Services Terms and Conditions

Services Terms and Conditions

PARTIES:
(1) Cinch Technologies Ltd (‘Cinch’), a company incorporated and registered in England and Wales with company number 08673834 whose registered office is at 11th Floor,One Croydon, 12-16 Addiscombe Road, Croydon, London CR0 0XT (“Cinch”);
and
(2) Customer, a person/company subscribing to or buying CINCH services (“Customer”).
WHEREAS:
(A) Cinch has agreed to provide the Customer with access, via the Internet, to certain service/software on the terms and conditions set out in this Agreement;
(B) Prior to the provision of such access, Cinch may provide certain configuration services in respect of the service/software;
(C) The provision of the configuration services and access to the service/software shall be conditional upon the timely payment of the applicable charges by the Customer.
IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the meanings set out below:
“Agreement” means this Software as a Service Agreement including all Statement(s) of Work and schedules hereto;
“Charges” means the Charges set out in each Statement(s) of Work;
“Cinch Services/Software” means the services/content/software proprietary to Cinch (and/or its licensors) to which Cinch will provide access to the Customer, as set out in the Statement(s) of Work and including any OSS Modifications;
“Customer Material” means all material which is provided by the Customer to Cinch for use in the performance of the Services;
“Configuration Services” means the configuration services to be provided by Cinch to the Customer, as set out in the Statement(s) of Work;
“Data” means the data of the Customer and the Users, which is processed using the Software Service;
“Effective Date” means the date of this Agreement;
“Force Majeure” means acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, lack of adequate power, raw materials or labour, strike, lock-out or injunction compliance with governmental laws, regulations or orders, sickness or indisposition of key Cinch employees, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
“Intellectual Property Rights” means all intellectual property rights, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
“Open Source Software” means the software to which Cinch will provide access to the Customer under this Agreement for the purpose of providing Software Service and which is licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), as set out in the Statement of Work;
“OSS Modifications” mean those modifications to Open Source Software performed by Cinch where the applicable Open Source Software license permits such modifications to be licensed and distributed under proprietary licences, subject to any other terms contained in such Open Source Software licence;
“Personal Data” means all information relating to and/or identifying individuals which is processed using the Software Service;
“Portal” means the software and hardware infrastructure of which certain access, as described herein, is made available to the Customer via the website located at the following URL: [INSERT URL] or such other URL(s) as may be notified to the Customer by Cinch from time to time and all software and technology created by Cinch through the provision of the Configuration Services;
“Services” means the Online Training Service, Configuration Services, Software Service, Support and such other services as may be provided by Cinch to the Customer from time to time and pursuant to a Statement of Work;
“Software Service” means the provision, by Cinch to the Customer, of a service permitting the Users to access the combination of Cinch Software and the Open Source Software via the Portal for Online training;
“Online Training Service” means the provision, by Cinch to the Customer, of a training service and training material permitting the Users to access the combination of Training Videos, Written Text, Audios and Other Training Content.
“Statement(s) of Work” means the Statement(s) of Works executed by the Customer and Cinch, substantially in the form of Schedule 1 to this Agreement;

“Support” means the support and maintenance services provided by Cinch to the Customer in respect of the Software Service and Online Training Service in accordance with Schedule 2;
“Territory” means the territory in which the Online Training Service and Software Service may be used by the Customer, as set out in a Statement(s) of Work;
“Use” means use for the Customer’s own internal business purposes and only to the extent necessary to receive the benefit of the Services as expressly contemplated hereunder;
“User” means those Customers with a User Subscription;
“User Subscription” means the User subscriptions purchased by the Customer for the Charges, which entitles Users (subject to any training requirements) to access the Online Training Service and Software Service in accordance with this Agreement.
1.2 The headings are included for convenience only and shall not affect the interpretation or construction of this Agreement.

