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Terms of Service

Effective Date: January 31, 2023 

IMPORTANT-READ THESE TERMS OF SERVICES (THESE “TERMS”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY USING OUR SOFTWARE OR ENTERING A SIGNED AGREEMENT WITH CINCH, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE TERMS SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THESE TERMS, YOU MUST NOT SELECT THE “I ACCEPT” BUTTON AND MAY NOT USE THE SERVICES.

I. Agreement Definitions

“You” and “your” refers to the individual or entity that has ordered software as a service from Cinch Solutions, Inc. (“Cinch”). Software as a service consists of system administration, system management, and system monitoring activities that Cinch performs for Cinch programs, and includes the right to use the Cinch programs, support services for such Cinch programs, as well as any other services provided by Cinch, as defined in the order form (the “services”). The term “program documentation” refers to any materials provided by Cinch as part of the services. The term “Cinch programs” refers to the software products owned or distributed by Cinch to which Cinch grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term “users” shall mean those individuals authorized by you or on your behalf to use the services in the subscription document. The term “your data” refers to the data provided by you that resides in your services environment. The term “subscription document” refers to the signed order form, whether executed electronically or physically, that accompanies and incorporates these Terms, including the services policies and any other document referenced or incorporated into the subscription document. The term “Privacy Policies,” defined below, refers collectively to the End User Privacy Policy found here — and the Commercial Privacy Policy found here, each as may be updated and amended from time to time. The term “agreement” refers to these Terms together with the applicable subscription document and privacy policies.

II. Applicability of Terms

These Terms are valid and enforceable for any subscription document which these Terms accompany, for all users, and any other individuals or entities that access, use, or otherwise interact with the Services whether by means of an additional agreement or otherwise. 

III. License and Rights Granted

Upon Cinch’s acceptance of your order, and subject to and conditioned on your payment of any and all fees and compliance with all other terms and conditions of these Terms, and for the duration of the services term as defined in the subscription document, Cinch hereby grants you a nonexclusive, non-assignable, royalty free, worldwide limited license to use the Services, including the Cinch Programs and Program Documentation, solely for your internal business operations. You may allow your users to use the Cinch Programs and Program Documentation for this purpose and you are responsible for your users’ compliance with these Terms. Any access granted to your users is conditioned on you requiring your users to be subject to confidentiality obligations at least as strict as restrictive as the confidentiality obligations in Section XIV of these Terms. The Services are provided as described in, and subject to, the Services policies referenced in the Subscription Document and the Agreement. You acknowledge that Cinch has no delivery obligation and will not ship copies of the Cinch Programs to you as part of the Services. You agree that you do not acquire under the Agreement any license to use the Cinch Programs specified in the Subscription Document in excess of the scope or duration of the Services nor do you acquire any rights, title, or ownership interest in or to the Services, the Cinch Programs, the Program Documentation, and any other intellectual property owned by or licensed to Cinch. Upon the conclusion of the Services thereunder, your right to access or use the Cinch Programs specified in the Subscription Document and the Services shall terminate.

IV. Ownership and Restrictions

Cinch reserves the right to process your data as well as your customer’s data to the maximum extent permitted under applicable law and as governed by our Privacy Policy. By using the Services, you agree and acknowledge that (i) you will strictly comply with the terms and provisions of the Privacy Policy; (ii) you do not own your customers’ personal information, whether or not all, or parts, of such information pertains to transactions with you; (iii) Cinch has no obligation to remove any data concerning any of your customers unless any such customer makes a written request to Cinch, or as required under applicable data privacy laws, requesting the removal of any personally identifying information from Cinch’s database; (iv) your customers’ data involving transactions with you shall be retained by Cinch to the maximum extent permitted under applicable law; and (v) Cinch owns all data and information created or transformed by Cinch into new and different data sets, even if such data and information originally derives from your data (“Cinch Data”). Without limiting the generality of the foregoing, you hereby grant Cinch the perpetual, non-exclusive, royalty-free right and license to use your data in support of the Cinch Services and to create the Cinch Data. In addition, you hereby grant to Cinch, and to Cinch’s third-party providers and partners, the perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license to copy, distribute, add to, subtract from, and otherwise use and exploit non-personally identifiable data or information of yours and of your customers, including non-personally identifiable transaction data generated by your customers and your business locations, for any legal purpose.

