Master Subscription Agreement

This Master Subscription Agreement / Terms of Service (“Agreement”) governs Customer’s access to and use of the Fluent software platform and related services (the “Service”), provided by Fluentworks, Inc. (“Fluent”). This Agreement is effective on the date Customer accepts it (the “Effective Date”). By clicking “Accept,” creating an account, or using the Service, Customer agrees to this Agreement.

1. Definitions

“Authorized User”

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

“Authorized User Terms”

means the terms presented to and accepted by each Authorized User via clickwrap upon first access to the Service, as described in Section 3.4.

“BAA”

means Fluent’s Business Associate Agreement, applicable only as described in Section 4.

“Confidential Information”

means information disclosed by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Customer Data is Customer’s Confidential Information.

“Customer”

means the entity accepting this Agreement (including its employees and Authorized Users).

“Customer Data”

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

“Data Processing Addendum” or “DPA”

means Fluent’s data processing addendum (if applicable) addressing data protection laws such as GDPR/UK GDPR, as made available at the Trust Center and incorporated as a Policy.

“HIPAA”

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

“Order”

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

“PHI”

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

“Policies”

means Fluent’s then-current supplementary policies and terms referenced in Section 2.4 (including, without limitation, the Acceptable Use Policy, Privacy Policy, Authorized User Terms, Cookie Policy, Subprocessor List, Data Processing Addendum (if applicable), Support and SLA Policy, Security Incident Response Exhibit, and any Service-specific terms).

“Security Event”

means a security-related event or condition that does not constitute a Security Incident, including, for example, unsuccessful attempts such as pings, port scans, denial-of-service attacks, or unsuccessful log-in attempts, and other security matters that do not compromise the security, confidentiality, or integrity of Customer Data.

“Security Incident”

means any unauthorized access to, acquisition of, use of, or disclosure of Customer Data that compromises the security, confidentiality, or integrity of such data. For clarity, Security Incident does not include Security Events.

“Security Incident Response Exhibit”

means Fluent’s security incident response exhibit and related procedures made available at the Trust Center and incorporated as a Policy.

“Subscription Term”

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

“Trial”

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

“Trust Center”

means the page maintained by Fluent at https://trust.fluentworks.com (or such successor URL as Fluent may designate) containing security documentation, the Subprocessor List, HIPAA configuration guidance, and related materials.

2. The Service

2.1 Provision of Service.

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

2.2 Updates.

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

2.3 Beta Features.

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

2.4 Supplementary Terms and Policies (Incorporated).

The Policies are incorporated into and form part of this Agreement. The version of each Policy presented to Customer or an Authorized User at the time of acceptance is the version incorporated as of that acceptance, subject to updates governed by Section 17.

Policies may include, without limitation:

1. Acceptable Use Policy;
2. Privacy Policy;
3. Authorized User Terms;
4. Cookie Policy;
5. Subprocessor List and related notices;
6. Data Processing Addendum (if applicable);
7. Support and SLA Policy;
8. Security Incident Response Exhibit;
9. security, support, or documentation materials made available by Fluent at the Trust Center;
10. HIPAA-related configuration guidance; and
11. any service-specific terms applicable to particular features.

In the event of a conflict, the following order of precedence applies: (1) BAA (for PHI matters only), (2) Order, (3) this Agreement, (4) Policies. Customer and Authorized Users must comply with the Acceptable Use Policy at all times while using the Service. Each Policy explicitly states that it is incorporated into this Agreement.

2.5 Where Policies Live.

Policies are available via links within the Service, Fluent’s website, or the Trust Center. The version of each Policy presented at acceptance is incorporated into this Agreement. Updates are governed by Section 17.

3. Accounts, Authorized Users, and Customer Responsibilities

3.1 Account Administration.

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

3.2 Customer Responsibilities.

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

3.3 Minimum Necessary; Data Restrictions.

Customer will submit only the minimum information necessary for scheduling and operational purposes. Customer must not submit: (a) Social Security numbers or government-issued identification numbers, (b) payment card data (including full card numbers, CVV, or magnetic stripe data), (c) psychotherapy notes (as defined under HIPAA), (d) biometric identifiers or genetic data, or (e) other highly sensitive data not required for scheduling. Fluent does not support file uploads or attachments unless expressly enabled by Fluent in writing.

3.4 Authorized User Terms and Direct Assent.

Each Authorized User must accept the Authorized User Terms (which include the Acceptable Use Policy and Privacy Policy, and incorporate IP restrictions, confidentiality obligations, disclaimers, liability limitations, and dispute resolution provisions) via clickwrap before first accessing the Service. Customer shall not permit any individual to use the Service who has not accepted the Authorized User Terms. The Authorized User Terms are available at the Trust Center and are incorporated into this Agreement.

