Last Updated: August 9 2018
THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTE PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
In these Terms: “Clutch”, “ClutchSOS”,“we”, “us” “our” and terms of similar meaning means Clutch Inc. “You” or “Your” means: (i) an Individual Subscriber or User of the Service; and (ii) the Institutional Subscriber (as applicable) for which you are accepting these Terms if your use of the Service is in connection with such Institutional Subscriber’s purchase of the Service.
Individual purchasers of the Service are referred to as “Individual Subscribers” and company, institution or other legal entity purchasers of the Service are referred to as “Institutional Subscribers” (Individual Subscribers and Institutional Subscribers, collectively, “Subscribers”).
“User” means any Subscriber and all visitors, users and other persons who access, receive information from, interact with, or otherwise use or obtain the benefit from the Service, regardless of whether such person creates an Account. Users may include, for example, your students, employees, contractors and agents.
We refer to our hosted software applications as the “Software,” our mobile applications as the “Applications”.
The Software, the Applications and the Devices are collectively referred to as the “Service.”
Your Personal Information and Security
We Strive to Provide a Reliable and Secure Service
We take reliability and security very seriously and we put a great deal of effort into ensuring that the Service operates consistently, and that it is a secure environment for your User Information. We believe our Service and security technologies meet or exceed industry standards and we believe we provide you with a secure and safe environment.
However, no system is perfectly secure or reliable, the Internet is an inherently insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, your wireless carrier and other service providers cannot be assured. When you use the Service, you accept these risks, and the responsibility for choosing to use a technology that does not provide perfect security or reliability. Therefore, we make no warranty, express, implied or otherwise that we can or will be able to prevent the unauthorized access or disclosure of your User Information, including personal information and any non-personal information.
Your Ownership of Your User Information
We claim no ownership rights over User Information. The User Information you create remains yours; however, by sharing User Information through the Service, you agree to allow others to view, edit, and/or share your User Information in accordance with these Terms. Clutch has the right (but not the obligation) in its sole discretion to remove any User Information that is uploaded or shared via the Service. You agree not to post or transmit User Information that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property, including first responders; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal; (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; (ix) violates any school or other applicable policy; or (x) interferes with other Users of the Service.
You affirm, represent and warrant that your User Information and Clutch’s use thereof as contemplated by these Terms and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. Clutch takes no responsibility and assumes no liability for any User Information that you or any other User or third party uploads, transmits or shares over the Service. You shall be solely responsible for your User Information and the consequences of publishing it, and you agree that we are only acting as a passive conduit for your transmission of your User Information. You understand and agree that you may be exposed to User Information that is inaccurate, objectionable, inappropriate, or otherwise unsuited to your purpose, and you agree that Clutch shall not be liable for any damages you allege to incur as a result of User Information.
Our License to Use Your User Information
Restrictions on Your Use of the Service
You agree to comply with all applicable laws and regulations in connection with your use of the Service, including, but not limited to, all-party consent laws applicable to the recording of conversations. You further agree not to collect or distribute content or data that violates the privacy, intellectual property rights or other proprietary rights of any third party, or for any purposes that we reasonably determine to be harassing, obscene, unlawful, defamatory, threatening, coercive, fraudulent, abusive or otherwise objectionable. You are solely responsible for all User Information and all other content and information that you collect, upload, store, share, maintain or transmit through the Service. In addition to the other restrictions outlined in these Terms, you agree that you will not:
+Use the Service for any purpose that is illegal, beyond the scope of their intended use, or otherwise prohibited in these Terms or the terms of any third party that govern a particular feature of the Service;
+Use the Service in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully utilizing the Service, or that could damage, disable, overburden, or impair the functioning of the Service in any manner;
+Compromise the security of the Service;Send any unsolicited or unauthorized advertising, spam, solicitations, or promotional materials;
+Use any robot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Service or to extract data;
+Reverse engineer any aspect of the Service or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content, or code of the Service;
+Use or attempt to use another User’s account without authorization;Attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Service that you are not authorized to access;
+Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services without our express written consent to do so;
+Engage in any harassing, intimidating, predatory, or stalking conduct;
+Create false identities or impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;Buy, sell, rent, lease, or otherwise offer in exchange for any compensation, access to your Account or another User’s User Information without our prior written consent;
+Develop any third-party applications that interact with User Information or the Service without our prior written consent; and
Your License to Use the Clutch Service
Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal use only and as permitted by the features of the Service. Clutch reserves all rights not expressly granted herein in the Service and the Clutch Content (as defined below). Clutch may terminate this license at any time for any reason or no reason. All licenses granted to you in these Terms are conditional on your continued compliance with these Terms, and will immediately and automatically terminate if you do not comply with any term or condition of these Terms.
