Master Services Agreement

Master Subscription Agreement / Terms of Service

Fluentworks, Inc. (“Fluent”)

Effective Date: The date Customer accepts this Agreement (the “Effective Date”).

This Master Subscription Agreement / Terms of Service (“Agreement”) governs Customer’s access to and use of Fluent’s software platform and related services (“Service”). By clicking “Accept,” creating an account, or using the Service, Customer agrees to this Agreement.

1. Definitions

“Customer”

means the entity accepting this Agreement (including its employees and authorized users).

“Authorized User”

means an individual Customer permits to use the Service under Customer’s account.

“Customer Data”

means data and content submitted to the Service by or on behalf of Customer or Authorized Users.

“Order”

means an order, plan selection, checkout flow, or online configuration specifying subscription tier, term, and pricing.

“PHI”

has the meaning given under HIPAA (as defined in the BAA, if applicable).

“HIPAA”

means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended.

“Policies”

means Fluent’s then-current supplementary policies and terms referenced in Section 2.4 (e.g., Acceptable Use Policy, Privacy Policy, Subprocessor List, and any Service-specific terms).

“Subscription Term”

means the subscription period (monthly or annual) selected by Customer, plus any renewal periods.

“Trial”

means a free trial period offered by Fluent, if any.

2. The Service

2.1 Provision of Service.

Fluent will make the Service available to Customer during the Subscription Term, subject to this Agreement and any applicable Order.

2.2 Updates.

Fluent may modify the Service and add or remove features. Fluent will not materially reduce core functionality of paid plans during a then-current paid Subscription Term without reasonable notice.

2.3 Beta Features.

Beta or pre-release features are provided “as is” and may be changed or discontinued.

2.4 Supplementary Terms and Policies (Incorporated).

The Policies are incorporated into and form part of this Agreement. Policies may include, without limitation: (a) Acceptable Use Policy; (b) Privacy Policy; (c) Subprocessor List and related notices; (d) security, support, or documentation materials made available by Fluent; (e) HIPAA-related configuration guidance and any “included functionality” descriptions; and (f) any service-specific terms applicable to particular features. In the event of a conflict, the following order of precedence applies: (1) BAA (for PHI matters only), (2) Order, (3) this Agreement, (4) Policies. Customer and Authorized Users must comply with the Acceptable Use Policy at all times while using the Service.

2.5 Where Policies Live.

Policies may be provided via links within the Service, Fluent’s website, or Customer’s admin settings and are considered provided when made available there.

3. Accounts, Authorized Users, and Customer Responsibilities

3.1 Account Administration.

Customer is responsible for (a) maintaining the confidentiality of account credentials, (b) all activity under its account, and (c) ensuring Authorized Users comply with this Agreement.

3.2 Customer Responsibilities.

Customer is responsible for (a) the accuracy and legality of Customer Data, (b) configuring the Service appropriately for its workflows, and (c) ensuring its use of the Service complies with applicable laws and regulations.

3.3 Minimum Necessary; Data Restrictions.

Customer will submit only the minimum information necessary for scheduling and operational purposes. Customer must not submit: (a) Social Security numbers, (b) payment card data, (c) psychotherapy notes, or (d) other highly sensitive data not required for scheduling. Fluent does not support file uploads/attachments unless expressly enabled by Fluent in writing.

4. PHI, HIPAA, and the Business Associate Agreement

4.1 PHI Attestation and BAA Requirement.

If Customer will use the Service with patient health information now or in the future, Customer must enter into Fluent’s Business Associate Agreement (“BAA”) before PHI is stored in the Service. Customer may be required to affirm its intended use of PHI during onboarding or later in settings.

4.2 No PHI Without a BAA.

Unless and until a BAA is executed, Customer will not submit PHI to the Service and will configure its workflows to avoid PHI entry, including in free-form fields such as notes or messages.

4.3 BAA Controls for HIPAA Matters.

If a BAA is executed, the BAA governs the parties’ obligations with respect to PHI and HIPAA compliance. To the extent this Agreement conflicts with the BAA regarding PHI, the BAA controls.

4.4 Customer Control Over Customer Data.

Customer controls what Customer Data (including any PHI) it submits to the Service, who has access, and what is communicated to third parties. Customer is responsible for training its users not to include PHI in fields or communications where it is not intended.

4.5 Prohibited Communications of PHI.

Customer will not transmit PHI through any messaging or notification features not expressly designated by Fluent as suitable for PHI. If Customer elects to include additional free-form text with interpreter requests or similar workflows, Customer is solely responsible for ensuring no PHI is included in that content unless permitted under a signed BAA and applicable law.