4. PHI, HIPAA, and the Business Associate Agreement

4.1 PHI Activation and BAA Requirement.

If Customer will create, receive, maintain, or transmit PHI in the Service, Customer must enable HIPAA/PHI use in the Service settings (or during onboarding) and accept the BAA. The BAA becomes effective as of that activation and acceptance. Customer may be required to affirm its intended use of PHI during onboarding or later in settings.

4.2 No PHI Without a BAA.

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

4.3 BAA Controls for HIPAA Matters.

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

4.4 Customer Control Over Customer Data.

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

4.5 Prohibited Communications of PHI.

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

5. Acceptable Use

5.1 Acceptable Use Policy (AUP).

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

6. Fees, Billing, and Taxes

6.1 Fees.

Customer will pay:

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

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

6.2 Appointment Scheduled; Scheduled Month; Month-End Snapshot.

An Appointment is considered “scheduled” for usage billing purposes based on its scheduled start time in the Service. Usage is measured by the calendar month in which the Appointment is scheduled to occur (the “Scheduled Month”), regardless of when the Appointment was created.

Month-End Snapshot. For purposes of usage billing, an Appointment is counted in the Scheduled Month based on its scheduled start time as of 11:59 p.m. local time (Customer’s primary account timezone) on the last day of the Scheduled Month. Rescheduling an Appointment after that time will not change the Scheduled Month for billing purposes.

For clarity:

• Appointments created during a Trial (or at any time) that are scheduled for future months will be billed in the month(s) corresponding to their Scheduled Month, if Customer has an active paid subscription at that time.
• Cancellations do not remove an Appointment from usage billing if the Appointment was counted in a Scheduled Month under the Month-End Snapshot, unless otherwise stated in an Order.

6.3 Billing Period (Usage).

Usage fees are calculated on a calendar-month basis by Scheduled Month.

6.4 Billing Timing.

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

6.5 Trials; Usage During Trial; Proration After Trial.

If Customer has a Trial, the following applies:

(a) Usage measurement. Usage fees accrue based on Appointments scheduled to occur during a Scheduled Month (including the Trial month), as described in Sections 6.2–6.4.

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

(c) Trial abuse. Fluent reserves the right to limit bulk imports, API-driven appointment creation, or other activity during a Trial that Fluent reasonably determines is inconsistent with good-faith evaluation of the Service.

6.6 Auto-Renewal.

Subscriptions auto-renew unless cancelled before the renewal date.

6.7 Free Tier and Hard Stop.

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

6.8 Payment Processing Fees.

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

6.9 Late Payments.

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

6.10 Taxes.

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

7. Refunds and Credits

7.1 Credits/Refunds.

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

7.2 Termination for Convenience (Annual Plans).

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

7.3 No Refund for Breach.

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

8. Support; No SLA

8.1 Support.

Fluent provides email and phone support during normal business hours, with response times on a best-efforts basis. Support details, if published, are available at the Trust Center.

8.2 Availability.

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

9. Security and Privacy

9.1 Security Measures.

Fluent maintains administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, as further described at the Trust Center.

9.2 Security Notifications; Relationship to BAA and Security Incident Response Exhibit.

If Fluent becomes aware of a Security Incident (as defined in Section 1), Fluent will notify Customer without unreasonable delay and in no event later than seventy-two (72) hours after discovery. Notice will include, to the extent known: (a) the nature and scope of the incident, (b) the data affected, (c) the date of discovery, and (d) remediation steps taken or planned.

Security Events. Security Events (as defined in Section 1) may be reported in accordance with the Security Incident Response Exhibit, including in periodic reporting, and do not trigger the notification timeline in this Section 9.2 unless and until they become a Security Incident.

PHI carveout. Where a BAA is in effect, the BAA’s breach and security incident notification provisions govern with respect to PHI and any incident involving PHI. This Section 9.2 governs for Security Incidents involving non-PHI Customer Data.

9.3 Privacy Policy.

Fluent’s Privacy Policy describes how personal data is handled and is incorporated into this Agreement.

9.4 Subprocessors.

Fluent may use third-party subprocessors to provide the Service. A current list of subprocessors is maintained at the Trust Center (https://trust.fluentworks.com/subprocessors).

Notice. Fluent will provide at least thirty (30) days’ advance notice (via the Trust Center and/or by email to the account administrator) before engaging a new subprocessor, except where a shorter period is required due to urgent security, legal, or service continuity needs, in which case Fluent will provide notice as soon as reasonably practicable.

Fluent will remain responsible for its subprocessors’ performance of delegated obligations under this Agreement, and under the BAA if applicable.

10. Suspension and Termination

10.1 Suspension.

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

10.2 Termination by Customer.

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

10.3 Termination by Fluent.

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

10.4 Effect of Termination.

Upon termination, Customer’s right to use the Service ends. Sections 1, 6 (for accrued fees), 11, 12, 13, 14, 15, 16, and 18 survive termination.

