These Terms govern your use of the Services, which you may use to open a Klutch Debit Card (“Klutch Account” or “Klutch Card”), issued by Stearns Bank, N.A. (“Bank”), member FDIC. The funds in your Klutch Card are administered and held by the Bank. Your Klutch Card is governed by the Bank's Cardholder Agreement and any other documents provided to you by or on behalf of the Bank (“Bank Terms”). By opening your Klutch Card or conducting any transaction involving the Klutch Card, you agree to be bound by the Bank Terms.
THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
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 Service. If you do not agree, you may not use theService. You must be at least eighteen (18) years old to use the Services. You represent and warrant to us that:
- You are at least eighteen (18) years of age;
- You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms;
- You are a resident of the United States with a United States mailing address;
- You have not been previously suspended or deactivated by us (unless we provide you written permission to do so).
A business cannot register for banking services through Klutch.
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.
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 sections Disputes and Binding Individual Arbitration, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Klutch Account subject to dispute) will be final and binding on all parties.
Klutch may provide periodic updates for the mobile application including updates like patches or bug fixes, enhanced functionality and offerings, and new versions of the mobile app. You agree and authorize Klutch to make automatic updates to the app and agree to make any manual updates or downloads ordered by Klutch where necessary.
At Klutch, our mission is to provide you tools and ability to empower your financial situation and reduce the burden of managing finances in a way that works uniquely for you. Our services are designed to give you more control over your money. We are not a bank and do not offer banking services as defined by the United States Department of Treasury. With your Klutch Card, a debit card issued by the Bank, you can authorize the purchase of goods and services. In addition, Klutch allows you access to our marketplace of MiniApps which you can use to customize and automate your life. We may also add to our Services as we create new ways for you to use our platform. Klutch reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Klutch will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
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.
You authorize the Klutch to initiate electronic transfers (via the Automated Clearing House("ACH") of NACHA - The Electronic Payment Association ("NACHA")) between your Klutch Account and your bank account on record. These transfers to make or receive payment may be one-time occurrences or may recur as directed by you. You agree that ACH transactions you authorize comply with all applicable law. You agree that once you have provided your authorization for the transfer, you will not be able to cancel the electronic transfer and Klutch may resubmit any ACH debit you authorized that is returned for insufficient or uncollected funds, except as otherwise provided by NACHA's ACH rules, or applicable law.
If you add a funding source to your Klutch Account, you agree that:
- You are the owner of the funding source;
- You are authorized to transfer funds from that funding source;
- You authorize us to initiate debits from your funding source according to your instructions.Any authorizations to debit a funding source will remain in full force and effect until you cancel the authorization by removing the funding source. By entering your funding source information on the Klutch mobile app, you have signed this ACH authorization and you should print and save a copy of it.
We may terminate these Terms, or suspend or terminate your Klutch Account or your access to any Service, at anytime for any reason. You may also terminate the Terms applicable to your Klutch Account by deactivating your Klutch Account. Any termination of these Terms does not relieve you of obligations to pay Fees or costs accrued prior to the termination, Chargebacks, and any other amounts owed to us as provided in these Terms. In the event your Klutch account has a negative balance, Klutch reserves the right to withhold refunds or credits to settle the negative balance. If these Terms or your Klutch Account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms will end, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. In addition to any payment obligations under the Payment Terms, the following sections of these Terms survive and remain in effect in accordance with their terms upon termination: (Disclaimer of Warranties; Limitation of Liability), (Third Party Products andServices), (Intellectual Property Rights), (Your Content), (Termination), (Indemnity), (Your Representations and Warranties), (Binding IndividualArbitration), (Governing Law), (Assignment), and (Other Provisions).
You agree to Klutch’s E-Sign Consent. We may provide disclosures and notices required by law and other information about your Klutch Account to you electronically, by posting it on our website or through an application downloaded and installed on a mobile device, pushing notifications through the Services, or by emailing it to the email address listed in your Klutch Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, mobile application, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, contact Klutch Support. If we are not able to support your request, you may need to terminate your Klutch Account.
