, which is hereby incorporated by reference. This Agreement applies to all visitors, users, and others who register for or otherwise access the Site or use the Services ("Users", "you", or "your").
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS 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.
In this agreement
- "Customer Item(s)" means the items packed by you, Clutter, a third party, or a third party on behalf of Clutter for storage and/or transport by Clutter.
- "Service(s)" means the storage services and/or moving services provided by or on behalf of Clutter as described in Section 3 below.
- "Delivery Zone" means the zip codes serviced by Clutter, which can be found at http://www.clutter.com/locations
2. USER OF OUR SITE
This is a contract between you and Clutter. You must read and agree to these terms before using the Clutter Site or Service. If you do not agree, you may not use the Service. You may use the Site or Service only if you can form a binding contract with Clutter, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. You must be at least 18 years old to use the Site and Services. By registering to use the Site and Services, you represent and warrant that you are 18 years of age or older. Any use or access to the Site or Services by anyone under 18 is strictly prohibited and in violation of this Agreement. The Site and Services not available to any Users previously removed from the Site by Clutter.
- Clutter Site
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Site for your personal, noncommercial use only and as permitted by the features of the Site. Clutter reserves all rights not expressly granted herein in the Site and the Clutter Content (as defined below). Clutter may terminate this license at any time for any reason or no reason.
- Clutter Accounts
Your Clutter account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. If you open a Clutter account on behalf of a company, organization, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Clutter with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use ‘strong" passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your account. You must notify Clutter immediately of any breach of security or unauthorized use of your account. Clutter will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and account settings by emailing us at firstname.lastname@example.org, updating your profile online at www.clutter.com, or calling us at 1-800-805-4023. By providing Clutter your email address, you consent to our using the email address to send you Site- and Service - related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Site and Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by emailing us at email@example.com. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
- Site Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Site in a manner that sends more request messages to the Clutter servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Site; (vii) collecting or harvesting any personally identifiable information, including account names, from the Site; (viii) using the Site for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Site; (xi) accessing any content on the Site through any technology or means other than those provided or authorized by the Site; or (xii) bypassing the measures we may use to prevent or restrict access to the Site, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein.
3. THE STORAGE SERVICE
Subject to the terms and conditions of this Agreement, including without limitation the payment of all fees under this Agreement, Clutter shall, upon request: (i) arrive at the address you designate as the pickup address (the "Pickup Address"); (ii) pack your Customer Items into one or more boxes, prepare furniture and other large items for safe transport using moving blankets and other required packing materials; (iii) photograph the packed Customer Items from above, prior to packing or wrapping, to document their condition prior to transport and storage; (iv) pick up the boxes or other packaging containing Customer Items that you or Clutter have packed from your Pickup Address; and (v) (i) if you request storage services only, transport the Customer Items to a storage facility (chosen at our discretion) for storage and return those Customer Items to the Pickup Address on the date you designate, or (ii) if you request moving services only, transport the Customer Items to the address you designate as the delivery address (the “Delivery Address”), or (iii) if you request both storage and moving services, transport the Customer Items to a storage facility (chosen at our discretion) for storage, and then deliver those Customer Items to the Delivery Address on the date you designate.
Clutter will not deliver or return Customer Items to an address that is outside our then-current delivery zone as listed on our Site, https://www.clutter.com/locations, or otherwise made available to you in writing (a “Delivery Zone”), unless we otherwise agree to do so in writing. Times given for delivery, collection, and return are only estimates and Clutter shall not be liable for any delay in delivery, collection, or return. Clutter, at its sole discretion, will facilitate the transport of your items from the Delivery Zone from your initial pick-up to a Delivery Zone in a new city at pricing to be determined by Clutter and approved by you.
Clutter may cancel, postpone, or otherwise reschedule any delivery, collection, or return of Customer Items for any reason or no reason, including without limitation in the event that Clutter believes, in its sole discretion, that it may endanger any Clutter employee, agent, contractor or other individual due to (including but not limited to) severe weather conditions or by reason of Clutter having limited access to the Delivery Address.
