Authorized User Terms

These Authorized User Terms (“User Terms”) govern your access to and use of the Fluent platform and related services (the “Service”) as an Authorized User of an organization that has entered into a Master Subscription Agreement / Terms of Service with Fluent (the “Agreement”). By clicking “Agree and continue,” accessing, or using the Service, you agree to these User Terms, the Acceptable Use Policy (“AUP”), and the Privacy Policy (collectively, the “User Terms Package”). Capitalized terms not defined here have the meanings given in the Agreement.

1. Your Relationship

Your organization (“Customer”) has an agreement with Fluent that permits you to access the Service. These User Terms create a direct agreement between you and Fluent. They do not alter or replace the Agreement between Customer and Fluent; rather, they establish the terms under which you, as an individual Authorized User, may use the Service.

The AUP and Privacy Policy are incorporated into these User Terms by reference. If there is a conflict between documents, the following order of precedence applies: (1) the Business Associate Agreement (“BAA”) (for PHI matters only, if applicable), (2) the Agreement, (3) these User Terms, and (4) the AUP and Privacy Policy.

2. Acceptable Use

You must comply with the AUP at all times. Without limiting the AUP, you agree not to:

• share your login credentials or allow others to access the Service using your account;
• attempt to gain unauthorized access to any part of the Service;
• use the Service in any way that violates applicable law; or
• introduce malware, harmful code, or automated scripts that interfere with the Service.

3. Intellectual Property

3.1 Fluent IP

Fluent and its licensors retain all rights, title, and interest in and to the Service, including all software, technology, documentation, trademarks, and other intellectual property. Nothing in these User Terms grants you any ownership interest in the Service. You may not:

• copy, modify, distribute, sell, or lease any part of the Service;
• reverse engineer, decompile, or attempt to derive the source code of the Service, except to the extent expressly permitted by applicable law that cannot be waived by contract;
• use the Service to build or help build a competing product or service; or
• publish benchmark results, performance tests, or comparative analyses of the Service without Fluent’s prior written consent.

3.2 Customer Data

Customer retains all rights in data and content submitted to the Service by or on behalf of Customer (“Customer Data”). You may access and use Customer Data only as authorized by Customer and only as permitted by the Agreement, these User Terms, and the AUP.

4. Confidentiality

In the course of using the Service, you may have access to confidential information belonging to Fluent, Customer, or other parties (“Confidential Information”). You agree to:

(a) use Confidential Information only to the extent necessary for your authorized use of the Service;

(b) not disclose Confidential Information to any third party except as authorized by Customer’s policies or required by applicable law; and

(c) protect Confidential Information using at least the same degree of care you use for your own confidential information (and in no event less than reasonable care).

Confidential Information does not include information that is publicly available through no fault of yours, or that you independently develop without reference to the Confidential Information. If you are legally compelled to disclose Confidential Information, you will disclose only what is required and (where legally permitted) provide prompt notice to Customer.

5. PHI and HIPAA

5.1 No PHI Unless a BAA Is in Effect

You must not input, store, or transmit protected health information (“PHI”) through the Service unless Customer has a Business Associate Agreement (“BAA”) in effect with Fluent.

5.2 No “HIPAA-Specific Mode” by Default

The Service is not configured to “block” PHI by default. Even if a BAA is in effect, Customer and its users remain responsible for determining what information is entered into the Service and for complying with HIPAA and other applicable laws. Fluent may offer additional PHI-specific configuration guidance or feature controls in the future, but you should not assume that any particular field, workflow, notification, or feature is suitable for PHI unless Customer’s policies and Fluent’s written guidance indicate otherwise.

5.3 PHI Handling Rules

If a BAA is in effect, you must comply with all PHI-related restrictions in the AUP, Customer’s policies, and applicable law. Without limiting the foregoing:

• Do not include PHI in free-text fields, messages, or any content that may be transmitted via email, SMS, or push notifications, unless Customer’s policies and Fluent’s written guidance indicate the field or feature is intended for PHI.
• Submit only the minimum necessary information for scheduling and operational coordination.
• Follow Customer’s access controls and role permissions, and do not access PHI unless you are authorized to do so.

6. Disclaimer of Warranties

THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” FLUENT DISCLAIMS ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FLUENT DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.

7. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLUENT’S TOTAL LIABILITY TO YOU ARISING OUT OF OR RELATING TO THESE USER TERMS OR YOUR USE OF THE SERVICE WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). IN NO EVENT WILL FLUENT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY.

8. Indemnification

You agree to indemnify and hold harmless Fluent and its officers, directors, employees, and agents from and against any third-party claims, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) your misuse of the Service; (b) your violation of these User Terms or applicable law; or (c) your unauthorized disclosure of Confidential Information or PHI.

9. Termination

These User Terms are effective until terminated. Your access to the Service may be terminated by Customer, by Fluent, or by you (by ceasing to use the Service). Upon termination, your right to access the Service ends immediately. Sections 3, 4, 5, 6, 7, 8, 10, 11, and 12 survive termination.

10. Dispute Resolution; Governing Law

These User Terms are governed by the laws of the State of Colorado, excluding conflict-of-law rules. You consent to exclusive jurisdiction and venue in state or federal courts located in Colorado for any disputes arising from these User Terms or your use of the Service.

11. Equitable Relief

You acknowledge that a breach of Sections 3 (Intellectual Property), 4 (Confidentiality), or 5 (PHI) may cause irreparable harm for which monetary damages would be inadequate. Accordingly, Fluent may seek injunctive or other equitable relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law or in equity.

12. Changes to These Terms

Fluent may update these User Terms from time to time. For material changes, Fluent will provide advance notice and, where required, obtain your re-acceptance via clickwrap. If you do not agree to material changes, do not continue using the Service.

13. Contact

Questions about these User Terms can be directed to:

Fluentworks, Inc.
Email: legal@fluentworks.com