Terms and Conditions
Acceptance of Terms and Conditions.
- These terms and conditions are the terms on which Fluent Scientific Limited offers you access to the Website and Services. On registering to access the Services you accept these terms and conditions as amended by us from time to time. Please read them carefully.
Amendment of Terms and Conditions:
- We may from time to time change these Terms and Conditions. Substantial changes will take effect 30 days after we have posted an initial notification on the homepage or other relevant page of the Website. Other changes will take effect 7 days after their initial posting on the Website, unless we amend these Terms and Conditions to comply with legal requirements. In such cases the amendments will become effective immediately upon their initial posting, or as required.
- You agree to be bound by any of the changes made in the terms of these Terms and Conditions. Your continued use of the Website and Services will indicate your acceptance of the amended Terms and Conditions. If you do not agree with any of the amended terms, you must avoid any further use of the Services.
- Acceptance of Terms and Conditions.
Definitions. In these terms and conditions, unless context requires otherwise:
- FluentIQ, we, us or our are references to Fluent Scientific Limited and/or its directors, employees, and permitted assigns.
- Commencement Date means the date you first register to access the Services.
- Customer means any person registered with us and using the Website and/or Services, whether an Individual User or an Enterprise User, as applicable.
- Enterprise User means a user who accesses the Website on behalf of an enterprise or organisation , or for any other commercial purpose, and includes a user who provides a FluentIQ Test Key to an Individual User.
- Expiry Date means the date on which your use of the Services ceases or is terminated in accordance with its terms.
- Fees means all amounts charged by us to access and use the Services as may be set by us FluentIQ Test Center means the online service that provides the FluentIQ Test of English Communication assessment and certification for non native English speakers.
- FluentIQ Test of English Communication means the online assessment provided by the FluentIQ Test Center.
- FluentIQ Certificate of English Communication means the online document that contains an individual user’s FluentIQ Test Center results.
- FluentIQ Test Key means a code snippet that allows an enterprise or organisation to offer a free FluentIQ Test of English Communication to an individual third party in return for access to that individual third party’s FluentIQ Test Center results.
- Intellectual Property means all patents, trademarks, trade names, designs, domain names, trade secrets, formulations, inventions, models, plans, licences, know-how, databases, technical information, discoveries, ideas, data, research, results, reports, drawings, techniques, specifications, standards, methods, manuals, get-up, rights in computer software, copyright in works and all rights or forms of protection of a similar nature, throughout the world, whether or not registered, and (where applicable) any application to register any of these rights and includes the Improvements.
- Improvements means any improvements, modifications or additions.
- Individual User means an individual user who accesses the Website to use the Services and/or the Website for his or her own personal use, irrespective of whether any Fees are paid for by the individual or an Enterprise User.
- Loss means any loss, damage, cost or expense, whether direct or indirect.
Personal Information means any and all information about you gained by us through your use of the Website and Services, including without limitation any information on and relating to:
- Your name, address, age, telephone number or other identifying information, including copies of your photographic identification;
- The frequency and scope of your use of the Website and Services;
- The recordings and any other information or data you provide to us through the Website, or in the course of your use of the Services;
- Your access to and use of third party websites and services accessed through the Website;
- The time and manner of your payment of our Fees.
- In respect of an Individual User: the use of the Services for your personal and private purposes, including undertaking the FluentIQ Test of English Communication for employment purposes; and
- In respect of an Enterprise User: the use of the Services to assess the ability of Individual Users to speak English.
- Services means any one or more of the services offered by us from time to time from the Website.
- Term means the period from and including the Commencement Date up to and including the Expiry Date.
- Territory means worldwide.
- You and your are references to you the Customer.
- Website or site means the website at fluentiq.com or testcenter.fluentiq.com and any other related website through which the Services are or will be offered.
Interpretation. In this Agreement, unless the context indicates otherwise:
- Headings are for convenience only and do not affect this Agreement’s interpretation;
- References to a party include that party’s successors and permitted assigns;
- Each defined expression has the meaning corresponding to that definition throughout this agreement;
- References to persons includes individuals, companies, corporations, partnerships, firms and other entities;
- References to the singular include the plural and vice versa;
- References to a gender include the other genders;
- The use of the terms includes or including does not imply any limitations;
- Any reference to an act or action includes an omission to act;
- Any obligation not to do anything includes an obligation not to permit or cause that thing to be done; and
- References to currency are to New Zealand currency.