Clutter may use subcontractors and/or third parties to help perform any Clutter obligations or services under this Agreement or any other agreements that incorporate this Agreement, including without limitation for pick-ups, return deliveries, and other logistics with respect to Customer Items.
You acknowledge and agree that Clutter will not be responsible for: (i) dismantling or assembling any unit, system, or furniture (including flat pack and air chamber beds); or (ii) disconnecting, reconnecting, dismantling or reassembling appliances, fixtures, fittings or equipment. While Clutter makes a good faith effort to place all Customer Items in suitable environments and/or means of transport or storage, Clutter transports and stores a large variety of items, some of which require specific environments or means of transport or storage. Clutter does not warrant that any transport vehicle or storage facility used by Clutter is a suitable place or means of transport or storage for any particular Customer Items.
- Your Responsibilities; Waiver of Non-Photographed and Improperly Packed Items
You will be solely responsible for: (i) obtaining and ensuring that Clutter or its carrier has such access to any parking as may be reasonably required to carry out the Services; (ii) being present, or ensuring that someone authorized by you is present, during the delivery, collection, and return of the Customer Items; (iii) providing Clutter with your contact details and ensuring that such contact details are accurate and up-to-date; (iv) ensuring that the Customer Items you pack have been securely packed into the appropriate boxes so as not to cause damage or injury or the likelihood of damage or injury to your Customer Items, Clutter’s property, employees, agents, contractors, business partners, other goods, or other individuals, whether by spreading of dampness, infestation, leakage or the escape of fumes or substances or otherwise; (v) informing Clutter immediately upon delivery of any damage to the Customer Items or your property that occurred during a delivery, collection or return service; and (vi) reimbursing Clutter in full an amount equal to all damages, liabilities, costs, claims and expenses that Clutter may incur as a result of your use of the Service or any breach by you of this Agreement.
You understand that Clutter is only responsible for those Customer Items that have been visually inspected and photographed by Clutter. You acknowledge that you are solely responsible for verifying that Clutter has photographed and inventoried all the Customer Items and that the inventory Clutter provides you is a true and complete inventory of the personal property tendered. You hereby waive and release Clutter from responsibility for any damage to items that were not packed, sealed, inspected and photographed by Clutter. Clutter uses packing blankets and packing supplies to ensure safe transport. If any items are not packed into boxes or protected with moving blankets you are solely responsible for damage to those items.
- The Customer Items
You represent and warrant that you own the Customer Items or that you otherwise have the right and authority to transport, store and use the Customer Items in accordance with this Agreement.
The Customer Items must not include and you must not provide to Clutter for storage or transport any of the following in connection with the Services: antiques (whether or not breakable and fragile), perishable goods, firearms, explosives, used tires, plants, birds, fish, other animals, or any other living thing, arms or ammunition, any item which emits fumes, smells or odors, bullion (e.g., gold-silver), jewelry, currency, ivory, precious metals or stones, any drugs, illegal substances or goods, or goods or substances illegally obtained, combustible or flammable materials, liquids or compressed gases, diesel, petrol, oil, gas, artificial fertilizer or cleaning solvents, chemicals, radioactive materials or biological agents, toxic waste, asbestos or other materials of a dangerous or harmful nature, any other toxic, flammable or hazardous goods, human remains, or any other items, the possession, usage, transport or storage of which may detrimentally affect any of your other Customer Items or violate in any way the laws of the United States or any other applicable laws, rules, or regulations (collectively, "Prohibited Customer Items").
According to Clutter’s sole discretion, Clutter may regularly conduct, or have its subcontractors conduct, pest control inspections of any and all Customer Items.
Clutter or its contractors may at any time without notifying you open any Customer Items to inspect the Customer Items if Clutter: (i) believes, in its sole discretion, that the Customer Items may include any Prohibited Customer Items; (ii) is required to do so by the police, fire services, local authorities or by court order; (iii) determines, in its sole discretion, it necessary for account or warehouse maintenance; or (iv) considers it necessary, in its sole discretion, in an emergency or to prevent injury or damage to persons or property.