Age of Majority
If you are under the age of majority in your area of residence, you may use Clutch services only with involvement of a parent or guardian. Clutch reserves the right to refuse service, remove or edit content, or cancel other elements of its products and services at its sole discretion.
Your Use of Our Applications
We may make Applications available to access the Service via a mobile, wearable, and/or other hardware device. To use the Applications, you must have a device that is compatible with the Applications and Clutch does not warrant that the Applications will be compatible with all devices. You may use mobile data in connection with the Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Clutch hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Applications for one Clutch account for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Applications to any third party or use the Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Applications, features that prevent or restrict use or copying of any content accessible through the Applications, or features that enforce limitations on use of the Applications; or (v) delete the copyright and other proprietary rights notices on the Applications. You acknowledge that Clutch may from time to time issue upgraded versions of the Applications, and may automatically electronically upgrade the version of the Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Applications is covered by the applicable open source or third-party software license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Applications or any copy thereof, and Clutch or its third-party partners or suppliers retain all right, title, and interest in the Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Clutch reserves all rights not expressly granted under these Terms.
Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efoorts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software, shall cause Authorized Users to comply with such provisions
If the Applications are being acquired on behalf of the United States Government, then the following provision applies. The Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Applications originate in the United States, and are subject to United States export laws and regulations. The Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Applications may be subject to the import and export laws of other countries.
Applications from iTunes
The following applies to any Applications you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Clutch, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Clutch as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Clutch as provider of the software. You acknowledge that, in the event of any third-party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and Clutch acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the iTunes-Sourced Software against you as a third-party beneficiary thereof.
Your Clutch Account
By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Clutch at any time by emailing Clutch at support@ClutchSOS.com You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
Our Pricing and Billing Policies for Subscription Services
There is no cost for an individual User to use the Service to receive an Alert (as defined below) or to be included in another individual User’s network. The ability to use ClutchSOS requires a paid subscription (“Subscription Services”). If you elect to use Subscription Services, you agree to the pricing and payment terms, as we may update them from time to time. Clutch may add new Subscription Services for additional fees and charges, or amend fees and charges for existing Subscription Services, at any time in its sole discretion, and we will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Subscription Services will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Subscription Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Subscription Services prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully. Paid Subscriptions can be purchased by (1) paying a monthly subscription fee; or if available (2) pre-payment giving you access to the Subscription Service for a specific time period (i.e., 6 months) (a “Pre-Paid Period”). Individual Subscribers who pay a monthly fee are charged monthly, in advance for Subscription Services. Clutch is not responsible for any charges or expenses you incur resulting from charges billed by Clutch or a third party payment processor (i.e., iTunes or Google Play) in accordance with these Terms (e.g. overdrawn accounts, exceeding credit card limit, etc.). By providing a payment method, you authorize Clutch (or a third party payment processor) to continue charging the payment method for all charges due Clutch until the Account for the Subscription Service is settled and is terminated by either you or Clutch. Clutch reserves the right to limit the number of Accounts that may be charged to a credit card or other payment or identification method per unique user.
No Refunds for Subscription Services
Individual Subscribers may cancel Subscription Services at any time; however, there are no refunds for any unused time on a subscription. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our Individual Subscribers (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle an Individual Subscriber to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
Our Ownership of the Service and Clutch Content
Except for User Information, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Information belonging to other Users (the “Clutch Content”), all software made available to Users on the Service or used to provide and operate the Service, and all Intellectual Property Rights related thereto, are the exclusive property of Clutch and its licensors (including other Users who post User Information to the Service). “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Clutch Content. All rights to the Service, the Content and such software are expressly reserved by Clutch. Use of the Clutch Content for any purpose not expressly permitted by these Terms is strictly prohibited. You may choose to submit suggestions comments or ideas about the Service, including without limitation about how to improve the Service (“Suggestions”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Clutch under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Clutch does not waive any rights to use similar or related ideas previously known to Clutch, or developed by its employees, or obtained from sources other than you.
