Welcome and thank you for your interest in Flux.io (“Flux”, “us” or “we”). Flux owns and operates the web application service located at https://flux.io that aids in the planning and design of buildings (“Flux App” or ”Services”).
- Acceptance of the Terms.
- These Terms provide that all disputes between you and Flux will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 17 below for the details regarding your agreement to arbitrate any disputes with Flux.
- Accessing the Services.
- Eligibility. You must be at least eighteen (18) years of age to use the Services. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
- Account Information. To register for and use certain aspects of the Services, you may need to provide Flux with certain personal and other account information about you. You hereby represent and warrant that the information you provide to Flux upon registration and at all other times will be true, accurate, current, and complete, and that you will ensure that such information is kept accurate and up-to-date at all times.
- Access. Subject to all terms and conditions set forth in these Terms, Flux grants you a personal, revocable license to access and use the Services as set forth in these Terms and consistent with the intended features of the Services, provided that: (i) you use the Services solely for your internal business purposes; (ii) you do not reproduce, modify, publicly display, publicly perform, or distribute any part of the Services, including any materials obtained from or included within the Services; and (iii) you do not engage in any of the prohibited uses described below in Section 8.
- Open-Source. Certain software code or databases incorporated into or distributed in connection with the Services may be licensed by third parties under various “open-source” or “public-source” software or database licenses (such as the GPL, the Apache License, the BSD License, and the Open Database License (ODbL)) (collectively, “Open Source Material”). Notwithstanding anything to the contrary in these Terms, the Open Source Materials are not licensed under these Terms and instead are separately licensed pursuant to the terms and conditions of their respective licenses. You agree to comply with the terms and conditions of the licenses applicable to such Source Materials. Without limiting the generality of the foregoing, you agree to comply with the Open Database License with respect to databases that you access via the Services, such as the Open Street Maps database.
- Password. An account may not be shared with any other third party, and you may not allow access to your account by any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Flux by e-mail to email@example.com. You are solely responsible for your own losses or losses incurred by Flux and others (including other users) due to any unauthorized use of your account that occur prior to notifying Flux that your account was compromised.
- Fees; Payment Terms. Access to the Services, or to certain features of the Services, may require you to pay fees. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Flux may change the fees for the Services or any feature of the Services, including by adding additional fees or charges, on a going-forward basis at any time. Flux will charge the payment method you specify at the time of purchase. You authorize Flux to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, Flux may seek pre-authorization of such credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase.
- Ownership; Proprietary Rights. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software and any Flux App), and services, and all other protectable or proprietary elements of the Flux App are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Flux, the Services and the Flux App, including all intellectual property rights therein and thereto, are the property of Flux or its affiliates and licensors. All trademarks, service marks, and trade names on the Services are trademarks or registered trademarks of Flux and/or its affiliates, suppliers, or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa.
- Feedback. If you provide Flux with any comments, feedback, suggestions or modifications proposed or suggested by you regarding any of the Services (“ Feedback”), Flux and its affiliates will have the right to use such Feedback at their discretion, including but not limited to the incorporation of such suggested changes into the Services or Flux’s or its affiliates’ other products or services. You hereby grant Flux a perpetual, irrevocable, worldwide, royalty-free, fully paid, sublicensable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
- Prohibited Use Of The Services. You agree not to use the Services for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not do or attempt to:
- Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Services, Flux App, or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Services other than as intended;
- Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Services, use of the Services, access to the Services, or content obtained through the Services (including, without limitation, Flux App and Third Party Content (as defined below)), for any purpose other than for your personal, noncommercial purposes, except and solely to the extent permitted expressly by these Terms;
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of any part of the Services, or features that enforce limitations on the use of the Services or any content therein;
- Bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services;
- Frame or otherwise enclose any Flux trademark or any portion of the Services in any other site or service for any purpose without our express written permission;
- Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Interfere with or disrupt the Services, networks or servers connected to or otherwise used to provide the Services, or violate the regulations, policies or procedures of such networks or servers; or
- Use the Services in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations, or the rights of any third party.
