Terms and Conditions

Master Cloud Services Agreement

This Master Cloud Services Agreement (this “Agreement”) is by and between Cinch Software, LLC (“Cinch,” “we,” or “our”) and you, and, if you are acting on behalf of a business or employer, this Agreement is also with the business or employer on whose behalf you are acting (together, “Customer” or “you”) and applies to the Services (as defined below). This Agreement includes all Services selections and configurations made through the Portal (as defined below), and all expressly referenced exhibits, addendums, attachments and other documents, whether attached directly hereto or referenced online. “Signed,” “Sign,” or “Signing” means that a party has indicated its binding acceptance of this Agreement by clicking “I accept,” “I agree” or an equivalent message, or by using the Portal.

By Signing this Agreement you accept and agree to all of the terms of this Agreement, including the Cinch Online Privacy Policy (available at https://app.cinchsoftware.io/legal/). You represent and warrant that you have all necessary powers to enter into, and bind Customer to, this Agreement.

1.Services

a. Overview

(1) Subject to the terms of this Agreement, you may use the online administrative portal (the “Portal”) to select and manage certain online and support services provided by Cinch (such services, the “Cinch Software”), or products or services made available by certain third party partners that have agreements with Cinch (“Cinch Partners”) and/or by a third party that you choose (“Customer Third Party”). “Third Party Services” means any products or services made available by Cinch Partners or a Customer Third Party. “Services” means, collectively, the Cinch Software and/or any Third Party Services. The Portal may be used to enable, configure, and manage certain Services, which may be subject to service-specific terms or another agreement for services, including third party terms, if applicable.

(2) Some Services and available configurations will vary by region. Services use Cinch-provided online technology solutions by default. At Customer’s election, and subject to the terms of this Agreement, Customer may substitute certain Cinch-provided solutions with Customer Third Party solutions using the Cinch-provided application programming interface (the “Cinch API”). Customer is solely responsible for all use of Third Party Services and for complying with all terms, conditions and policies applicable to such Third Party Services.

b) Specific Additional Terms

(1) If you use any of the following Services, the accompanying additional terms apply to your use thereof. For the avoidance of doubt, other additional terms may be specified in the Portal.

Service Applicable Terms
Backup as a Service Backup as a Service Addendum (available in the Customer Center)
Cloud Services Service Level Agreement (available in the Customer Center)/td>
Database as a Service ("DBaaS") Database as a Service Addendum (available in the Customer Center)
Desktop as a Service ("DTaaS") Desktop as a Service Addendum (available in the Customer Center)
Disaster Recovery as a Service ("DRaaS") Disaster Recovery as a Service Addendum (available in the Customer Center)
Infrastructure as a Service (“IaaS”) Infrastructure as a Service Addendum (available in the Customer Center)
Microsoft Products and Services Microsoft Products and Services terms (available in the Customer Center)

(2) The Security, Privacy and Data Processing Addendum (the “DPA”), available at https://app.cinchsoftware.io/legal, is hereby incorporated into, and made part of, this Agreement.

(3) If Customer is a “Business Associate” pursuant to the Health Insurance Portability and Protection Act of 1996, as amended (“HIPAA”), Customer may elect through the Portal to include the Cinch Business Associate Agreement (the “BAA”) in the Agreement. If Customer makes such election, the BAA, available at https://app.cinchsoftware.io/legal, is hereby incorporated into, and made part of, this Agreement. Such BAA shall apply solely to “protected health information” (as defined by HIPAA) in Cinch’s custody or control.

(4) If Customer “processes” “personal data” (as such terms are defined in “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)” (the “GDPR”)) from the European Economic Area, the United Kingdom, or Switzerland as a controller or processor, Customer may configure the Services to include GDPR compliance in the Agreement. If Customer makes such election, the provisions of the DPA applicable to the processing of personal data under the GDPR shall apply to this Agreement. Such provisions shall apply solely to personal data subject to the GDPR in Cinch’s custody or control.

2. Licenses and Ownership

a. By Customer

(1) As part of its use of the Services, Customer may provide or make available to Cinch Customer-Provided Materials (as defined in Section 10(d) below). Customer gives Cinch a royalty-free, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to Cinch Partners or Service Providers (as defined in Section 10(e) below)), limited license to reproduce, modify, create derivative works of, transmit, perform, translate, distribute, display, and otherwise use Customer-Provided Materials, in connection with the provision of the Services.

