BY ACCESSING THIS WEB SITE, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE, YOU HAVE NO RIGHT OR LICENSE TO ACCESS THIS WEB SITE AND YOU SHOULD NOT DO SO.
Terms of Use
These Terms of Use set forth the agreement between Users and Fluidity Software, Inc. regarding use of www.FluiditySoftware.com, www.FluidMath.net and MathWhiteboard.com (each, the “Site”). By using the Site, or by clicking a box that states “I Accept,” Users agree to be legally bound by these Terms of Use.
You acknowledge that these Terms of Use are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of the Site and receipt of data, materials and information available at or through the Site, and the possibility of Fluidity’s use or display of your Solicited Submissions (as defined below).
1. Ownership.
Unless otherwise indicated, this Site and its contents are the property of Fluidity Software, Inc. and/or its subsidiaries, affiliates, or assigns (collectively “Fluidity”), and are protected, without limitations, pursuant to U.S. and foreign copyright and trademark laws.
2. User Information
To access certain portions of the Site, Users must register with Fluidity by providing the User’s name, address, email, telephone and other information which may be used to personally identify the User. Furthermore, Fluidity collects certain non-personal information concerning certain transactions and User’s activities on the Site. Fluidity uses any User information strictly for the business purposes for which it was collected, in accordance with Fluidity’s Privacy Policy. Fluidity reserves the right to authenticate User information.
3. Account, Password, and Security
In order to access certain Site features, Users are required to choose a Username and Password and set up a Fluidity account. Fluidity protects the confidentiality of this information in accordance with Fluidity’s Privacy Policy. You must maintain the confidentiality of your Password and are responsible for all activities that occur in your account. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by Fluidity’s registration processes. You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify us at webmaster at fluiditysoftware.com of any known or suspected unauthorized use or disclosure of your Username, Password, other account information, or any other breach of security that you become aware of involving or relating to the Site or concerning your account. Fluidity may suspend or terminate your account and your ability to use the Site or portion thereof for failure to comply with these Terms of Use or any special terms related to a particular Site feature, for infringing copyright, or for any other reason whatsoever.
4. User Conduct
Users must act in a professional and reasonable manner and agree not to use the Site:
• other than for its intended purpose;
• to collect, store or use information about other Users or specific transactions other than for the specific purpose for which that information was provided;
• to post, email or otherwise transmit any information known to be inaccurate;
• to impersonate any person or entity or falsely state or otherwise misrepresent affiliation with a person or entity;
• to forge or otherwise manipulate identifiers in order to disguise the origin of any transaction or information transmitted to or posted on the Site;
• to disrupt the normal flow of dialogue on the Site or otherwise act in a manner that negatively affects other Users’ ability to engage in real-time exchanges and transactions; or
• to violate any applicable local, state, national or international law and any regulations having the force of law.
Fluidity reserves the right to monitor usage of the Site.
5. Privacy Policy
Fluidity’s policy is to respect and protect the privacy of its Users. Please refer to Fluidity’s Privacy Policy for further information.
6. Content; Copyright and Limitations on Use
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Site, use of the Site or access to the Site. The Site is provided for your personal, noncommercial use only.
All information, materials, functions and other content including without limitation, text, software, photos, and graphics (and including Submissions, as defined herein) (“Content”) contained on the Site are copyrighted by Fluidity and/or its licensors under United States and international copyright laws, are subject to other intellectual property and proprietary rights and laws, and are owned by Fluidity or its licensors. Fluidity may change the Site or delete Content or features at any time, in any way, for any or no reason.
Except as Fluidity specifically agrees in writing, no Content from the Site may be copied, modified, sold, offered for sale, used, posted, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Site, except that where a feature of the Site is configured to enable the download of particular Content, you may download one copy of such Content to a single computer for your personal, noncommercial use only, provided that you (a) keep intact all copyright and other proprietary notices, (b) make no modifications to the Content, and (c) do not use the Content in a manner that suggests an association with any of Fluidity’s products, services or brands. Any commercial use, “remailing” or high-volume or automated use of the Site is prohibited. You must abide by all copyright notices, information, or restrictions contained in or attached to any Content.
7. Service Subscription; Software
In the event that Fluidity offers a service for on-line access to software on the Site and you pay a service fee to purchase a subscription to access and use such software (the “Service”), or in the event that Fluidity offers downloads of licensed software on the Site and you purchase a license and download such software, the software, including any files, videos, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by Fluidity or third-party licensors under the specific terms and restrictions stated in the applicable On-Line Service Agreement or License Agreement (as applicable) accepted by you at the time of initial access and use of such Service or download of the Software (as applicable). Fluidity does not transfer title to the Software or Service to you. You may not distribute or otherwise exploit the Software or Service or decompile, reverse engineer, disassemble or otherwise reduce the Software or Service to a human-readable form.
