Fluentopia Terms of Service

THIS IS A LEGAL CONTRACT. PLEASE REVIEW IT CAREFULLY. BY ACCESSING OUR SITE and ACCESSING OR USING ANY SITE, INCLUDING WITHOUT LIMITATION ANY MOBILE APPLICATIONS (collectively, “Site”) OWNED OR CONTROLLED BY CREATIVE EMPIRE, LLC, D/B/A FLUENTOPIA (“Fluentopia”, “we”, “us”, or “our”). YOUR USE OF OR ACCESS TO, OR LICENSE OF INFORMATION, MATERIALS, PROGRAMMING, PRODUCTS, OR ANYTHING ELSE OF USE OR VALUE ON THE SITE CONSTITUTES AGREEMENT TO ABIDE BY THESE TERMS OF USE. YOU AGREE TO BE BOUND BY THIS CONTRACT. Fluentopia’ Site Terms of Service. This Agreement (the “Agreement” or “Terms of Service”) is between you and Creative Empire, LLC, d/b/a Fluentopia (“we”, “us”, “our”, or “Fluentopia”), a Michigan limited liability company, with its principal place of business at 30445 Northwestern Highway, Suite 300, Farmington Hills, MI 48334. By accessing and using the Site, you hereby agree to the following Terms of Service. 

  1. ACCESS:

In order to access certain parts of the Site and/or certain Site functionality, you may need to establish an account (“Account”) with us and obtain a user ID and Password. To establish an Account, you must provide us with Personal Data.

  1. EXPLANATION AND CHARGING POLICY FOR OUR CONSUMER PRODUCT:

We charge for our Content in one—but not limited to one—primary way. (i) Individual Program or Programs. You pay for the Content that you choose. We will charge your credit card for the Content you select at the price indicated on our Site.

  1. USE OF PASSWORDS:

Only you may use your password and download links. You may not disclose your password or download links to anyone else. You agree that you will be solely responsible for any unauthorized use of your Account and download links. For Fluentopia’s consumer product, you agree that with respect to any Content you download, you are authorized to download up to five (5) times and make no more than five (5) copies of any Content. You may not record or copy Content that is streamed to your computer. To the extent we are technologically able, our intent is to prevent unauthorized use or copying of our Content. Thus, we may include with any Content streamed or downloaded to you, files or other code that would cause your computer to notify us any time you make a copy of a stream or download and may prevent you from making unauthorized copies. These files or code may require you to be connected to the Internet when you attempt to make copies of the Content. We may also insert files or other code that would prevent you from distributing (by e-mail, peer-to-peer network file sharing or otherwise) any of the Content you receive from us. You warrant that you will not attempt to, nor will you, circumvent any copy management protections we encode into the Content.

  1. GRANT OF LICENSE:

We grant you a non-exclusive, non-transferable, limited right to access and to use the Site and the materials provided hereon and to download the Content to your computer or other multimedia device/media (e.g., iPod) for your own personal use provided that you comply fully with these Terms of Service . You will not copy, reproduce, distribute or use the Content in any other manner. You agree not to interrupt or interfere with, or attempt to interrupt or interfere with, the operation of the Site in any way. You may not copy, reproduce, use or distribute Content in any way not specifically permitted under this Agreement. In no event may you sell, lease, transfer, modify, or distribute the Content in any manner, and you shall not exploit it commercially. You may not access the Site if You are Our direct competitor, except with Our prior written consent. In addition, you may not access the Site for purposes of monitoring its availability, performance, or functionality, or for any benchmarking or competitive purposes. Fluentopia will use technologies to verify your geographic location. We reserve all rights not specifically granted to you in this Agreement.

  1. ACCESS AND USE CHARGES:

Software, streaming and downloading of audio, video and interactive content, all materials on the Site, including without limitation, text, images, logo, databases, e-mails, posted comments, and reviews (collectively, the “Content”’). You are not authorized to stream or download Content unless you have agreed to these Terms of Service. For our Consumer Product We may from time to time change the price on any or all of our individual Programs and Content. We will give you notice of price changes for our individual Programs by posting the changed prices on our Site. If applicable you must pay for all your purchases by credit card. You agree that we may charge your credit card for any Content that you purchase from us, as well as for any applicable sales taxes. You must notify us of any change in your credit card information furnished to us. You agree to reimburse us for any costs of collection, including reasonable attorneys’ fees if we are unable to charge the credit card you have on file with us. You agree to provide us with accurate, complete and up-to-date information as requested (“Registration Data”) including but not limited to your legal name, address, company name, email, telephone number(s), and payment data if applicable (e.g., credit card number and expiration date). Failure to comply with this provision (including, without limitation, falsification of any Registration Data) may, at our option, result in immediate suspension or termination of your right to use the Site without refund of any sums you may have paid. You may correct or update your Registration Data by going to our registration update page. You agree to notify us promptly, following the instructions in the “Help” section of the Site, in the event of any known or suspected unauthorized use of your Account or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information. In the event of a breach of security of which you are aware or should be aware, you will remain liable for any unauthorized use of your Account until you notify us to suspend your Account. You must immediately notify us if your credit card is lost or is subject to use without your authorization.

