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Terms & Conditions

(Last updated April 2025)

CLUTCH PLATFORM USAGE TERMS

These Terms of Service(these “Terms”) describe the terms and conditions under which ClutchHoldings LLC, a Delaware limited liability company (“Clutch”) will provide to its customers (each a “Company”) and to customers or representatives of Company (each a “User”) access to and use of Clutch’s customer management platform that provides data aggregation and processing, front end user interface tools, analytics and business intelligence software, customer relationship management, email marketing, mobile messaging marketing, electronic gift and loyalty transaction management (the “Platform”) and related support services (“Services”).

1.     Scope of Services.

Clutch will provide Platform access and Services to Company, which may be described in more detail in a separate service agreement or statement of work (each a “SOW”).Each SOW is subject to these Terms, except as expressly set forth to the contrary in the SOW. If there is a conflict between these Terms and the SOW, the SOW shall govern. Either Company or Clutch may issue written requests for changes to a SOW, but Clutch is not obligated to accept or start work on the requested change until a written amendment has been signed by Company andClutch.

2.     Payment Terms.  

Payment is due at the time stated in the SOW.Clutch may suspend Platform access or delay or cancel delivery of Services ifCompany’s payment is delinquent in paying, becomes insolvent, makes an assignment in favor of creditors or becomes subject to any bankruptcy, dissolution or similar proceeding. Payments not received when due shall bear interest at the lesser of the rate set forth in the SOW or the maximum rate permitted by law.

3.     Taxes.  

Prices and payment terms for Services, unless otherwise stated in a SOW, exclude any federal, state, municipal, or other tax that may be imposed upon the Services, and any duties, state fees and other such expenses, all of which shall be borne by Company. Company shall pay all such taxes or provide a tax exemption certificate acceptable to the taxing authorities. If Clutch does not receive an exemption certificate for a jurisdiction where Clutch is obligated to collect sales tax, Clutch may include such sales tax as an additional charge on the invoice.

4.     Warranty Disclaimer.

THE PLATFORM AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. EXCEPT AS SET FORTH INTHE SLA, CLUTCH DOES NOT WARRANT THAT THE PLATFORM, OR SERVICES WILL MEET COMPANY’S REQUIREMENTS OR THAT USE AND OPERATION OF THE PLATFORM WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE.

5.     LIMITATION OF LIABILITY.

IN NO EVENT WILL CLUTCH BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH A SOW, THE PLATFORM, OR THE PERFORMANCE OF SERVICES, WHETHER ARISING FROM A CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY FOR SUCH DAMAGES. CLUTCH’S TOTAL LIABILITY TO COMPANY SHALL BE LIMITED TO THE LESSER OF (A) THE TOTAL FEES PAID TO CLUTCH FOR THE SERVICES; OR (B) THE TOTAL FEES PAID TO CLUTCH FOR THE PRIOR TWELVE (12) MONTHS OF SERVICES.

6.     Intellectual Property Rights:

Clutch shall solely and exclusively own (a) all rights, title and interest in and to the Platform and the Services, and all of the technology and intellectual property incorporated or used in the Platform and the Services, including without limitation, all software, hardware, object code, source code, ideas, processes, algorithms, inventions, documents, reports, materials, works of authorship, other tangible or intangible technical materials and other works used in providing, developed by or for, derived from or created under or pursuant to these Terms or any SOW, including without limitation all upgrades, modifications, refinements, enhancements or improvements, (b) all rights, title and interest in and to all documents, inventions, reports, materials, trends, ideas, processes and other works and information derived from the customer data, aggregated customer data, and data obtained by, in connection with, or relating to the Platform or the provision of the Services by Clutch, to the extent discovered, developed, conceived or made while operating thePlatform or providing the Services, (c) any rights, title and interest in and to all derivatives, suggestions, ideas, enhancement requests, feedback recommendations or other information provided by the Company or any third party relating to the Platform, the Services, and any aggregated metrics, data and trends compiled by Clutch, and (d) all patent, copyright, trademark and other intellectual property rights associated with any of the foregoing. Company may not use the name, logos, trademarks, or service marks of Clutch without the prior written consent of Clutch, and hereby assigns to Clutch all of its right, title and interest in and to the foregoing and any patents, copyrights, trade secrets and other intellectual property rights therein or related thereto.