- Definitions. In these terms and conditions, unless context requires otherwise:
Right of Use
- Grant of Licence. In consideration of the payment by the Customer of the Fees, we grant to the Customer a nonexclusive and nontransferable licence to use the Services during the Term in the Territory solely for the Purpose.
Conditions of Use
- Age Restriction. The Services are only available to those who can legally agree to these terms and conditions.
Minors. If you are under 18 years of age:
- Your parent or guardian must register as the Customer and grant you access to the Services through their account; and
- Your use of the Website and Services and your compliance with all obligations under these terms and conditions is guaranteed by your parent or legal guardian.
- Guarantee. You are responsible for the actions of any third party to or for whom you grant or enable access to the Website or Services through your account. You guarantee the performance of all obligations under this agreement by any such person.
- Lawful Purpose. You agree to comply with all applicable local and international laws when using the Website and Services.
- Personal Use Only. Access to the Website and Services is only granted for the Purpose. You must not use the Website or the Services for or in relation to, any commercial or business purpose or activity of any sort whatsoever, other than as permitted by the Purpose.
Use Guidelines. You agree to access and use the Website and Services in a manner that is acceptable to us (in our sole discretion) and comply with any guidelines regarding access to the Website or use of the Services set by us from time to time. Without limiting the generality of this clause, you will not:
- Attempt to damage the Website or the Services in any way;
- Modify any material or content we make available on or through the Website or Services;
- Modify, make derivative works of, disassemble, decompile or reverse engineer any part of the Services or Website software code;
- Interfere with, burden or disrupt the functionality of the Website and Services;
- Circumvent, impair or manipulate the operation or functionality of the Website and Services;
- Work around or circumvent any technical limitations in the Website or Services or use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Website or Services;
- Embed, frame or otherwise link directly to the Website or Services, from any other web-page or application, without our prior written permission;
- Engage in or attempt to engage in any form of testing, scanning, crawling, scraping, probing, robotic navigating, bulk extracting or hacking of the Website or Services;
- Use the Website or Services for any objectionable (in our sole discretion), fraudulent, illegal or unlawful activity or purpose whatsoever;
- Engage in any false, misleading or deceptive acts or practices involving the Website and Services or your identity, agency or affiliation with any person or entity;
- Breach the security of the Website and Services, or any network or server used by the Website or Services, or identify any security vulnerabilities thereof;
- Upload a recording that would be in a breach any of the above conditions of use;
- Upload a recording of any individual other than yourself.
- Upload a recording of any individual purporting to be yourself, other than yourself.
- Provide any fraudulent information pertaining to your identification or otherwise.
- Submit any answers to the FluentIQ Test Center that have been prepared by, or answered with the assistance of, anyone other than yourself.
Intellectual Property Ownership. You acknowledge and agree that Fluent Scientific Limited is the owner of:
- All Intellectual Property in and related to the Website and the Services; All Intellectual Property in any Improvements to the Website and the Services which are developed or created by any party under or in connection with this agreement; and
- All new Intellectual Property relating to the Website and Services which is developed or created by any party under or in connection with this agreement.
- No Contest. You will not, at any time, directly or indirectly challenge or contest (nor assist any other person to challenge or contest) our right and title to, and interest in, any Intellectual Property relating to the Website or Services.
Permission Required. Except as expressly permitted by these terms and conditions, you may not without our written permission, in any form or by any means:
- Use, modify, adapt, reproduce, copy, store, distribute, print, display, perform or publish, or create derivative works from, the Intellectual Property;
- Use, modify, adapt, reproduce, copy, store, distribute, print, display, perform or publish or create derivative works from any part of the Website or Services, and for the avoidance of doubt, must not use any of our Website or Services for the purpose of collecting information about our Intellectual Property whether for your own gain or otherwise.