(2) Except as contemplated by this Agreement, Customer reserves all right, title and interest in and to Customer-Provided Materials. Customer is solely responsible for all Customer-Provided Materials.

b. By Cinch

(1) Cinch or Cinch Partners may provide or make available certain data, information, and other materials (collectively, “Cinch Materials”). Cinch Materials include, without limitation, the Portal, the Cinch API and all Cinch software (in any form), technologies, processes, systems, platforms, techniques, documents, equipment, templates, programs, works of authorship, know-how or any other materials that are owned by or licensed to Cinch including, but not limited to, any modifications or enhancements made to any of the foregoing. During the term of this Agreement or an applicable Service, and so long as Customer pays all applicable fees and other amounts charged by Cinch, Cinch hereby grants Customer a limited, non-transferable and non-sublicensable (except in connection with a permitted assignment of this Agreement), worldwide license to access and use the Services and Cinch Materials solely for its internal business purposes during the applicable Service term and solely in accordance with the terms of this Agreement. Additional terms apply to use of Third Party Services and are available from the applicable third party. Customer may use the Services to provide services to its own customers but may not resell the Services.

(2) Except as expressly provided in this Agreement, Cinch shall retain all right, title, and interest in and to the Services and Cinch Materials and all copies, modifications, and enhancements thereto and improvements thereto.

c. Notices

(1) Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary notice placed by Cinch on or in the Services or Cinch Materials and shall ensure that all such notices are reproduced on all copies thereof.

3. Pricing and Payment

a. Subscription Fee

(1) In addition to fees applicable to specific Services, during the term of this Agreement Customer agrees to pay the monthly “Subscription Fee” for access to the Services published in the Portal.

a. Services - Pay as you Go

(1) “Pay as you Go” pricing allows you to add, change, and remove Services at any time. You pay only for the resources you select and configure. As you select and configure each Service, the Portal will display current pricing information. You will be billed for a selected Service until you turn it off in the Portal.

(2) Pricing varies for each Service. “Billable Component” means an element of a Service that is billed based on a specified method of calculation. Services may consist of one or more Billable Components. The terms in this Section 3 and Section 4 below may be used in this Agreement, the Portal, or in invoices to calculate Customer’s costs.

Billing Term Definition
“Bandwidth” Network capacity between the CinchServices environment and the public Internet using Cinch’s Internet service providers; Bandwidth is consumed when data is either transferred or received by the Customer Service instance
“Compute” An allocation of a virtual server resource available to Customer through a Service
“High-Performance Storage” Data Storage (as Storage is defined below in this table) provided in whole or in part on solid state Storage devices
“IP Addresses” Publicly addressable internet protocol addresses used to provide connectivity from the public Internet
“Metered Billing” The cost for a Billable Component of a Service is calculated based on actual use of the Service as measured by the Portal
“Provision Billing” The cost for a Billable Component of a Service is calculated based on making a provisioned resource available, regardless of whether it is used
“Standard Storage” Data Storage provided on spinning magnetic hard drives
“Storage” An allocation of block level storage volumes made available to you through your purchased Service
“Storage Billing” The cost for a Billable Component of a Service is calculated based on the amount of Storage made available or actually used, as applicable

(3) “Billing Period” is the calendar month for which the Service is being billed. If a Service is not provided for a full Billing Period, then the fees for that Billing Period may be prorated (i) from the day the Service was first provided through the end of the Billing Period, or (ii) from the beginning of the Billing Period through the last day in the Billing Period on which the Service was provided, as appropriate. If you make configuration changes to a Service that impact the fees owed for that Service during a Billing Period, then the fees for that Billing Period will be calculated based on the duration that an applicable configuration was effective or the resources consumed by a configuration, as applicable.

4. Services - Reserved Capacity

a. “Reserved Capacity” pricing provides a discount for making a minimum commitment. Based on the specific Reserved Capacity selections you sign up for, we will make available to you a set of Services (the “Reserved Capacity Tier”) for the term of your Reserved Capacity (the “Reserved Capacity Term”) at a fixed, discounted price. Reserved Capacity Terms are one or three years. Pricing for Reserved Capacity depends on the Reserved Capacity Tier, the Reserved Capacity Term, and the Reserved Capacity Payment Schedule (as defined below). The “Reserved Capacity Payment Schedule” may be full pre-payment, partial pre-payment with the remainder paid monthly, or monthly only.

b. During the Reserved Capacity Term if you wish to sign up for additional Services not covered in your Reserved Capacity Tier, you may do so at Pay as you Go pricing. Additionally, during the Reserved Capacity Term, you may add additional Services to your Reserved Capacity Tier, in which event the Reserved Capacity Term will automatically be extended by the number of days that has elapsed since the then-current Reserved Capacity Term went into effect.