2. PROVISION OF THE SERVICES
2.1 Cinch hereby undertakes to provide, or procure the provision of, the Services to the Customer, and the Customer agrees to purchase the Services from Cinch in accordance with the terms and conditions set out in this Agreement.
2.2 The Services shall be performed with reasonable skill and care in a manner consistent with generally accepted standards for identical or similar Services.
2.3 Cinch and the Customer may from time to time mutually agree to additional or alternative Services by executing an additional or replacement Statement of Work, which shall be subject to the terms and conditions set out in this Agreement.

3. ONLINE TRAINING SERVICES
3.1 Subject to the payment of the Charges and to all the terms of this Agreement, Cinch shall provide the Online Training ServiceS (if any) in accordance with the relevant Statement(s) of Work.
3.2 It is estimated that the Online Training Services shall commence on the relevant estimated start date and shall be completed by the applicable estimated completion date. The Customer acknowledges that the start date(s) and completion date(s) are estimates and are provided for information only, and are dependent on the Customer’s performance of its obligations in accordance with this Agreement.
3.3 All customisations and enhancements to the Cinch Software created and/or delivered by Cinch under the Online Training Services shall be deemed to be part of the Cinch Software licensed hereunder.

4. CONFIGURATION SERVICES
4.1 Subject to the payment of the Charges and to all the terms of this Agreement, Cinch shall provide the Configuration Services (if any) in accordance with the relevant Statement(s) of Work.
4.2 It is estimated that the Configuration Services shall commence on the relevant estimated start date and shall be completed by the applicable estimated completion date. The Customer acknowledges that the start date(s) and completion date(s) are estimates and are provided for information only, and are dependent on the Customer’s performance of its obligations in accordance with this Agreement.
4.3 All customisations and enhancements to the Cinch Software created and/or delivered by Cinch under the Configuration Services shall be deemed to be part of the Cinch Software licensed hereunder. 5. SOFTWARE SERVICE
5.1 Subject to the payment of the Charges by the Customer, Cinch hereby grants to the Customer the non-exclusive, non-assignable, non-sub-licensable right to Use the Cinch Software and to permit users to Use the Cinch Software for the access and Use of the Software Service via the Portal within the Territory and for the term of this Agreement.
5.2 For the avoidance of doubt, nothing in this Agreement shall be deemed to grant a licence to the Open Source Software from Cinch to the Customer. The right to use the Open Source Software made available through the Software Service is granted pursuant to the licence terms set out in the Online Training Service Subscription or otherwise included in the Documentation. Cinch shall provide a copy of the relevant licence to the Customer within a reasonable time of receipt of a request from the Customer. Any Open Source Software is provided “as is” and expressly subject to the disclaimer at clause 9.1.
5.3 The Customer shall and shall procure that each User shall Use the Software Service only in accordance with the terms of this Agreement. The Customer shall be responsible for all use of the Software Service by Users and shall be liable for breach of this Agreement by a User as if it were a breach by the Customer.
5.4 The Customer shall not, and shall procure that Users shall not, except as expressly permitted in this Agreement (i) modify, translate, create or attempt to create derivative copies of or copy the Cinch Software, Cinch Training Material/Content and/or the Portal in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Cinch Software and/or the Portal to source code form; (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Cinch Software and/or the Portal or the Customer’s right to use the Cinch Software and/or the Portal.
5.5 Subject to payment by the Customer of additional Charges, Customer may purchase additional User Subscriptions in excess of the number set out in the Online Training Service Subscription by notifying Cinch in writing (including by e-mail). Cinch shall evaluate such request for additional User Subscriptions and respond with approval or rejection of the request, approval not to be unreasonable withheld or delayed.
5.6 If Cinch approves the Customer’s request to purchase additional User Subscriptions, the Customer shall pay to Cinch the relevant fees for such additional User Subscriptions, as set out in the Statement of Work, or if such fees are not set out in the Statement of Work, in accordance with Cinch’s then current rates using the url link https://www.faisaltalpur.com/lp/payment/
5.7 Cinch shall use reasonable endeavours to ensure that access to the Software Service and OnlineTraining Service is available at all times, however the Customer acknowledges and agrees that the Software Service may not be accessible to the Customer from time to time. Wherever possible all scheduled service interruptions shall take place outside of office hours and seven (7) days prior written notice of such scheduled service interruptions shall be given to the Customer.