- Intellectual Property Ownership. You acknowledge and agree that Fluent Scientific Limited is the owner of:
Personal Information and Privacy
- Fees. The Fees specified on the Website include all applicable taxes payable by FluentIQ in New Zealand, are payable in advance by you in accordance with the relevant payment instructions on the Website. Should any additional taxes be levied against you in respect of the Fees in your country, you will be responsible for the payment of such taxes, in addition to your payment of the Fees.
- Change in Fees. We reserve the right to amend the Fees charged or to introduce new fees for any of the Services at any time which will be notified on the Website, as applicable. If we introduce a new service, the fees for that service are effective at the launch of the service, unless otherwise stated.
- If the Services we supply do not meet a consumer guarantee under the Consumer Guarantees Act 1993 (CGA), we will meet our obligations under the CGA to provide a remedy.
- If the Services we supply do not comply with a consumer guarantee due to a technical issue, but can be remedied within a reasonable time, we will provide the Services again at no further charge, and if we cannot provide the Services again within a reasonable time, we will provide you with a refund of the Fees in respect of those Services affected.
- This policy is not intended to exclude or limit any rights which you may have as a consumer under the CGA, and may not necessarily describe all of the rights that you may have.
- No refunds will be made where you have decided you no longer require the Services, for any reason whatsoever.
- All requests concerning a refund should be directed to [email protected].
- If you are acquiring the Services from us for business purposes as defined in the CGA, you agree that the consumer guarantees provided for in the CGA will not apply to those Services.
- No Fault. Any refund that may be provided under clause 8.3 is made on a ‘no fault’ basis. Payment of a refund by us does not constitute an admission on our part that your claim to a refund is valid or that we are at fault in any way whatsoever.
- Reserved Rights. We reserve the right to change the Refund Policy at any time for any reason whatsoever.
FluentIQ Certificate of English
- Any FluentIQ Test Center results and related FluentIQ Certificate of English Communication awarded by us to you from your use of FluentIQ Test Center expires on the date being 12 months from the date noted on the FluentIQ Test Center results.
- Any assessment on the FluentIQ Test Center can only be undertaken a maximum of once every seven days.
- Own Risk. You use the Website and Services entirely at your own risk. The Services are provided by us on an ‘as is’ basis without warranty of any kind.
Personal Responsibility. Without limiting the generality of the above clause, you are solely responsible for:
- Your own actions and the consequences of those actions when using the Website or the Services including your choice to share the results that the Services generate whether by disclosure of your FluentIQ Certificate ID (either directly to a third party, published on a social media platform or otherwise) or in any other manner whatsoever; and
- The actions and the consequence of such actions, of anyone to whom you grant access to the Website or the Services,
- Ensuring that your use of the Website and Services complies with all relevant laws;
- The content of any recording you upload to the Website;
- The advisability of uploading a recording to the Website;
- The choice of the appropriate Services.
Acknowledgements. You acknowledge that:
- In offering the Services FluentIQ stores and uses Personal Information concerning you.
- While every effort is made to ensure that the Website and the Services provide accurate and reliable information, FluentIQ does not guarantee the accuracy or reliability of such information.
Customer Warranties. You warrant to us that:
- You have provided complete and accurate information wherever requested by us, and that you will keep this information current, complete and accurate;
- Any photographic identification that you have submitted to us as part of your use of the FluentIQ Test Center is a true and accurate representation of yourself, and is a valid legal document issued by a government; and
- Notwithstanding that you may disclose your FluentIQ Certificate ID to third parties, you will not allow any third party to otherwise access your account with us for any purpose, which includes but is not limited to disclosing your username and/or password.
- No Warranty. To the maximum extent permitted by law, we expressly exclude all warranties, express or implied, including (but not limited to) implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security, timeliness, uninterrupted continuance of Services, and accuracy in connection with the Services.
Disclaimers. Without limiting the foregoing, we do not warrant that (and disclaim all liability whatsoever in relation to):
- Access to the Website or the Services will be complete, uninterrupted, timely, secure, error free or free from harmful components;
- Any advice or information that is obtained by you on or through the Website or Services, including by way of hyperlink to third party websites, or from us is error free;
- Any information, advice, products or Services obtained from or through the Website, including by way of hyperlink to third party websites, or from us will meet your requirements; and
- Any information provided to you via the Test Center is accurate and able to be relied on by any third party.
