fluctuo Terms and Conditions

(Updated March 2021)

  1. Acceptance of these Terms

Your use of the FLUCTUO Services and the FLUCTUO Materials is governed by these terms and conditions ("Terms"). You may accept these Terms by clicking "accept" or "agree" or similar, where this option is made available; or using the FLUCTUO Materials, in which case your use of the FLUCTUO Materials is considered your acceptance of these Terms.

Upon accepting these Terms, they become a binding agreement between you and FLUCTUO.

"FLUCTUO Services" means the Data Flow API, the City Dive Dashbord and Content provided by FLUCTUO  through the applicable FLUCTUO Materials as available.

"FLUCTUO Materials" means any or all of the following as made available by FLUCTUO through the FLUCTUO website and relevant FLUCTUO product pages (collectively, “site”): access credentials, application programming interfaces (APIs), software development kits (SDKs), software and related materials and documentation.

"Content" means any data or content made available by FLUCTUO including KPIS, maps, points of interest, user generated content, links, listings, trademarks, logos and third-party content.

  1. These Terms

2.a The Terms shall include and consist of the following documents:

In the event there is a conflict between the above listed documents, the documents shall apply in the order as listed above and the first mentioned shall supersede the later mentioned documents.

2.b Updates to these Terms and the FLUCTUO Materials and the FLUCTUO Services

FLUCTUO reserves the right to change these Terms at any time. FLUCTUO will provide the changed Terms on the site or in your user account or inform you by email. To continue using the FLUCTUO Materials and the FLUCTUO Services, you must accept the changes. If you do not agree to the changes, access to the FLUCTUO Services may be suspended or terminated by FLUCTUO and you must immediately cease using the FLUCTUO Materials. Your continued use of the FLUCTUO Materials or the FLUCTUO Services is deemed your acceptance of the changed Terms. If a change is unacceptable to you, you may as your sole and exclusive remedy terminate your subscription by ceasing the use of the FLUCTUO Materials and providing a notice of termination to FLUCTUO.

FLUCTUO strives to continuously improve the FLUCTUO Services. Therefore, FLUCTUO reserves the right to change the FLUCTUO Materials and FLUCTUO Services at any time. FLUCTUO will endeavor to inform you about any major changes as much as possible in advance either by email, through your account or on the site.

  1. You and FLUCTUO

"You" refers to the person or entity (or both) using the FLUCTUO Materials as intended in these Terms. If you accept these Terms on behalf of your company, organization or other entity, you must have, and you represent that you have, full legal authority to bind your company, organization or such other entity to these Terms.

You may not use the FLUCTUO Materials, access the FLUCTUO Services and may not accept these Terms, if :

  1. Account and Access Credentials

You have to register for an account through the site to be able to use the FLUCTUO Materials and access the FLUCTUO Services. In any case, you agree to provide truthful and complete information when registering or contracting and to keep that information updated.

FLUCTUO issues access credentials to you for each Application. You must ensure that unique access credentials are used for each Application. Any use of the FLUCTUO Services through access credentials issued to you will be considered your use and you are responsible for such use. You agree to take due care protecting such access credentials against misuse by others and disclosure to others and promptly notify FLUCTUO about any misuse or loss of access credentials. If you breach any security measures established by FLUCTUO, FLUCTUO may immediately terminate or suspend your access to the FLUCTUO Services and may terminate your subscription and you shall immediately cease using the FLUCTUO Materials and accessing the FLUCTUO Services.

  1. Your Application Accessing the FLUCTUO Services

An "Application" is each desktop, mobile or web application developed by you (or for you) that accesses FLUCTUO Services by using the applicable FLUCTUO Materials.

"Request” means each API call made to the FLUCTUO Services through the FLUCTUO Materials to request Results as initiated by an end user using the Application. Internal server requests performed to respond to each API call shall not be counted as Requests.

"Result" means each unique delivery of information delivered to an Application in response to a Request.

  1. Subscription Plans for Your Application

You may choose between different subscription plans for your Application as set out on the site. You must comply with the subscription plan details valid at the time of your subscription, unless otherwise expressly notified by FLUCTUO, as well as with the rest of these Terms. Difference (pro rata) in fees for upgrades will be charged accordingly. Difference in fees for downgrades is not refundable.