Clutter may refuse to store or transport any Customer Items, or may return to you any Customer Items, at your cost, at any time, if, in Clutter’s sole discretion, the storage, continued storage, or transport of the Customer Items would represent a risk to the safety of any person, the security of the storage site or transport vehicle, or any other goods at the storage site or in the transport vehicle.
- Payment, Subscription Services and Cancellation
By using the Services or other paid services or products provided by Clutter, you agree to the pricing and payment terms, as we may update them from time to time. Clutter may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
In order to receive Subscription Services, you must have internet access and provide Clutter with a current, valid, accepted method of payment (as updated from time to time, “Payment Method”). You hereby authorize Clutter to bill the subscription fee to your Payment Method, along with any applicable taxes or additional fees due during the billing period. You acknowledge that the amount billed during each billing period may vary from month to month for reasons that may include different amounts due to promotional offers, changing your subscription plan, and so on. You must cancel your subscription prior to the end of the then-current subscription period in order to avoid billing of the next subscription period’s subscription fees to your Payment Method.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Site or Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Clutter at the prices in effect when such charges are incurred. You will pay any applicable taxes (including without limitation any applicable sales tax), if any, relating to any such purchases, transactions or other monetary transaction interactions. Any amounts not paid when due shall bear interest at the rate of 15% per month or the maximum rate allowed by law, whichever is less.
You may cancel your Subscription Services at any time once the minimum storage term has been met; however, there are no refunds for cancellation for the then-current subscription period. To cancel, email us at firstname.lastname@example.org or call us at 1-800-805-4023. When you cancel the Subscription Services, you cancel only future charges associated with your subscription. You may notify us of your intent to cancel at any time, but the cancellation will become effective at the end of your current billing period. Cancellations are effective the following subscription period. You will not receive a refund for the then-current subscription period. You will continue to have the same access and benefits of your product for the remainder of the current subscription period. In addition, Clutter requires minimum payment commitments, and you remain obligated to pay the full amount of any such minimum payment commitment you have made to Clutter, regardless of whether and at what point you cancel your Clutter account. In the event that Clutter suspends or terminates your account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused storage time, any license or subscription fees for any portion of the Site or Services, any content or data associated with your account, or for anything else, and that Clutter may be unable to complete any outstanding orders or appointments until the suspension is lifted. You will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to any orders processed prior to your cancellation of the Subscription Services.
- Clutter’s Right to Withhold or Dispose of Customer Items
Clutter shall have the right to withhold and ultimately dispose of some or all of the Customer Items in accordance with this clause if either: (i) you do not pay any applicable fees or any other payments due under this Agreement or (ii) you abandon your Customer Items, which will occur in the event your Clutter subscription terminates or expires and you fail to take possession of your Customer Items within 45 days from the termination or expiration date, despite Clutter’s or an applicable courier’s good faith attempts to return your Customer Items.
You will be responsible for all transport and storage charges and other associated costs reasonably incurred by Clutter while withholding or disposing of the Customer Items. Clutter will provide you with 45 days’ written notice requiring you to pay all amounts due and contact Clutter to arrange for re-delivery of the Customer Items. If upon the expiration of the 45-day notice period you have failed to pay all of the amounts due, Clutter may dispose of some or all of the Customer Items by sale or otherwise.
If in Clutter’s opinion the Customer Items cannot be sold for a reasonable price or at all (for any reason), or despite Clutter’s reasonable efforts they remain unsold, you authorize Clutter to treat them as abandoned and to destroy or otherwise dispose of them at your cost. You shall be responsible for all costs reasonably incurred by Clutter in relation to the disposal of the Customer Items. If Clutter receives money on disposal of the Customer Items, the net proceeds of sale will be credited to your account and Clutter will pay any excess amounts to you without interest, less Clutter’s administrative charge of $150.00.
