Fluid is an online platform or marketplace that allows Users to advertise, offer and share just about anything in a variety of pricing formats and locations. Fluid does not own or manage any property listed through the Services. Fluid is not a party to any rental or other agreement between Users. The actual contract is between the borrower and sharer. Unless otherwise provided, Fluid’s responsibilities are limited to enabling the Services and serving as a limited agent for Users listing items available for sharing (“Sharer”) for the purpose of accepting payments from Users borrowing the Sharer’s items (“Borrower”).
While Fluid may provide pricing, delivery, shipping, listing and other guidance in our Services, such guidance is solely for information purposes only and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through our Services, Fluid has no control over and does not guarantee the existence, quality, safety or legality of items advertised and offered; the truth or accuracy of User’s content or listings; the ability of Users to share items; the ability of Users to pay for items; the ability of Users to use an item; the existence of User insurance coverage; or that a User will actually complete a transaction or return an item.
2. Using Fluid; License; Termination of Usage
a. Usage. In connection with using or accessing the Services, you will not:
- Any commercial use of the Services unless expressly permitted by Fluid.
- Copy, post, reproduce, display, list or upload content or items in inappropriate categories or areas on the Services;
- Breach or circumvent any laws, third-party rights or our systems, policies or determination of your account status;
- Use our Services if you are not able to enter into legally binding contracts or are temporarily or indefinitely suspended from using our Services;
- Fail to pay for items shared with you, unless you have a valid reason as set out in a Fluid policy and permitted by Fluid;
- Fail to deliver items shared by you or shared with you, unless you have a valid reason as set out in a Fluid policy or otherwise permitted by Fluid;
- Manipulate the price of any item or interfere with any other User’s listings;
- Post false, inaccurate, misleading, defamatory, or libelous content;
- Distribute viruses or other harmful technologies that hurt either Fluid or other Users;
- Use any robot, program, spider or other automated means to access our Services for any reason;
- Interfere with, circumvent or inappropriately use our Services and the underlying infrastructure and technical systems;
- Commercialize any of the Services;
- Collect and use information about Users without their express, written consent;
- Contact any User of the Services for purposes other than asking a question related to a listing or item;
- Register yourself for more than one Fluid account;
- Register an account for someone other than yourself;
- List any item that you do not yourself own or have permission to share;
- Take any action to undermine the rating system of any User, listing or item;
- Transfer your account to any third party without Fluid’s consent;
- Distribute unsolicited emails, texts and communications to Users; or
- Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic or profane material.
Users are granted a limited, revocable, non-exclusive license to access the Services and the content therein solely for the purpose of advertising a listing or item, searching for an item, sharing or researching an item any of the items listed through the Services. The license to use the Services only extends to the uses expressly described herein. The license to use the Services granted in these Terms does not include the right of collection, aggregation, copying, scraping, duplication, display or derivative use of the Services or any content or underlying databases. Unauthorized use of the Services is not permitted.
c. Termination of Usage.
If, in our sole discretion, any User submits unsuitable material to our Services or into the Fluid database, misuses the Services or our online system or is in material breach of these Terms, we reserve the right to terminate a User’s account or listing immediately without any refund. In addition, if Fluid becomes aware of or receives a complaint (or multiple complaints) from any User or third party regarding a User’s listing, Borrower’s action or sharing practices that, in our sole discretion, warrants the immediate removal of such User’s listing or item from the Services, then we may immediately terminate such Borrower’s listing or User’s account without notice to the User and without refund. Fluid has no duty to investigate complaints and may act in its sole discretion in making determinations regarding accounts, listings, items and the Services. No listings on the Services can be transferred to another third party or User.
d. Text Messages.
By creating a Fluid account, you agree that the Service may send you informational text (SMS) messages as part of the normal business operation of your use of the Service. You may opt-out of receiving text (SMS) messages from Fluid at any time by texting the word STOP to xxxxx from the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Service.
c. Optional Insurance.
d. Damage to Items.
a. Rental Agreement.
b. Care of Item.
5. Security Deposit
Sharers may choose to include security deposits in their listing (“Security Deposit”). Each listing will specify if a Security Deposit is required. If a Security Deposit is required, it will clearly be specified in the listing and the Security Deposit exchange will be solely between the Sharer and Borrower. Any disputes must be handled directly between the parties. Fluid will use its reasonable efforts to assist in a dispute between a Sharer and Borrower related to a Security Deposit but Fluid is not responsible for administering or accepting any claims by Users related to Security Deposits and disclaims any and all liability in this regard.
