Last Updated: March 1, 2025
These Terms of Service ("Terms of Service" or "Terms"), together with an Order Form, govern a customer's use of https://fluxcoda.com (the "Site") and AI data processing services owned and operated by Fluxcoda, Inc. ("Fluxcoda", "our", "us" or "we"). "You", "your" or "Customer" means the entity that uses the Site and our services. Customer and Fluxcoda may be referred to in these Terms as a "Party" and collectively as the "Parties."
By signing an Order Form with Fluxcoda or using our services, Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order Form(s), constitutes the entire agreement between Fluxcoda and Customer (the "Agreement").
As part of our AI data processing services, we temporarily store a backup of your unprocessed data for no more than 1 day. This backup is created solely as a safeguard against potential data loss that may occur during the AI processing operations.
This temporary backup storage:
Important: If you choose to disable this backup feature, you acknowledge and accept full responsibility for any potential loss of data that may occur during the processing operations. We strongly recommend keeping this safety feature enabled to protect your data integrity.
1.1. "Affiliate." Any business entity controlling, controlled by or under common control with a Party hereunder. Customer will be responsible for all acts and omissions of its Affiliates, as if they were "Customer" hereunder.
1.2. "Confidential Information" means (i) the Agreement, (ii) with respect to Fluxcoda, non-public aspects of the Fluxcoda Technology, the Site, and additional services provided by Fluxcoda (and the operation thereof), and Fluxcoda's business, technical or financial information and data, (iii) with respect to Customer, Customer Data, and non-public aspects of Customer's technology, computer programs, and business, technical and financial information and data.
1.3. "Customer Data." Non-public data provided by Customer to Fluxcoda to enable the provision of the Site and other services, including any personal data as defined in the General Data Protection Regulation (EU) 2016/679 ("GDPR").
1.4. "Fluxcoda Technology." The computer hardware, software, artificial intelligence models, algorithms and other tangible equipment and intangible computer code necessary to deploy and make available the Site and AI data processing services.
1.5. "Order Form." Any order form referencing and incorporating these Terms, which shall be in writing, signed by both Parties, and shall specify the products or services to be purchased or licensed by Customer from Fluxcoda.
1.6. "Service Term." The period of time indicated in an Order Form beginning upon an Order Effective Date and ending on the last day of the Service Term set forth in the Order Form.
1.7. "Users." The number of identifiable unique persons consisting of Customer's personnel and independent contractors who are authorized to access and use the Site, as specified in the applicable Order Form(s). Users include Customer's third-party contractors, outsourcers, consultants and other service providers, solely to the extent providing services to Customer.
1.8. "Third Party Systems." Means a third party's web-based, mobile, or other software application that interoperates with the Site and is made available by Customer or a third party.
Subject to the terms and conditions hereof, during the Service Term set forth in the applicable Order Form, Fluxcoda hereby grants to Customer a non-exclusive, non-sublicensable right to access and use the Site and AI data processing services for the number of Users set forth on the applicable Order Form and solely for Customer's internal business purposes.
Customer shall not, nor shall it permit or assist others to:
In the event of any breach by Customer of any of the foregoing, in addition to any other remedies available at law or in equity, Fluxcoda will have the right to immediately suspend Customer's access to the Site if deemed reasonably necessary by Fluxcoda to prevent any harm to Fluxcoda or its business. Fluxcoda will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, Fluxcoda will promptly restore access to the Site.
Customer shall be solely responsible for:
Customer hereby grants to Fluxcoda a non-exclusive, worldwide, royalty-free right to process, use, copy, store, transmit, modify, create derivative works of and display the Customer Data during the Service Term, solely to the extent necessary to provide the Site and any related services to Customer hereunder.
The Site may contain features designed to interoperate with Third Party Systems. Customer agrees that its use of any Third Party System and any exchange of Customer Data between Customer and any Third Party System is solely between Customer and the applicable Third Party System provider. Fluxcoda does not warrant or support Third Party Systems, and Fluxcoda is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Third Party System or its provider.
Fluxcoda shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data processed by the Site from unauthorized access. Fluxcoda reserves the right to internally monitor Customer's usage of the Site for the purposes of troubleshooting and maintaining and improving the Site.
As part of the AI data processing services, Fluxcoda maintains a backup of unprocessed Customer Data for no more than 1 day as a precautionary measure against potential data loss during AI processing. This backup is automatically deleted after 1 day. Customer may request to disable this temporary backup feature, but in doing so, Customer acknowledges and accepts full responsibility for any potential loss of data that may occur during the processing operations. Fluxcoda strongly recommends keeping this safety feature enabled to protect data integrity.