If, after having made reasonable efforts to do so, Clutter is unable to return any excess amounts received by Clutter from the disposal of your Customer Items to you, including having given not less than 90 days’ written notice to you, Clutter may retain any such excess amounts for its own account. If the proceeds of sale (if any) are insufficient to discharge the outstanding charges or any other payments due to Clutter under this Agreement and the costs of sale, you must pay any balance outstanding to Clutter within 7 days of a written demand from Clutter. Interest will accrue on the balance in accordance with the Payment Section above until the balance is paid in full.
- Clutter’s Limited Security Warranty
Clutter agrees to provide you with a limited security warranty regarding your Customer Items as set forth in the terms and conditions of our Limited Security Warranty Policy
. This Limited Security Warranty Policy is expressly incorporated by reference herein.
You may terminate this Agreement at any time by requesting the return of your Customer Items and by paying any outstanding fees due to Clutter. We may, without prior notice, change the Site or Services; stop providing the Site or Services or features of the Site or Services, to you or to Users generally; or create usage limits for the Site or Services. We may permanently or temporarily terminate or suspend your access to the Site or Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
Upon termination of this Agreement for any reason you must contact Clutter promptly to arrange for delivery of your Customer Items. If within 45 days following termination of this Agreement for any reason you fail to arrange for delivery of all of your Customer Items, then Clutter may process the Customer Items in accordance with the provisions of the section titled "Clutter’s Right to Withhold or Dispose of Customer Items" above.
4. OUR PROPRIETARY RIGHTS
Except for the content you submit, post, display, or otherwise make available to Clutter in connection with the Services (“User Content”), the Site and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, Site marks, copyrights, photographs, audio, videos, music, and content belonging to other Users (the "Clutter Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Clutter and its licensors (including other Users who post User Content to the Site). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Clutter Content. Use of the Clutter Content for any purpose not expressly permitted by this Agreement is strictly prohibited. You hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to Clutter a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide right and license to use, reproduce, modify, publicly perform, display, and make derivative works of your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Services.
You may choose to or we may invite you to submit feedback, comments, suggestions, error identifications, or ideas about the Site or Services, including without limitation about how to improve the Site, the Services, or our other services or products ("Idea(s)"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Clutter under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Clutter does not waive any rights to use similar or related ideas previously known to Clutter, or developed by its employees, or obtained from sources other than you.
5. SMS/TEXT MESSAGE ALERTS AND CALLS.
By consenting to Clutter’s SMS/text messaging and calls service, you agree to receive SMS/text messages and calls with service, transaction, account-related, and commercial news, events, offers, and promotions from and on behalf of Clutter to your mobile phone number provided, even if your mobile number is registered on any state or federal Do Not Call list. You certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages and calls. You are strictly prohibited from registering a mobile number that is not your own. You acknowledge and agree that calls or text messages may be sent using automated technology, including through an automatic telephone dialing system.
You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with Clutter. Your participation in our alerts program is completely voluntary. Standard message and data rates may apply from your carrier. Check your mobile plan and contact your mobile carrier for details. You are solely responsible for all charges related to SMS/text messages and calls, including charges from your mobile carrier. You can unsubscribe at any time.
You may opt-out of receiving promotional calls or SMS text messages at any time. Please note that unsubscribing from promotional calls and SMS text messages will not prevent you from receiving calls or SMS texts from Clutter directly relating to your use of the Service, such as account information, item pick-up details and delivery information that are necessary to provide the requested Service to you. To unsubscribe from promotional calls or SMS texts, email email@example.com and provide your phone number and opt-out preference, or call us at 1-800-805-4023.
6. NO SALES TO CHILDREN
Clutter does not sell products through its Site or Service for or to children, but only to adults, who can purchase with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Service only with involvement and consent of a parent or legal guardian.
7. CALIFORNIA RESIDENTS
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Clutter cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
10. THIRD-PARTY LINKS
do not apply to your use of such sites and services. You expressly relieve Clutter from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Site or in connection with the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Clutter shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless Clutter and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Site, including any data or content transmitted or received by you; (ii) your use of the Services; (iii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iv) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (v) your violation of any applicable law, rule, or regulation; (vi) any of your User Content or Customer Items, or any that is submitted via your account; or (vii) any other party’s access and use of the Site or Services with your unique username, password or other appropriate security code.
