Last updated: January 25, 2019
It is your responsibility to review these Terms (as often as occasion requires). If at any time you find these Terms unacceptable or if you do not agree to these Terms, please do not use this Site or any Applications. We may revise these Terms at any time without notice to you. If you have any questions about these Terms, please contact firstname.lastname@example.org.
Your access to and use of our Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use our Service. By accessing or using our Service you agree to be bound by these Terms.
If you wish to purchase any product or service (“Purchase”) made available through the Service, you may be asked to supply certain information relevant to your Purchase including, without limitation, your email, credit card number, the expiration date of your credit card, your billing address, and your shipping information. You may speak with independent legal counsel before using FluentWorlds’ website, or completing any purchase.
By purchasing, you represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.
2.0 Availability, Errors and Inaccuracies
We often update the product(s) and the service(s) offerings that are part of our Service. We may experience delays in updating information on the Service and in our advertising on other websites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service.
We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
Some aspects of the Service are billed on a subscription basis (“Subscription”). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing Cycles are set on a monthly or annual basis, depending on what the user/customer selects.
At the end of each Billing Cycle, your Subscription will automatically renew under the exact same terms and conditions, unless you cancel it or FluentWorlds cancels it. You may cancel your Subscription renewal either through your online account management page or by contacting FluentWorlds’ customer support team at email@example.com.
A valid payment method, including credit card or PayPal, is required to process the payment for your Subscription. You shall provide FluentWorlds with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize FluentWorlds to charge all Subscription fees incurred through your account to any such payment instruments.
Should automatic billing fail to occur for any reason, FluentWorlds will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
4.0 Free Trial
FluentWorlds may, at its sole discretion, offer a Subscription with a free trial for a limited period of time (“Free Trial”). You will be required to enter your email and/or billing information in order to sign up for the Free Trial.
If you do enter your billing information when signing up for the Free Trial, you will not be charged by FluentWorlds until after the Free Trial has expired. On the last day of the Free Trial period, unless you cancelled your Subscription, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected.
At any time and without notice, FluentWorlds reserves the right to: (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel any Free Trial offer(s).
5.0 Fee Changes
FluentWorlds, in its sole discretion and at any time, may modify the Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle.
FluentWorlds will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.
Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
Except where and when required by law, and as may be modified the FluentWorlds’ then-current Policies & Procedures, paid Subscription fees are non-refundable.
When you create an account with us, you represent that you are above the age of 18, or that a parent or legal guardian has consent to the minor’s use of the Service. Also, you represent and warrant that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service.
You alone are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.
8.0 Intellectual Property
The Service and its original content, features and functionality are and will remain the exclusive property of Virtual Immersive Educational Worlds, Inc., dba FluentWorlds and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Virtual Immersive Educational Worlds, Inc., dba FluentWorlds.
9.0 Links To Other Websites
Our Service may contain links to third party websites or services, which are not owned or controlled by FluentWorlds. FluentWorlds has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party websites or services. We do not represent or warrant the offerings of any of these third party entities/individuals or their websites.
You acknowledge and agree that FluentWorlds shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party websites or services.
We strongly encourage you to read the terms and conditions and privacy policies of any third party websites or services that you visit.
We may terminate or suspend your account and restrict or bar access to the Service immediately, without prior notice or liability, in our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.
If you wish to terminate your account, you may simply discontinue using the Service.
