Software License and Services Terms

1.    License

(a)     Grant of License. Subject to the terms of this Agreement, Cinchy grants to Customer a non-exclusive, non-transferable, non-cancellable, temporary license to install, operate and run Cinchy’s proprietary enterprise data collaboration software program (the “Software”) as set forth in the Order Form (the “License”).  Customer may only grant access to the Software the number of Builders authorized in the Order Form and to Customer’s Affiliates that have been authorized by Cinchy (the “Authorized Affiliates”). “Affiliates” is defined, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party. “Builder” is defined as a user specifically appointed by the Customer to access, design, build, and deploy solutions with the Software.

(b)      Maintenance and Support. Cinchy will provide the maintenance and support services for the Software as set forth in the SLA.

(c)      Professional Services.  Customer may also purchase configuration, consulting, and professional services from Cinchy (the “Professional Services”) as set forth in the Order Form or a mutually executed Statement of Work (“SOW”).  

2.    License

 (a)     Restrictions on Use. Customer may only use the License in accordance with Cincy’s instructions and will not use, or authorize the use of the Software: (i) for the benefit of any person other than Customer or any Authorized Affiliate; (ii) to offer outsourcing, data processing, service bureau, time-sharing or other computer based services (including, without limitation, billing services) to any third party, other than an Authorized Affiliate; or (iii) for any purpose, other than for the internal business purposes of Customer and its Authorized Affiliate(s). Without limiting the foregoing, Customer shall not rent, lease, lend or otherwise share the benefit of the Software to or with any third party (other than any Authorized Affiliate) or authorize any third party to do so.

(b)      Copying. Customer has the right to make one (1) copy of the Software for Customer’s backup or emergency use only.  Except as otherwise provided herein, Customer shall not make, or have made, any copies of the Software or the operating instructions, user manuals, software specifications and technical information and materials (the “Documentation”) provided by Cinchy in connection with the Software. Copies of all proprietary legends and labels must be included on and in all copies of the Software or Documentation to the extent such notices are on the original copy of the Software or Documentation.

(c)      Affiliates; Outsourcers. Customer may grant access to the Software to a third party that is contractually authorized by Customer or its Authorized Affiliate to provide hosting or managed infrastructure services to Customer on an outsourced basis (an “Outsourcer”), provided such Outsourcer is not a competitor of Cinchy and is bound by the obligations of confidentiality no less restrictive than those set forth herein. Customer will notify Cinchy of any Outsourcer in writing.  Customer acknowledges and agrees that it shall immediately terminate any and all access, use or other exploitation by an Outsourcer upon ceasing its commercial relationship with Customer. Customer shall not under any circumstance use, or allow any Outsourcer or Authorized Affiliate to use the Software to aid in the development and/or marketing of any product or service that is similar to or competitive with the Software.

(d)      Delivery. The Software shall be considered delivered the moment Customer accesses the Software remotely via HTTPS or other electronic method (the “Delivery Date”).

(e)      Testing and Acceptance.  Any testing of the Software will be conducted by the Customer prior to entering into this Agreement.  Notice of acceptance, if any, shall be delivered in writing (email sufficient) by Customer to Cinchy prior to the Effective Date. 

(f)      Verification Process.  Customer agrees to create, retain, and provide to Cinchy and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Customer’s use of the Software is in compliance with this Agreement and the Documentation, including, without limitation, the use of the Software by the Authorized Affiliates and Outsourcers, as well as of Cinchy’s applicable licensing, and pricing terms. Customer is responsible: (i) for ensuring that it does not exceed the number of Authorized Affiliates and Outsourcers agreed by Cinchy; (ii) ensures that its Authorized Affiliates, Outsourcers and users stop using the Software after the expiration of the License Term; and (iii) that where applicable, remains in compliance with the terms of this Agreement and the Documentation after the expiration of the License. Upon prior reasonable notice, Cinchy may verify Customer’s compliance at all sites and for all environments in which Customer, its Authorized Affiliates and Outsourcers use Software. Such verification will be conducted in a manner that minimizes disruption to Customer’s business, and may be conducted on Customer’s premises, during normal business hours. Cinchy may use an independent auditor to assist with such verification, provided Cinchy has a written confidentiality agreement in place with such auditor. Cinchy will notify Customer in writing if any such verification indicates that Customer has used the Software past the License Term, or in excess of its Authorized Affiliates and/or Outsourcers. Customer agrees to promptly pay directly to Cinchy the charges that Cinchy specifies in an invoice for: (i) any such excess use; (ii) support for such excess use for the lesser of the duration of such excess use or two years; and (iii) any additional charges and other liabilities determined as a result of such verification.