5. Cinch Marketplace

a. The “Cinch Marketplace” allows Customer to purchase third party software, services, or products from certain third party authorized resellers (“Third Party Resellers”). Customer must have a separate account with an applicable Third Party Reseller in order to make purchases through the Cinch Marketplace. All purchases made in the Cinch Marketplace will be made through Customer’s Third Party Reseller account. Customer agrees to comply with the applicable terms and conditions of its agreement with each Third Party Reseller and the terms, conditions and policies applicable to any software, services, or products purchased through the Cinch Marketplace. Customer is solely responsible for all payments to the applicable Third Party Reseller for purchases made under its Third Party Reseller account through the Cinch Marketplace. Cinch has no responsibility whatsoever for the software, services, or products purchased through the Cinch Marketplace.

6. Payments

a. Pay as you Go fees and Subscription Fees are billed after the end of each calendar month during which the Service was provided or requested, as applicable. Reserved Capacity services are billed based on the Reserved Capacity Payment Schedule you select.

b. You agree to pay all amounts owed to us for the Services. All payments shall be made in U.S. dollars. Except as expressly provided in this Agreement, all payments to Cinch are non-refundable. You must maintain valid credit card or other payment account information with us in order to receive the Services. If applicable, you hereby authorize us to charge your credit card or other payment account for the Services. Any failure to maintain valid, up-to-date payment information with us or to keep your payments current will constitute a material breach of this Agreement, for which we may suspend or terminate your access to the Services with or without notice.

c. We may, at our sole and absolute discretion, provide a service credit to you if you have a reasonable dispute about amounts charged to you. To be eligible, the service credit request must (i) include sufficient detail for us to determine whether a service credit should be issued; and (ii) be received by email or through the Portal within fifteen (15) days after the end of the Billing Period to which the disputed amount applies. If Cinch elects to provide a service credit, Cinch will apply the service credit to the fees due for your next Billing Period. Customer’s failure to submit a service credit request and/or provide other information as required above will disqualify Customer from receiving a service credit. We reserve the right to charge interest on all unpaid delinquent amounts not subject to a reasonable dispute at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser. You agree to reimburse us for all collection agency fees, attorneys’ fees and other costs we may incur to collect delinquent amounts you owe to us.

7. Ordering and Invoicing

a. You may add, remove, and configure Pay as you Go Services at any time through the Portal. You may add and configure Reserved Capacity at any time through the Portal.

8. Taxes

a. Customer is solely responsible for all sales, use, excise, value-added other taxes and duties levied by any governmental authority or otherwise payable with respect to the transactions or amounts payable to Cinch under this Agreement, except for any taxes based upon Cinch’s net income or unless Customer provides in writing documentation of an applicable exemption. In the event that a governmental authority determines that the taxes owed for any Services provided hereunder exceed the amounts paid to it, Customer shall pay the amount required to be paid by the applicable authority. If Cinch invoices Customer for any such deficiency, Customer shall pay the amount of such deficiency to Cinch within thirty (30) days after the invoice date.

9. Service Terms

a. Modification and Cancellation

(1) We may add, remove, or modify functionality, features, and configurations of the Services, and we may suspend or stop any or all Services altogether. If we choose to suspend or stop providing a Service for customers generally, we will provide notice within the Portal or by email at least 30 days before the effective date of such action.

b. Pricing

(1) Cinch will notify you of price increases for the Services and the effective date (the “New Pricing Date”) of the new prices by posting a notice to the Portal or by sending an email to Customer. Price increases for Pay as you Go, and Non-Recurring services will go into effect as of the New Pricing Date. Price increases for Reserved Capacity services will go into effect as of the first renewal after the New Pricing Date.

c. Third Party Fees

(1) In providing the Services, Cinch may utilize certain software that it licenses from third parties. From time to time such third parties increase the fees charged to Cinch for such software. In addition to Section 9(b) above, Cinch may from time to time increase the fees it charges to Customer for Customer’s use of such software upon written notice (email sufficing) or posting of such new prices to the Portal.

10. General Services Terms

a. Modification

(1) We reserve the right to modify this Agreement by providing notice to you. We will provide notice of these modifications by posting notice of modifications to this Agreement in the Portal or by email. By continuing to use the Portal after the effective date of the modifications, you agree that you will be subject to the modified Agreement.

b. Suspension

(1) If you fail to pay for any Services when payment is due or otherwise breach this Agreement or other applicable terms, we may suspend your use of the Services (with or without notice).

c. Third Party Services

(1) By utilizing Third Party Services, Customer agrees to be bound by any terms and conditions applicable to such Third-Party Services and to comply with any policies applicable to their use. Additionally, if the terms of a Third-Party Service includes any service level agreements then such service level agreements, not any service level agreements provided by Cinch, shall be applicable to such Third Party Service. If Customer utilizes any Cinch-provided Microsoft software or services, Customer agrees to the Microsoft End User License Terms, available at https://app.cinchsoftware.io/legal.