Cinch or its licensors retain all ownership and intellectual property rights to the Services and Cinch Programs. Cinch retains all ownership and intellectual property rights to anything developed and delivered under the Subscription Document. Third party technology that may be appropriate or necessary for use with some Cinch Programs is specified in the Program Documentation or Subscription Document, as applicable. Your right to use third-party technology is governed by the terms of the third-party technology license agreement specified by Cinch and not by these Terms.

V. Acceptable Use

You are responsible for all actions taken by you and your users in the Services environment. Cinch takes no responsibility for the builds you and your users create in the “Journeys” section of the Services. Cinch is not responsible for any costs, fees, expenses, or other amounts due as a result of your and your users’’ actions in the Services.

To access and use the Services and the Cinch Programs, you shall not:

  • remove or modify any Program markings or any notice of Cinch’s or its licensors’ proprietary rights;
  • make the Programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Program license or materials from the Services you have acquired, such as to an advertising agency or partner);
  • modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the Programs), or access or use the Services in order to build or support, or assist a third-party in building or supporting, products or services competitive to Cinch;
  • disclose results of any Services or Program benchmark tests without Cinch’s prior written consent;
  • use the Services in any manner or for any purpose other than as expressly permitted by this Agreement, the Privacy Policy, or any other policy, instruction or terms applicable to the Services;
  • use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Cinch; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party; and
  • license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Cinch Programs or materials available, to any third party other than, as expressly permitted under these Terms.

The rights granted to you under these Terms are also conditioned on the following: 

  • the rights of any user licensed to use the Services cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
  • except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
  • your agreement to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

In addition to any other rights afforded to Cinch under the Agreement, Cinch reserves the right to remove or disable access to any material that violates the foregoing restrictions. Cinch shall have no liability to you in the event that Cinch takes such action. You agree to defend and indemnify Cinch against any claim arising out of a violation of your obligations under this section.

VI. Communications

When you visit our website, access, and use the Services, or send messages to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by email, text messaging (SMS or MMS), or by posting notices on our website. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

The Services may enable you to efficiently communicate with your customers through SMS, MMS, other text message mechanisms, email, or other electronic messaging platforms (each an “Electronic Message”). To the extent your customers opt-in to Electronic Message features, the following terms apply.
We may use Electronic Messages to help you connect with your customers. You agree to include the following, or substantially similar language prominently in your Terms of Service:

By either (a) agreeing to our Terms of Service and Privacy Policy or (b) entering your phone number as part of our services, you agree that we or our providers may send you electronic notifications and electronic marketing offers. While variable based on your interaction with our services, marketing-based electronic messages will not exceed [___] times per month. You understand that consent is not a condition of participation in our services. You can unsubscribe from further electronic messages by replying STOP. Message and data rates may apply.

You agree to abide by all restrictions we impose regarding the use of our Software, such as by including certain language in electronic messages to comply with legal requirements. For more information on the data obtained from you and your customers through Electronic Messages, please read our Privacy Policy.

For clarity, these Terms and our Privacy Policy only apply to Electronic Messages originating from our Services and sent directly to your customers who have provided their consent. Cinch assumes no responsibility for any Electronic Messages or other communications that occur between you and your customers outside of the Services.

Further, you are solely responsible for all language, images, and any other content you input into Electronic Messages between you and your customers. You agree that you own or have the applicable rights, including permission, license, or other access to intellectual property rights, of any language, images, videos, symbols, marks, and any other content you include in Electronic Messages. Cinch is not responsible for any content uploaded by you or your customers in Electronic Messages. Further, Cinch is not responsible for compliance with any advertising or marketing legal requirements, including Truth in Advertising principles, regulations, and requirements.