6 CUSTOMER’S OBLIGATIONS
6.1 The Customer shall perform its obligations as set out herein and in the Statement(s) of Work, including, without limitation to provide Cinch promptly with all necessary co-operation, information and data and access to staff and timely decision making which may be reasonably required by Cinch for the performance of the Services.
6.2 The Customer hereby acknowledges and agrees that it is responsible for issuing user names and passwords to the User(s). Cinch shall not be liable for (i) any delay or failure by the Customer or User to issue or accept such user names and passwords; or (ii) verifying whether the Data is correct and accurate or whether the usernames and passwords are sufficiently secure.
6.3 The Customer hereby acknowledges and agrees that it is solely responsible for procuring and paying for access to the internet to enable it to use the Services on monthly Subscription basis.
6.4 The Customer hereby represents, undertakes and warrants that, and shall procure that each User represents, undertakes and warrants that:
6.4.1 the Customer and/or the User owns all rights in the Data necessary to grant Cinch the right to carry out its obligations pursuant to this Agreement;
6.4.2 the Data does not and will not contravene or breach any applicable law, regulation code of practice or directive including, without limitation, investment or financial services legislation or consumer or trade regulation or data protection legislation or regulation and that the use of the Data will not contravene any applicable law, regulation or industry standard;
6.4.3 the Data does not and will not infringe any Intellectual Property Rights or other rights of any person, nor are they obscene, defamatory, libellous or slanderous, nor will it cause injury to, invade the privacy of or otherwise violate other rights of any person;
6.4.4 all information supplied by the Customer for the purpose of registering the User(s) is true, complete and accurate in all respects and it shall notify Cinch as soon as reasonably practicable of all changes to such information;
6.4.5 it shall keep and, where relevant, shall procure that all its employees and/or agents keep confidential the usernames and passwords;
6.4.6 it shall procure that no unauthorised access to and/or use is made of the Online Training Service, Software Service and utilising the username or password allocated to the Customer and/or each User;
6.4.7 it shall be liable for all access to and use of the Software Service whether authorised by the Customer or any User or not; and
6.4.8 it shall inform Cinch immediately if it has any reason to believe that the username and password has become known to any individuals not authorised to use them or if the Software Service is or is likely to be used in an unauthorised way.
6.5 Customer shall use its best endeavours to ensure that all information contained in the Customer Material and the Data shall be true, accurate and complete. For the avoidance of doubt, Customer hereby acknowledges and agrees that:
6.5.1 Customer shall be responsible for verifying the Customer Material and the Data prior to its provision to Cinch; and
6.5.2 Cinch shall bear no responsibility or liability for checking the Customer Material and the Data prior to or during its use by Cinch pursuant to this Agreement.
6.6 In the event that the Customer is in breach of this clause 6, Cinch, without prejudice to any other rights it may have in respect of such breach, may suspend the provision of the Services without notice and shall have no liability to the Customer for the consequences, direct or otherwise of such suspension of the Services.
6.7 Cinch shall not be liable for any delay or failure to perform its obligations hereunder which arise as a result of a failure by the Customer to comply with this Clause 6. Where such delay or failure by the Customer results in Cinch spending additional time and expense to fulfil the Services, Cinch shall be entitled to charge the Customer for such time at Cinch’s then current time and materials rate.

