Welcome to Klutch Developer! You have entered what we call the Developer Portal. The Portal is part of the Klutch services that offered by Klutch that allows users to develop MiniApps (defined herein). Together with you and the rest of our community, we want to create the future of integrated banking. To accomplish this, we set out herein the Developer Terms of Service (“Developer Terms” or “Terms”) that you, a user, and Lambda Financial Technologies, Inc. (“Klutch” “we” “our” or “us”) must follow, and are a legally binding agreement between you and us.
In particular, we want to point out that by accepting these Terms, you and we are agreeing to arbitrate any dispute between us, and you are giving up your right to go to court either individually (except for matters that may be taken to small claims court) or as part of a class action. See the Dispute Resolution section for details.
We also want to make sure that you know that by accepting these Terms and for purposes of facilitating the Services, you are agreeing to grant us a non-exclusive license to use, online and offline, whatever you create or in the past have created while using the Service. This is covered in the Overview of Services section below. We hope you have fun!
Except as expressly permitted in these Terms, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time to any entity without notice or consent. This agreement is binding on and inures to the benefit of our respective heirs, successors and assigns. any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible (or, if it cannot legally be given any effect, will be severed from these Terms), and the remaining parts will remain in full force and effect. Nothing in these Terms shall be deemed to confer any rights or benefits on a third party (other than Klutch as noted in the "Notice Regarding Klutch" section).
Klutch reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms or an account disclosures and documents provided to you at any time, and, by continuing to use the Services, you accept the modification. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change.
You must read and agree to these terms before using the Services. If you do not agree, you may not use the Services. You must be at least 18 years old to use the Services and be an Klutch Debit Card user. You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are an active holder of the Klutch debit card; (c) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms; (d) you are a resident of the United States with a United States mailing address; (e) you have not been previously suspended or deactivated by us (unless we provide you written permission to do so). By agreeing to use our Services, you are authorizing Klutch, directly or through third parties to use the information you provide us in order for us to verify your identity as part of account opening. This may include requesting additional information or documentation about your identity.
In order to use our Services, you will need to open a Developer Account through us. As part of account opening, you may be prompted to provide your name and other personal information. When you register for an account, you must provide accurate and complete information in response to our questions, and keep that information current. You may never allow anyone else to use your Developer Account. You are fully responsible for all activity that occurs under your Developer Account, including for any actions taken by persons to whom you have granted access to the Developer Account. You agree that we may take steps to verify the accuracy of information you provide. We reserve the right to reject any application, suspend or terminate the Developer Account of any user based on our risk appetite, or who provides inaccurate or incomplete information, or who fails to comply with account registration requirements. Further, you agree that Klutch may share such information with third parties who have a need to know for purposes related thereto (e.g., intellectual property questions).
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are responsible for safeguarding your password and for restricting access to the Services from your compatible devices. You will immediately notify us of any unauthorized use of your password or Klutch Account or any other breach of security. Notwithstanding the sections on Disputes and Binding Individual Arbitration, in the event of any dispute between two or more parties as to account ownership, we, along with the Bank and its service provider, will determine account ownership.
User Generated Content ("UGC") means the following that you control, have the ability to license, have ownership of, will or have provide, create, modify or otherwise generate through the Services (“herein referred to as “Provide”): (a) all types of content, including artwork, reviews, text, software, scripts, graphics, code, photos, images, sounds, music, videos, audiovisual combinations, interactive features, names, usernames, logos, and other materials, works, items or content (standalone or in combination) and (b) any modifications, changes, or derivative works by you or that you otherwise own or control of any of those types of data or works that are on, in, or used with the Service.
As a Developer, you can create, develop, modify and contribute your UGC (including extensions, media, and libraries that are enclosed in a single software bundle) developed by you in compliance with the documentation and program requirements to create an application program for the purpose of being used with the Services (herein referred to as “MiniApp”), which may be available to all users of the Services. MiniApps that meet Klutch’s documentation and program requirements may be submitted for consideration by Klutch for distribution via the Klutch Application. Your MiniApp will be distributed under your own name or brand. We reserve the right, but shall have no obligation, to pre-screen, refuse to accept, post, display or transmit your UGC through the Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability. Klutch reserves the right to change, suspend, deprecate, deny, limit, or disable access to the Services, or any part thereof, at any time without notice (including but not limited to revoking entitlements or changing any APIs in the Klutch Software that enable access to the Services or not providing you with an entitlement). In no event will Klutch be liable for the removal of or disabling of access to any of the foregoing. Klutch may also impose limits and restrictions on the use of or access to the Klutch Services, may remove the Klutch Services for indefinite time periods, may revoke your access to the Klutch Services, or may cancel the Klutch Services (or any part thereof) at any time without notice or liability to you and in its sole discretion.
