, You shall (i) maintain the confidentiality of the user names and passwords; (ii) promptly notify Fluency and Fitness® if You know or suspect a security breach, including any unauthorized use of user names and passwords; (iii) represent and warrant that the information provided to establish Your account(s) is true and accurate, and that You will promptly update that information in the event of any change.
You will not: (i) permit any third party to access the Services using Your account information; (ii) decompile, disassemble, overburden, impair, alter or reverse engineer the Services; (iii) use the Services or any of our confidential information to develop a competing product or service; (iv) impersonate another user of the Services or provide false information to gain access to the Services; (v) view or attempt to view records of another user; (vi) use automated systems, such as robots, spiders, etc., to access the Services or (vii) upload content, including videos, that do not comply with the terms of this Agreement.
You may not use the Services to:
-Upload, post, e-mail or otherwise transmit any material that is unlawful, harmful, threatening, intimidating, abusive, harassing, tortuous, defamatory, derogatory, vulgar, obscene, libelous, invasive of another’s privacy, disrespectful, hateful, or racially, ethnically or otherwise objectionable;
-Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website or Services;
-Upload, post, e-mail or otherwise transmit any material that You do not have the right to transmit under any law or under contractual or fiduciary relationships;
-Upload, post, e-mail or otherwise transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
-Upload, post, e-mail or otherwise transmit any material that contains software viruses or worms or any other computer code, files or programs designed to disable, interrupt, destroy, redirect, monitor another user’s usage, limit or otherwise inhibit the functionality of any computer software or hardware or telecommunications equipment;
-Use racially or ethnically offensive language; discuss or incite illegal activity; use explicit/obscene language or solicit/post sexually explicit images;
-Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
-Intentionally or unintentionally violate any applicable local, state, national or international law or regulation.
Although we’re not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We have the right to investigate violations of these Terms or conduct that affects the Services.
Fluency and Fitness® and You each represent that it complies with, and will comply with, all applicable privacy laws with respect to the personally identifiable information collected, stored and maintained through the Services, as well as with all applicable business regulations.
Privacy Notice for Educators:
Family Educational Rights and Privacy Act (“FERPA”)
In the event that Fluency and Fitness® is used in an educational institution that is subject to the provisions of the Family Educational Rights and Privacy Act (FERPA), the educational institution appoints Fluency and Fitness® as a “school official” as that term is used in FERPA, and determines that Fluency and Fitness® has a “legitimate educational interest,” for providing the Services. Fluency and Fitness® agrees to be bound by all relevant provisions of FERPA, and agrees that personally identifiable student information as defined in FERPA will remain under the “direct control” of the educational institution, will be used only to provide the Services to the student, and will only be disclosed to third parties as necessary to provide the Services.
Children’s Online Privacy Protection Act (“COPPA”)
In the event that students under the age of 13 are authorized by their educational institution to create an account and submit personal information as defined in COPPA, the educational institution shall be responsible for obtaining verifiable parental consent prior to making the Service available to such such students.
When Fluency and Fitness® is used in the home, authorized by a parent or legal guardian, Fluency and Fitness® shall obtain verifiable parental consent prior to permitting a child under the age of 13 to use Fluency and Fitness®.
Links to Third Party Websites or Resources
The Site and Applications may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, Your use of any third-party websites or resources.
We may terminate Your access to and use of the Site and Applications at our sole discretion, at any time and without notice to You. Users may request deletion of their accounts, and parents may request deletion of their children’s accounts by emailing fluencyandfitness.com/contact. When You delete Your account or Your child’s account, that account cannot be recovered.
Upon any termination, deletion or cancellation of Your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability.
Modification of the Services
Fluency and Fitness® may, at any time and in its sole discretion, revise, modify, or otherwise change this Services, in whole or in part, without notice to You.