- Modifications and Interruptions to the Services. Flux may determine, in its sole discretion, to limit or restrict the use of the Services, to modify or discontinue the Services, to add data storage limitations, to implement or change fees for the Services, or otherwise modify the Services, in whole or in part, from time to time. You acknowledge and agree that these changes may take place and that Flux shall have no liability stemming from such changes. Any additions or modifications to the Services shall be in the sole discretion of Flux and will be subject to these Terms. There may be occasions when the Services will be interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment that are often beyond the control of Flux. By using the Services you agree that Flux shall not be liable to you for any modification, suspension, or interruption of the Services.
- Modification of the Terms. Flux reserves the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Services. These Terms will identify the date of last update. Your use of any of the Services following any such change constitutes your agreement to be bound by the modified Terms of Service. In the case of material changes to the Terms, Flux will make reasonable efforts to notify you of the change, such as through sending an email to any email address that you have provided to us, through a pop-up window on the Flux App, or any other reasonable mechanism. Material changes to these Terms will be effective upon the earlier of (i) your first use of any of the Services with actual notice of such change, or (ii) 30 days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
- Third Party Materials. The Services may contain references or links to third-party materials and services not controlled by Flux or its suppliers or licensors (collectively, “Third Party Content”). Flux provides such Third Party Content as a convenience to you and such provision should not be considered endorsements or recommendations of such Third Party Content or any content, products or information offered thereon or through. You acknowledge and agree that Flux is not responsible for any aspect of any Third Party Content. You should carefully review any applicable terms and policies, including any relevant privacy policies, associated with any Third Party Content or other third party web sites, software, or services that you may utilize. YOU AGREE THAT YOUR USE OF THIRD PARTY CONTENT IS AT YOUR OWN RISK AND FLUX WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH USE OR DEALINGS.
- By Flux. Flux, in its sole discretion and for any reason or no reason, may terminate your account on the Services, disable your access to the Services (or any part thereof), discontinue the Services and any related services, in whole or in part, or terminate any license or permission granted to you hereunder, at any time, with or without notice. You agree that Flux shall not be liable to you or any third party for any such termination. Without limiting the generality of the foregoing, Flux may terminate your account in cases of actual or suspected fraud or violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Flux may have at law or in equity.
- By You. If you are dissatisfied with the Services, then please let us know by e-mailing us at firstname.lastname@example.org. Your only remedy with respect to any dissatisfaction with (i) the Services, (ii) any of these Terms, (iii) any policy or practice of Flux in operating the Services, or (iv) any content or information transmitted or made available through the Services, is to terminate your use of the Services. You may terminate your use of the Services by closing your account and discontinuing your use of any and all parts of the Services, or by providing Flux with notice of termination at email@example.com.
- Survival. Upon termination of these Terms, any provision or policy which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Section 4 (Password), Section 6 (Ownership; Proprietary Rights), Section 11 (Third Party Content and Links), Section 12.C (Survival), Section 13 (Indemnity), Section 14 (Disclaimers), Section 15 (Limitation of Liability), Section 16 (Limitations; Basis of the Bargain), Section 17 (Dispute Resolution and Arbitration), Section 18 (Governing Law; Venue), Section 19 (Notices), Section 20 (Miscellaneous).
- Indemnity. You agree to indemnify and hold harmless Flux and its affiliates, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, and contractors from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Services (including your use or misuse of Third Party Content); (ii) your breach or other violation of these Terms, including any representations, warranties, or covenants herein; or (iii) your violation of the rights of any other person or entity. Flux reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You may not settle any matter without the prior written consent of Flux. Flux will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Disclaimers. THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE FLUX APP, AND ANY OTHER PRODUCT, SERVICE, DATA OR INFORMATION PROVIDED BY FLUX), THIRD-PARTY CONTENT, AND ANY OTHER SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, SECURITY, RELIABILITY, OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FLUX AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, WITH RESPECT TO THE SERVICES, FLUX APP, AND ANY PRODUCTS, SERVICES, INFORMATION, OR CONTENT PROVIDED BY ANY OTHER THIRD PARTY. FLUX AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY FLUX APP, WILL BE UNINTERRUPTED, ACCURATE, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES WILL CREATE ANY WARRANTY REGARDING THE SERVICES, FLUX, OR FLUX’S AFFILIATES, LICENSORS, OR SUPPLIERS, THAT IS NOT EXPRESSLY STATED IN THESE TERMS. IT IS YOUR RESPONSIBILITY TO CONFIRM THE ACCURACY AND COMPLETENESS OF THE DATA OR RESULTS OBTAINED THROUGH THE SERVICES, INCLUDING AS TO ANY ZONING OR OTHER REGULATORY OR BUILDING CODE INFORMATION PROVIDED ON OR THROUGH THE SERVICES.