11. Data Retention, Export, and Deletion

11.1 Retention.

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

11.2 Export.

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

11.3 Deletion.

After termination, Fluent will delete or de-identify Customer Data within a reasonable time, except to the extent (a) retention is required or permitted by law, (b) retention is required under the BAA (if applicable) and the BAA’s return/destruction provisions apply, or (c) data is retained in encrypted backups and deleted in the ordinary course of Fluent’s backup lifecycle.

12. Confidentiality

12.1 Definition.

“Confidential Information” is defined in Section 1. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the Recipient; (b) was rightfully in the Recipient’s possession before disclosure without restriction; (c) is rightfully obtained by the Recipient from a third party without breach of any obligation of confidentiality; or (d) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.

12.2 Obligations.

Each party will: (a) protect the other’s Confidential Information using at least the same degree of care it uses for its own confidential information of like kind (and in no event less than reasonable care); (b) use the other’s Confidential Information only to perform its obligations or exercise its rights under this Agreement; and (c) not disclose the other’s Confidential Information to any third party except as expressly permitted herein.

12.3 Permitted Disclosures.

A party may disclose Confidential Information to its employees, contractors, advisors, and agents who have a need to know and are bound by confidentiality obligations at least as protective as this Section 12. Each party remains responsible for its personnel’s compliance.

12.4 Compelled Disclosure.

If a party is compelled by law, regulation, or legal process to disclose the other’s Confidential Information, the compelled party will (to the extent legally permitted) provide prompt written notice to the other party so it may seek a protective order or other remedy. The compelled party will disclose only the minimum information required and will use commercially reasonable efforts to obtain confidential treatment for any disclosed information.

12.5 Return or Destruction.

Upon termination of this Agreement or upon the Discloser’s written request, the Recipient will promptly return or destroy all Confidential Information in its possession or control, except as required by law, regulation, or professional standards, and except for copies retained in automated backup systems (which will remain subject to confidentiality obligations and be deleted in the ordinary backup lifecycle). The Recipient will certify such return or destruction upon written request.

12.6 Equitable Relief.

Each party acknowledges that a breach of this Section 12 may cause irreparable harm for which monetary damages would be inadequate. Accordingly, either party may seek injunctive or other equitable relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law or in equity.

12.7 Survival.

The obligations under this Section 12 survive termination of this Agreement for a period of three (3) years, except that obligations with respect to trade secrets survive for as long as such information qualifies as a trade secret under applicable law.

13. Intellectual Property

13.1 Fluent IP.

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

13.2 Customer Data.

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

14. DISCLAIMER OF WARRANTIES

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

15. LIMITATION OF LIABILITY

15.1 Exclusion of Damages.

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

15.2 Liability Cap.

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

15.3 BAA.

The BAA may include additional terms governing PHI-related responsibilities. Nothing in this Agreement expands Fluent’s obligations beyond what is expressly stated in the BAA. The liability cap in Section 15.2 applies to claims arising under the BAA unless the BAA expressly provides otherwise.

15.4 Indemnification Within Cap.

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

16. Indemnification

16.1 Customer Indemnity.

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

16.2 Procedure.

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

16.3 Fluent IP Indemnity (Limited).

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

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

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

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

17. Changes to This Agreement and Policies

17.1 Changes.

Fluent may update this Agreement or the Policies from time to time, subject to the following:

(a) Material Changes. For material changes (including changes to arbitration provisions, liability limitations, data use expansions, or pricing structure), Fluent will provide at least thirty (30) days’ advance written notice (by email to the account administrator and/or by posting within the Service). Material changes will apply only prospectively and will not apply retroactively to disputes arising before the effective date. Where required, Fluent will obtain re-acceptance via clickwrap at the account administrator’s next login (and, for user-facing material changes, at each Authorized User’s next login).

(b) Right to Reject. If Customer does not agree to a material change, Customer may reject the change by providing written notice to Fluent before the effective date. Upon such rejection, Customer’s subscription will terminate at the end of the then-current Subscription Term (or, if applicable, on the effective date of the change), and Fluent will provide any required prorated refund for prepaid unused subscription fees.

(c) Non-Material Changes. For non-material changes, posting within the Service or at the Trust Center is sufficient notice. Continued use of the Service after such posting constitutes acceptance.

18. General

18.1 Governing Law; Venue.

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

18.2 Assignment.

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

18.3 Entire Agreement.

This Agreement, any Orders, the Policies (including the Authorized User Terms and AUP), the DPA (if applicable), the Security Incident Response Exhibit, and the BAA (if in effect) constitute the entire agreement between the parties regarding the subject matter hereof.

18.4 Severability.

If any provision is unenforceable, the rest remains effective.

18.5 No Waiver.

Failure to enforce a provision is not a waiver.

18.6 Notices.

Notices under this Agreement will be sent to the email address associated with Customer’s account (for notices to Customer) or to legal@fluentworks.com (for notices to Fluent), and are deemed given when sent.