Cinch may offer the ability to use templates created by third parties as part of the Services and to use in Electronic Messages. You are responsible for your and your users’’ use of the templates and represent and warrant that you have all rights and permissions, including third party intellectual property rights, necessary to include additional language, images, videos, and all other content on any template.

You expressly authorize us to communicate with your customers through Electronic Messages. You represent and warrant that all of your customers expressly consent to providing their phone numbers, email addresses, or other identifiable electronic contact information for purpose of receiving Electronic Messages, and you shall notify all such customers of their right to unsubscribe from further Electronic Messages by providing the notice above. You agree to indemnify and hold Cinch, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual or consequential), losses and expenses (including attorney fees) arising from or in any way related to your use of Electronic Messages within the Services or your breach of the foregoing.

VII. Your Account; Contests

You are responsible for maintaining the confidentiality of any account information, including your login credentials, and for restricting access to your electronic device, and you agree to accept responsibility for all activities that occur under your account or password. Cinch reserves the right to refuse service, terminate accounts, remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account. You agree to indemnify and hold Cinch harmless from and against any claim related to content, accuracy, or currency of the information you provide through the Services.

As part of the Services, you may have the ability to run contests with your customers. You agree that you are solely responsible for all contests, results, rewards, and other benefits promised, inferred, or otherwise guaranteed by you through any contest. You further agree that you will comply with all federal, state, and local laws, ordinances, and regulations related to contests, sweepstakes, or other related promotions. Cinch has no responsibility for the results of any contest you run with your customers, and you agree to indemnify and hold Cinch harmless from and against any claim related to any contest, accuracy of the information presented in any contest, or currency of the information you provide through a contest.

VIII. Limited Warranty

THE SERVICES, ANY HARDWARE, AND ALL SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CINCH DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, ACCURACY, OR TRUTHFULNESS OF ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES. WITHOUT LIMITING THE FOREGOING, CINCH DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE AND/OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to you. Any warranties made in this Agreement are for your benefit only.

IX. Representations and Warranties

BY SUBSCRIBING FOR THE PREPAID SERVICES OFFERED BY CINCH, YOU REPRESENT, WARRANT, AND ACKNOWLEDGE THAT YOU UNDERSTAND THAT CINCH HAS NOT AND WILL NOT PROVIDE ANY LEGAL COUNSEL TO YOU AS TO THE PERMISSIBILITY AND LEGALITY OF THE SERVICES IN YOUR STATE OR ELSEWHERE AND FURTHER REPRESENT, WARRANT, AND ACKNOWLEDGE THAT YOU UNDERSTAND THAT IT IS YOUR EXCLUSIVE RESPONSIBILITY TO INQUIRE AS TO THE PERMISSIBILITY AND LEGALITY OF THE SERVICES IN YOUR STATE OR ELSEWHERE.

X. Indemnification

If a third party makes a claim against either you or Cinch (“Recipient” which may refer to you or Cinch depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or Cinch (“Provider” which may refer to you or Cinch depending on which party provided the Material), and used by the Recipient infringes such third party’s intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

  • notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
  • gives the Provider sole control of the defense and any settlement negotiations; provided, however, that Provider shall not admit guilt or agree to any non-monetary relief without the Recipient’s written consent; and
  • gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Cinch’s ability to meet its obligations under the relevant order, then Cinch may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or Services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third-party portal or other external source that is accessible to you within or from the Services (e.g., a third-party Web page accessed via a hyperlink). Notwithstanding the foregoing, Cinch will not indemnify you (A) to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Cinch; (B) for infringement caused by your actions against any third party if the Services as delivered to you and used in accordance with these Terms would not otherwise infringe any third party intellectual property right; (C) for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages. 

XI. Support Services

Support services provided under the Agreement are specified in the Services policies referenced in the Subscription Document or other agreement with you. 