6 CHARGES
6.1 In consideration for the provision of the Services, the Customer shall pay the Charges.
6.2 Save as otherwise set out in the Statement(s) of Work, Cinch intends to invoice the Customer (i) for any Configuration Services on execution of the relevant Statement of Work; (ii) for the Software Service monthly in advance; and (iii) for the Support (where applicable) monthly in advance. Cinch reserves the right to invoice at other times as it deems appropriate.
6.3 The Customer shall pay Cinch all amounts due in accordance with payment terms set out in the Statement(s) of Work or otherwise within 14 days of receipt of the invoice (the “Due Date”).
6.4 All payments made or to be made under this Agreement shall be made in full, without any deduction, withholding, set-off or counterclaim on account of any taxes or otherwise.
6.5 Cinch reserves the right to charge the Customer interest on any payment not made by the Due Date. Interest will be calculated on a daily basis, both before and after any judgement, at the rate of 4 per cent per annum above the base rate from time to time of Bank of England, for the period from the Due Date until the date on which it is actually paid, compounded quarterly and payable on demand.
6.6 In the event of a bona fide dispute regarding any invoice or other request for payment, the Customer shall immediately notify Cinch in writing and the parties shall attempt promptly and in good faith to resolve any dispute regarding amounts owed. The Customer shall pay all undisputed amounts on the Due Date. Cinch reserves the right to suspend performance of the Services until the dispute has been resolved.
6.7 All Charges are exclusive of any applicable value added tax (or any successor tax) and any other applicable tax of any nature whatsoever, which will be added and shall be payable by the Customer in accordance with the law applicable from time to time against receipt of an appropriate invoice.
6.8 Charges in respect of the Software Service may be increased by Cinch from time to time upon not less than 90 days prior notice to the Customer, such notice to take effect on any anniversary of the Effective Date save that no increase may be made during the first year following the Effective Date, or for any period in respect of which the Customer has made an advance payment.

7 DURATION AND TERMINATION
7.1 This Agreement shall come into force on the Effective Date and shall remain in force, unless terminated in accordance with this clause 8, until terminated by either party on the provision of not less than 30 days email/written notice to the other, such notice to take effect on any anniversary of the Effective Date.
7.2 Either party (the “Terminating Party”) may terminate a Online Training Service Subscription or part thereof or this Agreement with immediate effect by email/written notice to the other party (the “Defaulting Party”) on or at any time after the occurrence of a material breach by the Defaulting Party of any of its obligations in the Online Training Service Subscription or this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 30 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so. For the avoidance of doubt, failure to pay Charges shall be a material breach.
7.3 The Terminating Party may terminate this Agreement with immediate effect by notice to the Defaulting Party on or at any time after the occurrence of any of the events specified below:
7.3.1 the Defaulting Party goes into liquidation either compulsorily or (except for the purpose of reconstruction or amalgamation) voluntarily;
7.3.2 a receiver is appointed in respect of the whole or any part of the assets of the Defaulting Party;
7.3.3 a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors; or
7.3.4 the Defaulting Party threatens to do any of the things listed in Clauses 7.4.1 to 7.4.3 or an administration order is made against the Defaulting Party or any similar occurrence under the laws of any jurisdiction affects the Defaulting Party.
7.4 On termination of this Agreement or any Online Training Service Subscription (or any part thereof) for any reason:
7.4.1 Cinch shall be entitled to be paid all sums due and any additional sums specified in the relevant Statement(s) of Work; and
7.4.2 termination shall not affect the rights of either party accruing or accrued prior to the termination of this Agreement or the relevant Online Training Service Subscription as applicable.
7.5 On termination of this Agreement for any reason, this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination, including but not limited to 6 (to the extent of any unpaid obligations), 7.4, 7.5, 8, 9, 11, 14, 15 and 16, and all other provisions necessary for their interpretation.