  1. COPYRIGHT AND TRADEMARKS:

All Content on the Site is owned or controlled by us and/or our licensors, who include but are not limited to Mango IP Holdings, LLC, and we and/or our licensors retain all right, title, and interest in and to the Content. The Site and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws. You agree not to use any trademarks, service marks, names, logos, or other identifiers of Fluentopia or its employees, licensors, independent contractors, providers and affiliates (collectively, “Affiliates”) without our prior written permission or the permission of the relevant Affiliate. In addition, you may not use our trademarks.

  1. "OPT-OUT" FOR SPECIAL NOTICES:

We may periodically make special offers or communications. If you do not wish to receive such communications, you can “Opt Out” by clicking “Remove Me” in your next e-mail communication.

  1. YOUR PASSWORD AND RESPONSIBILITY:

AS PART OF OUR REGISTRATION PROCESS, YOU WILL SELECT A PASSWORD. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF ANY PASSWORD YOU USE TO ACCESS THE SITE AND AGREE THAT WE WILL HAVE NO OBLIGATIONS WITH REGARD TO YOUR PASSWORD. You agree not to assign, transfer or sublicense your rights as a user of the Site.

  1. INFORMATION PROVIDED:

YOU ACKNOWLEDGE THAT ANY RELIANCE UPON ANY ADVICE, OPINION, STATEMENT, OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE SITE IS AT YOUR SOLE RISK. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION AND WITHOUT NOTICE, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITE, OR TO DENY ACCESS TO THE SITE TO ANYONE AT ANY TIME.

  1. LINKS TO OTHER SITES:

The Site may contain links and pointers to other sites on the Internet that may be maintained by third parties. Such links do not constitute an endorsement by us of any third-party site or any materials contained therein. We do not control, and are not responsible for, the availability, accuracy, or currency of such third-party sites or any information, content, products or services accessible from such third-party sites.

  1. AGE RESTRICTIONS:

For those persons purchasing consumer products, you represent and warrant to us that you are at least sixteen (16) years old and that you possess the legal right and ability to enter into this Agreement and to use the Site in accordance with this Agreement. For those accessing our Content through institutional purchases (e.g, schools, libraries, corporations, government agencies, etc.), We require verifiable parental consent before collecting any Registration Data from persons under 16 in accordance with our Privacy Policy.

  1. INDEMNIFICATION:

You hereby agree to indemnify, defend and hold us harmless from and against any and all liability and costs incurred by us in connection with any claim arising out of any breach or alleged breach of any of your obligations set forth herein. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.

  1. WARRANTY AND DISCLAIMERS:

We represent that you will be able, with the correct equipment, to listen to the Content we provide you under this Agreement. We will furnish you with replacement Content or credit your profile if any of our Content is defective provided you notify us within fourteen (14) days after you first download such Content.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, SERVICES, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED “AS IS” AND “WHEN AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR COMPATIBILITY. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHERMORE, THE WARRANTY DOES NOT APPLY TO YOUR INABILITY TO ACCESS THE CONTENT BECAUSE OF YOUR LACK OF NECESSARY HARDWARE, SOFTWARE OR BOTH.

USE OF THE SITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, COMMUNICATIONS, CONTENT, OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THE SITE. UNDER NO CIRCUMSTANCES SHALL WE, OR ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR US, BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, RECORDS OR DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE, THE AUDIO CONTENT OR ANY FEE-BASED SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES THAT MAY HAVE BEEN CAUSED BY A VIRUS OR OTHER DATA CORRUPTION PROBLEM RESULTING FROM ACCESS TO, DOWNLOADING FROM OR USE OF THE SITE OR THE CONTENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE HAVE ANY LIABILITY WHATSOEVER ARISING OUT OF ANY MISUSE OF PASSWORDS OR ACCOUNTS, OR ARISING OUT OF GOOD FAITH REMOVAL OR DISABLING OF ANY AUDIO CONTENT. OUR TOTAL AGGREGATE LIABILITY TO YOU IS LIMITED TO THE LESSER OF, IF ANY, THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS AND USE OF THE SITE AND PROGRAMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE FIRST SUCH LIABILITY ARISES OR TWO HUNDRED ($200) DOLLARS. NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDIES PROVIDED HEREIN, YOU HEREBY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.