XII. Term; Termination of Services

Services provided under the Agreement shall be provided for the period defined in the Subscription Document unless earlier terminated in accordance with these Terms. The term of the Services and any renewal years are collectively defined as the “Services Term.” If no Services Terms is specified in the Subscription Document, the Services Term is one (1) year and automatically renews for successive one-year terms unless terminated as provided herein. At the end of the Services Term, all rights to access or use the Services, including the Cinch Programs listed in the Subscription Document, shall end. If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Subscription Document under which the breach occurred. If Cinch terminates the Subscription Document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under the Subscription Document plus related taxes and expenses. If Cinch terminates the Services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the Agreement, you may not use the Services ordered. In addition, Cinch may immediately suspend your password, account, and access to or use of the Services and any of your users’’ access to the Services (i) if you fail to pay Cinch as required under the Agreement and do not cure within the first ten days of the 30-day cure period, or (ii) if you violate any provision within sections III, IV, V, VI, or XVIII of the Agreement. Cinch may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Cinch’s initial notice thereof. Any suspension by Cinch of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under the Agreement. You agree and acknowledge that Cinch may store your data to the maximum extent permitted under applicable law, that data related to transaction and payment history is owned jointly by you and your respective customers, and that the personal identifying information of your customers is owned exclusively by your respective customers. Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive. 

XIII. Fees and Taxes

You agree to pay for all Services ordered as set forth in the applicable Subscription Document. All fees due under the Subscription Document are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Cinch must pay based on the Services you ordered, except for taxes based on Cinch’s income. You will reimburse Cinch for reasonable expenses related to providing any on-site portion of the Services. Fees for Services listed in a Subscription Document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. You agree that you have not relied on the future availability of any Services, Programs, or updates in entering into the payment obligations in the Subscription Document; however, the preceding does not relieve Cinch of its obligation to deliver Services that you have ordered per the Agreement.

If you attempt to use the Services in excess of your current Subscription Document (i.e. attempt to upload data for more customers than you are subscribed), you will be prompted to acknowledge such excess and you agree to pay for all fees associated with your use of the Services in excess of your Subscription Document limits.

When you sign up using a credit card or other payment method, you authorize us to make the charges disclosed to you at the time you sign up, including recurring payments, where applicable.

XIV. Confidential Information; Nondisclosure

By virtue of the Agreement, the parties may have access to information that is confidential to one another and to other individuals, including your customers (“Confidential Information”). We each agree to disclose only that Confidential Information that is required for the performance of obligations under the Agreement and as required by a valid court order, subpoena, or other legal process. Confidential Information shall be limited to the terms and pricing under the Agreement, your data residing in the Services environment, Cinch Data, and all information clearly identified as confidential at the time of disclosure or that should, by its nature, be deemed confidential. While you will have access to your data and some of the Cinch Data, your users may have limited access to the Cinch Data and you agree not to disclose the Cinch Data as it is Confidential Information. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. We each agree to hold each other’s and all Confidential Information in confidence during the Services Term, or for a period of five years from the date of disclosure, whichever is longer. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Cinch will protect the confidentiality of your data residing in the Services environment in accordance with the Cinch security practices. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the Confidential Information to a governmental entity as required by law. 

XV. Entire Agreement

You agree that the Agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy)), is the complete agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement shall supersede the terms in any Subscription Document or other non-Cinch document and no terms included in any such Subscription Document or other non-Cinch document shall apply to the Services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through Cinch’s website by authorized representatives of you and of Cinch.

XVI. Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. CINCH’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO CINCH FOR THE SERVICES UNDER THE SUBSCRIPTION DOCUMENT THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST CINCH SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. 

XVII. Export

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data) and any Services deliverables provided under the Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. 