Klutch may provide access to the Services that your MiniApp may call through APIs in the Klutch software and/or that Klutch makes available to you through other mechanisms, e.g., through the use of keys that Klutch may make accessible to you. MiniApps may only use Documented APIs in the manner prescribed by Klutch and must not use or call any private APIs. You agree to access and use such Services only as necessary for providing services and functionality for your MiniApp that are eligible to use such Services and only as permitted by Klutch in writing, including in the Documentation. Without Klutch’s prior written approval, a MiniApp may not provide, unlock or enable additional features or functionality through distribution mechanisms other than the Klutch Application. You may not use the Services in any manner that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party or Klutch, or that violates any applicable laws or regulations. You agree that the Klutch Services contain proprietary content, information and material owned by Klutch and its licensors, and protected by applicable intellectual property and other laws. You may not use such proprietary content, information or materials in any way whatsoever, except for the permitted uses of the Klutch Services under this Agreement, or as otherwise agreed by Klutch in writing. Except as otherwise set forth herein, you agree not to share access to mechanisms provided to you by Klutch for the use of the Services with any third party. Further, you agree not to create or attempt to create a substitute or similar service through use of or access to the Services.
You understand there may be storage capacity, transmission, and/or transactional limits for the Services both for you as a developer and for your end-users. If you or users reaches such limits, then you or users may be unable to use the Services or may be unable to access or retrieve data from such Services through your MiniApp or through the applicable end-user accounts. You agree not to charge any fees to end-users solely for access to or use of the Services through MiniApp or for any content, data or information provided therein, and you agree not to sell access to the Services in any way. You agree not to fraudulently create any end-user accounts or induce any end-user to violate the terms of their applicable end-user terms or service agreement with Klutch or to violate any Klutch usage policies for such end-user services. Except as expressly set forth herein, you agree not to interfere with an end-user’s ability to access or use any such services.
Klutch does not guarantee the availability, accuracy, completeness, reliability, or timeliness of any data or information displayed by any Services. To the extent you choose to use the Services, you are responsible for your reliance on any such data or information. You are responsible for your use of the Services, and if you use such Services, then it is your responsibility to maintain appropriate alternate backup of all your content, information and data, including but not limited to any content that you may provide to Klutch for hosting as part of your use of the Services. You understand and agree that you may not be able to access certain Services upon expiration or termination of this Agreement and that Klutch reserves the right to suspend access to or delete content, data or information that you have stored through your use of such Services provided hereunder. You should review the Documentation and policy notices posted by Klutch prior to using any Services.
You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you in connection with the Developer Service, your Provided UGC, your Provided MiniApps including, but not limited to, any related development efforts, network and server equipment, Internet service(s), or any other hardware, software or services used by you in connection with your use of any Services.
Klutch may extend, enhance, modify or discontinue the Services (or any part thereof) provided at any time without notice. You understand that such modifications may require you to change or update your MiniApp. Further, you acknowledge and agree that such modifications may affect your ability to use, access, or interact with the Services. Klutch is not obligated to provide any maintenance, technical or other support for the Services. We will have no liability whatsoever on account of any change to the Service.
We will provide an opportunity for you to Provide UGC through the Services.
For any UGC that you have ever Provided or that you will Provide (whether created solely by you or together with others) (a) between you and us or you and users, you retain all copyrights that you may hold in the UGC, and (b) in consideration of using the Services and the potential to earn compensation for your USG, you grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, fully-paid right and license (with the right to sublicense to any person or entity, whether a user of the Service or not) to host, store, transfer, publicly display, publish, publicly perform, reproduce (including in timed synchronization to visual images), adapt, modify, create derivative works of, distribute, and use in any way the UGC that you Provide, in whole or in part, including modifications and derivative works, in any media or formats (tangible or intangible) and through any media, items or channels (online, offline, or others, now known or hereafter developed), including for publicity and marketing purposes (except that you are not granting us any license to make new or derivative MiniApps using your UGC). Kindly note that if you Provide UGC, you do not have the right to remove or modify that UGC (unless Klutch provides tools for you to remove or modify that specific type of UGC, or unless otherwise required by law). When using the Service, you may be prompted to grant other Klutch users the right to use your UGC. If you agree to grant this right, other users may use your UGC to create their own MiniApps and other UGC on the Service, and you will not be entitled to any revenue that those other users earn, even if they use your UGC.