8. Submissions
For purposes of these Terms of Use, the word “Submissions” means text, messages, ideas, concepts, pitches, suggestions, stories, screenplays, treatments, formats, artwork, photographs, drawings, videos, animations, audiovisual works, musical compositions (including lyrics), sound recordings, mathematics, characterizations, your and/or other persons’ names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, “Distribute”) on or through the Site.
There are two types of Submissions: Solicited Submissions and Unsolicited Submissions. “Solicited Submissions” means those Submissions (a) that Fluidity expressly requests or enables you to provide to us via any feature or activity on the Site for Fluidity’s review or display and possible specifically-defined consideration or compensation (such as being given access to special Site features) or prizes or other value in sweepstakes, contests and promotions; and (b) that you Distribute on or through the Site for which you do not seek consideration (such as in Public Forums, as defined below). “Unsolicited Submissions” are any and all Submissions that do not fall within subparagraphs (a) or (b) of this paragraph.
DO NOT DISTRIBUTE ANY UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT WILL BE CREATED.
Fluidity’s company policy does not allow us to accept or consider Unsolicited Submissions. Fluidity seeks to avoid any confusion when projects developed by Fluidity or under Fluidity’s direction might seem to others to be similar to their own creative work. Fluidity therefore requests that you not Distribute any Unsolicited Submission in any manner to Fluidity directly or indirectly or on or through the Site. Regardless, you agree that any Submissions you make are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and Fluidity in any way, and that you have no expectation of any review, compensation or consideration of any type (other than any stated consideration that is expressly agreed to by Fluidity after specific negotiation).
Except as expressly stated, the provisions of these Terms of Use apply equally to Unsolicited Submissions and Solicited Submissions. Accordingly, Fluidity, and its licensees, distributors, agents, representatives and other authorized users shall be entitled to exploit and disclose all Submissions, and Fluidity shall not be liable to you or to any person claiming through you for any exploitation or disclosure of any Submission.
You hereby grant Fluidity and it licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Site, on third party web sites, broadcast and cable networks and stations, broadband and wireless platforms, products and services, on physical media, and in theatrical release) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Submissions License”).
9. Representations Concerning Submissions
By communicating a Submission, you represent and warrant that the Submission and your communication thereof conform to the Rules of Conduct below and other requirements of these Terms of Use and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these Terms of Use (including the Submissions License). These Terms of Use (including the Submissions License) do not limit any past or future grant of rights, consents, agreements, assignments and waivers you may have made or make with respect to Submissions.
To the extent Fluidity solicits Submissions through features or activities on or through the Site (including sweepstakes, contests, promotions and Public Forums (defined below)) that require the use of Fluidity’s copyrighted works (in whole or in part), Fluidity hereby grants you a non-exclusive license to create a derivative work using such copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating your Submissions); provided however, that such license shall be conditioned upon your assignment of all rights in the work you create to Fluidity. If such rights are not assigned to Fluidity, your license to create derivative works using Fluidity’s copyrighted works (in whole or in part) shall be null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your Submissions are used by Fluidity.
You hereby appoint Fluidity as your agent with full power to enter into and execute any document and/or do any act Fluidity may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these Terms of Use.
To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the Submissions exist and are not exclusively owned by Fluidity, you agree not to enforce any such rights as to Fluidity or its licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights.
Without limiting the scope of the Submissions License or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to Submissions, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to Submissions submitted by you to Fluidity.
10. Public Forum
For purposes of these Terms of Use, the word “Public Forum” means an area, site or feature offered as part of the Site that offers the opportunity for users to Distribute Submissions for viewing by one or more Site users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, and email functions.
You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a Public Forum. Fluidity cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk.
You are and shall remain solely responsible for the Submissions you Distribute on or through the Site under your account or otherwise by you in any Public Forum and for the consequences of submitting and posting same. Fluidity has no duty to monitor any Public Forum.
Also, you should be skeptical about information provided by others, and you acknowledge that the use of any Submission posted in any Public Forum is at your own risk. For example, Fluidity is not responsible for, and Fluidity does not endorse, the opinions, advice or recommendations posted or sent by users in any Public Forum and Fluidity specifically disclaims any and all liability in connection therewith.
Fluidity owes you no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to Submissions you Distribute.
