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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Business Associate Agreement;

(2) Standard Contractual Clauses;

(3) Security, Privacy and Data Processing Addendum;

(4) the body of the Master Cloud Services Agreement;

(5) Service Level Addendum;

(6) Infrastructure as a Service Addendum;

(7) Infrastructure Management and Monitoring Addendum;

(8) Hosting Addendum;

(9) Desktop as a Service Addendum;

(10) Disaster Recovery as a Service Addendum;

(11) Backup as a Service Addendum;

(12) Helpdesk Addendum;

(13) any other Cinch configurations, selections, Cinch-accepted requests, exhibits, addendums or documents referenced directly or indirectly by the Agreement; and

(14) any third-party terms and conditions.

For each issue responded to in accordance with this Section 3, Cinch will record relevant information in its incident management system and provide access to Customer upon request. In addition, for each calendar month, Cinch will deliver a report to Customer that summarizes all issues in such month, by no later than seven (7) days after the end of such month.

• “Local Back-Up” service allows you to engage Cinch to manage regularly scheduled system and data back-ups. The architectural framework of this service also allows you to integrate Cinch’s Recovery Services into your existing disaster recovery architecture.
• “Replicated Back-up” allows you to extend the protection of Local Back-up offsite, to the Cinch Cloud.
• If subscribed and contracted with Cinch, Cloud-based Virtual Recovery service allows you to select systems that have been replicated to the Cinch Cloud and recover them in the Cinch Cloud Recovery area.

• Escalation management within your organization and with the related hardware and software manufacturers for the products that comprise the backup solution
• If contracted, daily health checks with identification of trends including growth and disaster recovery readiness and monthly reporting to actual back-up jobs with recommended changes

• Company backup policies
• Maintaining Cinch compatible back-up and recovery enabled software
• Maintaining Cinch compatible back up hardware and storage
• Maintaining current Support and Maintenance with the hardware and software manufacturer
• Providing sufficient bandwidth at your local facility

• Compatible back-up, recovery, and management software
• Compatible integrated hardware
• Daily management of the replication process to ensure that all necessary data is replicated to the Cinch cloud in a consistent state acceptable for recovery in a disaster
• Daily health checks with identification of trends including growth and disaster recovery readiness and monthly reporting to actual back-up jobs with recommended changes
• Support in a recovery scenario to help bring data back from the cloud to either the production site or the recovery site as needed
• If subscribed and contracted with Cinch, Cinch will provide a WAN-optimized technologies that will speed back-up operations.

• Company backup policies
• Maintaining Cinch compatible back-up and recovery enabled software
• Maintaining Cinch compatible back up hardware and storage
• Maintaining current Support and Maintenance with the hardware and software manufacturer
• Providing sufficient bandwidth at your local facility

• Internet and Network
• Compute
• Disk
• Managed Services from Cinch for recovery only

(1) Disaster Recovery-as-a-Service offering is operated and managed by Cinch:

(1) Benefits include:

(1) Monitoring Dashboard/Portal and Business Views: Cinch will provide Customer with access to a dashboard and management portal (“Customer Portal”) through which Customer may access incident ticketing information, reports, and trending data with respect to Managed Systems.

(2) Monitoring Services: Cinch’s proactive Monitoring Systems and Customer Portal will be available as set forth in this Addendum. The Monitoring Systems collect and evaluate availability and performance statistics from Managed Systems and present those statistics to Customer via the Customer Portal. In addition to monitoring up/down status of each device with a Managed System, the Monitoring System monitors the critical application attributes that are identified in cooperation with Customer and set forth a Service Order.

(3) Incident Management: Cinch will manage the collection, communication, and escalation of incidents arising as a result of alerts received from the Monitoring System, in accordance with the written standard operating procedures (the “SOPs”) agreed upon with Customer in writing and the terms and conditions defined in this document.

(1) Preventative Maintenances: Cinch will perform appropriate preventative maintenance tasks on Managed Systems. The tasks may include services such as log review, job monitoring, and replication job monitoring, disk defragmentation, virtualization configuration analysis and adjustments, each as further defined in an SOP.

(2) Health Checks: Health checks are a technical assessment of Customer’s existing physical and virtual Managed Systems to ensure that you continue to achieve optimal levels of performance and efficiency. Health checks maximize the return on your investments and provide a proactive, in-depth understanding of the performance level across your network, servers, storage systems, and backup systems. Cinch staff will provide daily health checks in accordance with the applicable SOP to ensure that all critical components of your environment are physically inspected and affirmed operational by one of its team members.

(1) “Available” or “Availability” means the time (in minutes) that the system being measured could establish a network connection and that its material features and functions are up, running, and operationally functional. "Excluded Downtime" means the time (in minutes) that the system being measured is not Available, to the extent caused by (A) Customer-provided hardware, software, or other equipment not provided by or certified by Cinch; (B) Customer-provided or Customer-leased local area networks or ISP connections; (C) modifications made by Customer without Cinch’s prior written approval; (D) use of the system by Customer, its employees, agents, or contractors, in ways not authorized by this Addendum; (E) Maintenance Downtime, as defined below; (F) Customer’s failure to use sufficient, redundant power sources or Internet connectivity; (G) a Force Majeure event as herein or (H) any other system outside of Cinch’s control. “Maintenance Downtime” means scheduled repairs, maintenance, upgrades, or deployments related to Cinch’s equipment, network, or facility, and other events agreed upon in advance by Cinch and Customer. “Total Minutes” shall mean the number of minutes in the applicable calendar month.

“Percent Available” will be calculated as follows: ((Availability / (Total Minutes – Excluded Downtime)) x 100).