Availability and Use of Site
The availability of this Services depends on many factors, including some factors that are beyond Fluency and Fitness’® control, such as Your connection to the Internet and the Internet backbone. Fluency and Fitness® shall not be liable to You if You cannot access the Services due to reasons that are beyond Fluency and Fitness’® control. You may not upload to, or distribute or otherwise publish through, this Site any content, information, or other material that (a) violates or infringes the rights of any persons, including without limitation, rights in copyrights, patents, trademarks, service marks, trade secrets, and other proprietary rights; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
Notice of Infringement
If You believe that Your intellectual property has been used or copied in a way that constitutes copyright or other intellectual-property infringement and such infringement is occurring on this Site or on sites linked to or from this Site, please provide Fluency and Fitness’® Copyright Agent a notice containing the following elements:
-a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
-a description of the work(s) that You claim have been infringed and an identification of what material in such work(s) is claimed to be infringing;
-a description of where the material that You claim is infringing is located on this Site;
-information sufficient to permit to Fluency and Fitness® to contact You, such as Your address, telephone number, and email address;
-a statement by You that You have a good faith belief that the use of the material identified in the notice is not authorized by the copyright owner, its agent, or applicable law; and
-a statement by You that the information in the notice is accurate and, under penalty of perjury, that —You, as the complaining party, are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Inquiries that do not follow this procedure may not receive a response. Upon receiving a claim of infringement, Fluency and Fitness® may, in its discretion, remove or disable the material claimed to be infringed.
Please be advised that if You materially misrepresent that material is infringing Your intellectual property, You may be liable for damages (including costs and attorneys’ fees). If You are not sure whether the material infringes on Your intellectual property, You should consider contacting an attorney before contacting Fluency and Fitness®.
Pursuant to Section 512(c) of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, Fluency and Fitness® designates the following as its agent for receipt of notifications of claimed copyright or other intellectual-property infringement:
By email: firstname.lastname@example.org
How to Respond to a Claimed Infringement
If Fluency and Fitness® removes or disables the material claimed to be infringing, Fluency and Fitness®will take reasonable steps to notify the owner of the material of the claim, and the owner will then have the option to send Fluency and Fitness® a counter-notice why the content does not infringe another’s intellectual-property rights and requesting reinstatement of the content. The counter-notice must be in writing and include the following information:
-The owner’s physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
-The following statement by the owner: “I declare, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and
-The owner’s name, address, and telephone number, and the following statement by the owner: “I consent to the jurisdiction of the Federal District Court for the judicial district in which my address listed in this notice is located, or if my address is outside of the United States, for any judicial district in which Fluency and Fitness® may be found, and I will accept service of process from the person who provided notification of infringement or an agent of such person.”
If we receive a counter-notice under these provisions, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the original complaining party files an action seeking a court order against the individual or entity who placed the content, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice, at Fluency and Fitness’® discretion.
Links to this Site
You may hyperlink to the home page of fluencyandfitness.com from any Acceptable Site (as defined below); provided, however, that You comply with the following conditions:
-You may not frame the Site or any portion of the Site;
-The hyperlink to the Site is not used in a way that suggest that Fluency and Fitness® endorses You or Your website or is affiliated with or sponsors Your website;
-You obtain Fluency and Fitness’® prior written approval if You intend to use any logos, trademarks, or other copyrighted material for such link;
-The link to the Site is not used or presented in any way that disparages Fluency and Fitness® or tarnishes, blurs or dilutes the quality of Fluency and Fitness’® name or trademark or any associated good will;
-Any link or authorized logo used as a link include appropriate legends or other proprietary notices; and
-You agree that Fluency and Fitness® may terminate Your right to link or hyperlink to the Site at anytime for any reason or for no reason, subject to the terms of this Agreement.
An Acceptable Site means a web site that displays no objectionable content, including, but not limited to, any content, information in any medium or format, such as text, data, graphics, audio or video, that: (i) is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized; (ii) a reasonable person would consider harassing, abusive, threatening, harmful, profane, obscene, racially, ethnically or otherwise objectionable or offensive in any way; (iii) constitutes a breach of any person’s privacy or publicity rights, a misrepresentation of facts, hate speech or an infringement or any third party’s intellectual property or proprietary rights of any kind, including without limitation, copyright, patent, trademark, industrial design, trade secret, confidentiality or moral rights; or (iv) violates or encourages others to violate any applicable law.