11. Rules of Conduct
The following Rules of Conduct apply to the Site. By using the Site, you agree that you will not Distribute any Submission that:
1. (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity;
2. is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
3. infringes or violates any right of a third party including: (a) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (b) right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity; or (c) any confidentiality obligation;
4. is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
5. contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Site; or
6. (a) does not generally pertain to the designated topic or theme of the relevant Public Forum; (b) violates any specific restrictions applicable to a Public Forum, including its age restrictions and procedures; or (c) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
Fluidity cannot and does not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of these Terms of Use, and, as between you and Fluidity, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
12. Removal of Submissions
Fluidity reserves the right, but disclaims any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from the Site that violates these Terms of Use (including the Rules of Conduct posted above) and (b) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when Fluidity believes in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these Terms of Use (including the Rules of Conduct) and/or any Fluidity contest, sweepstakes, promotions rules, and/or protect the safety or security of any person or property, including the Site. Moreover, Fluidity retains all rights to remove Submissions at any time for any reason or no reason whatsoever.
13. Opinions Stated in Third-Party Content
Fluidity is a distributor (and not a publisher) of certain content supplied by third parties and Users of the Site. Accordingly, Fluidity has no editorial control over such content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information provided by other Users of the Site, are those of the respective author(s) or distributor(s) of that information and not of Fluidity. Fluidity neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than authorized Fluidity spokespersons while acting in their official capacities. Fluidity has the right, but not the obligation, to monitor and review the content on the Site and your usage to determine compliance with these Terms of Use and any other operating rules established by Fluidity, to satisfy any law, regulation or authorized government request, or for other purposes. You understand and acknowledge that Fluidity does not monitor content for accuracy or reliability.
14. Links
The Site may contain links to other sites that take you outside of Fluidity’s Site to sites that are beyond Fluidity’s control. You acknowledge that when you click on any of the aforementioned links, the sites you are taken to are not controlled by Fluidity; different terms of use and privacy policy may apply, and Fluidity is not responsible for such sites. Fluidity’s provision of a link to any other website or location is for your convenience and does not signify Fluidity’s endorsement of such other site or location or its contents. Fluidity does not endorse and cannot ensure that you will be satisfied with any products or services that you use or purchase from a third-party site that links to or from the Site or third-party content contained on the Fluidity Site. Fluidity encourages its Users to investigate as they feel necessary or appropriate before proceeding with any online or offline transaction with any third parties.
FLUIDITY SHALL NOT BE LIABLE FOR ANY INFORMATION, SOFTWARE, SERVICES OR LINKS FOUND AT ANY OTHER WEBSITE, INTERNET LOCATION, OR SOURCE OF INFORMATION, OR FOR YOUR USE OF SUCH INFORMATION.
15. Proprietary Rights
You acknowledge and agree that the Site and any necessary software provided by Fluidity and used in connection with the Site contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Fluidity grants you a personal, non-transferable and non-exclusive right and license to use the object code of such Site software solely in connection with your use of the Site. You shall not (nor allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, decompile, or otherwise attempt to discover any source code, sell, assign, rent, lease, loan, sublicense, grant a security interest in or otherwise transfer any right in the Site software. You agree not to modify such software in any manner or form, or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Site. You agree not to access the Site by any means other than through the interface that is provided by Fluidity for such use.
16. Trademarks
Certain of the names, logos, and other materials displayed in the Site constitute trademarks, tradenames, service marks or logos (“Marks”) of Fluidity or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Fluidity or those other entities.
17. Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FLUIDITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NON-INFRINGEMENT WITH RESPECT TO THE SITE. FLUIDITY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE USE OR THE RESULTS OF THE USE OF ANY CONTENT OR SUBMISSIONS OF ANY USER. FLUIDITY MAKES NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FLUIDITY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR PRODUCTS OFFERED FOR LICENSE ON THE SITE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE, OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. FLUIDITY MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FLUIDITY OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST FLUIDITY WITH RESPECT TO CONTENT ON, AND ANY CONTENT YOU PROVIDE TO, THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
The Site may contain the opinions and views of other users. Given the interactive nature of the Site, Fluidity cannot endorse, guarantee, or be responsible for the accuracy, efficacy, or veracity of any Content generated by its Users. Reliance on any information appearing on the Site is strictly at your own risk.
The content of the Site is intended for educational and entertainment purposes only. Such content is not intended to, and do not, constitute legal, financial, professional, medical or healthcare advice or diagnosis, and may not be used for such purposes. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. You should not act or refrain from acting on the basis of any content included in, or accessible through, the Site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer or professional licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
18. Limitations on Liability
YOU UNDERSTAND THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL FLUIDITY OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (A) YOUR (OR ANYONE USING YOUR ACCOUNT’S) USE OF, OR THE INABILITY TO USE, THE SITE OR CONTENT, OR (B) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY. IN NO EVENT SHALL FLUIDITY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO THE SITE. MOREOVER, UNDER NO CIRCUMSTANCES SHALL FLUIDITY OR ITS, LICENSORS, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND ITS OR THEIR REASONABLE CONTROL.