d. Customer-Provided Materials

(1) In the event that Customer, its end-users, or a Customer Third Party provide or make available software, code, services, information, content, data or other materials (“Customer-Provided Materials”) to be utilized with the Services, Customer represents and warrants that (i) it has all necessary rights and permissions for its and Cinch’s use of the Customer-Provided Materials, and (ii) it will comply with any third party terms, conditions and/or policies applicable to its use of the Customer-Provided Materials. Customer-Provided Materials are not included in any Cinch-provided warranties or service level commitments.

e. Contractors

(1) Cinch may use Cinch Partners, contractors and third-party service providers (together, “Service Providers”) to provide the Cinch Services. Subject to Section 17 below, Cinch shall be responsible for any Service Providers used to provide the Cinch Services to Customer.

f. Acceptable Use

(1) Customer and its employees, representatives, and end-users shall comply at all times with Cinch’s Acceptable Use Policy, available at https://app.cinchsoftware.io/legal, as may be amended from time to time. Additionally, Customer may not conduct load testing of the Portal or any Services (such as through the use of automated or manual stress tests) without prior written approval from Cinch, which may be granted, denied, or conditioned at Cinch’s sole and absolute discretion. In addition, Customer and its employees, representatives, and end-users will not use the Services in violation of law or third-party rights, or in a manner that disrupts or may harm Cinch’s or any third party’s facilities or network, or other Cinch customers.

(2) Cinch may suspend or terminate its provision of Services to Customer, or remove or disable access to Customer’s content, data or files with or without notice: (i) in the event of Customer’s material breach of this Agreement, (ii) if Cinch, in its sole and absolute discretion, believes any Customer-Provided Materials or any other content or files are illegal, violate any third party’s copyright, patent, trademark, trade secret, privacy or other third-party proprietary right, or contain or disseminate viruses, spyware or other malware, (iii) if Cinch reasonably believes Customer has violated the Acceptable Use Policy, or (iv) as otherwise necessary to protect Cinch, its products or services, any Third Party Services, or Cinch’s other customers from material harm.

g. Support

(1) Unless otherwise expressly stated in this Agreement, Cinch shall provide support services to Customer in accordance with the terms of this paragraph. Cinch shall make commercially reasonable efforts to ensure the Services are operational and available to Customer. Customer shall promptly report any issues with the Services to Cinch through the Portal or other method made available by Cinch. Customer shall include a clear description of the problem and any error message, and any other information that Cinch may reasonably request in order to attempt to resolve the issue. Cinch will respond within twenty-four (24) hours to a request made during its normal support hours (8:30 AM ET to 5:00 PM ET, Monday through Friday excluding holidays recognized in Pennsylvania) to correct a defect or error resulting in a critical loss of functionality and will use diligent efforts to develop a work-around for the defect or error. For all other reported defects, errors and problems, Cinch shall respond within a commercially reasonable time, which may include, for a non-critical error, updating the Services with a bug fix or patch at the time of the scheduled update of the Services. Cinch shall not be responsible for providing support for errors or defects attributable to (i) Customer’s misuse of Services or the Cinch API, or breach of this Agreement, (ii) any modification of Services or the Cinch API by a person other than Cinch or its authorized subcontractors, (iii) Customer’s failure to maintain minimum technology standards for use of the Services as specified by Cinch from time to time, (iv) any Third Party Services, or (v) a Force Majeure Event as provided in Section 20(h) below.

h. Cooperation

(1) Customer agrees to cooperate with Cinch as reasonably necessary for Cinch to provide the Services in a timely, uninterrupted fashion. Cinch shall not be responsible for any delays, defects, losses, failures, or outages due to Customer’s failure to provide timely assistance or information requested by Cinch.

11. Term and Termination

a. Term

(1) The term of this Agreement commences on the date you accept this Agreement or, if applicable, this Agreement is Signed by both parties (the “Effective Date”) and shall continue until terminated in accordance with this Agreement.

b. Termination

(1) Either party may terminate this Agreement and all Services provided hereunder (i) upon 90 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

(2) The initial term of this Agreement shall be one (1) year from the Effective Date. Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless either party provides written notice of its desire not to renew at least ninety (90) days prior to the expiration of the then-current term. Notwithstanding anything to the contrary in this Section 11(b)(2), individual Services made available under this Agreement may have a specific term and this Agreement shall remain in effect until the expiration or termination of all Services.

(3) For the avoidance of doubt, neither party may terminate this Agreement except as expressly provided in this Section 11(b) or otherwise in this Agreement.

c. Effect of Termination

(1) Upon the expiration or termination of this Agreement or a Service, (i) all applicable licenses and Services shall automatically terminate, and (ii) Customer shall cease use of, and shall remove from its systems, the Cinch API. In no event shall any termination relieve Customer of the obligation to pay any fees and other amounts payable to Cinch for the period prior to the effective date of termination, or otherwise payable under this Agreement. After the expiration or termination of this Agreement or a Service, each party shall return or destroy the other party’s Confidential Information and Cinch shall delete all Customer-Provided Materials and any other content or data associated with the terminated Service(s).