  1. License Grants

7.a License Grant from FLUCTUO to You

7.a.1 License to the FLUCTUO Materials

Subject to your compliance with these Terms, FLUCTUO grants you one of the following licenses:

7.a.2 License to and Use of the FLUCTUO Marks

You shall conspicuously display FLUCTUO's copyright notices as specified by FLUCTUO or as set out in the FLUCTUO brand guidance (as may be provided by FLUCTUO from time to time) in connection with the Application and on all placements within or related to the Application.

 In all instances where FLUCTUO Services are used or where your marketing materials reference FLUCTUO Services (collectively "Collateral") you must attribute FLUCTUO as the creator and source of origin of the FLUCTUO Services and shall not in any way imply that you or any third party is the creator or source of origin of the FLUCTUO Services.

You must prominently display FLUCTUO’'s trademarks, logos, service marks, trade names and similar designations (collectively, "FLUCTUO Marks") as specified by FLUCTUO (including as specified in the FLUCTUO brand guidance as may be provided by FLUCTUO from time to time) in connection with the FLUCTUO Services and on all Collateral.

During your subscription, FLUCTUO grants you a limited, non-exclusive, non-transferable, non-sub-licensable, revocable, royalty-free right to use the FLUCTUO Marks as required for purposes described in this section. You must conspicuously indicate in all materials displaying the FLUCTUO Marks (i) that FLUCTUO is the owner thereof; or (ii) that the FLUCTUO Marks are trademarks or service marks of FLUCTUO , as applicable, or (iii) both of the above, as applicable. Your use of the FLUCTUO Marks shall inure to the benefit of FLUCTUO .

You agree that you will not in any way modify, alter or tamper with any proprietary marks, rights notices or other notices, FLUCTUO Marks, Results, or End-User Terms that may be provided through the FLUCTUO Services.

Upon termination or expiration of your subscription, you must immediately cease all use of FLUCTUO Marks.

7.b License Grant from You to FLUCTUO

License to Your Content

No right title or interest to Your Content is transferred to FLUCTUO by virtue of these Terms, except that by submitting, posting or displaying Your Content in the FLUCTUO Services or otherwise providing Your Content to FLUCTUO, you grant FLUCTUO and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sub-licensable license to reproduce, adapt, modify, translate, publicly perform, publicly display, distribute, process and transfer your Content through the FLUCTUO Services in accordance with these Terms.

"Your Content" means any content and information you import into or create in the FLUCTUO Services, excluding Requests.

FLUCTUO may remove your Content from the FLUCTUO Services if FLUCTUO has any reason to believe that your Content is illegal, infringing or in some way offensive or otherwise inappropriate.

License to Your Marks

During your subscription you grant to FLUCTUO and its affiliates a worldwide, royalty-free, non-transferable, non-exclusive sub-licensable license to use your marks, trade names, trademarks and logos including the names and descriptions of the Applications for purposes of referencing you as a FLUCTUO customer and to promote related FLUCTUO products and services. After your subscription, FLUCTUO and its affiliates will cease all use of your marks as soon as reasonably practicable. FLUCTUO and its affiliates' use of your marks shall inure to your benefit.

  1. Restrictions on FLUCTUO Services and FLUCTUO Materials

You must take all due care dealing with the FLUCTUO Materials and FLUCTUO Services and agree at all times to follow these Terms and not to do any acts that are not specifically permitted in these Terms. You are not allowed to make the FLUCTUO Services or FLUCTUO Materials (or any portions thereof) available to any third party (including any of your affiliates and subcontractors).

Notwithstanding anything to the contrary in these Terms, you may not use or combine FLUCTUO Services (or any part thereof) with any other content, services or code that may subject the FLUCTUO Services (or any part thereof) to any open source or open data licenses (e.g., OSM) or public domain where such licenses or terms would (a) cause the disclosure or distribution of the FLUCTUO Services (or any part thereof); (b) result in licensing of the FLUCTUO Services (or any part thereof) for the purpose of making derivative works; (c) cause redistribution of the FLUCTUO Services (or any part thereof) at no charge, as a condition for use, modification or distribution of such other content, services or code; or (d) otherwise restrict or impact the licensing or other use of the FLUCTUO Services (or any part thereof).