All trademarks, service marks, product names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Clutch.
If Licensee or any of its employees, contractors, or Authorized Users sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee's behalf, and on behalf of its employees, contractors and Authorized Users, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.
Your Agreement Not To Assert or Advise Others
You agree, during the term of your Account and following termination or expiration, you will not assert (or encourage any third party to assert), nor will you authorize, assist, counsel, advise or act as an expert in any action asserted against us or any of our affiliates, Users, vendors, distribution partners, resellers, licensees or licensors, any patent infringement or other intellectual property infringement claim regarding the Service.
Modifications to the Service
We reserve the right to modify or discontinue, temporarily or permanently, the Service or any features or portions thereof without prior notice. You agree that we will not be liable for any modification, suspension, or discontinuance of the Service or any part thereof.
Clutch may from time to time provide automatic alerts and Account-related alerts. Automatic alerts are sent to you following certain changes made online to your Account, such as a change in your registration information. Although you may have the option to suppress some of these automatic alerts, we strongly recommend that you do not since they are security-related. Clutch may add new alerts from time to time, or cease to provide certain alerts at any time upon its sole discretion. Electronic alerts may be sent to the email address or telephone number you have provided. If your email address or telephone number changes, you are responsible for informing us of that change. Because alerts are not encrypted, we will never include your passcode. However, alerts may include some information about your Account. Depending upon which alerts you select, information such as a subscription renewal, payment reminder or that a payment method has expired may be included. Anyone with access to your email or telephone may be able to view the content of these alerts.
You understand, agree, and accept that any alerts, notifications, communications or messages (“Alerts”) provided to you, by you, or on your behalf via the Service may be delayed or prevented by any variety of factors. Clutch will always do its best to provide Alerts in a timely manner with accurate information. However, we do not guarantee their delivery, and we do not guarantee the accuracy of their content.
YOU AGREE THAT CLUTCH AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, USERS, VENDORS, SPONSORS, CONTRACTORS, ADVERTISERS, DEVICE MANUFACTURERS, DISTRIBUTORS, RESELLERS, RETAILERS, BUSINESS PARTNERS, LICENSORS AND ALL EMERGENCY RESPONDERS AND ALL OTHER INDIVIDUALS, MUNICIPALITIES, AGENCIES OR ENTITIES PROVIDING AID OR ASSISTANCE IN CONNECTION WITH AN ALERT, OR ANY OF THE SUCCESSORS OR ASSIGNS OF THE FOREGOING (EACH A “RELEASED PARTY” AND COLLECTIVELY THE “RELEASED PARTIES”) SHALL NOT BE LIABLE FOR ANY DELAYS, FAILURE TO DELIVER, OR MISDIRECTED DELIVERY OF ANY ALERT; FOR ANY ERRORS IN THE CONTENT OF AN ALERT; OR FOR ANY ACTIONS TAKEN OR NOT TAKEN BY YOU, ANY RELEASED PARTY OR ANY OTHER THIRD PARTY IN RELIANCE ON OR IN CONNECTION WITH AN ALERT.
General Service Warranty Disclaimer
THE SERVICE AND THE CLUTCH CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CLUTCH OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WHILE CLUTCH ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL ALWAYS BE SECURE OR ERROR-FREE, THAT THE SERVICE WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS, THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE SERVICE OR THE CLUTCH CONTENT ARE ACCURATE, COMPLETE, RELIABLE OR CURRENT, OR THAT THE SERVICE OR THE CLUTCH CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CLUTCH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE CLUTCH SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CLUTCH WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Waiver, Limitation of Liability, Indemnity
Without limitation of any of the foregoing disclaimers, you hereby waive and shall not assert any claims, allegations, complaints or causes of action of any nature whatsoever against the Released Parties arising out of, or in any way relating to, use of the Service or the Clutch Content. You use the Clutch Content and the Service at your own risk.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLUTCH OR ANY OTHER RELEASED PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONSORTIUM OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL CLUTCH OR ANY RELEASED PARTY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLUTCH AND THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) BOLDILY INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER INFORMATION OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL CLUTCH OR ANY RELEASED PARTY BE LIABLE TO YOU OR YOUR SUCCESSORS OR PERMITTED ASSIGNS IN THE AGGREGATE FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $50.00.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, MALPRACTICE, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CLUTCH OR A RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify and hold harmless Clutch and the Released Parties, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data, Alerts, or other content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Information or any that is submitted via your Account; or (vi) any other party’s access and use of the Service with your unique login, password or other appropriate security code.