XVIII. Other 

a. Cinch is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance. 

b. You shall obtain at your sole expense any rights and consents from third parties necessary for Cinch and its subcontractors to perform the Services under the Agreement.

c. The Agreement is governed by the substantive and procedural laws of Utah and you and Cinch agree to submit to the exclusive jurisdiction of, and venue in, the courts in Salt Lake County in Utah in any dispute arising out of or relating to the Agreement. In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.

d. If you have a dispute with Cinch or if you wish to provide a notice under the Indemnification section of these Terms, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to:

Cinch Solutions, Inc.
2680 W 12160 S
Riverton, UT 84065

With a copy to:
Ryan Awerkamp
Kunzler Bean & Adamson, PC
50 W. Broadway, 10th Floor
Salt Lake City, Utah 84101

Cinch may give notice applicable to Cinch’s customer base by means of a general notice on the Cinch portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in Cinch’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Cinch’s account information. You agree to keep all contact information current.

e. You may not assign the Agreement or give or transfer the Services or an interest in them to another individual or entity. If you grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables.

f. Except for actions for nonpayment or breach of Cinch’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.

g. Cinch may audit your use of the Services. You agree to cooperate with Cinch’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the Services in excess of your rights. If you do not pay, Cinch can end your Services or the Agreement. You agree that Cinch shall not be responsible for any of your costs incurred in cooperating with the audit.

h. The Uniform Computer Information Transactions Act does not apply to the Agreement. You understand that Cinch’s business partners, including any third-party firms retained by you to provide computer consulting services, are independent of Cinch and are not Cinch’s agents. Cinch is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a Cinch subcontractor on an engagement ordered under the Agreement.

i. Cinch may update these Terms in our sole discretion. We will alert you about any changes by updating the “Last Update” date of these Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of updates. If you continue using the Services after the effective date of any changes, you will be deemed to have accepted the revisions. If you do not agree to the revisions, you may terminate this Agreement by notifying us in writing.

XIX. Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services. 

XX. Your Data

In performing the services, Cinch will comply with Cinch’s Privacy Policy, which is available at https://cinch.io/privacy. The Privacy Policy is subject to change at Cinch’s discretion; however, Cinch policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the Services have been paid. The Services policies referenced in your Subscription Document specifies our respective responsibilities for maintaining the security of your data in connection with the Services. Cinch reserves the right to provide the Services from locations, or through use of subcontractors, worldwide. You agree to provide any notices and obtain any consents related to your use of the Services and Cinch’s provision of the Services, including those related to the processing, transfer, and disclosure of personally identifiable information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of your data. Additionally, as provided in Cinch’s Privacy Policy, Cinch will share certain data with third parties to integrate third party technologies that will improve Cinch’s Services and platform for you and your customers. To learn more about which third parties we share data with and what data we share with such parties, please review our Privacy Policy or you may contact us at support@cinch.io.

XXI. Services Tools

Cinch may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve your Cinch service requests. Data processed by the Tools (excluding production data) may also be used to assist in managing Cinch’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the Tools, and (b) you will not use or restore the Tools from any backup at any time following termination of the agreement. If Cinch provides you with access to or use of any Tools in connection with the Services, your right to use such Tools is governed by the license terms that Cinch specifies for such Tools; however, if Cinch does not specify license terms for such Tools, you shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate your administration and monitoring of your Services environment, subject to the terms of the Agreement. Any such tools are provided by Cinch on an “as is” basis and Cinch does not provide technical support or offer any warranties for such Tools. Your right to use such Tools will terminate upon the earlier of Cinch’s notice, the end of the Services Term, or the date that the license to use such Tools ends under the license terms specified for such Tools. 

XXII. Statistical Information

Cinch may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate your data or identify your Confidential Information or include your company’s name. Cinch retains all intellectual property rights in such information. 

 

XXIII. Third Party Web Sites, Content, Products and Services

The Services may enable you to add links to websites and access to content, products, and services of third parties, including users, advertisers, affiliates, and sponsors of such third parties. Cinch is not responsible for any third-party websites or third-party content provided on or through the Services and you bear all risks associated with the access and use of such websites and third-party content, products, and services. 

XXIV. Customer Reference

You agree (i) that Cinch may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Cinch on cinch.io for promotional purposes.