IMPORTANT – PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS APPLICATION AND THE RELATED WEBSITE.

Clutch3, LLC and its subsidiaries and affiliates (“Clutch3,” “we,” or “us”) require that all users of the Inabit mobile application (the “App”), and visitors of the Clutch3 website at www.clutch3.org (the “Site”), and related services operated by Clutch3 (collectively, the “Service”) adhere to the following terms and conditions of use (these “Terms”).
Before accessing and using the App, you must agree to be bound by and comply with these Terms and to comply with all applicable laws and regulations. If you do not agree to these Terms, you are not authorized to use the App. BY ACCESSING, INSTALLING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND OUR PRIVACY POLICY.

1. CHANGES TO THE SERVICE

We expressly reserve the right to make any changes that we deem appropriate from time to time to the Service or to any information, text, data, databases, graphics, images, sound recordings, video materials, audio clips, logos, software, features, services, and other materials within the App (all such materials, and any compilation, collection, or arrangement thereof, the “Content”), including the suspension or removal of any Content at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Content. We may also impose limits on the use of or access to certain Content, in any case and without notice or liability.

2. LICENSE TO ACCESS AND USE THE APP

2.1 Subject to these Terms and our Privacy Policy, you are granted a limited, non-exclusive and non-transferable license to install and use the App, in machine-readable form, and the Content on a mobile device that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the “Usage Rules”). No license is granted in the source code of the App. The App is licensed, not sold, to you for use only under the terms of this license.

2.2 You may access and use this App only for your personal use. Any other access to or use of the App or the Content constitutes a violation of these Terms and may violate applicable copyright, trademark, or other laws. If you choose to access this App from locations other than in the United States, you do so at your own initiative, at your own risk, and are responsible for complying with any applicable local laws. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. See also Section 14 below regarding controlling law and waiver of remedies under foreign laws.

2.3 You agree not to remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained within the App or any of the Content. Except as expressly authorized by us in writing, in no event will you reproduce, redistribute, duplicate, copy (except as expressly permitted by this license and the Usage Rules), sell, resell, lease, lend, sublicense or exploit for any commercial purpose any portion of the App or the Content or any access to or use of the App or the Content. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law. Any attempt to do so is a violation of the rights of Clutch3 and its licensors. If you breach this restriction, you may be subject to prosecution and damages.

2.4 You represent and agree that all information that you provide to us in connection with your access to and use of the Service is true, accurate, and complete to the best of your knowledge and belief.

3. THIRD PARTY COMMUNICATION

3.1 Through the App, you may communicate with other individuals. You understand that by using the App, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the App at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. Additionally, you agree that the content of the communications with third parties is solely the responsibility of the party that authored the content.

3.2 The App is a SMS replacement application that allows the sending and receiving of SMS and MMS messages via your mobile carrier. The content of your SMS and MMS messages are only ever transported via your mobile carrier. All communication in this respect is between your mobile device and your mobile carrier. We are not involved in this communication and do not collect any information regarding this communication. Additionally, you agree that we are not responsible to the reliability of messages transported via your mobile carrier.

3.3 The App facilitates scheduling or delaying messages for future delivery. However, scheduling a message with the App is not a guarantee that the message will be sent via your mobile carrier at the scheduled time. You agree that scheduling or delaying a message does not obligate the App to deliver the message at that time. You also agree not to schedule or delay any message that you deem critical.

4. PARENTAL PERMISSION AND ELIGIBILITY

We strongly urge all parents to participate in their children’s exploration of the Internet and any communication service, and to teach their children about protecting their personal information. We prohibit use of the Service children under the age of 13. We will not knowingly collect personally identifiable information from children under 13.
By agreeing to these Terms, you agree to abide by any such restrictions, and not to help anyone avoid these restrictions. In particular, you agree to restrict use of the Service by minors, and to deny access to children under the age of 13. You also agree to accept full responsibility for any unauthorized use of the App by minors.

5. PRIVACY POLICY AND DATA USE

Information that you provide to us or that we collect about you through your access to and use of the App is subject to our Privacy Policy, the terms of which are hereby incorporated by reference into these Terms. We encourage you to read and become familiar with our Privacy Policy.