Regarding the publicity and marketing rights, this allows us to provide a license to a TV show, movie, book, annual, encyclopedia or anthology, website, social media, online or print magazine or newspaper, or other commercial, non-commercial or educational purpose to use your UGC and associated username in ways that we think will help publicize or market the Service, any part of the Service, and any UGC on the Service. Other than the potential to earn compensation for your MiniApp, we shall not be obligated to provide to you any compensation, attribution, or other payments for any reasons, including for exploitation of the license discussed immediately above, whether in relation to the Service or otherwise, nor are we obligated to exploit this license. BY ACCEPTING THESE TERMS AND CONTINUING TO USE THE SERVICE, YOU AGREE THAT THIS LICENSE APPLIES TO ANY UGC YOU PROVIDED TO US AT ANY TIME (FROM YOUR FIRST USE OF THE SERVICE, WHICH MAY PREDATE YOUR ACCEPTANCE OF THIS VERSION OF THE TERMS).
Templates may be made available to you in our Developer portal or Git or otherwise as a starting point for creating your UGC, however your use of a template does not give you any copyrights or other ownership rights in such template.
Your MiniApp may include promotional sweepstake or contest functionality provided that you are the sole sponsor of the promotion and that you and your MiniApp comply with any applicable laws and fulfill any applicable registration requirements. All promotions must be submitted to Klutch for approval prior to release. You agree that you are solely responsible for any promotion and any prize, and also agree to clearly state in binding official rules for each promotion that Klutch is not a sponsor of, or responsible for conducting, the promotion.
You may submit your MiniApp for consideration by Klutch for distribution via the Klutch Application once you decide that your MiniApp has been adequately tested and is complete. By submitting your MiniApp, you represent and warrant that your MiniApp complies with the Documentation and Program Requirements then in effect as well as with any additional guidelines that Klutch may post on the Developer Portal. You further agree that you will not attempt to hide, misrepresent or obscure any features, content, services or functionality in your submitted MiniApps from Klutch's review or otherwise hinder Klutch from being able to fully review such MiniApps. If requested by Klutch, you agree to provide access to or samples of any such devices at your expense (samples will not be returned). You agree to cooperate with Klutch in this submission process and to answer questions and provide information and materials reasonably requested by Klutch regarding your submitted MiniApp, including the operation of your business, or your obligations under this Agreement. For any changes requested by Klutch, you must resubmit the MiniApp to Klutch. Similarly, all bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of your MiniApp must be submitted to Klutch for review in order for them to be considered for distribution via the Klutch application, except as otherwise permitted by Klutch.
Klutch shall not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your MiniApp development or use of the Services, including without limitation the fact that your MiniApp may not be selected for distribution via the Klutch Application. You will be solely responsible for developing MiniApp that are safe, free of defects in design and operation, and comply with applicable laws and regulations. You will also be solely responsible for any documentation and end-user customer support and warranty for such MiniApps. The fact that Klutch may have reviewed, tested, approved or selected a MiniApp will not relieve you of any of these responsibilities.
You are solely responsible for your UGC and you represent and warrant that: You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize us to exploit the license that you grant to us hereunder; and your UGC, and the use of your UGC as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) Provide false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (iv) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (v) contains corrupted data or any other harmful, disruptive, or destructive files; (vi) advertises products or services competitive with Klutch’s or its partners’ products and services, as determined by us in our sole discretion; (vii) require Klutch to obtain any further licenses from or pay royalties or compensation or other amounts or provide any attribution to any third parties; (viii) result in a breach of contract between you and a third party; (ix) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Klutch, its affiliates or its customers to harm or liability of any nature; or (x) cause us to violate any law or regulation.
You must not Provide any UGC if you are not the owner of or are not fully authorized to grant rights in all of the elements of the UGC you intend to Provide. You agree to pay all monies owing to any person as a result of Providing your UGC. Although we have no obligation to monitor any UGC, we have absolute discretion to remove UGC at any time and for any reason without prior notice. You understand that by using the Services, you may be exposed to UGC that is offensive, inaccurate, indecent, or objectionable. We take no responsibility and assume no liability for any UGC, including any loss or damage to any of your UGC. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to UGC. If notified by a user or content owner that UGC allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the UGC, which we reserve the right to do at any time and without notice. We do not permit copyright-infringing activities on the Service. Please alert us of any inappropriate UGC or other materials you find on the Service.