7.     User Data. 

Company will supply to Clutch all literature, data, content, marketing campaigns, policies, terms and conditions, or any other materials required from time to time by Clutch to provide the Platform and perform the Services, including without limitation, any data or information from Company users or Company’s customers, account holders or business partners (collectively, “User Data”). The operation of thePlatform and provision of Services involves the processing of User Data). Company and User are responsible for the accuracy and adequacy of all User Data, which shall not (a) contain any materials that are obscene, threatening, malicious, or that violate any applicable U.S. federal, state or international laws or regulations governing content or relating to advertising or marketing practices, privacy or data security, (bi infringe on any contract rights, privacy rights, intellectual property rights or any other rights of third parties, or (c) include any data that is or constitutes (i) personally identifiable information relating to any child under the age of thirteen;(ii) government-issued identification numbers (including social security number, driver’s license number or state-issued identified number) of any natural person; or (iii) financial account number, credit report information, access code, personal identification number or password, that would permit access to a natural person’s financial account. Clutch shall have a limited right to use the User Data to provide the Platform and the Services, and to compile, analyze and use for any purpose the aggregated metrics, data and trends relating to the use of the Platform and the Services. Clutch shall own and have the sole and exclusive right to use all aggregated metrics, data and trends derived from the User Data and to disclose such aggregated information to third parties, if such metrics, data and trends do not contain uniquely identifiable User or customer data. Clutch shall have no responsibility for the accuracy, legality and quality of the User Data.

8.     No Unauthorized Use.

Users shall not access or use the Platform or Services except as expressly permitted by these Terms and a SOW. Without limiting the generality of the foregoing,Users shall not (a) copy, modify or create derivative works or improvements of the Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Platform or Services to any person; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform or Services, in whole or in part; (d) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Platform or anyServices, including any copy thereof; or (e) otherwise access or use thePlatform or Services beyond the scope of the authorization granted under theseTerms or an applicable SOW.

9.     User Passwords.

User passwords to access the Platform and Services shall not be disclosed to any unauthorized person. Users are solely responsible for maintaining password confidentiality, and solely responsible for all activities that occur under its passwords.

10.     Connectivity.

Company and Users are solely responsible for providing and supporting at their expense the operation of their own equipment, software and connectivity (including, without limitation, computer hardware, browser software and internet connectivity) to access and use the Platform and the Services. Clutch shall not be responsible for any telecommunications or Internet service fees incurred by Company or Users to access the Internet or otherwise maintain communications links to the Platform or access the Services. Company and User must obtain any approvals, permits, licenses, or other authorizations that are necessary to access or use the Platform, or for Clutch to provide theServices.

11.     Compliance with Law.

Company and Users are solely responsible for complying with all applicable federal, state and local laws, rules, regulations and judicial decisions related to use of the Platform, including without limitation, those relating to SMS content(i.e. TCPA, COPPA and CAN-SPAM), financial transactions, the establishment and sharing of the POS Terminals, consumer protection, antitrust and franchise laws, data protection and privacy laws, and escheat laws.

12.     Notice.  

All notices or reports permitted or required under these Terms shall be in writing and delivered by personal delivery, certified or registered mail (postage prepaid and return receipt requested),nationally recognized overnight carrier, or facsimile or email transmission that is confirmed in writing by an officer of the receiving party. Notice will be effective upon receipt or refusal of delivery. Notices shall be sent to the addresses set forth in the SOW or such other address as either party may specify in writing.  