6. ELECTRONIC COMMUNICATIONS

When you use the App, submit information to the App, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail, by posting notices through the App or sending you messages through the App. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.

7. INTELLECTUAL PROPERTY

You understand and agree that we own, or (where applicable) we have licensed from third parties, all right, title, and interest in and to the Service and all of the Content. You acknowledge and agree that the Content constitutes valuable intellectual property and proprietary information of Clutch3 or its licensors and content providers that is protected by applicable laws, and treaties of the United States and other countries, and that you acquire no ownership interest by accessing or using the Service or the Content. Such intellectual property and proprietary rights may include, but are not limited to, copyrights, trademarks and service marks, trade dress, and trade secrets, and all such rights are the property of Clutch3 or its licensors and content providers.

8. USER CONDUCT

In connection with your access and use of the Service, you are responsible for complying with all applicable laws, regulations, and policies of all relevant jurisdictions, including all applicable local rules regarding online conduct. Not in limitation of the previous sentence, in connection with your use of the Service, you may not do any of the following:
(a) use the Service for any unlawful purpose;
(b) use the Service to transmit any material that contains any viruses, Trojan horses, worms, time bombs, cancelbots, malware, adware, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
(c) use the Service to transmit any unlawful, fraudulent, libelous, defamatory, threatening, abusive, hateful, offensive, harassing, or otherwise objectionable information of any kind;
(d) use the Service to transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication;
(e) create a false identity for the purpose of misleading others.

9. USE OF TRADEMARKS

InabitTM is a proprietary trademark of Clutch3. Except for the limited permission to use the Clutch3 logos as set forth in these Terms, you may not, without our express written permission, use any of Clutch3’s trademarks or service marks for any other purpose.

10. DISCLAIMER; NO WARRANTY

10.1 The use of this SERVICE by you is at your own risk. ACCORDINGLY, THE SERVICE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED, TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, CLUTCH3 DO NOT WARRANT THAT: (a) THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (b) THE USE OF THE SERVICE WILL ALLOW YOU TO OBTAIN ANY PARTICULAR RESULTS WHATSOEVER; (c) ANY DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (d) THE SERVICE ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS.

10.2 APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

11. LIMITATION OF LIABILITY

11.1 In no event will Clutch3, its contractors, suppliers, content-providers, and other similar entities, and the officers, directors, employees, representatives, and agents of each of the foregoing (collectively, our “Representatives”), be liable to you, your Company, or any third party for any losses or damages, alleged under any legal theory, arising out of or in connection with: (a) your use of, or reliance on, the Service; (b) our performance of or failure to perform our obligations in connection with these Terms; (c) the defamatory, offensive, or illegal conduct of other users of the Service; or (d) your purchase or use of any goods or services provided by third parties.

11.2 Under no circumstances will Clutch3 or our Representatives be liable to you for any indirect, consequential, incidental, punitive, special, or similar damages or costs (including, but not limited to, lost profits or data, loss of goodwill, loss of or damage to property, loss of use, business interruption, and claims of third parties) arising out of or in connection with these Terms or the use of the Service, or the transmission of information to or from the Service over the Internet, even if we were advised, knew, or should have known of the possibility of such damages or costs. In a jurisdiction that does not allow the exclusion or limitation of liability for certain damages, the liability of Clutch3 and the Representatives will be limited in accordance with these Terms to the extent permitted by law.

11.3 Under no circumstances will Clutch3 or our Representatives be liable to you in relation to the scheduling or delaying features of the App, including you scheduling or delaying a message that you deem to be critical or which failure to deliver would result in physical or emotional harm to you or another.

11.4 Without limiting any of the foregoing, if Clutch3 or any of its Representatives is found liable to you or to any third party as a result of any claims or other matters arising under or in connection with these Terms, the Service, or your use of the Service, the maximum liability for all such claims and other matters will not exceed $100 in any calendar year.