6. Ranking System
Users may post reviews, comments, photos, videos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Fluid reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
Unless otherwise provided in these Terms, Fluid does not provide liability insurance protection for Users. Users are solely responsible for obtaining insurance coverage sufficient to protect their items. Users agree that they have or will obtain the appropriate insurance coverage sufficient to cover the sharing of the items they list on the Services and will maintain adequate insurance coverage through the return of the item to the owner. Further, Users agree to provide us with copies of relevant proof of insurance upon request.
8. Fees and Payments
a. Fluid’s Fees. Fluid will charge a sharing fee (“Fluid Fee”) payable by Borrowers who book an item through the Services. The Fluid Fee is deducted from the Share Fees from the item before remitting the balance to the Sharer. The Fluid Fee covers the use of the Services and platform and is calculated as a percentage of the total share amount. VAT and sales tax may be charged in addition to the Fluid fee, if applicable. The Fluid Fee is charged when you confirm your share and is nonrefundable. Even if you cancel your share, you will not receive a refund for the Fluid Fee.
b. Payment Processing. Payment processing services for Sharers on Fluid are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service(collectively, the “Stripe Services Agreement”). By agreeing to these terms on Fluid, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Fluid enabling payment processing services through Stripe, you agree to provide Fluid with accurate and complete information about you and your business, and you authorize Fluid to share it and transaction information related to your use of the payment processing services provided by Stripe.
9. Refunds; Cancellation
a. Refund. If you are a Borrower and encounter a Material Issue of an item, as defined below, Fluid may take the following actions, as determined by Fluid in its sole discretion. All determinations with respect to refunds shall be final and binding on the applicable Sharer and Borrower.
Reimburse you up to the amount paid by you through the Services;
Find and book you an alternative item for the remaining duration of your share; or
Or find another remedy in the reasonable discretion of Fluid.
b. Material Issue. “Material Issue” may mean:
i. The Sharer:
1. Cancels a share shortly before the scheduled start of the share;
2. Fails to provide the Borrower with the reasonable ability to use the item; or
3. Fails to describe the item accurately or misrepresents material facts about the item.
1. Sharers. Sharers may cancel confirmed listings made through the Services. In such instances, Fluid will reimburse the Share Fee to Borrower within a commercially reasonable time of the cancellation. The Fluid Fee will not be refunded as part of this cancellation.
2. Borrowers. Borrowers can cancel an item before the share is confirmed by the Sharer. Fluid will cancel any pre-authorization to your credit card. If you wish to cancel a share after confirmation but before use, the Sharer’s listing will include any specific cancellation requirements. Fluid’s ability to refund any Share Fees will depend on the terms of the applicable cancellation policy of the listing. The Fluid Fee is not refundable to you regardless of the cancellation policy provided by the Sharer.
10. General Terms
a. Dispute Resolution.
Please read this section carefully. It affects your rights and will have substantial impact on how claims you and Fluid have against each other are resolved. You and Fluid agree that any claim or dispute at law or at equity that has arisen or may arise between us relating in any way to or arising out of this or other agreements with Fluid, your use of or access to the Service, or any products or services sold, purchased or shared through the Services, will be resolved in accordance with the provisions set forth in this Dispute Resolution Section.
i. Arbitration. You and Fluid each agree that any and all disputes or claims that have arisen or may arise between you and Fluid relating in any way to or arising out of this or previous versions of these Terms, your use of or access to the Services, or any products or services offered, listed, shared or advertised through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of these Terms to arbitrate. The arbitration shall be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by these Terms. The AAA’s rules are available at www.adr.org. YOU AND FLUID AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND FLUID AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS OR PRIVATE ATTORNEY GENERAL ACTION OR PRECEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. IF A COURT DECIDES THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF ANY OF THIS PARAGRAPH’S LIMITATIONS AS TO A PARTICULAR CLAIM FOR RELIEF, THEN THAT CLAIM (AND ONLY THAT CLAIM) MUST BE SEVERED FROM THE ARBITRATION AND MAY BE BROUGHT IN COURT, SUBJECT TO YOUR AND FLUID’S RIGHT TO APPEAL THE COURT’S DECISION. ALL OTHER CLAIMS WILL BE ARBITRATED. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in these Terms. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Fluid for all fees associated with the arbitration. The arbitrator will render an award within the time frame specified in the AAA rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
ii. Choice of Law. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Colorado, without regard to principles of conflict of laws, will govern these Terms and the Service including any claim or dispute that has arisen between you and Fluid, except as otherwise stated in these Terms. In the event that the arbitration provision above is found not to apply to your particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and Fluid must be resolved exclusively by a state or federal court located in Denver, Colorado.
