Qlutch User Agreement and Terms of Service
Dear Qlutch Customer:
THE FOLLOWING IS A LEGAL AGREEMENT BETWEEN YOU OR BY THE EMPLOYER OR OTHER ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“YOU or CUSTOMER”) AND QLUTCH MARKETING, INC, AN ARIZONA CORPORATION WITH ITS OFFICE AT 7047 E. GREENWAY PARKWAY, SUITE 250, SCOTTSDALE, ARIZONA 85254.
BY CREATING AN ACCOUNT ON QLUTCH.COM OR FROM OUR AFFILIATED SITE AT MARKETINGMO.COM, YOU AGREE TO THE FOLLOWING TERMS OF SERVICE (THE “AGREEMENT”) GOVERNING YOUR USE OF QLUTCH.COM’S (“Qlutch”, “Qlutch Marketing, Inc.” or “qlutch.com”) ONLINE SERVICE, INCLUDING WEB-BASED SOFTWARE AND OFFLINE AND DOWNLOADED CONTENT AND COMPONENTS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT SELECT TO CREATE AN ACCOUNT OR PURCHASE CREDITS AND USE THE SERVICE. IF YOU ARE A USER INVITED BY A COLLEAGUE, BY CREATING AND USING YOUR ACCOUNT, YOU AGREE TO ENTER INTO THIS AGREEMENT AND BE BOUND BY ITS TERMS AND CONDITIONS.
1. LICENSE AGREEMENT
(a) License Grant. Upon your acceptance of this Agreement, Qlutch grants you a non-exclusive, non-transferable (except as provided below), limited license to use the Service and its features.
By creating an account to use the Service, you may view content and use the functionality of the Service. If you purchase credits to download plans, reports, tools and documents, you may use these during the course of your education or work and modify them as you wish. Only individuals listed as users on your account have these rights.
You may not, however, publicly distribute or sell any of the content that is part of this Service, either content that is downloaded by you, even if you purchase credits, or content that is included in the website portion of this Service; publish the exact or reasonably similar content to the content contained in the Service on any public website, including your own; mass distribute any parts of the Service; or resell any part of the Service without the express written consent of Qlutch Marketing, Inc. This applies even after your account and license to use this Service expires or is terminated. The content and tools delivered by the Service are meant for your educational and internal business use only. We monitor the Internet and strictly enforce the terms of this Agreement.
You also may not: (i) store or create infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
(b) Software Access and Documents. After you agree to the terms of this Agreement by creating an account, you will be given a single user ID and password to access the software, electronic tools and the electronic files contained in the Service from the qlutch.com website.
You agree that you are responsible for all files and content posted to your account. You may not give anyone else your username or password. You must be 13 years old or older to use this service, and must be a human being. No account registered by automated programs or “bots” are allowed. You agree to use the Service at your own risk. You may not use this Service for any illegal purpose or activity.
You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You are responsible for maintaining the security of your account information, including your username and password. Qlutch will not be liable for any damages or loss resulting from your failure to do so.
You also agree that you will not reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, content, functions or graphics of the Service, or (c) copy any ideas, features, content, functions or graphics of the Service. User accounts cannot be shared or used by more than one individual user.
2. PRIVACY & SECURITY
Qlutch’s privacy and security policies may be viewed at qlutch.com. Qlutch reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Any new features that augment or enhance the current Service, including the release of new content, tools and resources, shall be subject to this Agreement.
You also acknowledge that Qlutch uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
3. ACCOUNT INFORMATION AND DATA
Qlutch does not own any data, information or material that you have created and submit to the Service in the course of using the Service (“Customer Data”). You, not Qlutch, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Qlutch shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Qlutch reserves the right to withhold, remove and/or discard Customer Data without notice for any breach of this Agreement by you, including, without limitation, copyright violations or your non-payment. Upon termination, your right to access or use Customer Data immediately ceases, and Qlutch shall have no obligation to maintain or forward any Customer Data.
The term of this agreement is month-to-month and commences upon your creation of an account. If you purchase credits, those credits must be used within 365 days of purchase or they will expire. The Service is a pay-as-you-go service, and you are not entitled to any refunds of payments for credits, whether you use them or not. Thus, no refunds are provided, either for unused credits or expired credits.
Your rights under this Agreement may be terminated by Qlutch immediately and without notice if you fail to comply with any term or condition of this Agreement. Upon termination of your account, you agree that Qlutch has no obligation to retain your customer data, credits, content or files, and may delete them at its discretion after the Term expires and your account is closed.
5. YOUR RESPONSIBILITIES
You are responsible for all activity occurring under your account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Qlutch immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Qlutch immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your users; and (iii) not impersonate another Qlutch user or provide false identity information to gain access to or use the Service.
Qlutch has no obligation to remove documents or content that Qlutch determines, in its sole discretion, to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service; however, Qlutch reserves the right to do so.
6. RESERVATION OF RIGHTS AND OWNERSHIP
Qlutch reserves all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. You acknowledge that Qlutch retains the ownership of all patents, copyrights, trade secrets, trademarks, technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and that you will take no actions which adversely affect Qlutch’s intellectual property rights in the Service, even after this Agreement is terminated. Any content delivered from the Service is licensed, not sold. This Agreement does not grant you any rights to use the content, trademarks or service marks of Qlutch. You shall not decompile, disassemble, or otherwise reverse engineer the Service.