  1. Design and Use of Applications

Applications and use of the FLUCTUO Materials and the FLUCTUO Services must comply with the following:

  1. Support, Maintenance, Availability

10.a Support by you

You must provide reasonable support and maintenance to your customers for your Application.

10.b Support and Maintenance, Changes to the FLUCTUO Services

Unless and only to the extent otherwise explicitly stated in these Terms FLUCTUO has no obligation to provide you or end users with any support or maintenance. FLUCTUO may change, improve and correct the FLUCTUO Services and the FLUCTUO Materials from time to time. FLUCTUO may also provide updates, upgrades or modifications to the FLUCTUO Services or the FLUCTUO Materials. If so instructed by FLUCTUO , you may not continue using the previous version of the FLUCTUO Services or the FLUCTUO Materials and the use of the previous version of the FLUCTUO Services or the FLUCTUO Materials may be prevented. FLUCTUO has no obligation to provide maintenance, bug fixes, patches, updates or upgrades to the FLUCTUO Services or the FLUCTUO Materials. To the extent such are provided, they shall be deemed part of the applicable FLUCTUO Services or the FLUCTUO Materials.

  1. Service Levels

Service Levels apply to paid subscriptions only.

  1. End-User Terms and Supplier Terms

You must provide end users with end user terms (including a privacy policy) appropriate for the Application and that comply with applicable laws.

Such end user terms or the Application (or both), as applicable, must at least include the following: all legally required and otherwise appropriate instructions, warnings, notices and safety information related to the Application and its use, and provisions regarding your collection and processing of end users’ personal information (if any).

Such end user terms must be made available for acceptance by end users prior to making available the Application, during the first use of the Application and, after the first use, from within the Application, e.g. in Application settings.

FLUCTUO may be obliged to pass through certain supplier terms. You must comply with all such supplier terms.

  1. Usage Limits

Your Application’s use of the FLUCTUO is subject to the use limits that are set forth in the subscription plan you have selected or as outlined in the “FAQ” sections on the site. You are responsible for monitoring your own use. If you exceed usage limits fees may apply to such excess use. Such overage fees will be set out on the site.

  1. Fees and Payment Terms

If you have selected a paid subscription plan, access and license to the FLUCTUO Materials and access to the FLUCTUO Services are subject to the timely payment to FLUCTUO of the fees set out in the subscription plan you have selected and by using the payment method you have selected in connection with the subscription plan.

Fees are subject to any limits specified in the subscription plan you have selected or in the FAQ available through the site or in these Terms. If you exceed the limits, FLUCTUO will charge to you the applicable overage fees that are set out on the site.

The subscription period and billing cycle are set out in the subscription plan and in the FAQ available through the site. FLUCTUO will charge the applicable fees (including overage fees) in accordance with the billing cycle using the payment method you have selected. You agree that FLUCTUO is permitted to charge the applicable fees to you by using the payment method you have chosen on an ongoing basis and in advance of the subscription period, and any applicable taxes, and other charges you may incur from your subscription.

FLUCTUO is not responsible for charges you may incur in connection with the payments (such as transaction, overdraft or interest fees and charges). FLUCTUO may change the billing cycle and the fees. Any changes will be notified to you in advance. Such changes will only be effective when your subscription is renewed. If you don't agree to the changes, as your sole and exclusive remedy may terminate your subscription by ceasing to use the FLUCTUO Materials and access to the FLUCTUO Services and by notifying FLUCTUO and requesting FLUCTUO to stop any automatic renewal of your subscription.

Fees and charges are not refundable unless otherwise provided by applicable mandatory law or expressly stated in these Terms.

  1. Intellectual Property Rights

15.a No Transfer of Ownership

No ownership of any intellectual property rights relating to the FLUCTUO Materials, FLUCTUO Services, Content, Results or any other information or material provided by FLUCTUO is assigned or transferred to you. All such intellectual property rights are protected by provisions of international treaties and applicable laws. The structure, organization and code of the FLUCTUO Materials and the FLUCTUO Services are the valuable trade secrets and confidential information of FLUCTUO, its licensors and affiliates.