To the extent that Klutch provides an analytics service through the Developer Portal for MiniApps distributed through the Klutch Application, you agree to use any data provided through such analytics service solely for purposes of improving your MiniApps. For clarity, you must not aggregate (or permit any third-party to aggregate) analytics information provided to you by Klutch for your MiniApps as part of this analytics service with other developers’ analytics information, or contribute such information to a repository for cross-developer analytics. You must not use the analytics service or any analytics data to attempt to identify or derive information about any particular end-user or device.
You agree not to, or enable others, directly or indirectly, to: access or monitor any material or information on any Klutch system using any manual process or robot, spider, scraper, or other automated means; copy, distribute, publicly perform, publicly display, decompile, reverse engineer, disassemble, attempt to derive the source code, modify, or create derivative works of the Service or any downloaded or underlying software or technology (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service, including any protections for UGC; perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure; copy, rent, lease, reproduce, alter, modify, create derivative works, publicly perform or display, republish, upload, post, transmit, sell, redistribute in any portion of the Services; use the Service in conjunction with automated purchasing software programs; use the Service to exploit new user, referral programs, promotions offered by other merchants, or otherwise use the Service to violate the terms and conditions of a merchant; transfer any rights granted to you under these Terms; use the Services for any illegal activity or goods or in any way that exposes you, other Klutch users, our partners, or Klutch to harm; collect user or device data without prior user consent, whether such data is obtained directly from the user or through the use of Services, and then only to provide a service or function that is directly relevant to the use of the MiniApp, or to serve advertising; broaden or otherwise change the scope of usage for previously collected user or device data without obtaining prior user consent for such expanded or otherwise changed data collection; use analytics software in your MiniApp to collect and send device data to a third party; “frame” the Services or any portion thereof or otherwise cause the Services or its contents to appear to be provided by anyone except Klutch; introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage or delete any Materials, or retrieve or record information about the Services or its users; merge the Services or Materials with another program or create derivative works based on the Services or Materials; remove, obscure, or alter any notice of the copyright or other proprietary legends within the Services; act as a payment facilitator or otherwise resell the Services to any third party, or use the Services to handle, process or transmit funds for any third party; use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; use the Services provided hereunder for any purpose not expressly permitted by this Agreement; install, use or run the Klutch SDKs on any non-Klutch-branded financial products; act in any manner which conflicts or interferes with any existing commitment or obligation you may have and no agreement previously entered into by you will interfere with your performance of your obligations under this Agreement; exploit the Services provided hereunder in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity, or by harvesting or misusing data provided by the Services. Any attempt to do so is a violation of the rights of Klutch and its licensors of the Services; otherwise act in a fraudulent, illegal, malicious or negligent manner when using the Services except as expressly allowed under these Terms. Except as expressly provided herein, Klutch and the third parties reserve all rights with respect to the Services, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.
All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by Klutch, by implication, estoppel, or otherwise. This Agreement does not grant you any rights to use any trademarks, logos or service marks belonging to Klutch. If you make reference to any Klutch products or technology or use Klutch’s trademarks, you agree to comply with the published guidelines within the developer portal, as they may be modified by Klutch from time to time.
If you violate any provision of these Terms, your permission to use the Service terminate automatically. Additionally, in our sole discretion, we may suspend or terminate your Klutch Account or your access to any Service, at any time for any reason or remove any of your MiniApp at any time, without notice for any reason. We will have no liability whatsoever as a result of any suspension or termination of your access to or use of the Service.
We may offer a sign-up or referral incentive for limited periods of time. Determination of program eligibility and qualifying offers are at the sole discretion of Klutch. Klutch may change the amount of the offer, stop offering or cancel the incentives at any time. If we change the incentive amount, the credit will be based on the current promotional amount being offered at the time of incentive redemption. Klutch reserves the right to terminate any promotions and to refuse or recover any promotion award for any reason, including, but not limited to, misuse of its intended purpose and breach of these Terms.