8 INTELLECTUAL PROPERTY
8.1 Cinch has sole and exclusive ownership (or licence to use) all right, title, and interest in and to the Cinch Online Training, Software and the Portal including all copyright and any other Intellectual Property Rights therein. Nothing in this Agreement will serve to transfer from Cinch to the Customer any of the Cinch Software or the Portal, and all right, title and interest in and to the Cinch Online Training, Software and the Portal will remain exclusively with Cinch and/or Cinch’s licensors. All rights in and to the Cinch Software and the Portal not expressly granted to the Customer are reserved by Cinch and the relevant third party licensors.
8.2 Except for the rights expressly granted in this Agreement, nothing in this Agreement will serve to transfer from the Customer to Cinch any of the Customer Material, and all right, title and interest in and to the Customer Material will remain exclusively with the Customer.
8.3 The Customer grants to Cinch a non-exclusive, worldwide, non-assignable, royalty-free licence to use the Customer Material for the sole purpose of performing its obligations under this Agreement.
8.4 Nothing in this Agreement shall prevent Cinch from using any know-how, methods, techniques or procedures owned or developed by Cinch in the course of providing the Services for any purpose.
8.5 All third party Intellectual Property Rights required by the Customer to enable them to Use the Software Service shall be procured by the Customer. Cinch shall not be liable for any loss, expenses, costs or damages resulting from the delay or failure of the Customer to procure such third party Intellectual Property Rights.

9 WARRANTIES, EXCLUSIONS AND LIMITATIONS OF LIABILITY
9.1 Cinch cannot guarantee and does not warrant or represent that any specific results will be produced by the Online Training Service, Software Service or that use of the Software Service will be uninterrupted or error-free. Except as expressly set out herein, to the maximum extent permitted by law, Cinch expressly excludes all representations, warranties, obligations and liabilities in connection with the Services including but not limited to the warranties of merchantability, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.
9.2 Subject to clause 9.5, to the maximum extent permitted by law, Cinch shall not be liable for any loss, expenses, costs or damage caused in whole or part by, or resulting from the Customer’s actions taken as a result of the use of or reliance on, the Online Training Service, Software Service.
9.3 Subject to clause 9.5, the maximum aggregate liability of Cinch (including its respective agents and sub-contractors) under, arising from or in connection with each Statement of Work, whether arising in contract, tort (including negligence) or otherwise, shall not exceed in aggregate the Charges paid by the Customer to Cinch under the applicable Statement of Work.
9.4 Subject to clause 9.5, in no event shall Cinch be liable for:
9.4.1 any loss of profits, loss of data, loss of business or business benefit, or the cost of procurement of substitute products or services by Customer, business interruption, loss of management time, loss of use, loss of contracts, loss of opportunity, loss of goodwill; or
9.4.2 any special, indirect, incidental or consequential losses of any nature whatsoever;
whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations hereunder, howsoever caused even if it is advised of the possibility of such loss.
9.5 For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraud or fraudulent misrepresentation.
9.6 Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.
9.7 This clause 9 shall survive the termination of this Agreement for whatever cause.

10 FORCE MAJEURE
10.1 If either party is prevented or delayed from or in performing any of its obligations under this Agreement by Force Majeure, then:
10.1.1 its obligations under this Agreement (or, where the Force Majeure only affects some of the Services, such obligations as relate to those Services) shall be suspended for so long as the Force Majeure event continues and to the extent that that party is so prevented, hindered or delayed;
10.1.2 the parties shall, without prejudice to the other provisions of this Clause 10.1 consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure;
10.1.3 that party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.
10.2 If any Force Majeure prevails for a continuous period in excess of 2 months, either party shall be entitled to terminate this Agreement in its entirety (if all Services are affected by Force Majeure) or in part (insofar as it relates to the Services affected by Force Majeure) by giving not less than 10 working days’ notice in writing to the other party.