3.    Warranty

(a)       Performance Warranty. Cinchy warrants that the Software will materially operate in accordance with the Documentation delivered to Customer (the “Warranty”).  Cinchy shall take commercially reasonable steps to correct the failure to operate or shall, at its discretion, provide Customer with a new release of the Software.  Cinchy’s sole liability and Customer’s exclusive remedy under the above Warranty shall be the correction of any part of the Software that is in breach of this Warranty.   Cinchy does not otherwise warrant, expressly or impliedly, the results, performance or quality of the Software. The following non-conformities are excluded from the Warranty: (i) misuse or neglect by Customer; (ii) failure by a party other than Cinchy to install or use the Software in accordance with the Documentation or this Agreement; (iii) incompatibility with any hardware or third party software not authorized by Cinchy; (iv) any failure of any hardware or third party software; and (v) any modifications, customizations, enhancements or other changes to the Software developed or otherwise made by anybody other than Cinchy.

(b)      Additional Warranties. Cinchy represents and warrants that: (i) the Professional Services will be provided in a professional, timely and workman like manner by persons with the proper skill, training and background, and consistent with generally accepted industry standards; (ii) the Professional Services will comply with all written specifications; (iii) the Professional Services will be free of material defects; (iv) Cinchy’s Software shall not deliver any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate the contents of any databases and/or the normal operation of any computer systems (“Malicious Code”); (v) at Date of Delivery, all Documentation required hereunder (if any) shall be complete so as to enable Customer’s  personnel with ordinary skills and experience to utilize Software and the Professional Services for the purposes for which they are being acquired by Customer, and (vi) Cinchy will at all times utilize reasonable and appropriate practices and technologies common and prevalent in Cinchy’s industry to avoid causing damage to Customer’s computer systems or other technology. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.  In addition, both parties represent and warrant that they will comply with all applicable local and foreign laws and regulations.

(c)      Disclaimer. Other than as expressly provided herein, CINCHY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, NON-INFRINGEMNET OR ARISING BY STATUTE, OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SOFTWARE IS BEING PROVIDED TO THE CUSTOMER SOLELY ON AN “AS IS” BASIS, WITH NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR NATURE WHATSOEVER.  CINCHY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.  FURTHER, CINCHY DOES NOT WARRANT THAT ANY ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED AND THAT ANY RESULTS THEREFROM, WILL BE ACCURATE OR ERROR-FREE.

4.    Fees and Payment

(a)      Licensee Fees and Taxes. Customer shall pay to Cinchy the fees specified in the Order Form and SOW (the “License Fees or Fees”).  Except as otherwise provided in the Order Form or SOW, all Fees are quoted in currency stated in the Order Form; Fees are based on Licenses purchased and not on actual usage; payment obligations are non-cancellable; and Fees are non-refundable.  Fees will be invoiced in advance or in accordance with the terms of the Order Form or SOW. Fees are due within 30 days from the invoice date.  In the event of nonpayment of Fees, Customer agrees to pay the cost of collection including reasonable attorneys’ fees and costs. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Cinchy reserves the right to suspend the License (upon prior written notice) without liability to Cinchy until such account is paid in full. Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than Cinchy’s income taxes.  If Cinchy pays any such taxes on the Customer’s behalf, Customer agrees to reimburse Cinchy for such payment unless Customer provides Cinchy with a valid exemption certificate authorized by the appropriate taxing authority.

