TERMS OF SERVICES
IMPORTANT-READ THESE TERMS OF SERVICES (THESE “TERMS”) CAREFULLY
BEFORE CONTINUING REGISTRATION. BY USING OUR SOFTWARE AND/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. (dba “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 subscription document (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 subscription document,
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 for the subscription document which these Terms accompany.
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. The services are provided as
described in, and subject to, the services policies referenced in the subscription document. 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 and/or
duration of the services. Upon the end 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 store your data as well as your customer’s data indefinitely unless Cinch
otherwise receives a request to delete such information as further described in the privacy policies.
By using the services, you agree and acknowledge that (i) you agree to the terms and provisions
of the privacy policies; (ii) you do not own your customers’ data, whether or not all, or parts, of
such data 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
requesting the removal of any personally identifying information from Cinch’s database; and (iv)
your customers’ data involving transactions with you shall be retained by Cinch indefinitely.
Without limiting the generality of the foregoing, you hereby grant Cinch the perpetual, nonexclusive, royalty-free right and license to use your data in support of the Cinch services. 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-personal data of yours and of your
customers, including non-personal transaction data generated by your customers and your business
locations, for any purpose whatsoever.
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.
You may 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);
• 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 programs), or access or use the services in order
to build or support, and/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; 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
• you agree to make every reasonable effort to prevent unauthorized third parties from
accessing the services.
•
V. Limited Warranty
THE SERVICES, ANY HARDWARE, AND ALL SOFTWARE ARE PROVIDED “AS IS”
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.
VI. Representations and Warranties
BY SUBSCRIBING FOR THE PREPAID SERVICES OFFERED BY CINCH, YOU
REPRESENT AND WARRANT 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 FUTHER
REPRESENT AND WARRANT 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.
VII. 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 its 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; 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 noninfringing (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 service (e.g., a third party Web page accessed via a hyperlink). Cinch will
not indemnify you to the extent that an infringement claim is based upon the combination of any
Material with any products or services not provided by Cinch. Cinch will not indemnify you 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 rights. Cinch will not indemnify you 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.
VIII. Support Services
Support services provided under the agreement are specified in the services policies referenced in
the subscription document.
IX. 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.” 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 ends the subscription document as specified in the preceding
sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well
as all sums remaining unpaid for the services ordered under the subscription document plus related
taxes and expenses. If Cinch ends 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 (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, XIV 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 indefinitely, 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.
X. 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.
XI. Nondisclosure
By virtue of the agreement, the parties may have access to information that is confidential to one
another (“confidential information”). We each agree to disclose only information that is required
for the performance of obligations under the agreement. Confidential information shall be limited
to the terms and pricing under the agreement, your data residing in the services environment, and
all information clearly identified as confidential at the time of disclosure. 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 confidential information in confidence for a period of three years from the date of
disclosure. 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 specified in the services policies
referenced in the subscription document. 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.
XII. 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 purchase order or other non-Cinch document and no terms included in any such purchase
order 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.
XIII. 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.
XIV. 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.
XV. 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.
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.
c/o Freeman Lovell, PLLC
9980 South 300 West, Suite 200
Sandy, Utah 84070
(801) 835-9883
Attention: Cameron M. Daw
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.
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 and/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.
XVI. 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; 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.
XVII. Your Data
In performing the services, Cinch will comply with Cinch’s Privacy Policy for Commercial
Customers, which is available in the business portal under help https://business.cinch.io/privacypolicy, and Cinch's Privacy Policy for End Users, which is available at
https://portal.cinch.io/privacy-policy/ , each incorporated herein by reference (collectively, the
"Privacy Policies"). The Privacy Policies are 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, and/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 collection, use, processing, transfer and disclosure of
personal 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 for Commercial Customers, Cinch will share certain data with third
parties in order 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 each such party, you may contact us at support@cinch.io.
XVIII.Restrictions on Use of the Services
You agree not to use or permit use of the services, including by uploading, emailing, posting,
publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass
any person or cause damage or injury to any person or property, (b) involve the publication of any
material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote
bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or
chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or
(f) otherwise violate applicable laws, ordinances or regulations. 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.
XIX. 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 collected 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.
XX. 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 and/or identify your confidential information or include your company’s name. Cinch
retains all intellectual property rights in such information.
XXI. Third Party Web Sites, Content, Products and Services
The services may enable you to add links to Web sites 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 Web sites or third party content provided on or through the
services and you bear all risks associated with the access and use of such Web sites and third party
content, products and services.
XXII. 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.