11 CONFIDENTIALITY
11.1 Each party (the “Receiving Party”) shall use its reasonable endeavours to keep confidential the provisions of this Agreement and all information and documentation disclosed by the other party (the “Disclosing Party”), before or after the date of this Agreement, to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any online training materials, software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all associated software, specifications, designs and graphics) or which is identified by the Disclosing Party as confidential (the “Confidential Information”) and will not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party.
11.2 During the term of this Agreement, the Receiving Party may disclose the confidential information to its employees and sub-contractors (any such person being referred to in this Clause as the “Recipient”) to the extent that it is reasonably necessary for the purposes of this Agreement. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement.
11.3 The obligations contained in Clauses 11.1 and 11.2 shall not apply to any Confidential Information which is:
11.3.1 at the date of this Agreement already in, or at any time after the date of this Agreement comes into, the public domain other than through breach of this Agreement by the Receiving Party or any Recipient;
11.3.2 furnished to the Receiving Party or any Recipient without restriction by a third party having a bona fide right to do so; or
11.3.3 required to be disclosed by the Receiving Party by law or regulatory requirements of any stock exchange, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
11.4 All tangible forms of Confidential Information, including, without limitation, all summaries, copies, excerpts of any Confidential Information whether prepared by the Disclosing Party or not, shall be the sole property of the Disclosing Party, and shall be immediately returned by the Receiving Party to the Disclosing Party or destroyed upon the Disclosing Party’s request or the termination of this Agreement (whichever is earlier). The Receiving Party shall not copy, reproduce, publish or distribute in whole or in part any Confidential Information without the prior written consent of the Disclosing Party.

12 PUBLICITY AND MARKETING
12.1 Customer agrees that Cinch may in any of its marketing material refer to the Customer as a customer of Cinch and refer to the type of services that Cinch has provided to the Customer.
12.2 Customer agrees that Cinch may publish and circulate a case study describing the Services supplied by Cinch to the Customer (for use by Cinch as a marketing tool).

13 DATA PROTECTION
13.1 The Customer shall procure that its Use of the Online Training Services, Software Service is compliant with all relevant statutory provisions, including but not limited to e-commerce, GDPR(General Data Protection Regulation),fraud and anti-money laundering regulations.
13.2 For Personal Data processed by Customer using Software Service the Customer undertakes to act in accordance with the applicable data protection legislation under current GDPR (General Data Protection Regulation).
13.3 The Customer and Cinch acknowledge and agree that the Customer is the data controller and that Cinch is a data processor in respect of any Personal Data. The Customer therefore confirms that:
13.3.1 it is entitled to transfer the relevant Personal Data to Cinch so that Cinch may lawfully use, process and transfer the Personal Data in accordance with this Agreement on Customer’s behalf;
13.3.2 it shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing and transfer as required by all applicable data protection legislation;
13.3.3 it is solely responsible for ensuring that any data processing and security obligations under this Agreement comply with applicable data protection law and anti-money laundering regulations. Cinch will only process Personal Data for the purposes of providing the Customer with the Services and each party has in place and will maintain for the duration of these terms and conditions appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, or disclosure of Personal Data and adequate security programmes and procedures to ensure that unauthorised persons do not have access to any equipment used to process Personal Data.
13.4 The Customer hereby indemnifies Cinch in full and on demand against all losses, liabilities, damages, costs, claims and expenses (including but not limited to legal costs) arising from or incurred by Cinch as a result of any failure of the Customer to comply with this clause 13.

14 NON-SOLICITATION OF EMPLOYEES
14.1 During the period this Agreement is in effect and for a period of 6 months thereafter, neither party shall solicit or offer employment to any employees of the other or any sub-contractors used by the other hereunder without the prior written consent of the other.
14.2 In the event that the either party breaches Clause 14.1, it shall be liable to pay, immediately on demand, and without prejudice to any other remedy that the other party may have, the equivalent of 12 months gross salary of the employee so solicited and/or employed.