- Third Party Content and Services. Responsibility for any third party information, content or services (Third Party Content) accessed through us or the Website, including by way of hyperlinks to third party websites, rests solely with that third party. If we provide or provide access to, Third Party Content we do not recommend, endorse or guarantee the Third Party Content in any way whatsoever.
Limitation of Liability
- No Liability. To the maximum extent permitted by law, we will not be liable to you or any other person or entity (including but not limited to any third party that is accessing the Website or the Services by way of your FluentIQ Certificate ID) under any circumstances for any Loss whatsoever that results in any way from use of the Website or Services or a failure to access the Website or Services or reliance on any information provided on the Website or in the course of providing the Services. In any event, our liability to you (if any) will be for a maximum of an amount equal to the Fee paid by you in respect of the Services over the 12 months preceding the initial action giving rise to the liability.
- Full Indemnity. You agree to fully indemnify us and hold us harmless from and against any and all claims, suits, actions, proceedings or Loss incurred, suffered or brought against us in respect of or in connection with your access to and use of the Website and Services and the access to and use of the Website and Services by any third party to or for whom you grant or enable access (except where such claim, suit, action, proceeding or Loss is a direct result of our breach of these Terms and Conditions), including but not limited to all claims, suits, actions, proceedings or Loss incurred, suffered or brought against us resulting from any false representation made to us by you.
Suspension and Termination
- Term. This agreement will commence on the Commencement Date and, until and unless suspended or terminated earlier in accordance with this clause 13, will continue in effect for the Term.
- Suspension. At our sole discretion, without notice and for any reason whatsoever we may suspend providing the Services or any part of the Services to you including but not limited to removing or deleting any recordings you have provided without maintaining a backup copy.
- Termination by Us. We may discontinue providing the Services to you at any time without notice and for any reason whatsoever.
- Termination by You. You may cease using the Services at any time by closing down your account with us.
Consequences of Termination. If this agreement is terminated for any reason:
- You will immediately pay us all amounts outstanding for the Services provided prior to the date of termination and cease all use of the Services;
- We may remove or delete any recordings you have provided without maintaining a backup.
- Continuing Obligations. The termination of the agreement will not affect either party’s rights or remedies in respect of any breach of this Agreement by the other party, where that breach occurred before the termination of this Agreement.
- Surviving Clauses: The provisions of clauses 6, 7, 10, 11, 12, and this clause 13 and any other provisions of this agreement which are required to give effect to those clauses will remain in full force.
- Assignment. You may not transfer your rights and obligations under these terms and conditions. We may assign or transfer our rights and obligations to any third party.
Entire Agreement. These terms and conditions:
- Records the entire agreement and understanding of the parties in relation to the subject matter of this agreement; and
- Supersedes and cancels all previous understandings or agreements (whether written, oral or both) between the parties relating to that subject matter.
- Law and Jurisdiction. The operation of these terms and conditions and the provision of the Services is governed by, and construed in accordance with, New Zealand law regardless of your country of origin or where you accessed the Services. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the New Zealand courts in connection with these terms and conditions.
- Rights and Remedies. The rights, powers and remedies in these terms and conditions are cumulative and are in addition to any rights, powers or remedies provided at law or in equity, unless specifically stated otherwise. Each party may pursue any remedy that it is entitled to pursue by law.
Severability. If any provision of this agreement is held to be illegal, invalid or unenforceable, then (to the maximum extent permitted by law):
- That provision will be severed from this agreement; and
- This will not affect the validity or enforceability of the other provisions of this agreement.
- Variation. In order to be effective, any variation or amendment of these terms and conditions must be agreed in writing by the parties.
- Waiver. A party will not be deemed to have waived any provision of these terms and conditions unless that waiver is in writing and signed by that party. Any such waiver will not be, or deemed to be, a waiver of any other right under these terms and conditions. Any failure or delay by a party to enforce any provision of these terms and conditions will not be considered to be a waiver of that provision.