12. Suggestions and Usage Data

a. From time to time Customer may provide suggestions, enhancement or modification requests, recommendations or other feedback relating to the provision, operation, performance, or functionality of the Services (the “Suggestions”). Cinch owns all right, title and interest in any Suggestions, and Customer hereby assigns and transfers to Cinch all right, title and interest in and to the Suggestions.

b. Notwithstanding anything in this Agreement to the contrary, Cinch may retain and use aggregated data which is derived from use of the Services and does not identify Customer or its end-users in order to conduct research and analysis, and to provide and improve the Services.

13. Survival

Sections 2(a)(2), 2(b)(2), 2(c), 8, 12, 13, 14, 16, 17, 19, and 20 shall survive any termination or expiration of this Agreement, as well as any other provisions that by their nature are intended to survive expiration or termination of this Agreement.

14. Confidentiality

a. Confidential Information

(1) “Confidential Information” means any information of a confidential, proprietary or competitively sensitive nature, or that a reasonable business person would consider confidential, whether marked or unmarked, relating to the disclosing party or its Affiliates (as defined in Section 20(f) below) that is disclosed to or obtained by the receiving party in connection with this Agreement, whether before or after the effective date of this Agreement. Confidential Information of Cinch includes without limitation all Cinch Materials, business partner information, customer information, and employee information, pricing policies, profit margins, operating methods, marketing plans, technology, configurations, system accounts, user IDs, passwords, security plans, measures and settings, disaster recovery or business continuity plans and measures, databases, networks, systems, the results of any Service benchmark test or performance information, and any other non-public information related to Cinch’s business or the Services.

(2) Notwithstanding anything in this Section 14(a) to the contrary, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (b) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party, (c) is received from a third party without breach of any obligation owed to the disclosing party, or (d) was independently developed by the receiving party.

b. Protection of Confidential Information

(1) Except as necessary to perform its obligations under the Agreement, the receiving party shall not disclose such other party’s Confidential Information to any third party. Each party shall exercise the same degree of care with the other party’s Confidential Information as it exercises with its own confidential and proprietary information, and in no event less than a reasonable degree of care. The receiving party shall disclose Confidential Information only to those employees, service providers and agents who have a “need to know” in connection with this Agreement and are subject to written or fiduciary obligations of confidentiality equivalent to those of this Section 14. The receiving party shall not use any Confidential Information except in accordance with this Agreement for the sole purpose of performing its obligations or exercising its rights under this Agreement.

c. Compelled Disclosure

(1) Each party may disclose Confidential Information to comply with any applicable law or regulation, or in response to a lawfully issued subpoena, document request, or court order, provided that the party being required to disclose Confidential Information shall (unless prohibited by applicable law or a law enforcement authority), promptly upon receipt of such a request or court order, give written notice to the other party and provide reasonable assistance to the other party (at the other party’s expense) in seeking an injunction, protective order, or other relief to prevent disclosure. Cinch reserves the right to charge Customer at Cinch’s then-current rate for professional services if Cinch is requested or required to respond to subpoenas and/or document requests with respect to Customer-Provided Materials or other Customer information.

d. Remedies

(1) Cinch and Customer acknowledge that the remedy at law for any breach of this Section 14 will be inadequate, and that, upon any such breach or threatened breach, the disclosing party shall be entitled as a matter of right to seek injunctive relief in any court of competent jurisdiction, in equity or otherwise, and to enforce the specific performance of the receiving party’s obligations under these provisions without the necessity of proving the actual damage to the disclosing party or the inadequacy of a legal remedy or posting bond. The rights conferred upon the disclosing party by the preceding sentence shall not be exclusive of, but shall be in addition to, any other rights or remedies which the disclosing party may have at law, in equity or otherwise.