You expressly agree that Your use of the Site is at Your sole risk. THE SITE AND ALL CONTENT AND SERVICES THEREIN ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE CONTENT PUBLISHED ON THIS SITE MAY INCLUDE INACCURACIES, MISTAKES OR TYPOGRAPHICAL ERRORS. FLUENCY AND FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN TERMS OF THE SITE’S CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE WITH RESPECT TO YOUR USE OR THE RESULTS OF THE USE OF ANY CONTENT ON THE SITE. FLUENCY AND FITNESS DOES NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE AND SHALL HAVE NO LIABILITY FOR ANY INTERRUPTIONS, ERRORS, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS IN THE USE OF THIS SITE. FLUENCY AND FITNESS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY AND SYSTEM INTEGRATION. THIS INCLUDES LOSS OF DATA OR PROFITARISING OUT OF THE USE OR INABILITY TO USE THE CONTENT OF THE SITE. FLUENCY AND FITNESS DOES NOT WARRANT THAT DEFECTS IN ANY CONTENT OR INFORMATION ACCESSED THROUGH THE SITE WILL BE CORRECTED OR THAT THE SITE OR THE SERVIER THAT MAKES CONTENT OR INFORMATION AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPENENTS.
Limitation of Liability
IN CONSIDERATION FOR YOUR USE OF AND ACCESS TO THE SITE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT IN NO EVENT WILL FLUENCY AND FITNESS, ITS AFFILIATED OR RELATED ENTITIES, ITS CONTENT PROVIDERS, PARENTS, SUBSIDIARIES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SPONSORS OR SERVICE PROVIDERS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS SITE, BE LIABLE TO YOU OR TO ANY THIRD PARTY, FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, LOSS OF USE, OR OTHER DAMAGE, INJURY, CLAIM, LIABILITY, OR OTHER CAUSE OF ANY KIND OR CHARACTER WHATSOEVER ARISING OUT OF, BASED UPON OR RESULTING FROM ANY USE OF THE SITE, INFORMATION PROVIDED ON THE SITE, ANY ACT OR OMISSION PERFORMED BY YOU OR ANY OTHER PERSON IN RELIANCE UPON THE CONTENT OF THE SITE, OR THE INABILITY TO USE THE SITE, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF YOU ADVISE FLUENCY AND FITNESS OR ITS REPRESERNTATIVES OR THE SAME ARE OTHERWISE AWARE OF THE POSSIBILITY OF ANY SUCH CLAIM OR DAMAGE. Some jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages. In those jurisdictions, Fluency and Fitness’® liability is limited to the greatest extent permitted by law.
Relationship of Parties
You acknowledge that no joint venture, partnership, employment, or agency relationship exists between You and Fluency and Fitness® as a result of this Agreement or any use of this Site. You agree not to hold Yourself out as a representative, agent, or employee of Fluency and Fitness® and shall not be liable for any representation, act or omission made by You.
You shall not assign this Agreement or any of Your rights and obligations under this Agreement. This Agreement shall inure to the benefit of Fluency and Fitness’® successors, assigns and licensees.
Governing Law and Jurisdiction
The Services are operated and provided in the State of Florida. As such, this Agreement is governed by and subject to the laws of the State of Florida, U.S.A. without regard to the conflicts of laws principles thereof. You consent to the exclusive jurisdiction and venue of the state and federal courts in Sarasota County, Florida, U.S.A. in all disputes arising out of or relating to the use of this Site, and consent to personal jurisdiction and venue in the state and federal courts in Sarasota County, Florida, with respect to all such disputes. You agree that any legal issues arising from or related to Your use of the Services shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the State of Florida applicable to contracts entered into and wholly to be performed within Florida. Fluency and Fitness® makes no representation that the Services are appropriate, lawful or available for use in other jurisdictions or locations. Accordingly, if You choose to use the Services, You agree to do so subject to the internal laws of the State of Florida.
If any term or provision of this agreement is held to be invalid, illegal or unenforceable for any reason, the remaining portions of this Agreement (and any partially enforceable provision) shall not be affected thereby and shall continue to be valid and enforceable to the maximum possible extent and the invalid, illegal or enforceable term or provision will be amended and limited to give effect to the intent of the parties as determined from the face of this agreement, to the extent necessary to validate such term or provision.
Reservation of Rights
Fluency and Fitness® reserves to itself any and all rights not expressly granted herein.