(b)     Customer may increase the License package upon notice to Cinchy. In such case, the License Fee shall be calculated at the Fees in effect at the time of the increase and the Term of the License shall be prorated for the number of days left in the original License Term.  

5.    Intellectual Property and Confidentiality

(a)      Proprietary Rights. The Software, the Documentation and all intellectual property rights therein, and all intellectual property rights relating to the provision of the Support and the Professional Services are owned or licensed by Cinchy.  Except for the License granted hereunder, nothing in this Agreement gives Customer any right, title or interest to Software, the Documentation, the Support and/or the Professional Services.  Customer shall retain all right, title, and ownership in and to the results generated through the use of the Software and any Work Product specifically defined as such in an SOW.  Notwithstanding, Customer acknowledges that in providing the Support and providing the Professional Services, Cinchy may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to Cinchy (“Cinchy Property“). Cinchy Property may also include any suggestion, enhancement request, recommendation, correction or other feedback that may arise in connection with Customer’s use of the Software Product whether provided by Cinchy or Customer personnel.  The parties agree that Cinchy shall retain all right, title, and ownership in and to the Cinchy Property, including all intellectual property rights pertaining thereto. Cinchy hereby grants to Customer a royalty-free, worldwide, non-exclusive, temporary license to use the Cinchy Property solely for internal business purposes. Customer shall not: (i) modify, translate, or create derivative works based on Software or the Professional Services; (ii) create any link to Software or frame or mirror any content contained or accessible from Software, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Software; (iv) or access Software in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of Software in order to compete with or cause damage to Cinchy. 

(b)      Ownership of Work Product. Customer shall own the final form of the deliverables specifically detailed in the SOW (the “Deliverables”) excluding any Cinchy Property contained therein.  Any Cinchy Property that is required to use the Deliverables shall be licensed to Customer, solely for use with the Deliverables.  Any and all work product, ideas, concepts and discoveries, whether or not copyrightable or patentable, developed, created or invented, that arise from this Agreement that are, or could be incorporated into Cinchy Property shall become Cinchy’s background intellectual property.

(c)      Confidentiality.  As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party”) verbally or that is designated in writing as confidential as well as the terms and conditions of this Agreement, the Order Form and any SOW. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.

6.    Term and Termination

(a)      Term.  The initial Term for Software commences on the date specified in the Order Form or if no date is provided, as of the Delivery Date (the “License Start Date”).  The License will continue for the License Term specified in the Order Form (the “Term”) and may be renewed as detailed in the Order Form. 

(b)      Termination. The License granted hereunder and any Professional Services may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if either 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. 

(c)      Early Termination. If Customer wishes to terminate the License prior to the expiration of the then current License Term and such termination is not due to Cinchy’s breach, all Fees that would otherwise be due through the end of the License Term in effect at the time, including any applicable taxes shall be due and payable within thirty (30) days of the effective date of termination and no refunds for pre-paid Fees will be provided. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty. Professional Services may be terminated in accordance with the SOW.

(d)      Obligations upon Termination. Upon any termination of this Agreement and/or any license granted hereunder, Customer shall promptly: (i) cease using the Software and the Documentation; (ii) destroy or return, as specified by Cinchy, all copies of the Software; (iii) purge all copies of the Software from any storage medium on which they have been stored; and (iv) upon the request of Cinchy, have an officer of Customer certify in writing that Customer has fully complied with the foregoing obligations.

(e)      Survival. The following provisions in this Agreement shall survive the expiration or termination hereof:  Section 3(c) (Disclaimer), Section 5 (Intellectual Property & Confidentiality), Section 6(d) (Obligations upon Termination), Section 6(e) (Survival), Section 7 (Limitation of Liability), Section 8 (Indemnification), and Section 9 (General Provisions).