15. Warranties and Disclaimers

a. Mutual Warranties

(1) Each party represents and warrants that it has all rights and powers necessary to enter into this Agreement.

b. Cinch Warranties

(1) Cinch warrants that (i) it shall provide all Services in a professional, workmanlike manner with a level of care and skill ordinarily exercised in similar circumstances by providers of the same or similar services; (ii) all Services shall conform materially to the applicable user documentation published by Cinch; and (iii) the Services will comply with all laws generally applicable to Cinch’s business as a technology services provider. As Cinch’s sole liability and Customer’s sole and exclusive remedy for any breach of the foregoing warranties in this Section 15(b), Cinch shall re-perform any defective Services at no additional cost and use diligent efforts to remediate any material non-conformities in the Services within a reasonable time or, if Cinch has failed to remediate any such non-conformity or provide a reasonable workaround within thirty (30) days, Customer may at its option terminate the applicable Service with no additional liability in connection with such Service upon written notice to Cinch. Notwithstanding the foregoing, Cinch shall not be responsible for any defects or non-conformities that arise from (w) Customer’s misuse of Services or Customer-Provided Materials or breach of this Agreement, (x) any modification or configuration of Services or Customer-Provided Materials by a person other than Cinch or its authorized subcontractors, (y) Customer’s failure to maintain minimum technology standards for use of the Services as specified by Cinch from time to time, or (z) an event of Force Majeure (as defined below).

c. Customer Warranties

(1) Customer warrants that (i) Customer’s use of the Services and the provision of any Customer-Provided Materials to Cinch hereunder is in accordance with Customer's agreements with its customers and Customer’s privacy policies, if applicable, and all applicable federal, state, local, and foreign laws, statutes, rules and regulations, including without limitation any laws relating to data privacy and data security; (ii) Customer-Provided Materials do not and shall not infringe, misappropriate, or violate any patent, copyright, trademark, trade secret, privacy or other proprietary rights of any third party or constitute libel or defamation; (iii) Customer-Provided Materials will not contain any viruses, spyware, or other malware or malicious code; and (iv) Customer has obtained all permissions and consents required, or Customer otherwise has a sufficient legal basis, for Customer’s use of the Services and provision of Customer-Provided Materials, and Customer will provide Cinch with evidence of any required permission, consent, or other legal basis upon request.

d. Disclaimers

(1) Except as expressly provided in Sections 15(a) and 15(b) above, the Services are provided to Customer “as-is.” Cinch makes no representations or warranties of any kind whatsoever, express or implied, in connection with this Agreement or the Services. Additionally, Cinch disclaims any warranty (i) that the Services will be error free or uninterrupted or that all errors will be corrected, (ii) that the Services will be free of viruses, spyware or other malware or malicious code, (iii) with respect to the security of the Services, or to loss of data, merchantability, accuracy of any information provided, fitness for a particular purpose, title, and non-infringement, and any and all warranties arising from course of dealing or usage of trade, and (iv) for issues arising from inadequate bandwidth at your locations, whether on-site or remote. Cinch is not responsible for issues arising from inadequate bandwidth at Customer’s locations. Cinch has no responsibility whatsoever for any Third-Party Services.

(2) CUSTOMER IS SOLELY RESPONSIBLE FOR SELECTING AND CONFIGURING SERVICES THAT ARE APPROPRIATE TO ITS NEEDS. CINCH SHALL HAVE NO RESPONSIBILITY WHATSOEVER ARISING FROM CUSTOMER’S SELECTIONS AND CONFIGURATIONS.

(3) No advice or information, whether oral or written, obtained from Cinch or elsewhere shall create any warranty not expressly stated in this Section 15.

16. Indemnification

a. Indemnification by Cinch

(1) Cinch shall indemnify, defend and hold harmless the Customer and its officers, directors, shareholders, employees, agents, successors and assigns (collectively, the “Customer Indemnified Parties”), from any and all out-of-pocket liabilities, judgments, costs, losses, damages and expenses (including reasonable attorneys’ fees and court costs) (collectively, the “Losses”) arising from any demand, claim, suit, action or other proceeding (“Claim”) brought or threatened by a third party against any of the Customer Indemnified Parties, and relating to, based upon or arising out of or in connection with the (i) gross negligence or willful misconduct of Cinch, or (ii) infringement or misappropriation of any U.S. patent, copyright or other U.S. intellectual property right of any third party by the source code and/or other materials contained in the Cinch Services or the Cinch Materials, except as provided in Section 16(a)(2) below.

(2) Notwithstanding Section 16(a)(1) above, Cinch shall not be responsible to the extent that any alleged infringement or misappropriation arises from (i) alterations made by Customer or third parties to Cinch Software or Cinch Materials, (ii) any specifications, instructions or other information provided by Customer or its representatives, including, but not limited to, Customer-Provided Materials, (iii) breach of this Agreement or improper or unauthorized use of the Cinch Software or Cinch Materials by Customer or any third party obtaining access through Customer, or (iv) combination of the Cinch Software or Cinch Materials with products or services that are not provided by Cinch. In the event that any Cinch Software or Cinch Materials become, or in Cinch’s opinion likely to become, the subject of a claim of infringement or misappropriation, Cinch shall, at its option and expense either: (a) procure for Customer the right to continue to use the Cinch Software or Cinch Materials, or (b) replace or modify the infringing Cinch Software or Cinch Materials to make their use non-infringing without loss of substantial functionality (together, the “Remedial Options”). Notwithstanding the foregoing, if Cinch, in its sole discretion, determines that the Remedial Options are not available to it on commercially reasonable terms, Cinch may, at its option, terminate the provision, or Customer’s use, of the allegedly infringing Cinch Service or Cinch Materials and shall promptly provide a refund of prepaid, unused fees for the terminated Cinch Service or Cinch Materials or a service credit for other Services. This Section 16(a) provides Customer’s sole and exclusive remedy and Cinch’s sole obligation and liability for any intellectual property infringement by the Cinch Software and Cinch Materials.