  1. TERMINATION:

In addition to any other rights of the parties set forth herein, either you or we may cancel or terminate your access to the Site. We also reserve the right to restrict, suspend or terminate your access to the Site in whole or in part, without notice, with respect to any breach or threatened breach of any portion of these Terms of Service. If we terminate these Terms of Service based on a breach of any portion of these Terms of Service, we reserve the right to refuse to provide use and/or access to any Content to you in the future. You acknowledge that we shall not be liable to you or any third party for any termination of your access to this Site.

  1. MODIFICATIONS:

We have the right to modify these Terms of Service and any policies affecting the Site. Any modification is effective following the posting to the Site or distribution via electronic mail or conventional mail. Your continued use of the Site following notice of any modification to these Terms of Service shall be conclusively deemed an acceptance of all such modification(s).

  1. GENERAL:

These Terms of Service constitute the entire agreement between you and us with respect to the subject matter hereof and supersede all prior agreements between you and us, which are not written and signed by both Parties, with respect to the same. Failure by us to enforce any provision of these Terms of Service shall not be construed as a waiver of any provision or right. Interpretation and enforcement of these Terms of Service shall be governed by the laws of the state of Michigan (excluding its choice of law rules). You consent irrevocably to personal jurisdiction in the federal court in Detroit, Michigan and/or the state courts located in Oakland County, Michigan, for any action arising out of or relating to your use of the Site, the Content, or any products or services provided through the Site. The federal and state courts of Michigan located in Detroit, Michigan, shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees. In the event that any portion of these Terms of Service is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.


ADDENDUM A: DATA PROCESSING AGREEMENT ADDENDUM TO TERMS AND CONDITIONS:

This Data Processing Agreement Addendum (DPA) is an addendum to the Terms and Conditions governing the use of Fluentopia’ website and also applies to any Terms of Sale between Fluentopia and any Library, School, Corporation or Business, Government Entity, or other group purchaser of Fluentopia’s services. Accessing the Fluentopia website, mobile applications, materials, programming, products or anything else of use or value on Fluentopia’s website constitutes your agreement and acceptance of this Addendum. This DPA includes:

  1. Exhibit 1- Standard Contractual Clauses - including Appendix 1 providing details on the processing of Personal Data by Fluentopia and Appendix 2 providing details on the security measures employed by Fluentopia; and
  2. Exhibit 2 – List of Sub-Processors.

A. Definitions:

Definitions are found at Exhibit 1, Clause 1 and are applicable to this DPA. In addition, the following definitions are applicable to this DPA:

  1. GDPR – Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ED (General Data Protection Regulation)
  2. Group Purchaser – Any entity which purchases Fluentopia Products via a bulk or volume Terms of Sale for use by its members or other qualified person
  3. Individual Purchaser – Any person who purchases Fluentopia Products via direct contract with Fluentopia through its website or otherwise.
  4. Fluentopia Products – Any and all programs, materials, online videos, and any and all training or educational products offered by Fluentopia.
  5. Principal Agreement – Any agreement pursuant to which either a Group Purchaser or Individual Purchaser obtains access to Fluentopia Products.

B. Processing Details:

  1. Identification of Data Subjects: Data Subjects include any person or persons accessing Fluentopia Products as an Individual Purchaser or via contractual relationships between Fluentopia and a Group Purchaser.
  2. Nature of Personal Data: Data Subjects provide contact information including an email address or username and password. Data Subjects may also provide their name and postal code, but are not required to provide this information. In addition, Fluentopia collects and stores information regarding Data Subjects use of Fluentopia Products including system usage, IP address, browser type and language, languages accessed, and access times. Fluentopia also may collect navigational information, including information about the pages you view, the links you click, and other actions taken in connection with the Fluentopia Products.
  3. Purpose of Processing: Personal Data is processed by Fluentopia for the purpose of providing Fluentopia Products to Individual Purchasers or Group Purchasers consistent with Fluentopia’s agreement with those Purchasers.
  4. Duration of Processing: Personal Data will be processed for the length of the contractual relationship with Individual Purchasers or Group Purchasers, subject to retention for statistical and other purposes permitted by the GDPR.
  5. Transfer of Personal Data: Controller agrees that in the performance of the Principal Agreement, Personal Data will be transferred to Fluentopia located in the United States. Fluentopia has undertaken such steps as are necessary to ensure adequate protection under the GDPR for such transfers and will ensure than any transfers of Personal Data to a Sub-Processor satisfies such requirements.