15.b No Implied Grants

Except as explicitly granted by FLUCTUO in the terms and conditions set out in this document, no other rights, licenses, releases, covenants not to sue or other rights or immunities, express or implied, by estoppels or otherwise are granted by FLUCTUO to you.

Notwithstanding anything to the contrary in these Terms, no rights or licenses, whether express or implied, are granted by FLUCTUO to you to any technologies that may be necessary for the use of the FLUCTUO Materials (e.g., operating systems, communication protocols or cellular technologies) but that are not included in the FLUCTUO Materials provided by FLUCTUO.

15.c Covenant Not to Sue

You agree that you and your affiliated companies covenant and agree not to bring suit before any court or administrative agency or otherwise assert any claim against FLUCTUO or any of its affiliates, suppliers or customers based on any of your or your affiliate's intellectual property rights due to the use of the FLUCTUO Materials, FLUCTUO Services.

You agree that you and your affiliated companies shall impose the obligation stated in the above paragraph on any third party to whom you or your affiliated companies assign or transfer any intellectual property rights. This obligation is restricted to suits or other assertions based on such assigned or transferred intellectual property rights.

You are released from the covenant and agreement not to sue under this section in relation to a particular beneficiary (but not in relation to any other beneficiary) if: (i) you are first sued for intellectual property rights infringement related to the subject matter of the covenant by such other beneficiary who benefits from your covenant and agreement as set forth herein; and (ii) the suit is based on your infringement of such other beneficiary's intellectual property rights which if held by you would be subject to the covenant and agreement not to sue provided for in this section.

  1. Error Reporting and Feedback

You may provide FLUCTUO either directly or via third party sites and tools with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to the FLUCTUO Materials and the FLUCTUO Services (together "Feedback").

You acknowledge and agree that: (i) you shall not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback; (ii) FLUCTUO may have development ideas similar to the Feedback; (iii) Feedback does not contain confidential information or proprietary information from you or any third party; and (iv) FLUCTUO is not under any obligation of confidentiality with respect to the Feedback.

In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, you grant FLUCTUO an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.

  1. Representations and Warranties

Each you and FLUCTUO represents and warrants to the other that:

You represent and warrant that:

EXCLUSION OF WARRANTIES

EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, THE FLUCTUO MATERIALS, THE FLUCTUO SERVICES, RESULTS AND THE CONTENT ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE FLUCTUO MATERIALS, THE FLUCTUO SERVICES, RESULTS AND THE CONTENT IS AT YOUR SOLE RISK. FLUCTUO, ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT THE FLUCTUO MATERIALS, THE FLUCTUO SERVICES, RESULTS OR THE CONTENT WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE FLUCTUO MATERIALS, THE FLUCTUO SERVICES, RESULTS OR THE CONTENT WILL BE CORRECTED.

FLUCTUO , ITS AFFILIATES, SUPPLIERS AND THEIR LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE FLUCTUO MATERIALS, THE FLUCTUO SERVICES, RESULTS AND THE CONTENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.

  1. Indemnity

You agree to defend, indemnify and hold harmless FLUCTUO and its affiliates, contractors, suppliers and licensors from and against all third party claims and all liabilities, assessments, losses, costs and damages resulting from or arising out of (i) your breach of these Terms, (ii) any use of the FLUCTUO Materials, the FLUCTUO Services, the Content or any information or Results derived therefrom by you or any third party; and (iii) your infringement or violation of any intellectual property rights or other rights of a third party. You hereby agree to fully cooperate as reasonably requested in the defense of any claim. FLUCTUO reserves the right to alone assume the defense and control of any claim that is subject to your above indemnification.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL FLUCTUO, ITS AFFILIATES, THEIR EMPLOYEES, DIRECTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO (i) THESE TERMS; OR (ii) THE USE OF OR INABILITY TO USE THE FLUCTUO MATERIALS, THE FLUCTUO SERVICES, THE RESULTS OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES THE LIABILITY OF FLUCTUO, ITS AFFILIATES, THEIR EMPLOYEES, DIRECTORS SUPPLIERS AND LICENSORS SHALL BE LIMITED TO U.S. $500.