5. Acceptable Use

5.1 Acceptable Use Policy (AUP)

Customer and Authorized Users must comply with Fluent’s Acceptable Use Policy (the “AUP”), which is incorporated into this Agreement by reference as a Policy under Section 2.4. Violations of the AUP may result in suspension or termination under Section 10, and may also result in additional remedies available to Fluent under this Agreement or applicable law.

6. Fees, Billing, and Taxes

6.1 Fees.

Customer will pay:

(a) subscription fees based on the selected plan and billing term (monthly or annual); and

(b) usage fees of $0.25 per appointment created in the Service (each, an “Appointment”), regardless of whether the Appointment is completed, billed, cancelled, or otherwise non-billable, unless explicitly stated otherwise in an Order.

6.2 Appointment Created.

An Appointment is considered “created” when it is added to the Service (including via manual entry, import, API, or integration) such that it exists as a record in the system.

6.3 Billing Period (Usage).

Usage fees are calculated on a calendar-month basis.

6.4 Billing Timing.

• Monthly subscription: subscription billed in advance monthly; usage billed monthly in arrears.
• Annual subscription: subscription billed upfront annually; usage billed monthly in arrears.
• Usage invoices: issued (and, if applicable, charged) on the 1st day of each month for the prior calendar month’s usage.

6.5 Trials; Proration After Trial.

If Customer has a Trial, then on the day after the Trial ends, Customer’s subscription will begin and Customer will be charged a prorated subscription amount for the remainder of that calendar month (based on remaining days in the month / total days in the month × the monthly subscription price). On the next 1st of the month, Customer will be charged the full monthly subscription fee (or continue under the annual subscription if selected) and the applicable usage fees for the prior month’s calendar-month usage.

6.6 Auto-Renewal.

Subscriptions auto-renew unless cancelled before the renewal date.

6.7 Free Tier and Hard Stop.

Free tiers may include usage limits (e.g., a maximum number of Appointments per month). Upon reaching the free-tier limit, the Service may enforce a hard stop such that Customer may continue to access its account and existing data, but may not create additional Appointments until Customer upgrades or the next period begins, as applicable.

6.8 Payment Processing Fees.

Payments are processed through Fluent’s payment processor (e.g., Stripe). Customer is responsible for payment processing fees charged by the payment processor, as permitted by applicable law and as reflected in checkout or invoices.

6.9 Late Payments.

Fluent may suspend access for overdue amounts. Customer will pay reasonable collection costs and interest where permitted by law.

6.10 Taxes.

Fees exclude taxes. Customer is responsible for applicable sales, use, VAT, GST, or similar taxes, excluding taxes on Fluent’s net income.

7. Refunds and Credits

7.1 Credits/Refunds.

Fluent may provide refunds or service credits in its reasonable discretion, including for billing errors or Service issues.

7.2 Termination for Convenience (Annual Plans).

If Fluent terminates Customer’s paid subscription for convenience (i.e., not due to Customer’s breach), Fluent will refund any prepaid, unused subscription fees for the then-current annual Subscription Term on a prorated basis.

7.3 No Refund for Breach.

If Fluent terminates due to Customer’s breach, fees are non-refundable to the maximum extent permitted by law.

8. Support; No SLA

8.1 Support.

Fluent provides email and phone support during normal business hours, with response times on a best-efforts basis.

8.2 Availability.

Fluent aims for high availability but does not guarantee uninterrupted Service. The Service may be unavailable due to maintenance or factors outside Fluent’s control. No service-level agreement (SLA) is provided unless expressly stated in an Order.

9. Security and Privacy

9.1 Security Measures.

Fluent maintains administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data.

9.2 Privacy Policy.

Fluent’s Privacy Policy describes how personal data is handled.

9.3 Subprocessors.

Fluent may use third-party subprocessors to provide the Service. Fluent will remain responsible for its subprocessors’ performance of delegated obligations under this Agreement, and under the BAA if applicable.

10. Suspension and Termination

10.1 Suspension.

Fluent may suspend access immediately if (a) required by law, (b) Customer’s use poses a security risk, (c) Customer breaches Sections 4 (PHI/HIPAA) or 5 (Acceptable Use), or (d) Customer fails to pay undisputed fees.

10.2 Termination by Customer.

Customer may cancel at any time. Cancellation takes effect at the end of the then-current billing period unless otherwise required by law.

10.3 Termination by Fluent.

Fluent may terminate for material breach if not cured within 30 days after notice, or immediately for repeated or severe breaches, security risk, or unlawful use.

10.4 Effect of Termination.

Upon termination, Customer’s right to use the Service ends.