Any and all provisions of the Terms, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
11.0 Limitation of Liability
In no event shall FluentWorlds, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from: (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
12.0 Indemnification and Hold Harmless
EXCEPT AS PROHIBITED BY LAW, YOU AGREE TO INDEMNIFY AND HOLD FLUENTWORLDS AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, HOWEVER IT ARISES (INCLUDING ATTORNEY’S FEES AND ALL RELATED COSTS AND EXPENSES OF LITIGATION AND ARBITRATION, OR AT TRIAL OR ON APPEAL, IF ANY, WHETHER OR NOT LITIGATION OR ARBITRATION IS INSTITUTED), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE, ARISING FROM THESE TERMS AND ANY VIOLATION BY YOU OF ANY FEDERAL, STATE, OR LOCAL LAWS, STATUTES, RULES, OR REGULATIONS, EVEN IF WE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS PROHIBITED BY LAW, IF THERE IS LIABILITY FOUND ON THE PART OF FLUENTWORLDS, IT WILL BE LIMITED TO THE AMOUNT PAID FOR THE PRODUCTS AND/OR SERVICES, AND UNDER NO CIRCUMSTANCES WILL THERE BE CONSEQUENTIAL OR PUNITIVE DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE PRIOR LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS PARAGRAPH DOES NOT APPLY TO NORTH CAROLINA CONSUMERS. Without circumscribing the foregoing, in short, you agree to indemnify and hold harmless FluentWorlds, our employees, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of: (1) your use or access of the Service, or by any person using your account; or (2) a breach of these Terms.
13.0 DISCLAIMER/NO WARRANTY. USE OF THE SITE OR APPLICATIONS IS DONE AT YOUR OWN DISCRETION AND AT YOUR OWN RISK. THE SITE, APPLICATIONS, AND ALL MATERIALS, DOCUMENTS OR FORMS PROVIDED ON OR THROUGH YOUR USE OF THE SITE OR APPLICATIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT: (1) THE SITE, APPLICATIONS, OR THE MATERIALS WILL MEET YOUR REQUIREMENTS; (2) THE SITE, APPLICATIONS, OR THE MATERIALS WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, APPLICATIONS, OR ANY MATERIALS OFFERED THROUGH THE SITE OR APPLICATIONS, WILL BE ACCURATE OR RELIABLE; OR (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE, APPLICATIONS, OR IN RELIANCE ON THE MATERIALS WILL MEET YOUR EXPECTATIONS.
OBTAINING ANY MATERIALS THROUGH THE USE OF THE SITE OR APPLICATIONS IS DONE AT YOUR OWN DISCRETION AND AT YOUR OWN RISK. WE SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE.
THIS DISCLAIMER OF WARRANTY DOES NOT APPLY TO THE PURCHASE OF PRODUCTS OR SERVICES BY NORTH CAROLINA CONSUMERS.
Some jurisdictions do not allow the exclusion of certain warranties, or the exclusion or limitation of liability for consequential or incidental damages, so the disclaimer above may not apply to you.
15.0 DISPUTE RESOLUTION BY BINDING ARBITRATION
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by communicating with customer care. In the unlikely event that FluentWorlds is unable to resolve your complaint to your satisfaction (or if FluentWorlds has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration rather than in a court of general jurisdiction. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. While in some instances, upfront costs to file an arbitration claim may exceed similar costs to bring a case in court, for any non-frivolous claim that does not exceed $2,500 (USD), FluentWorlds will pay all costs of the arbitration. Moreover, in arbitration you may recover attorney’s fees from FluentWorlds to the same extent or more as you would in court. The arbitrator shall apply the same limitations period that would apply in court. Under certain circumstances (as explained below), FluentWorlds may pay you more than the amount of the arbitrator’s award and may pay your attorney (if any) his or her reasonable attorney’s fees, if the arbitrator awards you an amount greater than what FluentWorlds offered you to settle the dispute.
(a) FluentWorlds and the customer/user agree to arbitrate all disputes and claims between the parties before a single arbitrator. The types of disputes and claims we agree to arbitrate are intended to be broadly interpreted. It applies, without limitation, to: (1) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (2) claims that arose before these or any prior Terms (including, but not limited to, claims relating to advertising); (3) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (4) claims that may arise after the termination of these Terms.
For the purposes of this Arbitration Agreement, references to “FluentWorlds,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, employers, business partners, shareholders, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under these Terms or any prior agreements between us. Beneficiaries include, but are not limited to, those named in an estate planning document.
Customers/users agree that, by entering into these Terms, FluentWorlds and customer/user are each waiving the right to a trial by jury or to participate in a class action. These Terms evidence a transaction, or website use, in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms.