Where Fluxcoda processes personal data on behalf of Customer, the Parties agree to enter into a Data Processing Agreement in compliance with GDPR requirements.
6.1. Customer shall pay to Fluxcoda the fees for access to the Site and services as indicated in the Order Form. Customer will pay invoices within thirty (30) days of the date of invoice, unless otherwise set forth in the Order Form. Any overdue amounts shall be subject to a late charge of one-half percent (0.5%) per month or the highest rate permitted by applicable law, whichever is lower, on such invoice until fully paid. Any amounts due hereunder are exclusive of, and Customer shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Fluxcoda, unless Customer provides to Fluxcoda a valid tax-exempt certificate.
6.2. Overage Fees
In the event Customer's use of the Site exceeds the volume tier of the subscription plan purchased by Customer, Fluxcoda will immediately charge additional fees ("Overage Fees") at the overage rate indicated in the Order Form, and the Customer shall be obligated to pay any Overage Fees in the next month.
6.3. Suspension
If Customer's account is thirty (30) days or more overdue, then, following five (5) business days' written notice and opportunity to cure, in addition to any of its other rights or remedies, Fluxcoda may suspend Customer's access to the Site until such amounts are paid in full.
7.1. Fluxcoda
Fluxcoda retains all right, title and interest in and to the Site, the Fluxcoda Technology, Fluxcoda's Confidential Information, and all improvements, enhancements or modifications thereto (including all intellectual property rights therein). Any deliverables, concepts or inventions created or developed before or while providing the Site or any professional services to Customer are not considered a work made for hire and shall be owned by Fluxcoda.
7.2. Customer
Customer retains all right, title and interest in and to the Customer Data and Customer's Confidential Information.
7.3. Feedback and Anonymized Data
Customer may choose to provide Fluxcoda with suggestions, ideas, enhancement requests, feedback, recommendations or other information specifically relating to the Site and services ("Feedback") and if Customer does provide Fluxcoda with Feedback, Fluxcoda shall own all right, title and interest in such Feedback.
In addition, Fluxcoda may collect and use anonymized and aggregated data derived from Customer's use of the services, provided that such data is de-identified so that the identification of Customer or any individual cannot be re-identified ("Anonymized Data"). Fluxcoda shall retain all right, title, and interest in and to the Anonymized Data and may use it for improving its services, research and development purposes, and other lawful business purposes.
Each Party ("Owner") may disclose Confidential Information to the other Party ("Recipient") pursuant to this Agreement.
Recipient may use Confidential Information of Owner only for the purposes of the Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only to its employees or contractors who have a need to know for purposes of this Agreement and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.
Confidential Information does not include information that:
The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure. In addition, either Party may confidentially disclose this Agreement to an actual or potential financing source or acquirer.
At any time upon Owner's request, and upon termination of the Agreement, Recipient shall delete Owner's Confidential Information.
Customer represents and warrants that it has sufficient authority to enter into this Agreement and that it has sufficient rights in the Customer Data to authorize Fluxcoda to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data does not infringe the rights of any third party. Customer will promptly inform Fluxcoda if it has reason to believe that the former representations and warranties are no longer true.
Fluxcoda warrants that it has sufficient authority to enter into this Agreement and that is has not entered into any other agreement, obligation or restriction which would prohibit the provision of services to Customer. Fluxcoda further warrants that the Site will conform to all material operational features as described in the documentation for the Site ("Product Warranty"). Customer's sole and exclusive remedy for breach of the Product Warranty shall be the prompt correction of non-conforming portions of the Site at Fluxcoda's sole expense.
Except for the representations and warranties set forth in this section 9, Fluxcoda and its affiliates, subcontractors and third party licensors make no other representations or warranties, whether express, implied or statutory, including, without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Customer acknowledges that Fluxcoda shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other third party systems outside the reasonable control of Fluxcoda.
The Agreement will commence on the Effective Date of an Order Form and continue in full force and effect for the Service Term indicated in such Order Form and will automatically renew for additional periods equal to the shorter of the same duration as the initial Service Term or twelve (12) months (each of the initial Service Term and subsequent renewal terms, a "Service Term"), unless either party notifies the other party of non-renewal at least thirty (30) days prior to the end of the then-current Service Term.
Each Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party if the other Party materially breaches this Agreement and fails to correct the breach within such notice period. In the event of any termination, all amounts due under an Order Form for services and access to the Site provided prior to the date of termination shall be paid within ten (10) days of such termination.