15 GENERAL
15.1 This Agreement hereto constitutes the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement.
15.2 Each of the parties acknowledges that in entering into this Agreement on the terms set out herein it has not relied on or been induced to enter into this Agreement by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this Agreement other than those expressly set out in this Agreement or any applicable Statement of Work.
15.3 If any part of any provision of this Agreement shall be invalid or unenforceable, then the remainder of such provision and all other provisions of this Agreement shall remain valid and enforceable.
15.4 No amendment or variation of the terms of this Agreement shall be effective unless it is made or confirmed in a written document signed by both parties.
15.5 No delay in exercising or non-exercise by either party of any of its rights under or in connection with this Agreement shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.
15.6 Nothing in this Agreement or any document referred to in it or any arrangement contemplated by it shall be construed as creating a partnership between the parties for any purpose whatsoever and neither party shall have the power or authority to bind the other party or impose any obligations on it to the benefit of any third party.
15.7 The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.8 The Customer may not assign any of its rights under this Agreement without the prior written consent of Cinch.
15.9 This Agreement shall be construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts to settle any disputes, which may arise in connection with this Agreement.
15.10 Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be:
15.10.1 delivered in person; or
15.10.2 sent by registered mail return receipt requested; or
15.10.3 sent by overnight air courier; or
15.10.4 transmitted by facsimile
in each case forwarded to the appropriate address set forth herein. Either Party may change its address for notice by email/written notice to the other Party. Notices will be considered to have been given at the time of actual delivery in person, or three (3) business days after posting, or one (1) day after (i) delivery to an overnight air courier service or (ii) the moment of transmission by facsimile with receipt of such facsimile confirmed by telephone by the intended recipient.

SCHEDULE 1
STATEMENT OF ONLINE TRAINING SUBSCRIPTION

ONLINE TRAINING SERVICE SUBSCRIPTION

DATE: (“Commencement Date”)
1. GOVERNING TERMS
This Online Training Service Subscription is subject to and forms part of the Software as a Service Agreement dated receipt of payment for monthly subscription, between CINCH TECHNOLOGIES LIMITED, a company incorporated and registered in England and Wales with company number 08673834 whose registered office is at 11th Floor,One Croydon, 12-16 Addiscombe Road, Croydon, London CR0 0XT (“Cinch”); and Customer a person/company subscribing to or buying CINCH services (the “Customer”).

2. CINCH SOFTWARE
2.1 Cinch shall provide access to the following Cinch Software as part of the Software Service:
• Online Training Providing Portal

3. CINCH ONLINE TRAINING
3.1 Cinch shall provide access to the following Online Training as part of the Online Training Service:
• Online means the provision, by Cinch to the Customer, of a training service and training material permitting the Users to access the combination of Training Videos, Written Text, Audios and Other Training Content.

4. OPEN SOURCE SOFTWARE AND LICENCES
Cinch shall provide access to following Open Source Software as part of the Software Service:
• Opigno

5. TERRITORY
The Customer may use the Software Service in the following Territory:
• Globally

6. USERS
One User Account Per Person for Subscription of $97

7. CONFIGURATION SERVICES
7.1 Scope
Cinch shall provide the Configuration Services set out below:
• Username and Access Info via email to access the online training
7.2 Estimated Start Date
The start date for the performance of the Configuration Services is date specified by the online training start date during purchase.

8. CUSTOMER OBLIGATIONS
The Customer shall:
• Not disclose the User access details to third party.
• Customer agrees NOT to use Online Training Materials for commercial selling to third parties

9. SUPPORT
Cinch shall provide the Support in accordance with Schedule 2.
Date the Payment has been processed and received for the services.
between 9.00am and 5.30pm (GMT), Monday to Friday (excluding bank and public holidays):

10. CHARGES and PAYMENT
10.1 Charging Rates
The Charges shall comprise the following (“Charges”):
Online Training Service Charges:
$97 per month on subscription basis
OR
$1164 for annual subscription
10.2 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 10 and Schedule 1.
Configuration Charges
The Charges for Configuration Services and provision of the Portal included in the online training course price.
Online Training Service Charges:
The first payment of the Online Training Service Charges shall be due and payable on execution of payment of Online Training Service Subscription. Thereafter such Online Training Service Charges shall be due and payable monthly in advance.
Support
Support Charges shall be included in the Online Training Service Charges when Customer is not able to access the training.
10.3 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
10.4 If the Supplier has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to [3]% over the then current base lending rate of [the Supplier’s bankers in the UK] at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.5 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in US Dollars;
(b) are, subject to clause
• the Supplier shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
• non-cancellable and non-refundable;
• are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate if required.