You consent to accept and receive communications from us in electronic form, including e-mail, text messages, calls, and push notifications on your mobile device. These communications may be generated by automatic telephone dialing systems which will deliver prerecorded messages, including for the purposes of secondary authentication, receipts, reminders and other notifications. You agree that all communications provided to you by Klutch electronically satisfy any legal requirement that communication would satisfy if it were in writing.Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. In addition, downloading, installing, or using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You may also opt-out of text messages from Klutch at any time by texting STOP in response. You acknowledge that opting out of receiving communications may impact your use of the Services.
Notice for California Users: Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at email@example.com.
You agree not to, or will you permit any third party, 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; except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or other wise reverse engineer the Services to human perceivable form or create derivative works based upon the Services or any part thereof; 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, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Klutch; 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; “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; 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; 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 theServices, 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. You will not act as a payment facilitator or otherwise resell the Payment Services to any third party. You will not use the Payment Services to handle, process or transmit funds for any third party.
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through theServices any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Klutch’s or its partners’ products and services, as determined by us in our sole discretion; or (f) 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.
Third Party Content: Under no circumstances will Klutch be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Klutch does not pre-screen content, but that Klutch and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Klutch and its designees will have the right to remove any content that violates theseTerms or is deemed by Klutch, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
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 MAYNOT 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.
All third-party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. KLUTCH MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
We reserve all rights not expressly granted to you in these Terms. We own all rights, title, interest, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. These Terms do not grant you any rights to our trademarks or service marks. For the purposes of these Terms, “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 that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit comments or ideas about the Services (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality 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.
Unauthorized or illegal use: You will only use your Klutch Account for transactions that are allowed by law. We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of these terms or any other agreement with Klutch, or that it exposes you, our customers, our processors, merchants or Klutch to harm. Harm includes fraud and other criminal acts. If we suspect that your Klutch Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Klutch Account, and any of your transactions with law enforcement and, as deemed necessary by Klutch, our payment processing and financial institution partners.
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.
Additional Indemnity: In addition to the Terms, you will indemnify, defend, and hold us and our processors (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 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 any transaction submitted by you through thePayment Service.
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, it shall be finally settled by binding arbitration in New Castle County, Delaware.The arbitration will proceed in the English language, in accordance with theJAMS 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 suchRules. 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 seventy-five thousand ($75,000) dollars. 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. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MEMBER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER MEMBER OR USER. 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.
Any action or proceeding by you relating to any Dispute must commence within 90 days after the cause of action accrues.
Governing Law: These Terms and any Dispute will be governed by Delaware law and/or applicable federal law (including theFederal 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.
Assignment: These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
Force Majeure: Klutch shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
These Terms and Policies are a complete statement of the agreement between you and Klutch regarding the Services. In the event of a conflict between these Terms and the Bank Terms, the Bank Terms will prevail and control the subject matter of such conflict. If any provision of these Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. TheseTerms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term.
Fees are charged in accordance with your Cardholder Agreement with the Bank. If we access a fee for any other service, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you access our Services through a mobile device, your wireless service carrier’s data, message rates and other fees may apply.
If you link a debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device, we reserve the right to collect Paid Service Fees by deduction from your linked bank account. We reserve the right to correct any errors or mistakes made even if a payment has already been requested or received. Your failure to notify us of a processing error within sixty (60) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
Klutch offers Services that may be made available through the Apple App Store, Google Play Store or other distribution channels ("Distribution Channels"). If you obtain such Services through aDistribution Channel, you may be subject to additional terms of theDistribution Channel. These Terms are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services. With respect to Services that is made available for your use in connection with an Apple-branded product ("Apple-EnabledSoftware"), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:
- Klutch and you acknowledge that these Terms are concluded between Klutch and you only, and not with Apple Inc. ("Apple"), and that as between Klutch and Apple, Klutch, not Apple, is solely responsible for the Apple-EnabledSoftware and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth forApple-Enabled Software in, or otherwise be in conflict with, the App StoreTerms of Service.
- Your license to use the Apple-Enabled Software is limited to anon-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the AppStore Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-EnabledSoftware to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-EnabledSoftware, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Klutch's sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Klutch and you acknowledge that Klutch, not Apple, is responsible for addressing any claims of you or any third party relating to theApple-Enabled Software or your possession and/or use of that Apple-EnabledSoftware, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-EnabledSoftware or the end-user's possession and use of that Apple-Enabled Software infringes that third party's intellectual property rights, as between Klutch and Apple, Klutch, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting"country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Klutch and you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce theseTerms against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.