Subject to the above limits and exclusions the aggregate and total liability of FLUCTUO, its affiliates, their employees, suppliers and licensors will in no event exceed the amount of any actual direct losses up to the fees paid by you to FLUCTUO for the subscription plan (or the relevant part of the services subject to the plan) to which your claim relates in the 12 months preceding the date on which the basis of the claim arose. This applies to all claims arising out of or related to (i) these Terms; or (ii) the use of or inability to use the FLUCTUO Materials, the FLUCTUO Services, the Results or the Content, even if FLUCTUO, its affiliates, their employees, suppliers or licensors are advised of the possibility of such losses, regardless of the nature of the claim or the basis on which the claim is made.

You acknowledge and agree that

FLUCTUO is not responsible for and will have no liability for hardware, software, services or other items or any services provided by any persons other than FLUCTUO;

the fees and allocation of the risk contained herein reflect the economic basis of the agreement, in the absence of which the agreement would not have been made; and

losses from improper use of the FLUCTUO Materials, FLUCTUO Services, the Results or the Content may be irreparable and therefore FLUCTUO is entitled to seek equitable relief, including preliminary injunction and injunction, in addition to all other remedies.

Nothing contained in the agreement shall prejudice the statutory rights of any party dealing as a consumer. FLUCTUO is acting on behalf of its employees, directors and affiliates and their suppliers and licensors for the purpose of disclaiming, excluding, and restricting obligations, warranties, and liability as provided in these Terms, but in no other respects and for no other purpose.

  1. Confidentiality

Confidential information includes all materials and information concerning the business of one of the parties (either you or FLUCTUO) received by the other party, including product and pricing offers, products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, third-party confidential information and trade secrets. Confidential information does not include: (a) information that the party who owns the information makes generally available to the public; (b) information that either party can demonstrate had rightfully in possession prior to disclosure by the other party; (c) information that is independently developed by one party without the use of any confidential information of the other party; or (d) information that one party rightfully obtains from a third party who has been given the right by the other party to disclose it without confidentiality obligation. Each party receiving confidential information from the other party may disclose such confidential information to the receiving party's affiliates and its and their contractors, provided that those in receipt of such confidential information have a need to know such confidential information and are bound by confidentiality obligations at least as restrictive as those herein. You and FLUCTUO both shall keep confidential and not to disclose, publish, or disseminate any confidential information of the other party to any other third party without prior written consent. You and FLUCTUO both shall take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of confidential information of the other party.

  1. Term and Termination

21.a Term

These Terms continue to apply until your subscription plan is terminated or until your subscription expires in accordance with the plan you have selected. Your subscription plan may be automatically renewed depending on the plan you have chosen.

21.b Termination by You

You may terminate your subscription plan at any time by notice to FLUCTUO so that your subscription plan terminates at the end of the current subscription period. Please note that any fees are not refundable.

You may terminate your subscription plan by notice to FLUCTUO if you do not agree to changes in these Terms or the FLUCTUO Services that FLUCTUO may make or if you do not agree to the billing and fee changes that FLUCTUO may make.

Together with your termination notice to FLUCTUO you must request FLUCTUO to stop any automatic renewal of your subscription.

21.c Termination by FLUCTUO

In addition to other rights FLUCTUO may have under these Terms to terminate this agreement, your subscription, access or license to the FLUCTUO Materials or FLUCTUO Services, the following applies.

You must immediately terminate or suspend access by any end user to the FLUCTUO Services who is in violation of the End-User Terms and you must do so also on FLUCTUO 's request. In such case FLUCTUO may suspend your and your end users' access to the FLUCTUO Services or terminate your subscription plan or both.

If any usage limits applicable to your subscription plan are exceeded FLUCTUO may suspend your and your end users' access to the FLUCTUO Services or terminate your subscription plan or both.

FLUCTUO may terminate your subscription plan for convenience at any time without liability to you. If you have opted for a paid subscription plan, FLUCTUO will return monies you have paid up-front for any unused part of the subscription if FLUCTUO terminates your subscription for convenience.