12. WAIVER AND RELEASE

YOU FULLY AND FOREVER WAIVE, RELEASES AND DISCHARGE CLUTCH3 AND EACH OF ITS REPRESENTATIVES FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, RIGHTS OF ACTION OR CAUSES OF ACTION, PRESENT OR FUTURE, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, RESULTING FROM OR ARISING OUT OF THE SERVICE.
YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTIONS, SUITS, OR PROCEEDINGS ARISING OUT OF OR RELATING TO THESE TERMS AND THE MATTERS CONTEMPLATED HEREBY.

13. INDEMNIFICATION

You agree to defend, indemnify and hold harmless Clutch3, and our Representatives from and against all claims, demands, suits, or other proceedings, and all resulting loss, damage, liability, cost, and expense (including reasonable attorneys’ fees), arising out of: (a) content, data, or information that you transmit through the Service; (b) your access to and use of the Service, (c) your violation of these Terms; and (d) your violation of any rights of any third party. We reserve, and you grant to us, the right to assume the exclusive defense and control of any matter subject to indemnification by you hereunder.

14. JURISDICTION

These Terms will be construed and enforced in accordance with the laws of the State of Illinois (United States of America), without regard to the conflicts of law provisions thereof. By agreeing to the terms and conditions hereof, and by using the Service, you agree to submit to the personal jurisdiction of Illinois, and hereby waive any right not based under such law that you might otherwise bring. Except as provided in Section 15, any cause of action arising under this EULA or otherwise involving this Service will be brought exclusively in a court located in Cook County, Illinois, United States of America.

15. DISPUTES SUBJECT TO BINDING ARBITRATION

You expressly agree that any claim or controversy arising out of or related to these Terns, the Service, or the Content shall be settled by binding arbitration to be held in Chicago, Illinois, before a single arbitrator, in accordance with the commercial arbitration rules of the American Arbitration Association. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. Each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrator’s fees. Judgment on any award resulting from such arbitration may be entered in any court having jurisdiction. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of Illinois for the enforcement of this arbitration agreement and of any such award. The foregoing shall not preclude Clutch3 from seeking any injunctive relief in any court of competent jurisdiction for protection of Clutch3’s intellectual property rights.

16. MISCELLANEOUS

16.1 These Terms and the Privacy Policy (as each may be revised and amended from time to time) collectively constitute the entire agreement with respect to your access to and use of the Service.

16.2 Our electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.

16.3 Any provisions of these Terms that are reasonably inferable to have been intended to survive termination (including, but not limited to, any provisions regarding limitation of our liability or indemnification) will continue in effect beyond any such termination of access to this Service.

16.4 Except as set forth in Section 17(viii), nothing in these Terms, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

16.5 We may assign our rights and duties under these Terms at any time to any third party without notice. You may not assign these Terms without our prior written consent.

16.6 Our waiver of any breach of these Terms will not be a waiver of any preceding or subsequent breach thereof.

16.7 If any provision of these Terms is held to be invalid or unenforceable, that provision will be stricken and will not affect the validity and enforceability of any remaining provisions.

16.8 Possible evidence of use of the Service for illegal purposes will be provided to law enforcement authorities.

16.9 Discontinuation of use of this Service is your sole right and remedy for any dissatisfaction with the Service.

17. END USER TERMS REQUIRED BY APPLE

You acknowledge and agree that (i) these Terms are concluded between you and Clutch3, and not Apple, Inc. (“Apple”); (ii) Clutch3 and its licensors, and not Apple, are solely responsible for the App; (iii) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the App; (iv) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the App; (v) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App; (vi) Apple is not responsible for any claims that you have arising out of your use of the App; (vii) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third-party claim that the App infringes such third party’s intellectual property rights; and (viii) Apple and its subsidiaries are third party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) as a third party beneficiary to enforce these Terms against you. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist support” country; and (b) you are not listed on any U.S. Government list prohibited or restricted parties.

18. OTHER AGREEMENTS

If you have entered into a separate written agreement with Clutch3 with respect to your use of the Service, that agreement will supersede these Terms to the extent they are in conflict.

19. QUESTIONS

Please contact us with any questions regarding the Service or these Terms at info@clutch3.org.