7. DISCLAIMER OF WARRANTIES
This Service, its content and its associated analytical tools and methodology are a framework for the specialized intellectual content development and actions by the user, and are therefore dependent for its effectiveness on the knowledge, experience and hard work of the users and their colleagues and clients. Accordingly, no guaranty or warranty on this Service or on results to be garnered from its use can be given.
QLUTCH AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. QLUTCH AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
You acknowledge that the Service is sold on an “as is” basis. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY QLUTCH AND ITS LICENSORS.
You agree to hereby indemnify and hold Qlutch and its employees, contractors, vendors and partners harmless from any losses, claims, injuries, or damages, including loss of revenue claims and reasonable attorney’s fees, arising out of its use. Qlutch does not warrant that Service or any of its features are secure, free from bugs, viruses, interruption, errors, or other program limitations. You further agree to indemnify Qlutch for all costs and expenses that Qlutch incurs in the event that you breach any of the terms of this or any other agreement with Qlutch.
Qlutch and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of content or electronic files provided by Service contrary to United States law is prohibited.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL QLUTCH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF QLUTCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, QLUTCH ‘s ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, Qlutch’s liability shall be limited to the greatest extent permitted by law and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this License Agreement between Qlutch and you.
9. INTERNET DELAYS
Qlutch’s SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Qlutch IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
10. THIRD PARTY INTERACTIONS
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. Qlutch and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Qlutch does not endorse any sites on the Internet that are linked through the Service. Qlutch provides these links to you only as a matter of convenience, and in no event shall Qlutch or its licensors be responsible for any content, services, or other materials on or available from such sites. Qlutch provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software or services may require your agreement to an additional or different license or other terms prior to your use of or access to such software or services.
11. DATA STORAGE LIMITS
Qlutch currently doesn’t place any storage limits on a user account. Qlutch reserves the right to impose a maximum disk storage space on your account. Qlutch reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
12. CHARGES OF PAYMENTS AND FEES
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All payment obligations are non-cancelable and all amounts paid are non-refundable. You must provide Qlutch with a valid credit card or approved payment method as listed by the Service to receive any paid benefits of the Service.
13. BILLING AND RENEWAL
Qlutch charges and collects in advance for the purchase of credits to use in the Service. Qlutch will automatically bill your credit card according to the pricing option you select. You are responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Qlutch’s income.
You agree to provide Qlutch with complete and accurate billing and contact information. This information includes your legal name, company name (if you’re using for your company), street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Qlutch reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Qlutch in its discretion determines otherwise, you will be billed in U.S. Dollars (“USD”). If you believe your bill is incorrect, you must contact us in writing within 30 days of the charge containing the amount in question to be eligible to receive an adjustment or credit.
14. NON-PAYMENT AND SUSPENSION
In addition to any other rights granted for Qlutch herein, Qlutch reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
If you or Qlutch initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with Section 12 – Charges of Payment and Fees. You agree that Qlutch may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Qlutch reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Qlutch has no obligation to retain any of your data and that your data may be irretrievably deleted if your account is terminated or becomes 30 days or more delinquent.
15. TERMINATION FOR CAUSE
Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. Qlutch, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. Upon such termination, you must immediately cease using the Service features and electronic files and delete or destroy all complete and partial copies of electronic files provided through the Service, including all downloaded content and backup copies. Any termination of this Agreement shall not affect Qlutch’s rights hereunder.
You agree and acknowledge that Qlutch has no obligation to retain the customer data, and may delete such customer data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees.
16. REPRESENTATION AND WARRANTIES
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Qlutch represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Qlutch help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
17. ADDITIONAL RIGHTS
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Qlutch may give notice by means of a general notice in the Service (either by posting notice on the login page or on your homepage), electronic mail to your e-mail address on record in Qlutch’s account information, or by written communication sent to your address on record in Qlutch’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting or 12 hours after sending (if sent by email). You may give notice to Qlutch (such notice shall be deemed given when received by Qlutch) at any time by any of the following: by mail or overnight carrier to Qlutch Marketing, Inc. at 7047 E. Greenway Pkwy, Suite 250, Scottsdale, AZ 85254, or by submitting feedback to us from your account, as long as you receive confirmation of the feedback that you can present.
19. MODIFICATION TO TERMS
Qlutch shall have the right to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service or any of its features (including but not limited to Internet-based services, pricing, technical support options, and other Service-related policies) upon notice by any means Qlutch determines in its discretion to be reasonable, including sending you an email notification or posting information concerning any such change, addition, deletion, discontinuance in the Service or any of its features, on qlutch.com. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
20. ASSIGNMENT; CHANGE IN CONTROL
This Agreement may not be assigned by you without the prior written approval of Qlutch but may be assigned without your consent by Qlutch to any other party. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results in or would result in a direct competitor of Qlutch directly or indirectly owning or controlling 50% or more of you shall entitle Qlutch to terminate this Agreement for cause immediately.
21. GOVERNING LAW
The agreement shall be deemed to have been executed in the State of Arizona and shall be governed by and construed in accordance with the laws of the State of Arizona and that the local, state and federal courts in Maricopa County, Arizona shall have exclusive jurisdiction to any legal action taken by either party.
22. ENTIRE AGREEMENT
This Agreement, including any and all order forms and exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior proposals, representations or agreements.
A waiver by Qlutch or Licensee of any breach of any covenant, condition or provision (whether expressed, implied or otherwise) herein contained shall not be taken to be a waiver of any subsequent breach of the same or any other covenant, condition or provision.
Questions or additional information may be sent to:
Qlutch Marketing, Inc.
7047 E. Greenway Pkwy, Suite 250
Scottsdale, Arizona 85254
Effective September 1, 2016