b. Indemnification by Customer

(1) Customer shall indemnify, defend and hold harmless Cinch and its Affiliates, and its and their respective officers, directors, shareholders, employees, agents, licensors, successors and assigns (collectively, the “Cinch Indemnified Parties”), from any and all out-of-pocket Losses arising from any Claim brought or threatened by a third party against any of the Cinch Indemnified Parties, and relating to, based upon or arising out of or in connection with (i) any gross negligence or willful misconduct on the part of Customer or any of Customer’s employees, (ii) the breach of any representation, warranty or covenant made by Customer in this Agreement, (iii) any products and/or services provided by Customer to its customers, offered by Customer to any prospective customer, or used to provide Customer’s products and/or services, (iv) any Third Party Services, or any materials, information and/or specific instructions provided by Customer to Cinch, including all Customer-Provided Materials, (v) any violation of the Acceptable Use Policy or applicable third-party terms, conditions or policies by Customer or its end-users, or (vi) the use of the Services or any Third Party Services by Customer.

c. Indemnification Process

(1) Promptly after receipt by a party (the “Indemnified Party”) of notice of the commencement or threatened commencement of any action or proceeding involving a claim for which such Indemnified Party will seek indemnification pursuant to this Section 16, such Indemnified Party shall notify the other party (the “Indemnifying Party”) of such claim in writing. No failure to so notify an Indemnifying Party shall relieve it of its obligations under this Agreement except to the extent that it can demonstrate material damages or prejudice attributable to such failure. Within ten (10) days following receipt of written notice from the Indemnified Party relating to any Claim, but not later than fifteen (15) days before the date on which any response to a complaint or summons is due, the Indemnifying Party shall notify the Indemnified Party in writing if the Indemnifying Party elects to assume control of the defense and settlement of that Claim (a “Notice of Election”).

(2) If the Indemnifying Party delivers a Notice of Election relating to any Claim within the required notice period, the Indemnifying Party shall be entitled to have sole control over the defense and settlement of such Claim; provided that (A) the Indemnified Party shall be entitled to participate in the defense of such Claim and to employ counsel at its own expense to assist in the handling of such Claim, and (B) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such Claim. The Indemnifying Party shall not be required to indemnify the Indemnified Party for any amount paid or payable by the Indemnified Party in the defense or settlement of any Claim for which the Indemnifying Party has delivered a timely Notice of Election and has commenced and diligently pursued the defense of such Claim if such amount was agreed to without the written consent of the Indemnifying Party.

(3) If the Indemnifying Party does not deliver a Notice of Election relating to any Claim within the required notice period, the Indemnified Party shall have the right to defend and settle the Claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party. The Indemnifying Party shall promptly reimburse the Indemnified Party for all such costs and expenses including but not limited to any and all out-of-pocket Losses and reasonable counsel fees.

17. Limitation of Liability

a. Aggregate Liability

(1) Customer agrees that Cinch’s maximum, aggregate liability under this Agreement, for any and all claims, damages and causes of action and regardless of the form of action (including, but not limited to, breach of contract, tort or any other legal or equitable theory), shall be limited to Customer’s actual direct damages in an amount not to exceed the lesser of (i) $25,000, or (ii) the total amount paid to Cinch by Customer under this Agreement for the Services to which any such claims or damages relate during the three (3) month period immediately preceding the date of the latest claim.

b. Consequential Damages

(2) Under no circumstances shall Cinch be liable to Customer or any third party, for special, incidental, exemplary, punitive, multiple, consequential or indirect damages (including, but not limited to, damages for loss of goodwill or business profits, loss of revenue, work stoppage, data loss, business interruption or computer failure or malfunction), whether such damages are alleged in tort, contract or otherwise, even if Cinch has been advised of the possibility of such damages and even if a remedy fails of its essential purpose. Cinch is not liable for the costs of data recovery or substitute goods or services. Cinch and Customer acknowledge that the limitations of liability contained in this Section 17 are a material part of the Agreement and the allocation of risk between the parties on which Cinch’s pricing depends.