7.    LIMITATION OF LIABILITY

EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8.    Indemnification

(a)      Cinchy’s Indemnification. Cinchy shall indemnify, defend and hold Customer harmless against any loss, damage or cost (including reasonable attorney’s fees and costs) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of Software or the Professional Services, as contemplated hereunder, infringe the intellectual property rights of a third party.  Notwithstanding the foregoing if Cinchy reasonably believes that Customer’s use of any portion of Software is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Cinchy may, at its expense: (i) procure for Customer the right to continue using Software; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of Software as set out herein. Cinchy shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of Software or the Professional Services with other equipment or software not supplied by Cinchy or in a manner not consistent with the Documentation or Cinchy’s instructions. THIS SECTION SETS FORTH CINCHY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

(b)      Customer Indemnification.  Customer agrees to indemnify, defend and hold Cinchy harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Cinchy by a third party arising from or relating to Customer’s use of Software or the Professional Services in violation of the terms of this Agreement.

(c)      Mutual Provisions.  Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim

9.    General Provisions

This Agreement, inclusive of the Exhibits, the Order Form, SOW and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between Customer and Cinchy with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. Customer agrees that Cinchy may use Customer’s name and logo on Cinchy’s website, and as a part of a general list of Cinchy’s customers for use and reference in corporate, promotional and marketing literature. Additionally, Customer agrees that Cinchy may issue a press release identifying Customer as a customer of Cinchy in accordance with Customer’s standard guidelines. Customer agrees to be a reference for Cinchy over the lifetime of the License Term. The parties are independent contractors.  Neither party shall assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition, provided the assignee agrees in writing to be bound by the terms of this Agreement, and is not a direct competitor of either Cinchy or Customer. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. This Agreement does not create a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party.  No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada or the State of New York, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.  The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada or the County of New York in the State of New York, USA, and all courts competent to hear appeals there from.  The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Notices regarding new or modified documentation, including but not limited to Cinchy’s standard Software License Agreement, Service Level Agreement, Privacy Policy and other internal documents that have not been explicitly negotiated with the Customer, will become effective and will be deemed accepted by Customer, (a) immediately for those Customers who purchase the Services after the updated version is published on Cinchy’s website, or (b) for those having pre-existing accounts, the updated Software License Agreement will be deemed effective with Customer’s continued use of the Service.  Notices regarding: (a) material changes to this Agreement; (b) internal or external changes materially impacting Cinchy’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by overnight courier to either party at the address provided by Customer in the Order Form; and for Cinchy at: 400-325 Front Street West, Toronto, ON M5V 1P4 Canada, attention: CEO and CTO; or to such other address as a party may, from time to time, communicate to the other party. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.

 

Exhibit A: Service Level Agreement (“SLA”)

 

Severity Levels

A.   “Severity I Error” means a production instance of the Software is down and no workaround is immediately available. All or a substantial portion of Customer’s mission critical data is at a significant risk of loss or corruption. 

B.    “Severity II Error” means critical loss of application functionality resulting in a high number of users unable to perform their normal functions. Major feature/product failure; no workaround exists. The Software is usable, but severely limited. 

C.    “Severity III Error” means partial, non-critical loss of functionality of the Software. 

 

Product Versioning Standard

The Software follows and “X. Y. Z” versioning standard where “X”, “Y”, and “Z” are numbers, and: 

• Increments to “X” represent a major release which includes major new features 
• Increments to “Y” represent a minor release which includes enhancements to existing features
• Increments to “Z” represent a patch release which includes fixes to 1 or more software defects 

 

Standard Maintenance and Support Provisions: 

1.    Maintenance & Support includes: 

a.    Access to all major & minor upgrades of the Software.
b.    Phone and email support for the Software (excludes Customer-developed extensions / integrations / applications)
c.    Access to Cinchy relationship manager to discuss usage, performance and discuss any operational issues

2.      Target Response Times: 

Attempts to remedy a reported error will begin with the below time frames only after notice of the error is received by Cinchy: 

a.    Severity I Errors: 2 business hours
b.    Severity II Errors: 4 business hours
c.    Severity III (or higher) Errors: 24 business hours (I.e. 3 business days) 

Phone and email support will be provided during 9 AM – 5 PM Eastern Standard Time Monday to Friday, by people qualified to provide such support.