2. PAYMENT SERVICE PROVIDER RELATIONSHIP; LEGAL DOCUMENTS
Klinche is a payment service provider that facilitates payments between You and other users of the Website, App or Services (each payment or group of partial payments being a “Transaction“). You understand and agree that Klinche does not have control of, or liability for, the actions, products or services of the third parties with which You engage in Transactions via the Website, App or Services, and that Klinche cannot guarantee the identity, creditworthiness, professional qualifications, or actions of any other user or third party.
As part of a Transaction, You may be required to enter into and/or provide additional contracts, assignments, liens, escrows, and documents, including without limitation assignments of receivables (collectively, “Legal Documents“), to which Klinche may or may not be a party. As to any Legal Document to which Klinche is a party, the terms of said Legal Document are incorporated herein by reference.
BY USING THE WEBSITE, APP OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Website, App or Services on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
Subject to Your compliance with the terms and conditions of this Agreement, Klinche grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Website, App and Services. The Website and App, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of Klinche. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of Klinche or any other party. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. In the event that You breach any provision of this Agreement, Your rights under this section will immediately terminate.
By accessing the Website, App or Services, You authorize Klinche to act as Your agent for the limited purpose of holding, receiving, and disbursing funds on Your behalf. This authorization permits Klinche to initiate an electronic funds transfer to or from Your associated ACH-enabled “Payment Account” to process each Transaction authorized by You. You agree that Klinche may share information about You and Your Klinche account with its processor and/or acquiring bank. You further authorize Klinche to request information about You to verify Your identity and/or Payment Account, including without limitation by initiating a “ping,” or small transfer, to confirm the link between Klinche and Your Payment Account. Your authorizations will remain in full force and effect until You terminate this Agreement by closing Your Klinche user account. You acknowledge that all transactions shall be processed as “card not present” transactions, even where parties to a transaction are at the physical point of sale.
For all payments You receive through Klinche, You agree to pay the applicable “Fees” to Klinche displayed to You via the Website or App at the time You authorize a payment or Transaction, which Fees are comprised of: (i) a processing fee of two and sixty-five hundredths percent (2.65%) of the total amount of the Transaction, and (ii) a transaction fee of thirty cents ($0.30) for each payment processed as part of the Transaction. Notwithstanding the foregoing, Your Fees may be less than the stated amount, as indicated to You at the time of authorization, if the Transaction qualifies for an incentive program or promotional rate.
Subject to the terms of this Agreement, Klinche reserves the right to change its Fees upon thirty days’ advance notice to You; provided, however, that all Transactions initiated before the thirty-day notice period will not be subject to the changed fees. By continuing to use the Website, App or Services during and/or after the thirty-day notice period, You consent to the change in fees. All fees, charges and payments collected by or paid to Klinche are denominated in US dollars ($USD).
In addition to the foregoing Fees, You understand and agree that You are responsible for paying all fees incurred as a result of Your misconduct in using the Website, App or Services, regardless of whether such fees are assessed by Klinche or a third-party financial institution or organization, and regardless of whether such fees are assessed to Klinche or directly to You.
Funds received for any Transaction will be transferred to Your Payment Account via ACH within three (3) business days of receipt of the same by Klinche, subject to any holds instituted by a third-party financial institution or organization. If You do not have an ACH-enabled Payment Account, Klinche will notify You via email and request that such a Payment Account be linked to Your Klinche account. It is Your obligation to ensure You have an ACH-enabled Payment Account and You understand and agree that Klinche will not make any payout to You through any other means, including cash or check. You further understand and agree that no amount held in Your Klinche Account will accrue any interest.
d) SETOFF, SUSPENSION & RESERVE
Should Klinche need to conduct an investigation or resolve any pending dispute related to Your account, Klinche may defer payout or restrict access to Your funds while the investigation or dispute is pending. Klinche may also defer or redirect payout as necessary in order to comply with applicable law or the order or other process of a Court, law enforcement, or other governmental entity. You understand and agree that Klinche has no obligation to contest or appeal any such order or process.