18. Audits

a. Certain products and services provided to Customer under this Agreement, including Third Party Services, may have use restrictions, limits on the number of authorized installations, and other licensing restrictions (collectively, “Use Limitations”), which may be required by a third party provider of a product or service. During the term of this Agreement and for one (1) year after any expiration or termination hereof, Customer shall make available all relevant information related to Customer’s compliance with such Use Limitations for Cinch’s (or its authorized agent’s) inspection at Cinch’s reasonable request at Customer’s location during Customer’s regular business hours and without unreasonably disrupting Customer’s business operations. In the event that such inspection reveals non-compliance with such Use Limitations, Customer shall promptly pay to Cinch any applicable amounts underpaid by Customer in connection with the applicable Third Party Services, interest on late amounts owed to Cinch (calculated as 1.5% per calendar month of underpayment), and Cinch’s reasonable out-of-pocket costs for such inspection.

19. Non-Solicit

a. Neither party shall solicit, directly or indirectly, interview, make offers of employment or contractor arrangements to any current or former employee or contractor of the other party during the term of this Agreement and for a period of twelve (12) months after (i) any termination or expiration of this Agreement or (ii) after the employee ceases to be employed or contracted to that party, unless otherwise agreed to, in writing, and signed by an authorized person of the other party. Nothing contained herein shall preclude the solicitation of, or hiring of, any such employee or contractor who responds to a general solicitation of employment through an advertisement not targeted specifically at the non-hiring party or its employees.

20. General Provisions

a. Relationship of the Parties

(1) The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

b. No Third-Party Beneficiaries

(1) There are no third-party beneficiaries to this Agreement.

c. Notices

(1) Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) upon delivery by first class mail with delivery confirmation, or (iii) upon delivery by nationally known overnight courier with delivery confirmation. Notices to Cinch shall be addressed to the attention of CEO, Cinch Software, LLC, 4259 West Swamp Road, Suite 301, Doylestown, PA, 18902. All notices to Customer shall be addressed to the then-current address provided by Customer in the Portal. Either party may change its notice address by providing notice to the other party in accordance with this Section 20(c). Cinch may also change its notice address by providing updated information in the Portal.

d. No Waiver

(1) No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

e. Severability

(1) In the event that any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, all other terms of this Agreement shall remain in full force and effect.

f. Assignment

(1) This Agreement may not assigned, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement, upon written notice to the other party, (i) to any successor to substantially all its business or assets by merger, reorganization, combination, consolidation, purchase of assets or otherwise, or to any party acquiring substantially all of the assets or business of the business unit of such party to which this Agreement relates, or (ii) to an Affiliate. “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with a party, where “control” of an entity means ownership or the ability to direct the voting of at least fifty percent (50%) of the equity voting interests in such entity.

g. Governing Law

(1) This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties hereby consent to the exclusive personal and subject matter jurisdiction and venue of the federal and state courts sitting in the Eastern District of Pennsylvania in any dispute arising under this Agreement.

h. Force Majeure

(1) Except for Customer’s payment obligations under this Agreement, including economic hardship or insufficiency of funds even if caused by an event listed in this Section 20(h), neither party will be liable for any failure or delay in performance under this Agreement which might be due in whole or in part, directly or indirectly, to any contingency, or cause of, any nature beyond the reasonable control of such party (individually and collectively, a “Force Majeure Event”). Force Majeure Events include, but are not limited to, fire, explosion, earthquake, storm, flood or other weather or natural disaster, unavailability or failures of necessary utilities or communications services (including the Internet) or raw materials, power outage, strike, lockout, unavailability of components, acts or omissions of common carriers, any act by a third party, act of war, act of terrorism, insurrection, riot, act of God or a public enemy, public health emergency, any act of government or other public authorities including, any law, ordinance, act, order, regulation, decree, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement). For the avoidance of doubt, Cinch is not responsible for any internet connection or bandwidth, including connection speeds, that it has not provided and is not otherwise under its control. If, however, a party’s performance is prevented for ninety (90) days or more, then the other party will be entitled to terminate this Agreement on written notice to the party suffering the Force Majeure Event at any time prior to resumption of performance by the party suffering the Force Majeure Event.

i. Entire Agreement

(1) This Agreement, including all selections and configurations made through the Portal, all exhibits, addendums, attachments and other documents, whether attached directly hereto or referenced online, and Cinch-accepted requests for Services made through the Portal, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as expressly provided in this Agreement, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless it is in writing and Signed or accepted electronically by the party against which the modification, waiver or amendment is sought to be enforced. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer-provided documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

21. Conflicts

a. Notwithstanding anything to the contrary in this Agreement, including all exhibits, addendums, attachments and any documents directly or indirectly referenced therein, the following order of precedence (from highest to lowest) shall apply in the event of any conflict between the terms (if applicable) of this Agreement:

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