All rights and licenses granted under these Terms to you and your subscription plan shall automatically and immediately terminate without notice if you fail to comply with any provision of these Terms. In such case you must immediately uninstall, delete and destroy, at your own expense, any FLUCTUO Materials, related software, all backup copies, and all other related materials provided by FLUCTUO (or an authorized FLUCTUO distributor) and cease using the FLUCTUO Services.

FLUCTUO may close your account or terminate your subscription plan (or both) if you have not signed into your account or made use of the FLUCTUO Services with your access credentials in the past 6 months. In this case fees for any unused subscriptions are not refundable.

21.d Effects of Termination

Immediately upon expiry or termination of your subscription plan, your license to the FLUCTUO Materials automatically terminates and you must cease all use and distribution of the Application that uses or includes the FLUCTUO Materials or parts thereof and you must no longer make use of the FLUCTUO Materials, the FLUCTUO Services and the FLUCTUO Marks; you will no longer have access to the FLUCTUO Services. You must uninstall and destroy all related software, backup copies, and all other related materials received from FLUCTUO (whether directly or through an authorized FLUCTUO distributor) within 30 days from expiry or termination. Those provisions of these Terms that naturally survive termination shall survive such termination.

Fees paid for a subscription plan are not refundable and FLUCTUO has no obligation to return any fees due to termination of your subscription for any reason unless otherwise explicitly stated in these Terms or provided by applicable mandatory law.

FLUCTUO has no obligation to return your Content but FLUCTUO will delete your Content after the termination of your subscription.

  1. Governing Law and Dispute Resolution

These General Terms and Conditions are subject to French national law.

In the event that no out-of-court settlement can be reached, any dispute regarding the validity, performance or interpretation of these conditions that may arise shall fall under the jurisdiction of the appropriate French court.

  1. Miscellaneous

23.a Severability

If any provision of these Terms is held to be invalid, illegal or unenforceable, the remaining provisions shall be unaffected and remain valid and enforceable as if such provision had not been set forth herein. The parties agree to substitute for such provision a valid provision that most closely approximates the intent of such severed provision.

23.b Waiver

No waiver will be deemed effective unless set forth in writing and signed by the party charged with such waiver, and no waiver of any right arising from any breach will be deemed to be a waiver or authorization of any other breach or of any other right arising under this agreement.

23.c Limitation on Action

Except for your payment obligations or any unauthorized use of FLUCTUO’s intellectual property rights, any action by either party in connection with this agreement must be brought within 2 years after the cause of action arose.

23.d Force Majeure

Neither party shall be liable to the other for a failure to perform any of its obligations under this agreement, except for payment obligations, due to force majeure circumstances beyond its reasonable control, provided such party notifies the other of the delay.

23.e Relationship

This agreement is between you and FLUCTUO. No third-party beneficiaries are intended except if expressly provided in these Terms. In connection with this agreement, each party is an independent contractor and as such does not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.

23.f Publicity

Unless and to the extent otherwise provided in these Terms, all written press or similar media releases relating to the terms or existence of this agreement must be approved in writing by FLUCTUO prior to their release unless the disclosure is required by applicable law in which case you must provide FLUCTUO a notice of such requirement in time for FLUCTUO to object to such disclosure.

 

Notices

You agree that FLUCTUO may provide you with notices, including those regarding changes to these Terms, by email, in your account, by regular mail or through postings to the FLUCTUO Service or the site. Unless otherwise instructed by FLUCTUO, you must provide notices to FLUCTUO to the address given above.

Assignment

The rights and obligations of each party herein may not be transferred or assigned without the prior written consent of the other party, except that FLUCTUO may assign this agreement to an affiliate or any entity that acquires substantially all of its respective stock, assets or business. Any transfer or assignment attempted in contravention of this section shall be void.

Entire Agreement

These Terms constitute the entire agreement between you and FLUCTUO regarding the subject matter hereof. The agreement supersedes all prior oral or written communications, representations, undertakings and agreements of the parties and prevails over any conflicting or additional terms of any quote, order, acknowledgement, purchase order or similar communication.