Note to International Users
Clutch makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
You agree that: (i) the Service shall be deemed solely based in Minnesota; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Clutch, either specific or general, in jurisdictions other than Minnesota. These Terms shall be governed by the internal substantive laws of the State of Minnesota, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Minnesota for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other Intellectual Property or proprietary rights, as set forth in the Arbitration provision below.
If you are a federal, state, or local government entity in the United States using the Service in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Minnesota (excluding choice of law).
(a) Force Majeure. In no event shall Licensor be liable to Licensee or its Authorized Users, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Licensor's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(b) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(c) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Licensor, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
(f) Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CLUTCH.
In the unlikely event that Clutch has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any Clutch claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory (collectively, “Claims”), by binding arbitration in accordance with and subject to the International Arbitration Rules of the American Arbitration Association (AAA) by one arbitrator (except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis). The arbitration will be conducted in Minneapolis, Minnesota, unless you and Clutch agree otherwise. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the value of the relief sought is $10,000 or less, you or Clutch may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Clutch subject to the discretion of the arbitrator to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Clutch may attend by telephone, unless the arbitrator requires otherwise. Any settlement offer made by you or Clutch shall not be disclosed to the arbitrator.
The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Clutch Users, but is/are bound by rulings in prior arbitrations involving the same Clutch User to the extent required by applicable law. The award of the arbitrator shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Nothing in this Section shall be deemed as preventing Clutch from seeking injunctive or other equitable relief from the courts as necessary to protect any of Clutch’s proprietary interests.
Prohibition of Class and Representative Actions and Non-Individualized Relief
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. 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 CLUTCH USERS.
YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CLUTCH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Clutch may revise these Terms from time to time and the most current version will always be posted on the Clutch website. Revisions to these Terms will not be retroactive. They will become effective, and will be deemed accepted by Users, (a) immediately for those who become Users after the notification is posted, or (b) for preexisting Users, on the date specified in the notice, which will be no sooner than 30 days after the changes are posted (except changes required by law which will be effective immediately). If you do not agree with the modifications to these Terms, you must terminate your use of the Service, which will be your sole and exclusive remedy. You agree that your continued use of the Service constitutes your agreement to the modified terms. These Terms constitute the entire agreement between you and Clutch with respect to the subject matter of these Terms and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of these Terms. Nothing herein shall be deemed to constitute you and Clutch as partners, joint venturers, or principal and agent.
Except as expressly stated herein, including the rights of the Released Parties, there are no other third-party beneficiaries to these Terms. You and Clutch acknowledge and agree that each of the Released Parties and their successors and assigns are intended third-party beneficiaries of these Terms and that, upon your acceptance of the terms and conditions of these Terms, each Released Party will have the right (and will be deemed to have accepted the right) to enforce these Terms against you, including but not limited to those terms pertaining to disclaimers, waivers, limitations of liability and indemnification, as a third-party beneficiary thereof.
Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may also be sent to the applicable Account email address and are deemed given when sent. Notices to Clutch must be sent to Clutch Inc. 40 S. 7th Street, Suite 212-149, Minneapolis, MN 55402, with a copy to the Legal Department.
A waiver of any default is not a waiver of any subsequent default.
You may not assign or transfer these Terms or any rights or obligations under these Terms without the written consent of Clutch. Clutch may not assign these Terms without providing notice to you, except Clutch may assign these Terms or any rights or obligations under these Terms to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
Except for payment obligations, neither Clutch nor you will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). Reproduction of these terms for any service in any way including with edits and changes is strictly prohibited.