You hereby grant Klinche a security interest in, as well as a right of setoff against, and hereby assign, convey, deliver, pledge and transfer to Klinche, as security for repayment of any obligations due under this Agreement, all of Your right, title, and interest in and to all of Your Klinche accounts, including any Reserve (as defined below). However, this grant will not apply to any accounts for which the grant of a security interest would be prohibited by law. You authorize Klinche, without prior notice to You and irrespective of (i) whether a demand has been made under this Agreement or any other related agreements; and (ii) whether the obligation is contingent, matured or unmatured, to the extent permitted by law, to collect, charge, and/or setoff all sums owing on the indebtedness against any and all such accounts and other obligations, and at Klinche’s sole discretion, to administratively freeze or direct any third party bank holding the account to freeze all such accounts to allow Klinche to protect its security interest, collection, charge and setoff rights as provided for in this section.
At any time, and in its sole discretion, Klinche may, in order to protect its rights and that of other users, create and fund a “Reserve” by withholding a percentage of the funds received into Your Klinche Account in order to protect against the risk of refunds, Chargebacks (as defined below), claims, or other liability related to Your use of the Website, App or Services. You hereby authorize Klinche to make any withdrawals or debits from the Reserve, without prior notice to You, to collect amounts owed to Klinche or other users under this Agreement or any Legal Document.
e) REFUNDS & RETURNS
If sell or offer for sale any goods or services using the Website, App, or Services, You are required to provide and honor a “Refund and Return Policy” that clearly states the terms for all refunds and/or returns of goods. The Refund and Return Policy must be provided in writing to all other parties to the Transaction before the Transaction is consummated. You are exclusively responsible for drafting, communicating, and honoring Your Refund and Return Policy, and for processing all refunds and returns thereunder.
The payout for any Transaction may be subject to a “Chargeback” if it (a) is disputed by the payor, (b) it is reversed by the payor or financial institution for any reason, (c) it was not authorized or Klinche, in its sole discretion, has reason to believe it was not authorized, or (d) it is unlawful, suspicious, or in violation of this Agreement or any legal Document. You understand and agree that You are exclusively responsible for all Chargebacks. You agree to immediately pay Klinche the amount of any Chargeback and all associated fees, fines, or penalties assessed by Klinche’s payment processors or their acquiring banks. You further agree to pay Klinche a “Chargeback Fee,” in the amount of thirty-five dollars ($35.00), for each Chargeback. If You do not have sufficient funds in Your Klinche Account to pay all amounts owed as the result of any Chargeback, You hereby authorize Klinche to debit said funds from Your associated Payment Accounts. If Klinche, in its sole discretion, determines You are incurring excessive Chargebacks, Klinche may establish controls or conditions governing Your Klinche Account, including without limitation those set forth in the immediately preceding subsection.
It is solely Your responsibility, and not Klinche’s, to determine, calculcate, report, and pay all applicable taxes to any appropriate tax authority governing Your transactions through the Website, App, and Services. You acknowledge that Klinche has advised You to retain tax counsel and that Klinche has no obligations to You to notify You of any tax obligation or to pay any obligation incurred by You.
8. RELIANCE ON THIRD-PARTY CONTENT
Opinions, advice, statements, or other information made available by means of the Website, App and Services by third-parties, are those of their respective authors, and should not necessarily be relied on. Such authors are solely responsible for such content. KLINCHE DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE WEBSITE OR APP; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE WEBSITE, APP OR SERVICES. UNDER NO CIRCUMSTANCES WILL KLINCHE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO OR BY ANY THIRD-PARTY.
9. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE, APP AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY KLINCHE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “KLINCHE PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE WEBSITE, APP AND SERVICES.