(b) A party who intends to seek arbitration must first send, by U.S. certified mail, a written Notice of Dispute (“Notice”) to the other party. A Notice to FluentWorlds should be addressed to: Notice of Dispute, General Counsel, 3317 N. Cottonwood Ln., Provo, UT 84604 (the “Notice Address”). The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If FluentWorlds and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or FluentWorlds may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by FluentWorlds or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or FluentWorlds is entitled.
(c) After FluentWorlds receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $2,500 (USD). (The filing fee for consumer-initiated arbitrations is variable, and is subject to change by the arbitration provider. If you are indigent, FluentWorlds will pay it directly after receiving a written request at the Notice Address.) The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) of the American Arbitration Association, as modified by these Terms, for all claims under $75,000, and the applicable rules as determined by the AAA for all claims of or above $75,000, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by these Terms. All issues are for the arbitrator to decide, except that issues relating to the scope, enforceability, and interpretation of the arbitration provision, and the scope, enforceability, and interpretation of paragraph (f) are for the court to decide. Unless you and FluentWorlds agree otherwise, any arbitration hearings will take place in Utah or California. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If you choose to proceed either in person or by telephone, we may choose to respond only by telephone or submission. If your claim exceeds $10,000, the AAA Rules will determine whether you have a right to a hearing. The parties agree that in any arbitration of a dispute or claim, neither party will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which FluentWorlds was a party. Except as otherwise provided for herein, FluentWorlds will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rules of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse FluentWorlds for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek relief valued at more than $75,000 (excluding attorney’s fees and expenses), the payment of these fees will be governed by the AAA rules.
(d) For claims under $75,000, if, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of FluentWorlds’ last written settlement offer made before an arbitrator was selected, then FluentWorlds will: (1) pay you either the amount of the award or $2,000 (“the alternative payment”), whichever is greater; and (2) pay your attorney, if any, the amount of attorney’s fees, and reimburse any expenses (including expert witness fees and costs), that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (the “attorney’s payment”).
If FluentWorlds did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney’s fees, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney’s fees at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. In assessing whether an award that includes attorney’s fees or expenses is greater than the value of FluentWorlds’ last written settlement offer, the arbitrator shall include in his or her calculations only the value of any attorney’s fees or expenses you reasonably incurred in connection with the arbitration proceeding before FluentWorlds’ settlement offer.
(e) The right to attorney’s fees and expenses discussed in paragraph (d) supplements any right to attorney’s fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorney’s fees or costs. Although under some laws FluentWorlds may have a right to an award of attorney’s fees and expenses if it prevails in an arbitration proceeding, FluentWorlds will not seek such an award, for claims under $5,000 (USD).
(f) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND FLUENTWORLDS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL. Further, unless both you and FluentWorlds agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award any relief that a court could award that is individualized to the claimant and would not affect other customers. Neither you nor we may seek non-individualized relief that would affect other customers. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(g) If the amount in dispute exceeds $75,000 or either party seeks any form of injunctive relief, either party may appeal the award to a three-arbitrator panel administered by AAA by a written notice of appeal within thirty (30) days from the date of entry of the written arbitration award. An award of injunctive relief shall be stayed during any such appeal. The members of the three-arbitrator panel will be selected according to AAA rules. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, subject to any right of judicial review that exists under the FAA.
(h) Notwithstanding any provision in the applicable Terms to the contrary, we agree that if we make any future change to this arbitration provision (other than a change to any notice address, website link or telephone number provided herein), that change will not apply to any dispute of which we had written notice on the effective date of the change. Moreover, if we seek to terminate this arbitration provision, any such termination will not be effective until at least thirty (30) days after written notice of such termination is provided to you, and shall not be effective as to disputes that arose prior to the date of termination.
16.0 Governing Law and Enforceability
These Terms shall be governed and construed in accordance with the laws of the State of Utah, United States, without regard to its conflict of law provisions. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect.
Our failure to enforce any right or provision of these Terms will not be deemed or considered a waiver of those rights.
18.0 Entire Agreement
These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you must discontinue use of the Service.