All sections of this Agreement which by their nature should survive termination will survive termination, including but not limited to Sections 1 (Definitions), 3 (Use Restrictions), 5 (Data Security and Processing), 6 (Fees; Taxes), 7 (Ownership), 8 (Confidential Information), 9.3 (Disclaimer), 10 (Term and Termination), 11 (Indemnification), 12 (Limitations) and 14 (Miscellaneous).
Fluxcoda will defend Customer from and against any third party claims, demands, suits or proceedings ("Third Party Claims") made or brought against Customer by a third party alleging the Site (except for third party software, including without limitation open source software) infringes any EU or UK patent, copyright or trademark of a third party, or misappropriates such third party's trade secrets. Further, Fluxcoda will indemnify and hold Customer harmless against all damages, costs and reasonable attorneys' fees ("Losses") finally awarded against Customer by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Fluxcoda, in connection with such Third Party Claims.
Fluxcoda shall have no liability or obligation if the Third Party Claim arises from (i) any alteration or modification to the Site requested or implemented by or on behalf of Customer or its Affiliates, (ii) any combination of the Site by Customer with other technology or data not furnished by Fluxcoda, or (iii) any use by Customer of the Site not in accordance with this Agreement.
If the Site becomes or Fluxcoda believes it may become the subject of a claim of intellectual property infringement, Fluxcoda, at its option and expense, may: (i) procure the right for Customer to continue to use the Site; (ii) replace or modify the Site so as to make it non-infringing; provided, however, that the Site continues to conform to the specifications provided in the applicable Order Form; or (iii) terminate this Agreement and refund to Customer the subscription fees paid in advance by Customer for the Site applicable to the remaining portion of the Service Term following the effective date of termination. This Section sets forth the entire liability of Fluxcoda to Customer for any infringement by the Site of any intellectual property right.
Customer shall defend Fluxcoda, at Customer's expense, from and against any Third Party Claims made or brought against Fluxcoda alleging that the Customer Data, or Customer's use of the Site in violation of this Agreement, infringes or otherwise violates a third party's property, privacy or other rights, or violates any applicable law. Further, Customer shall indemnify and hold Fluxcoda harmless against all Losses awarded against Fluxcoda by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Customer, in connection with such Third Party Claims.
The foregoing obligations of the indemnifying party are conditioned upon the party seeking indemnification (a) promptly providing notice to the indemnifying party concerning the existence of an indemnifiable claim (provided that failure to give prompt notice shall not constitute a waiver of a party's right to indemnification and shall affect the indemnifying party's obligations under this Agreement only to the extent that the indemnifying party's rights are materially prejudiced by such failure or delay), and (b) promptly providing all information and assistance reasonably requested and otherwise full cooperation with the indemnifying party in defending the claim, and (c) giving the indemnifying party sole control and authority of the defense and settlement of any indemnifiable claim (provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party's prior written consent, not to be unreasonably withheld or delayed).
To the maximum extent permitted by law, and except for indemnity obligations expressly provided in section 11 above, in no event shall Fluxcoda or its licensors be liable to you or any third party (a) for any indirect, punitive, special, exemplary, incidental, or consequential damages (including but not limited to loss of profits, revenue or income) arising from or related to this agreement or the use or inability to use the site or services, even if advised of the possibility of such damages; or (b) for any amount, in the aggregate, exceeding the fees paid and payable in the twelve (12) months prior to the event giving rise to liability, whether based on breach of warranty, contract, tort (including negligence) or otherwise.
Customer agrees that Fluxcoda may disclose Customer as a customer of Fluxcoda. Any additional marketing activities involving Customer's name, logo, or testimonials shall require Customer's prior written consent.
Neither Party shall assign this Agreement without the prior written consent of the other Party; provided, that either party may transfer this Agreement in connection with a merger, consolidation, sale of substantially all of its assets, without the other party's prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
This Agreement shall be governed by and construed in accordance with the laws of XXXXXX, excluding its conflicts of law rules.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or mail (registered or certified if available), return receipt requested, in each case to the address set forth on the Order Form or at such other addresses as shall be designated in writing by either Party to the other in accordance with this Section. Such notice will be deemed to be given when received.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
These Terms of Service, together with any Order Form executed by and between you and Fluxcoda, constitute the entire agreement between you and us with respect to the Site and services and supersede all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and us with respect to the Site and services. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will remain in full force and effect. The failure of either Party to exercise in any respect any right provided for in the Agreement shall not be deemed a waiver of any further rights under this Agreement.
If you have any questions regarding these Terms of Service or the Site, please contact us:
By email: hello@fluxcoda.com
By mail: XXXXXX