12. NO WARRANTY
WE STRIVE TO PROVIDE THE SERVICE IN THE WAY YOU NEED IT, BUT THERE ARE SOME THINGS IT IS IMPORTANT FOR YOU TO UNDERSTAND THAT WE CANNOT PROMISE.
EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED SECURITY WARRANTY POLICY, THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CLUTTER OR THROUGH THE SITE OR IN CONNECTION WITH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CLUTTER, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SITE OR SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SITE.
CLUTTER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE CLUTTER SITE OR SERVICES OR ANY WEBSITE OR SERVICE HYPERLINKED TO THE SITE, AND CLUTTER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO LEGAL THEORY, SHALL CLUTTER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SITE OR SERVICES. UNDER NO CIRCUMSTANCES WILL CLUTTER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLUTTER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SITE OR SERVICES (EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED SECURITY WARRANTY POLICY); (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED SECURITY WARRANTY POLICY, IN NO EVENT SHALL CLUTTER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO CLUTTER HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LAST CAUSE OF ACTION AROSE OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CLUTTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Site is controlled and operated from facilities in the United States. Clutter makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Site if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
14. BUSINESS FAILURE
In the event that Clutter ceases operations, we will attempt to make reasonable efforts to return your Customer Items to you, but cannot guarantee if and when such returns will occur. Clutter will not be liable for any failure to return Customer Items in the event of a business failure.
15. YOUR ACCEPTANCE OF THESE TERMS
You certify that you have read and expressly agree to the terms and conditions of Section 12 (No Warranty) and you acknowledge that this section limits your legal rights and remedies. You intend your assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law.
You expressly agree and acknowledge that you may discover facts or law different from, or in addition to, the facts or law that you know or believe to be true with respect to the Claims and the Released Persons. Nonetheless, you expressly agree and acknowledge that this section shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery of them. You expressly agree and acknowledge that all rights under California Civil Code Section 1542 are expressly waived. California Civil Code Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
16. GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER
- Governing Law
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Customer Items is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CLUTTER. For any dispute with Clutter, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Clutter has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any Clutter claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration by JAMS, Inc. ("JAMS"), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
If you are using the Site or obtaining the Services for commercial purposes, the following applies:
JAMS may be contacted at www.jamsadr.com and may require you to pay a fee for the initiation of your case unless you apply for and successfully obtain a fee waiver from JAMS. The arbitration will be conducted in Los Angeles, California (or the nearest JAMS office), unless you request an in-person hearing in your hometown or you and Clutter agree otherwise. The award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees and your reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the court as necessary to prevent the actual or threatened infringement, misappropriation, or violation of such party’s data security, Intellectual Property Rights or other proprietary rights. You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process.
- Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED THE SITE OR STORAGE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CLUTTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Clutter without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Force Majeure
Notwithstanding anything to the contrary, Clutter will not be liable or responsible for any damage to or loss of any Customer Items, or failure to perform, or delay in performance of, any of its obligations under this Agreement, including without limitation any Services, that is caused by events outside its reasonable control (including but not limited to) acts of God, flood, earthquake, windstorm or other natural disaster; war, armed conflict, terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; any law or government order, rule, regulation or direction, or any action taken by a government or public authority; fire, explosion or accidental damage; adverse weather conditions; interruption or failure of utility service, including but not limited to electric power, gas or water; any labor dispute, including but not limited to strikes, industrial action or lockouts; non-performance or delay by suppliers or subcontractors; and failure of plant machinery, machinery, vehicles, computers, the Internet or telecommunications (each, a "Force Majeure Event").
- Notification Procedures and Changes to the Agreement.
- Entire Agreement/Severability
- No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Clutter’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at email@example.com with any questions regarding this Agreement.