10. USER INFORMATION; USER AUTHENTICATION; PASSWORD PROTECTION
You authorize Klinche, directly and through authoritzed third party vendors, to make additional formal background check inquiries that are necessary in the reasonable commercial judgment of Klinche to verify Your identity and bona fides. This may include direct requests for personal or business information, including EIDs, or credit records that are compiled by third parties from third-party databases. This may also include requiring You to take active steps to verify Your identity by providing government issued identifying documents.
In connection with Your use of the Services, You will be required to complete a registration form that includes personal information, including sensitive financial and identifying information. You represent and warrant that all user information You provide on the registration form or otherwise in connection with Your use of the Website, App and Services will be current, complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy by visiting Your personal profile.
You may also be asked to provide a username and password in connection with Your use of certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, username or password of any other user at any time. You agree to notify Klinche immediately of any unauthorized use of Your account, username or password. Klinche shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Klinche, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.
11. YOUR INTERACTIONS WITH OTHER USERS
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER KLINCHE USERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT KLINCHE HAS NOT, AND DOES NOT, IN ANY WAY: (A) SCREEN ITS USERS; (B) INQUIRE INTO THE BACKGROUNDS OF ITS USERS; OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS USERS. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU DECIDE TO (A) ENGAGE IN A FINANCIAL TRANSACTION WITH ANOTHER USER, OR (B) MEET ANOTHER USER IN PERSON. KLINCHE DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS USERS. IN NO EVENT SHALL KLINCHE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY USER’S CONDUCT IN CONNECTION WITH SUCH USER’S USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS BETWEEN USERS.
12. USER DISPUTES
You agree to attempt to resolve all disputes with other Users privately. You agree to hold Klinche harmless in connection with any dispute or claim You make against any other user.
13. CONSENT TO RECEIVE EMAIL FROM KLINCHE
By registering with the Website or App, You thereby consent to receive periodic email communications from Klinche regarding Your account, the Services, new services, and other matters.
14. CONSENT TO RECEIVE EMAIL COMMUNICATIONS FROM OTHER USERS
By registering with the Website or App, Your thereby consent to receive electronic communications, including email and personal messages from other users.
15. THIRD-PARTY WEBSITES
The Website and/or App may be linked with the websites of third parties (“Third-Party Websites“), some of whom may have established relationships with Klinche and some of whom may not. Klinche does not have control over the content and performance of Third-Party Websites. KLINCHE HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, KLINCHE DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. KLINCHE DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
16. USER CONTENT
“User Content” is any content, materials or information that You upload or post to, or transmit, display, perform or distribute by means of, the Website, whether in connection with Your use of Services or otherwise. To clarify, You maintain full ownership of all Your User Content posted to Klinche. Because You own Your User Content, under the law, Klinche requires a license from You before it can allow the User Content to be posted on the Website. For these reasons, the following provision is a necessary part of this Agreement:
YOU HEREBY GRANT THE KLINCHE PARTIES A FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, REVOCABLE (IN WRITING AND UPON FORFEITURE OF USE OF THE WEBSITE, APP AND SERVICES), ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE WEBSITE, APP, SERVICES OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED. YOU FURTHER AGREE THAT THE KLINCHE PARTIES MAY PUBLISH OR OTHERWISE DISCLOSE YOUR PERSONAL INFORMATION IN CONNECTION WITH THEIR EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY CLAIMS ARISING FROM OR RELATING TO THE EXERCISE OF THE RIGHTS GRANTED UNDER THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE OF THE LICENSE GRANTED UNDER THIS SECTION.
You hereby represent and warrant that You own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided the Klinche Parties under this section.
17. PUBLIC FORUMS
“Public Forum” is any area, site or feature offered as part of the Website or App (including without limitation discussion forums, message boards, blogs, and chat rooms) that enables You (a) to upload, submit, post, display, perform, distribute and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other users. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum may be viewed via the Website or App by other users and/or the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content You upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum and for the consequences of submitting or posting same. KLINCHE DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR PUBLIC FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED THEREON.
18. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that You may be held legally responsible for damages suffered by other Website users or third-parties as the result of Your remarks, information, feedback or other content posted or made available on the Website or App that is deemed defamatory or otherwise legally actionable. Under the federal Communications Decency Act of 1996, Klinche is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content posted or made available on the Website.
19. OBJECTIONABLE CONTENT
You represent and warrant that You shall not use the Website, App or Services to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18; (d) incite, encourage or threaten physical harm against another; (e) promote or glorify racial intolerance, use hate and/or racist terms, or signify hate towards any person or group of people; (f) glamorize the use of hard core illegal substances and drugs; (g) violate any provision of this Agreement or any other Klinche agreement or policy; or (h) is generally offensive or in bad taste, as determined by Klinche (collectively, “Objectionable Content“). KLINCHE DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENTS OF THE WEBSITE AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREON. Without limiting any of its other remedies, Klinche reserves the right to terminate Your use of the Website, App and Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. Klinche, in its sole discretion, may delete any Objectionable Content from its servers. Klinche intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
20. PROHIBITED USES
Klinche imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that You will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information, including without limitation financial information, to Klinche or any other user; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) harvest or otherwise collect information about Klinche users, including email addresses and phone numbers; (e) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website or App for any use, including without limitation use on third-party websites; (f) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (g) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (h) interfere or attempt to interfere with the use of the Website, App or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (i) use the Website, App or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (j) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website, App or Services; (k) engage in any restricted transactions for example, without limitation, by knowingly accepting gambling business in connection with unlawful online gambling; or (j) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Klinche in providing the Website, App or Services. Any violation of this section may subject You to civil and/or criminal liability.
21. INTELLECTUAL PROPERTY
a) Compliance with Law
You represent and warrant that, when using the Website, App and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website, App and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third-party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE, APP AND SERVICES. YOUR BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
KLINCHE, KLINCHE.COM and the “Klinche logo” (collectively, the “Klinche Marks“) are trademarks or registered trademarks of Klinche, Inc. Other trademarks, service marks, graphics, logos and domain names appearing on the Website may be the trademarks of third-parties. Neither Your use of the Website, App and Services nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the Klinche Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Klinche Marks generated as a result of Your use of the Website, App and Services will inure to the benefit of Klinche, Inc, and You agree to assign, and hereby do assign, all such goodwill to Klinche, Inc. You shall not at any time, nor shall You assist others to, challenge Klinche, Inc.’s right, title, or interest in or to, or the validity of, the Klinche Marks.
c) Copyrighted Materials; Copyright Notice
All content and other materials available through the Website, App and Services, including without limitation the Klinche logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Klinche, Inc or are the property of Klinche’s licensors and suppliers. Except as explicitly provided, neither Your use of the Website, App and Services nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2015 to the present, Klinche, Inc. ALL RIGHTS RESERVED.
22. DISCLAIMERS; LIMITATION OF LIABILITY
a) NO WARRANTIES.
KLINCHE, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE, APP AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, KLINCHE, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE OR APP, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NEITHER KLINCHE NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE, APP OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE, APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER KLINCHE NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER FOR YOUR USE OF THE WEBSITE, APP OR SERVICES.
b) YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE WEBSITE, APP AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD KLINCHE OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS, MOBILE DEVICES, OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, VIRUSES, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
c) LIMITATION OF LIABILITY
THE LIABILITY OF KLINCHE AND ITS LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KLINCHE OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO KLINCHE OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE, APP OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF KLINCHE AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES SHALL BE $100.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN KLINCHE AND YOU. THE WEBSITE, APP AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND KLINCHE OR BETWEEN YOU AND ANY OF KLINCHE’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. KLINCHE’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
23. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website, App and Services will be in accordance with this Agreement and any other Klinche policies, and with any applicable laws or regulations.
24. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You agree to defend, indemnify and hold harmless Klinche and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Industry Professionals (collectively, the “Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement or any Legal Document, including without limitation any representation or warranty contained in this Agreement or any Legal Document; (ii) Your access to or use of the Website, App or Services; (iii) Your provision to Klinche or any of the Indemnified Parties of information or other data, including without limitation financial information; or (iv) Your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation; (v) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights; or (vi) any goods or services You advertise or solicit through the Website and/or Services.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
25. GOVERNING LAW; JURISDICTION AND VENUE
The Website, Services, and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in San Francisco, California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
a) Binding Arbitration.
You agree that any dispute, of any nature whatsoever, between You and Klinche arising out of or relating to the Website, App, Services, or this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in San Francisco, California unless You and Klinche mutually agree to a different arbitrator, who shall render an award in accordance with the substantive laws of California and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee and reasonable attorneys’ fees) to the prevailing party.
b) Restrictions Against Joinder of Claims
You and Klinche agree that any arbitration shall be limited to each Claim individually. To the fullest extent under the law, (1) no arbitration shall be joined with any other arbitration; (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures; and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
c) Remedies in Aid of Arbitration; Equitable Relief.
This agreement to arbitrate will not preclude You or Klinche from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or Klinche from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN SAN FRANCISCO COUNTY, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
a) By Klinche
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, KLINCHE RESERVES THE RIGHT TO, IN KLINCHE’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE, APP AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION. BREACHES WILL INCLUDE WITHOUT LIMITATION YOUR REFUSAL TO VERIFY ANY IDENTIFYING INFORMATION, YOUR KNOWING OR UNKNOWING CONDUCT THAT RESULTS IN RED FLAGS FROM KLINCHE’S PROPRIETARY RISK MODELING ASSESSMENT, OR YOUR VIOLATION OF ANY PROHIBITED USES, INCLUDING THOSE DETAILED IN SECTION 20 ABOVE, WITHOUT LIMITATION.
b) Automatic Termination Upon Breach By You
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by Klinche.
c) By You
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to Klinche notice of Your intention to do so, in the manner required by this Agreement. This does not provide You any right to close your awith Klinche for the express purposes of evading an investigation or to circumvent liability for payment obligations You have accrued, and Klinche reserves the right to freeze Your account in the event of any credible evidence of wrongdoing.
d) Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website, App and Services. Upon termination, Klinche may, but has no obligation to, in Klinche’s sole discretion, rescind any services and/or delete from Klinche’s systems all Your Personal Information and any other files or information that You made available to Klinche or that otherwise relate to Your use of the Website, App or Services. Subsequent to termination, Klinche reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website, App and Services, including without limitation technological barriers such as IP mapping and direct contact with Your Internet Service Provider. YOU ACKNOWLEDGE AND AGREE THAT TERMINATION OF THIS AGREEMENT WILL TERMINATE ALL OF YOUR RIGHTS IN THE PAID GOODS AND SERVICES YOU PURCHASED THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION DIGITAL GOODS SUCH AS BADGES. YOU HEREBY AGREE THAT THERE ARE NO REFUNDS FOR PAID GOODS AND SERVICES UPON TERMINATION.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1, 2, 4-8, 9-10, 14-27 will survive any termination of this Agreement. For clarification, termination of this Agreement will not relieve You of Your obligation to pay any fees owed Klinche or any third party under a Legal Document.
You should immediately notify Klinche if You believe there has been an unauthorized transaction or unauthorized access. All notices required or permitted to be given under this Agreement must be in writing. Klinche shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Klinche. You agree that any notice received from Klinche electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH KLINCHE IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY KLINCHE OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Klinche by means of email to [insert email address].
This Agreement constitutes the entire agreement between Klinche and You concerning Your use of the Website, App and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of Klinche or by the unilateral amendment of this Agreement by Klinche and by the posting by Klinche of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of Klinche. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and Klinche are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Except for the Indemnified Parties and Klinche’s licensors and suppliers as expressly set forth herein, there are no third-party beneficiaries to this Agreement. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.