- Limitation of Liability. IN NO EVENT WILL FLUX, ITS AFFILIATES, LICENSORS, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS OR DIRECTORS, BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICES, ANY FLUX APP, OR ANY INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF FLUX OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FLUX, ITS AFFILIATES, LICENSORS, OR SUPPLIERS, OR ANY OFFICERS OR DIRECTORS OF ANY OF THE FOREGOING, BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED GREATER THAN ONE HUNDRED DOLLARS ($100) FOR ALL CLAIMS UNDER ANY OF THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
- Limitations; Basis of the Bargain. APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FLUX, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FLUX, THE LIABILITY OF FLUX AND ITS WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT FLUX WOULD NOT BE ABLE TO OFFER THE SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Flux (or Flux’s affiliates, as applicable) in the most expedient and cost effective manner, you and Flux, (or Flux’s affiliates, as applicable) agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Flux (or Flux’s affiliates, as applicable) are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. Notwithstanding subsection (A), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitrator. Any arbitration between you and Flux (or Flux’s affiliates, as applicable) will be governed by the Commercial Dispute Resolution Procedures ("AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Flux.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Flux’s address for Notice is: P.O. Box 410385, San Francisco, CA 94141. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Flux (or Flux’s affiliates, as applicable) may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Flux (or Flux’s affiliates, as applicable) shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Flux (or Flux’s affiliates, as applicable) shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Flux (or Flux’s affiliates, as applicable) in settlement of the dispute prior to the arbitrator’s award.
- Fees. In the event that you commence arbitration in accordance with these Terms, Flux (or Flux’s affiliates, as applicable) will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, USA, provided that if the 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, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If 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 Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Flux (or Flux’s affiliates, as applicable) for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No class actions. YOU AND FLUX (OR FLUX’S AFFILIATES, AS APPLICABLE) AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Flux 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.
- Modifications. In the event that Flux makes any future change to this arbitration provision (other than a change to the Flux’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Flux’s address for Notice, in which case your account with Flux shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
- Enforceability. If only Subsection (F) of this Section 17 or the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 18 shall govern any action arising out of or related to these Terms.
- Governing Law; Venue. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Flux agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the County of Santa Clara, California for the purpose of litigating all such claims or disputes.
- Notices. Flux may provide you with notices by mail, electronic mail, or postings on the Services. You may provide Flux with notices by United States Registered Mail sent to Flux.io at the address set forth below. If notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless Flux is notified that the electronic mail address is invalid. If notice is provided by posting on or through the Services, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Services. In such case, notice will be deemed given three days after the date of mailing.
- Miscellaneous. These Terms constitute the entire agreement between you and Flux relating to the subject matter of these Terms, and supersede all previous communications, representations, understandings and agreements, either oral or written, between you and Flux with respect to said subject matter. These Terms shall not be modified or waived except in a writing signed by both parties, or by a change to these Terms as provided in Section 10 (“Modification of the Terms”), above. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed, and the remaining provisions thereof shall remain in full force and effect. The failure of Flux to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the prior or future performance of any such terms or conditions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Flux as a result of these Terms or use of the Services. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Flux without restriction, including by operation of law, merger, reincorporation, recapitalization, or sale of all or substantially all of the assets to which these Terms pertain. Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in these Terms are used for convenience only and are not to be considered in interpreting these Terms.
The services hereunder are offered by:
1370 Harrison Street
San Francisco, CA 94103
- If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.