13.     Assignment.  

Clutch shall not assign these Terms and related SOWs, except to any acquirer of all or substantially all of its equity securities, assets or business. Company may not assign these Terms or any SOW without the written consent of Clutch. Any assignment by Company without consent shall be void and of no effect.  

14.     Non-Solicitation.

During the term of the Agreement and for twelve (12) months thereafter, without the prior written consent of the other Party, neither Company nor Clutch shall, directly or indirectly, on behalf of itself or a third party, knowingly hire or engage any person who was an employee or contractor of the other Party during such time or knowingly solicit any such person to terminate or reduce the scope of their employment or business relationship with the other Party.

15.   Dispute Resolution.

Any dispute concerning the Platform or Services shall be resolved through good faith discussions designed to resolve the dispute. Should a dispute not be resolved within sixty (60) days from the date either party raised the disputed issue with the other party, either party may commence an action, in law on inequity, in a court of competent jurisdiction sitting in Montgomery County,Pennsylvania. If either party brings an action to enforce or exercise its rights under these Terms, the prevailing party in such action shall be entitled to reimbursement for its reasonable attorneys’ fees (but not contingent attorneys’ fees) and expenses incurred in connection with such action.

16.   Governing Law.

These Terms and any related SOWs shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflict of law rules. Any legal proceeding arising out of or related to these Terms or any related SOWs shall be resolved in Montgomery County, Pennsylvania, and each party submits to the exclusive jurisdiction of the state and federal courts located in such county.

17.   Force Majeure.  

Clutch will not be liable for any loss, expense or cost resulting from the failure to operate the Platform or perform the Services due to any causes beyond its reasonable control, including without limitation, acts of nature or unexplained events, acts of Government, war or other hostility, civil disorder, interruptions due to disease or destruction, weather, fire, power failure, labor dispute, pandemic, or utility breakdown or malfunction.

18.   Entire Agreement.

TheseTerms and any related SOWs constitute the entire agreement regarding thePlatform and the provision of Services, and supersedes all previous negotiations, commitments and writings with respect to the Platform andServices. Neither these Terms nor any SOW can be modified or rescinded except by a writing signed by an authorized officer of Clutch.

19.   Indemnification.

Company shall indemnify, defend and hold harmless Clutch, its affiliates and subsidiaries, and the officers, directors, agents, employees and subcontractors of the foregoing from any claim, demand, action, proceeding, lawsuit, liability, damage, cost or expense arising from or relating to (i) any claim or dispute between Company, a User or any ofCompany’s customers, users, accountholders or any other business partner ofCompany, (ii) Company’s or User’s use of the Platform or Services,(iii) any actual or alleged violation of applicable law, (iv) any actual or alleged infringement, misappropriation or violation of any intellectual property right of any third party by Company, User, or Company’s customers, users, accountholders or business partners, or (v) Company’s orUser’s breach of these Terms or any SOW. Subject to the liability limitations set forth in Section 6 of these Terms, Clutch shall indemnify, defend and hold harmless the Company, its affiliates and subsidiaries, and the officers, directors, agents, employees and subcontractors of the foregoing from any claim, demand, action, proceeding, lawsuit, liability, damage, cost or expense resulting from Clutch’s violation of applicable law or Clutch’s infringement, misappropriation or violation of any intellectual property right of any third party in connection with the Platform or the Services. Each Party’s indemnity obligation is conditioned on receiving prompt notice from the other Party ofany claim or event that could give rise to the indemnity obligation and the ability to direct the defense of, response to, or settlement of such claim or event.

20.   Waiver.

Failure of Clutch to enforce one or more of the provisions of these Terms shall not constitute a waiver of rights to enforce, privileges or obligations under the same or any other provision in the future. All waivers must be in writing and signed by Clutch.

21.   Survival.

If any of these Terms are held invalid or unenforceable by any court of competent jurisdiction, such invalidity or unenforceability shall not affect the enforceability of otherTerms, and the remaining Terms shall continue to be fully valid, and enforceable.