b. Content and Copyright.
i. Fluid respects copyright law and expects its Users to do the same. If we suspect or believe that Users infringe the rights of copyright holders, Fluid may terminate your account.
ii. Fluid reserves the right to refuse to post any content, including hyperlinks.
iii. Fluid cannot guarantee that listings and items will appear in any specific order on the Service.
iv. Fluid does not claim any ownership rights in any User’s content. Fluid may, in its sole discretion, permit Users to post, upload, publish, submit or transmit content. By making available any content on or through the Services, Users hereby grant to Fluid a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view and otherwise exploit a User’s content. You acknowledge and agree that you are solely responsible for all content you post to the Services. Accordingly, your represent and warrant that you have all the necessary rights to use the content you post to the Services and that none of the content that you use will violate any laws or rights of third parties.
c. Intellectual Property.
All trademarks, service marks, logos, trade names, and any other proprietary designations of Fluid used herein are trademarks or registered trademarks of Fluid. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks registered trademarks of their respective parties.
d. Policy Enforcement.
When an issue between a Borrower or Sharer arises, we may consider each User’s performance history and the specific circumstances in applying Fluid’s policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for all parties.
e. Verification and Account Security.
i. Identity. Fluid cannot, and does not, assume any responsibility for, the confirmation of each User’s reported identity. We encourage you to communicate directly with the Borrower or Sharer through the Service, through even this may not help to verify the identity of a User. Fluid encourages you to investigate and perform diligence in investigating Users and to take other measures to help you verify a Borrower or Sharer’s identity, including the items and the relevant details of your listing.
ii. Security. You agree to keep your password and Fluid ID secure and confidential. Please notify us immediately if you believe that your account has been compromised. We discourage you from providing access to your password and Fluid ID to any third parties. However, if you do elect to share your password and Fluid ID with someone other than you, you are responsible for any and all transactions that the person performs while using your Fluid account.
iii. Fluid will not have any liability to any User for any unauthorized transactions made using any password or Fluid ID. You may incur liability to other Users and Fluid if your password and Fluid ID are used in an unauthorized User.
Fluid reserves the right, at its sole discretion, to modify the Services or to modify these Terms, including any fees, at any time and without prior notice. If we modify these Terms, we will either post the modification on the Services or otherwise provide you with notice of the modification. We will also update the date on the top of the Terms. By continuing to use or access the Services after we have posted or otherwise notified you of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to stop using the Services.
If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreement to this release.
h. Limitations on Liability.
Regardless of any of the provisions in these Terms, if Fluid is found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount paid for your share; or (b) the amount of fees in dispute not to exceed the total fees, which you paid to Fluid in the past twelve (12) months prior to the action giving rise to the liability; or (c) $100.00.
1. The Services are intended to be used to facilitate Sharers and Borrowers connecting and sharing items directly with each other. Fluid cannot and does not control the content contained in any listing and the condition, legality or suitability of any item. Fluid is not responsible and expressly disclaims any and all liability related to any and all listings and items. Accordingly, any shares or items will be made, used and accepted at the User’s own risk. Unless expressly agreed to in writing by Fluid, Fluid shall not be responsible for loss or damage to property, material, or equipment belonging to Users, at any point.
2. THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES, IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SERVICES OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICES, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES OR ANY LINKED SITE OR SERVICES, EVEN IF WE BECOME AWARE OF ANY SUCH BREACHES. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED ON THE SERVICES OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY TRANSMISSION TO AND FROM THE SERVICES IS NOT CONFIDENTIAL AND YOUR COMMUNICATIONS OR USER-CONTRIBUTED CONTENT MAY BE READ OR INTERCEPTED BY OTHERS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT BY SUBMITTING COMMUNICATIONS OR USER-CONTRIBUTED CONTENT TO US AND BY POSTING INFORMATION ON THE SERVICES, INCLUDING LISTINGS, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO THESE TERMS.
3. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HOLD OR SEEK TO HOLD FLUID OR ANY THIRD PARTY PROVIDER RESPONSIBLE FOR THE CONTENT PROVIDED BY ANY USER, INCLUDING, WITHOUT LIMITATION, ANY TRANSLATION THEREOF, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO ANY SHARE OR RENTAL TRANSACTION OR OTHER TRANSACTION BETWEEN USERS OF THE SERVICES. FLUID HAS NO CONTROL OVER AND DOES NOT GUARANTEE (OTHER THAN PURSUANT TO ANY GUARANTEE THAT MAY BE OFFERED THROUGH THE SERVICES) THE SAFETY OF ANY TRANSACTION, ITEM, SHARE, RENTAL PROPERTY OR THE TRUTH OR ACCURACY OF ANY LISTING OR OTHER CONTENT PROVIDED ON THE SERVICES.YOU FURTHER ACKNOWLEDGE THAT BY DISPLAYING INFORMATION, ITEMS, PROPERTY OR LISTINGS IN PARTICULAR LOCATIONS, WE DO NOT REPRESENT OR WARRANT THAT RENTING, SHARING OR USING SUCH ITEMS IS WITHOUT RISK AND ARE NOT LIABLE FOR DAMAGES WITH RESPECT TO THE USE, OPERATION OR RENTAL OF ANY SUCH ITEMS.
j. Warranties. We try to keep the Services safe, secure, and functioning properly but we cannot guarantee the continuous operation of or access to our Services. Share update and other notification functionality in Fluid’s Services may not occur in real time. Such functionality is subject to delays beyond Fluid’s control. You agree that you are making use of our Services and items at your own risk and that they are being provided to you on an “AS IS” basis. Accordingly, to the extent permitted by law, Fluid excludes all express or implied warranties, terms and conditions, including but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
k. Indemnification. You agree to defend, indemnify and hold Fluid (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) harmless from all liabilities, claims, demands, costs and expenses (including attorneys’ fees) arising out of (i) your breach of these Terms; (ii) your use, listing, sharing, or operation of any item; (iii) your improper use of the Services; and (iv) your breach of any law or the rights of a third party.
m. Minors. The Services are intended solely for persons who are 18 years or older. Any access to or use of the Services by anyone under 18 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 18 years or older.
n. International Use. At this time, the Services are only available to U.S. residents. Please do not use the Services if you are not located within the U.S.
i. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by via U.S. mail to: Fluid Market, Inc., PO BOX 351881, Westminster, CO 80035, Attn: Legal Department.
ii. Third Party Links and Websites.
iii. Fluid may provide your information, or otherwise enable distribution of your listing to a third party website. Additional terms and conditions may apply to such distributions, of which you will be notified through your email or account.
iv. The Services may contain links and pointers to other third party websites and resources. Links to and from the Services to other third party websites do not constitute endorsements by Fluid. Fluid is not responsible for any such third party websites or content and your use of any such websites will not be governed by these Terms.
i. These Terms constitute the entire understanding of the agreement between you and Fluid regarding the Application, Fluidmarket.com website, Services, listings and shares made via the Services. These Terms supersede and replace any and all prior oral or written understandings or agreements between you and Fluid.
ii. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto. Notwithstanding the foregoing, the parties agree that any merchant card servicer or network shall be a third party beneficiary of the Terms for purposes of enforcing provisions related to payments.
iii. Except as otherwise provided in these terms, if any provision of these Terms is invalid, void or unenforceable, such provision shall be struck out and shall not affect the validity and enforcement of the remaining provisions. In our sole discretion, Fluid may assign these Terms (the agreement between you and Fluid) , by providing notice of such assignment in accordance with these Terms.
iv. Headings are for reference purposes only and do not limit the scope or extent of such Section. Fluid’s failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Fluid does not guarantee it will take action against all breaches of these Terms.
v. Policies posted on the Fluid Services may change from time to time. Changes take effect when Fluid posts them to the Application, Services or Fluidmarket.com website.
vi. If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to these Terms. Such account is owned and controlled by the business entity.
vii. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.