11. Data Retention, Export, and Deletion

11.1 Retention.

Fluent retains Customer Data in accordance with its standard retention practices, which may include retention of certain records for up to six (6) years for compliance, audit, and dispute resolution purposes, unless a longer period is required by law.

11.2 Export.

During the Subscription Term and for a limited period after termination (if offered), Customer may be able to export certain Customer Data.

11.3 Deletion.

After termination, Fluent will delete or de-identify Customer Data within a reasonable time, except to the extent (a) retention is required or permitted by law, (b) retention is required under the BAA (if applicable), or (c) data is retained in backups and deleted in the ordinary course.

12. Confidentiality

Each party may receive the other’s confidential information. Each party will protect the other’s confidential information using reasonable care and use it only to perform under this Agreement. Customer Data is Customer’s confidential information.

13. Intellectual Property

13.1 Fluent IP.

Fluent retains all rights in the Service, including software, documentation, and trademarks.

13.2 Customer Data.

Customer retains all rights in Customer Data. Customer grants Fluent a limited license to host, process, and display Customer Data as necessary to provide the Service.

14. 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.

15. LIMITATION OF LIABILITY

15.1 Exclusion of Damages.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY.

15.2 Liability Cap.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO FLUENT IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

15.3 BAA.

The BAA may include additional terms governing PHI-related responsibilities. Nothing in this Agreement expands Fluent’s obligations beyond what is expressly stated in the BAA.

15.4 Indemnification Within Cap.

For clarity, the liability cap in Section 15.2 applies to each party’s indemnification obligations under Section 16 to the maximum extent permitted by law.

16. Indemnification

16.1 Customer Indemnity.

Customer will defend, indemnify, and hold harmless Fluent and its officers, directors, employees, and agents from and against third-party claims, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) Customer Data, including any PHI submitted in violation of this Agreement or without a signed BAA; (b) Customer’s or Authorized Users’ misuse of the Service; (c) Customer’s violation of law; or (d) Customer’s breach of this Agreement.

16.2 Procedure.

The indemnified party will promptly notify the indemnifying party of a claim and cooperate. The indemnifying party will control the defense and settlement, except it may not settle in a way that imposes liability or obligations on the indemnified party without consent.

16.3 Fluent IP Indemnity (Limited).

Fluent will defend Customer against any third-party claim alleging that the Service, as provided by Fluent and used by Customer in accordance with this Agreement, infringes or misappropriates such third party’s U.S. patent, U.S. copyright, or U.S. trademark (an “IP Claim”), and Fluent will indemnify Customer from any damages finally awarded by a court or agreed in a settlement approved by Fluent, including reasonable attorneys’ fees awarded against Customer in connection with the IP Claim.

Exclusions. Fluent has no obligation for any IP Claim arising from: (a) Customer Data or content; (b) use of the Service in combination with products, services, software, systems, or data not provided by Fluent, if the claim would not have arisen but for such combination; (c) modifications to the Service not made by Fluent; (d) use of the Service other than as permitted under this Agreement or outside the scope of documentation; or (e) Customer’s failure to use updated or modified versions of the Service that Fluent makes available to avoid infringement.

Remedies. If the Service becomes (or in Fluent’s reasonable opinion is likely to become) the subject of an IP Claim, Fluent may, at its option: (i) procure the right for Customer to continue using the Service; (ii) modify or replace the Service to make it non-infringing while providing materially equivalent functionality; or (iii) terminate the affected portion of the Service and refund any prepaid, unused subscription fees for the terminated portion.

Sole Remedy. This Section 16.3 states Customer’s exclusive remedy and Fluent’s entire liability for IP Claims.

17. Changes to This Agreement and Policies

17.1 Changes.

Fluent may update this Agreement or the Policies from time to time. For material changes, Fluent will provide reasonable notice (including by posting within the Service or by email). Continued use after the effective date constitutes acceptance. Material changes will not apply retroactively to disputes arising before the effective date.

18. General

18.1 Governing Law; Venue.

Colorado law governs this Agreement, excluding conflict-of-law rules. The parties consent to exclusive jurisdiction and venue in state or federal courts located in Colorado for disputes arising from this Agreement.

18.2 Assignment.

Customer may not assign this Agreement without Fluent’s consent, except in connection with a merger or sale of substantially all assets. Fluent may assign this Agreement as part of a corporate reorganization, merger, or sale.

18.3 Entire Agreement.

This Agreement, any Orders, and the BAA (if executed) are the entire agreement.

18.4 Severability.

If any provision is unenforceable, the rest remains effective.

18.5 No Waiver.

Failure to enforce a provision is not a waiver.