Processor Duties:

  1. As processor of the Personal Data, Fluentopia shall collect and process the Personal Data only in compliance with the performance of the contract between Fluentopia and Controller, as reflected in Appendix 1 to this DPA. Fluentopia undertakes to ensure that any personnel with access to Personal Data are subject to compliance with confidentiality obligations consistent with the GDPR.
  2. Processor will comply with all requirements of the GDPR in terms of deletion or removal of Personal Data at the request of the Data Subject or Controller. In addition, Processor will comply with all requests for removal or deletion of Personal Data after the termination of the Principal Agreement, if the Principal Agreement so requires.

D. Controller Duties:

Controller is responsible for ensuring compliance with any and all data protection requirements regarding the disclosure and transfer of Personal Data to Processor. Any instruction by Controller to Processor shall comply with GDPR.

E. Security:

Processor shall take all appropriate organizational and technological steps to ensure the security of Personal Data against accidental or unlawful disclosure, loss, dissemination, destruction or alteration of Personal Data, as reflected in Appendix 2 to this DPA.

F. Personal Data Breach:

In the event of any Data Breach affecting Personal Data, Processor shall provide Controller with sufficient information to allow each Data Subject of the Personal Data Breach to satisfy any obligations under the GDPR. Processor shall cooperate with Controller and take such reasonable steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

G. Audits:

Processor shall make available to Controller upon request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by any Controller or any auditor mandated by the Controller in relation to the processing of the Personal Data by Processor. Processor need not give access to its premises for the purposes of such an audit or inspection 1) to any individual unless he or she produces reasonable evidence of identity and authority and/or 2) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and the Controller undertaking an audit has given notice to Processor that this is the case before attendance outside those hours begins. Processor shall not be required to disclose information or Personal Data in violation of any prevailing law or other duty of confidentiality.

H. Sub-Processors:

Processor and Controller agree that Processor shall be entitled to retain and may continue to use those Sub-Processors already engaged by Processor as at the date of this DPA, as identified in Exhibit 2. Processor shall carry out adequate due diligence to ensure that each Sub-Processor is capable of providing the level of protection for Personal Data required by the Principal Agreement. Processor shall have the right to engage any new or additional Sub-Processor, upon which action Processor shall provide notice to Controller at Controller’s email address on record with Processor. Controller shall have the right to object to the Sub-Processor but only on reasonable grounds related to Sub-Processor’s ability to provide adequate protections for Personal Data. Processor and Controller may terminate any Principal Agreement if they are unable to agree on the appointment of the Sub-Processor without penalty under the Principal Agreement. Any Sub-Processor must comply with any and all obligations of the Processor and a failure to do so will render Processor liable to Controller for such failure. Controller may engage in an Audit of Sub-Processor under Section G and the GDPR, including review of written agreements between Processor and Sub-Processor.

I. Miscellaneous:

  1. Any and all other provisions of the Fluentopia’ Terms and Conditions are incorporated into this DPA.
  2. In the instance of any conflict between provisions of the Fluentopia’ Terms and Conditions and this DPA, the terms within this DPA shall prevail.
  3. In the instance of any conflict between provisions of any Principal Agreement and this DPA, the terms within this DPA shall prevail.
  4. In the instance of any conflict between provisions of this DPA and the Standard Contractual Clauses in Exhibit 1, the terms of the Standard Contractual Clauses shall prevail.

EXHIBIT 1


Clause 1

Definitions

For the purposes of the Addendum and Clauses:

  • (a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of "personal data" is expanded to include those data” are added.]
  • (b) 'the data exporter' means the controller who transfers the personal data;
  • (c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words "and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC" are deleted.]
  • (d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  • (e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  • (f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.


Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.


Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.


Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  • (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  • (b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
  • (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  • (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  • (e) that it will ensure compliance with the security measures;
  • (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words "within the meaning of Directive 95/46/EC" are deleted.]
  • (g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  • (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  • (i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  • (j) that it will ensure compliance with Clause 4(a) to (i).


Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  • (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  • (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  • (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  • (d) that it will promptly notify the data exporter about:
    • (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
    • (ii) any accidental or unauthorised access, and
    • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  • (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  • (f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  • (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  • (h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  • (i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  • (j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.


Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.


Clause 7

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    • (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    • (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.


Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).


Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.


Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.


Clause 11

Subprocessing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.


Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.


APPENDIX 1

This Appendix forms part of the Standard Contractual Clauses.

Details on the processing of Personal Data by Fluentopia:
 The data that Fluentopia (“Fluentopia”) collects from users for the creation of a user account and to provide users with our services may include some or all of the following: name, email address, postal code, and an account password. This data either is used, or may be used for the following purposes: To create a “user profile” for a user in our system, which allows Fluentopia to provide our services to the user; to communicate with the user about his or her account (including technical assistance, account reminders, and some marketing communications, which the user may opt out of if they so choose); to track the user’s usage of our services and compile usage data, which may include sharing such usage and other related data with third parties (a list of which can be found in Exhibit 2 below) to assist Fluentopia in the tracking and compiling of usage statistics as well as some marketing and other related activities.

Fluentopia may transfer some user data in the ordinary course of its business. Such transfers may include, but are not necessarily limited to, transfers of data for billing purposes, marketing of Fluentopia’s products and services, and product development. Any data that is transferred is done so securely, using, at a minimum, industry “best practice” standards. Fluentopia may also use user data to create a “learning profile” of a user to help us understand how that user learns best, and how Fluentopia might be able to customize our services to each user’s learning style and learning needs.

User data is retained and stored for as long as the user’s account is active; non-identifying statistical usage data for users may be retained indefinitely. There is no requirement for users to submit their data to us, but if they choose not to submit their data, Fluentopia’s ability to provide users with our services might be limited, or all together impossible. In addition to using user data for the above purposes, Fluentopia also uses “cookies” to track user activity in our system. Users may withdraw their consent for Fluentopia to use their data at any time by contacting Fluentopia and stating that they wish to withdraw their consent to use their data.

APPENDIX 2

This Appendix forms part of the Standard Contractual Clauses.

Security measures employed in the processing of Personal Data by Fluentopia:

  • Access control:

Fluentopia has an Access Management Policy to ensure that only appropriate constituents have access to data, and that access is required for their organizational role. We have firewalls, security groups, and access controls in place to prevent unauthorized access to any systems or data.

We work with some 3rd party vendors in order to provide our services. We have contracts and privacy policies with these vendors to protect data processed or stored by them. Our infrastructure is hosted with 3rd party cloud infrastructure provider(s) who are regularly audited and compliant with many industry standard security certifications such as SOC 2 Type II and ISO 27001.

  • Transmission Control:

Fluentopia utilizes HTTPS(SSL/TLS) encryption to ensure data safety in transit. We follow industry standard security practices such as access controls, encryption(for some data) and data pseudonymization to ensure data safety at rest.

  • Input Control:

Fluentopia has a team dedicated to monitoring our systems. We have detailed logging and alert systems and processes in place to ensure suspicious, malicious, or unintended behavior is detected and addressed.

  • Data Breach Communication:

If Fluentopia becomes aware of a data breach, data loss, or any unlawful access to customer data, we will notify the affected parties as soon as is reasonably possible with an explanation of what occurred and what actions are being taken to rectify the issue.

  • Availability Control:

Our cloud infrastructure provider(s) use commercially reasonable efforts to ensure the products and services provided are available with at least 99.99% monthly uptime percentage.

  • Fault Tolerance and Backups:

We have systems in place to ensure redundancy and durability for our services. Mission-critical databases replicate data between at least 2 database instances. We maintain multiple backups in different physical locations and availability zones. Our systems are designed to avoid single points of failure and strive to achieve maximum redundancy and rapid recovery in case of a disaster, outage, or malicious intervention of any sort.

EXHIBIT 2

Sub-Processors used by Fluentopia:

  • SalesForce
  • Domo
  • Lever.co
  • HubSpot
  • Adwords
  • Facebook
  • MixPanel
  • TypeForm
  • Intercom
  • ZenDesk
  • ElasticSearch
  • BugSnag
  • AWS
  • Braintree
  • WuFoo
  • WP Engine
  • Lucky Orange
  • Google Play Store
  • Apple Store
  • Eko
  • GoToMeeting/GoToWebinar
  • Join.Me
  • Zoom
  • Skillo
  • Elastic
  • Papertraill
  • Bugsnag