11. TERM AND TERMINATION
Upon termination of this Online Training Service Subscription or the Agreement for any reason the Customer will pay Cinch all Charges for the Online Training Service and provision of the Portal and all Software Service Charges that have fallen due and that remain unpaid at the date of termination.
Upon termination of this Online Training Service Subscription or the Agreement for any reason, in respect of Subscription Charges and Disbursements, the Customer will pay Cinch for all time completed and materials consumed up to the date of termination.
11.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
11.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

SCHEDULE 2

SUPPORT
1. DEFINTIIONS
“Error” means any material and reproducible failure of the Software Service to operate in accordance with the Documentation;
“Support Commencement Date” means the date set out in the applicable Statement of Work;
“Support Hours” means the hours during which Cinch shall provide Support as set out in the applicable Statement of Work;
“Workaround” or “Temporary Fix” means a change advised by Cinch in the procedures to be followed by Customer to avoid an Error without significantly impairing performance of the Software Service.

2. SUPPORT
2.1 Throughout the term of this Agreement, subject to payment of the relevant Charges (if applicable), Cinch shall provide the following support services during the Support Hours:
2.1.1 advice by telephone, e-mail and/or remote access on the use of the Online Training, Software Service; and
2.1.2 the diagnosis of Errors in the Online Training,Software Service and instructions as to the rectification of such Errors by email or by remote access.
2.2 As soon as practicable after Customer becomes aware of an Error, it shall:
2.2.1 notify Cinch through Cinch’s ticketing system or e-mail of the circumstances in which it arose and provide all additional available information to Cinch regarding such Error; and
2.2.2 if required, provide Cinch with all access to the Customer’s system and audit logs necessary to enable Cinch to rectify such Error.
2.3 Cinch will log all problems with the Online Training, Software Service reported by Customer and notify Customer as soon as possible if it determines that no Error exists. If Cinch determines that an Error does exist, it shall use all reasonable endeavours to correct such Error in the Software Service as soon as reasonably practicable.
2.4 Cinch’s provision of Support is conditional on the Customer complying with the following provisions:
2.4.1 all requests for Support shall be made to Cinch by Customer trained in the using the Online Training Service Subscription, with professional knowledge and experience of software products sufficient for proper interaction with Cinch technical staff in matters of support of the Online Training Service;

2.4.2 Customer shall provide Cinch with sufficient documentation, data, details and assistance with respect to any reported Errors so as to enable Cinch to reproduce and verify the same as an Error;
2.4.3 Customer shall assist Cinch to diagnose and correct reported Errors by providing: (a) all relevant documentation and records and (b) personnel trained in the operation of the Online Training Service who have authority to implement remedial actions as instructed by Cinch.
2.5 Customer acknowledges that it will be solely responsible for all support of its own software, data and equipment it is using in conjunction with the Online Training Service , Software Service. Cinch shall have no liability for any loss or corruption of any such software, data and equipment, however caused.
2.6 The Support shall not include the diagnosis and rectification of any Error resulting from:
2.6.1 any modification, customisation, alteration or addition to the Online Training, Software Service, or any attempt thereof, made by Customer or any third party not authorised to do so by Cinch;
2.6.2 the improper use, operation or neglect of the Online Training, Software Service;
2.6.3 the use of the Software Service for a purpose for which it was not designed;
2.6.4 a fault in the equipment or in Customer or third party software or applications or any upgrade or new release in respect thereof;
2.6.5 loss or damage caused directly or indirectly by operator error or omission; or
2.6.6 rectification of lost or corrupted data arising out of Customer’s own negligence.
2.7 Provision of Support as described in this Schedule 2 is Cinch’s sole obligation, and Customer’s sole remedy, with respect to the Support of the Online Training, Software Service. Cinch shall have no other liability or obligation to Customer with respect to any Errors or other real or perceived problems with the Online Training Service , Software Service.
2.8 All telephone and e-mail contact with Cinch should be to the following telephone number and e-mail address unless Customer is notified to the contrary by Cinch Tel: +44 (0) 203 828 1380 or Email: [email protected]