19. Exclusions
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Fluidity may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Fluidity’s liability shall be the minimum permitted under such applicable law.
20. Indemnification
You agree to indemnify, defend and hold harmless Fluidity, its parents, subsidiaries, affiliates, officers, directors, licensors, distributors or other partners, employees, consultants, agents, representatives and other authorized users from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from (1) any information including Submissions you (or anyone using your account) submits, posts or transmits through the Site, (2) your (or anyone using your account’s) use of the Site, (3) your (or anyone using your account’s) violation of these Terms of Use, (4) your (or anyone using your account’s) violation of any rights of any other person or entity or (5) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Site. You shall use your best efforts to cooperate with the indemnified party in the defense of any claim. Fluidity and/or the applicable indemnified party reserves the right, at its own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
21. Digital Millennium Copyright Act Compliance
If you have any copyright concerns about any materials posted on this Site by others, please let Fluidity know. Fluidity complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512). Please provide Fluidity with written notice (“Notice”) by contacting Fluidity’s Designated Agent at the following address:
Designated Agent
Fluidity Software, Inc.
289 Highland Ave., Suite 304
Somerville, MA 02144
Email: legal at fluiditysoftware.com
To be effective, the Notice must include the following:
• A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner (“Complaining Party”) of an exclusive right that is allegedly being infringed upon;
• Information reasonably sufficient to permit Fluidity to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address;
• Identification of the allegedly infringing material on the Site (“Infringing Material”), and information reasonably sufficient to permit Fluidity to locate such material on the Site;
• Identification of the copyrighted work claimed to have been infringed upon (“Infringed Material”), or if multiple copyrighted works on the Site are covered by a single Notice, a list of each copyrighted work claimed to have been infringed (please be specific as to which Infringing Material is infringing on which Infringed Material);
• A statement that the Complaining Party has a good faith belief that use of Infringing Material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the Notice is accurate, and under penalty of perjury, that the Complaining Party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
22. Export Controls
Supply of goods, services and software through the Site is subject to United States export control and economic sanctions requirements. By acquiring any such items through the Site, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods, services or software through the Site if: 1) you are in, under the control of, or a national or resident of Cuba, Iran, Iraq, North Korea, Sudan, Libya or Syria or if you are on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List, Unverified List or Entity List or 2) you intend to supply the acquired goods, services or software to Cuba, Iran, Iraq, North Korea, Sudan, Libya or Syria (or a national or resident of one of these countries) or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List or Entity List.
23. Miscellaneous
These Terms of Use constitute the entire and exclusive and final statement of the agreement between you and Fluidity with respect to the subject matter hereof, and govern your use of the Site, superseding any prior agreements or negotiations between you and Fluidity with respect to the subject matter hereof. These Terms of Use and the relationship between you and Fluidity shall be governed by the laws of the Commonwealth of Massachusetts as applied to agreements made, entered into and performed entirely in Massachusetts by Massachusetts residents, notwithstanding your actual place of residence. All lawsuits arising out of these Terms of Use or out of your use of the Site shall be brought in the federal or state courts located in Suffolk County, Massachusetts, and you and Fluidity hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose. The failure of Fluidity to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of these Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms of Use or your use of the Site must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Certain terms which by their nature are intended to survive, including but not limited to ownership, licenses, restrictions of use, limited warranties, representations and any other limitations on liability explicitly set forth herein, shall survive the expiration or earlier termination of these Terms of Use for any reason. Fluidity’s (and its licensors’) proprietary rights (including any and all intellectual property rights) in and to the Content and the Site shall survive the expiration or earlier termination of these Terms of Use for any reason.
24. Modifications
From time to time, Fluidity may modify these Terms of Use. If Fluidity makes a material amendment to these Terms of Use, Fluidity may notify you of such amendment by sending you an email at the last email address that you provided, and/or by posting notice of such amendment on the Site. Any such amendment to these Terms of Use will be effective thirty (30) calendar days following either Fluidity’s dispatch of an email notice to you or the posting of notice of the changes on the Site. Please note that, at all times, you are responsible for updating your personal information to provide Fluidity with your current email address. In the event that the last email address that you have provided Fluidity is not valid, or for any other reason is not capable of delivering to you the notice described above, Fluidity’s dispatch of the email containing such notice will nonetheless constitute effective notice of any amendment described in the notice. Your continued use of the Site after such posting and notice will constitute your acceptance of the Terms of Use, as modified.
25. Effective Date. June 15, 2021 (amending August 16, 2012 version)