The use of “Klutch” in this section means its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns. THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, KLUTCH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. KLUTCH DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Klutch does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a third party. Klutch does not have control of, or liability for, goods or services that are paid for using the Services.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL KLUTCH BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE. SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. IN ALL CASES, KLUTCH WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. UNDER NO CIRCUMSTANCES WILL KLUTCH BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR KLUTCH ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF KLUTCH IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID OR PAYABLE BY YOU TO KLUTCH IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KLUTCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
We reserve all rights not expressly granted to you in these Terms. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Intellectual Property" or "IP") are protected by law. All IP contained in the Service is our property or our users’ or third-party licensors’ property. The IP includes UGC that has been licensed to us by our users under section Your UGC and License Grant to Klutch. Except as expressly authorized by us in these Terms, you may not make use of any IP contained in the Service unless you get separate permission from the owner. We reserve all rights to the IP not granted expressly in these Terms.
Subject to your ongoing compliance with these Terms, we grant you a non-exclusive, personal, limited, revocable, non-transferable license to use the Service on compatible devices that you own or control for your personal use. This includes the right to download and use software that we make available for download as part of the Service, in object code form only. This software is licensed, not sold, to you for use only pursuant to the Terms and only in connection with your use of the Service. These Terms will govern any updates provided to you by us that replace and/or supplement any part of the Service, unless such update is accompanied by a separate license, in which case the terms of that license will govern.
We respect the intellectual property rights of others and we ask you to do the same. If you are a copyright owner or an agent of a copyright owner and believe that any content on the Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by contacting by email@example.com.
Regarding any UGC that was removed or disabled, if you believe that your content is not infringing or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice to us.
You will indemnify, defend, and hold us and our partners (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
The Service AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH the Service ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AFFILIATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO the Service AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH the Service, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE AFFILIATED PARTIES DO NOT WARRANT THAT the Service OR ANY PORTION OF the Service, OR ANY MATERIALS OR CONTENT OFFERED THROUGH the Service, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH the Service WILL CREATE ANY WARRANTY REGARDING ANY OF THE AFFILIATED PARTIES OR US THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO the Service, YOUR DEALING WITH ANY OTHER USERS ON THE SERVICE, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH the Service. YOU UNDERSTAND AND AGREE THAT YOU USE the Service, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH the Service AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH the Service), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
No Consequential Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AFFILIATED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, the Service OR ANY MATERIALS OR CONTENT ON the Service, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE AFFILIATED PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF the Service OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $1,000 (EXCEPT AS NOTED IN THE ARBITRATION SECTION BELOW).
Basis of Bargain
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
These Terms and any Dispute regarding the use of the Services will be governed by Delaware law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Delaware, without regard to its choice of law or conflicts of law principles.
Binding Individual Arbitration
Both you and Klutch acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Klutch's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST KLUTCH.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute within at least 60 days from when notice of the dispute is sent, it shall be finally settled by binding arbitration in New Castle County, Delaware. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Rules will govern payment of all arbitration fees. Klutch will pay all arbitration fees for claims less than $10,000. Klutch will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. Either you or Klutch may assert claims, if they qualify, in small claims court in New Castle County, Delaware or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
YOU AND KLUTCH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Klutch are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Klutch over whether to vacate or enforce an arbitration award, YOU AND KLUTCH WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Klutch is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth herein. If you send the opt-out notice in, and/or in any circumstances where the foregoing arbitration agreement permits either you or Klutch to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Klutch agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New Castle County, Delaware, or the federal district in which that county falls. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement Section will be null and void. This arbitration agreement will survive the termination of your relationship with Klutch.
Notice to California Residents
Complaints. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, CA 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
Any part of these Terms which by their nature should survive the termination of these Terms, shall survive such termination, including without limitation the following sections: Indemnity, Disclaimers, Limitation of Liability, Dispute Resolution, Survival, and Waiver.
No waiver of any part of these Terms by either you or us shall be deemed a continuing or further waiver of any such part or any other part of the Terms, and your or our failure to assert any rights or part of these Terms shall not be deemed or otherwise constitute a waiver of such right or part.
You will comply with all laws in your use of the Service, including any applicable export laws. You will not directly or indirectly export, re-export, or transfer the Service to prohibited countries or individuals or permit use of the Service by prohibited countries or individuals.
The MiniApps, tools, calculators and functions that you create and make available are only part of the service that you are providing. We expect and require that anyone participating in the Developer Program to provide a full range of services to the community, which include the following:
- Providing an on-going experience that complies with our community standards and guidelines. This means that you will need to work with our Customer Service and to resolve any issues that do not comply with those guidelines.
- Updating your content for security, technical and other reasons. For example, you will need to make sure your content complies with Klutch’s latest technical and security updates and best practices.
- Providing assistance to Klutch for legal and compliance reasons. For example, we may ask your assistance with the DMCA take down process relating to intellectual property issues.