(1) In each calendar month during the Term, the Percent Available for the Monitoring Systems will be 99.99%.

(1) In each calendar month during the Term, the Percent Available for the Customer Portal will be 99.99%.

(1) In each calendar month during the Term, the Percent Available for the network within the locations used to store Managed Systems (“Data Center”) will be 99.99%.

(1) In each calendar month during the Term, the Percent Available for each Redundant Device managed by Cinch will be 99.99%.

(1) In each calendar month during the Term, the Percent Available for each Non-Redundant Device managed by Cinch will be 50.00%.

(1) Customer may require Cinch to manage or support hardware and/or software products for which Cinch does not typically provide support as part of the Infrastructure Management Services (collectively, “Non-Standard Equipment”). Cinch shall not be responsible under this SLA or this Addendum for the Availability or functionality of any Non-Standard Equipment, and Customer shall not be eligible for credits under this SLA for the failure of any Non-Standard Equipment.

(1) Cinch shall use commercially reasonable efforts to secure: (i) the Data Centers and networks contained therein; and (ii) Managed Systems (including testing and deploying security patches and fixes, where appropriate).

(1) In a calendar month where Cinch fails to meet any expressly stated service level commitment in this Section 4, Customer will give Cinch written notice thereof no later than ten (10) business days after the end of such calendar month. Cinch will investigate such failure promptly after its receipt of notice.

(1) Cinch will initially respond to issues reported by the Monitoring Systems, in accordance with the following table.

(2) In a calendar month where Cinch fails to initially respond to an issue within the Initial Response Commitment Level above, Customer will give Cinch written notice thereof no later than ten (10) business days after the end of such calendar month. Cinch will investigate such failure promptly after its receipt of notice.

(1) Cinch will acknowledge and escalate issues reported by the Monitoring Systems, in accordance with the following table.

(2) In a calendar month where Cinch fails to acknowledge or escalate an issue within the time set forth above, Customer will give Cinch written notice thereof no later than ten (10) business days after the end of such calendar month. Cinch will investigate such failure promptly after its receipt of notice.

Priority Definitions

(1) For each issue responded to in accordance with this Section 5, Cinch will record relevant information in its incident management system and provide access to Customer upon request. In addition, for each calendar month, Cinch will deliver a report to Customer that summarizes all issues in such month.

(2) In a calendar month where Cinch fails to perform its obligations in this subsection, Customer will give Cinch written notice thereof no later than ten (10) business days after the end of such calendar month. Cinch will investigate such failure promptly after its receipt of notice.

Cinch is not required to provide support for Excluded Issues. Cinch may, in its sole discretion, provide support for Excluded Issues, and Customer will pay for all such support at Cinch’s then-standard hourly rate. Cinch is not responsible for Customer’s failure, for any reason, to respond to alerts or incidents escalated by Cinch in accordance with this Addendum.

Customer alone is responsible for:

(1) Designating a qualified liaison between itself and Cinch.

(2) Providing Cinch with the names of persons (and alternates) responsible for technical, administrative, and contact matters.

(3) Obtaining licenses and complying the terms thereof for all software utilized on Customer’s equipment and environments.

(4) All communications with Customer’s end users, whether for technical support, business relations or any other purpose; and

(5) If applicable, providing Cinch with a list of end users for service and/or support.

If Customer requests (which must be made before the termination or expiration of the applicable Service Order), then Cinch, for a commercially reasonable period of time (not to exceed thirty (30) days) will provide assistance to Customer in the transfer of Customer’s Managed Systems to a third party or to a Customer site (the “Transition Services”). Such Transition Services will be rendered by Cinch and paid for by Customer on a time and material basis, plus all reasonable and necessary travel and living expenses. Promptly after Customer’s request (which must be made no later than thirty (30) days after the end of the applicable Service Order), Cinch will provide Customer with all of Customer’s data in Cinch’s possession, at no expense to Customer.

The “Private Cloud” Service provides Customer with a single-tenant cloud with dedicated physical servers, a dedicated network for Internet traffic, dedicated storage volumes, and a dedicated cloud management instance. Infrastructure capacity may be allocated to a single data center or multiple data centers at your option.

The “Virtual Private Cloud” provides a multi-tenant virtual cloud with logically isolated resources on shared physical infrastructure, configured as a single virtual data center with networking resources. Each VPC is fully encrypted and isolated from other customer environments.

Cinch will:

(1) Provide the resources (such as physical servers, physical storage, and physical network devices) needed to provide the IaaS Services.

(2) Provide network bandwidth in accordance with the applicable Service Offering.

(3) Provide resource pools (memory, processing, primary storage, and networking) with the applicable Service Offering

(4) Create Cinch and/or other user accounts and set default system preferences; and

(5) Create and configure applicable virtual server templates, as further described below.

Cinch will:

(1) Install and configure custom or third-party applications and operating systems on deployed virtual machines; and

(2) Deploy and maintain on-premises and other resources for disaster recovery with the applicable Service Offering

Cinch will provide the following services with respect to Data Recovery:

(1) Data protection, such as routine backups, for cloud infrastructure, including top-layer management and user-management interfaces owned and operated by Cinch.

(2) Data and infrastructure restoration for the cloud infrastructure, including top-layer management and user-management interfaces owned and operated by Cinch.

(3) Data protection, such as routine backups, for the data and content accessed or stored on Cinch virtual machine’s or storage devices, configuration settings, etc.

(4) Data, content, virtual machine, and configuration restorations for assets accessed or stored with Cinch.

Customer will:

(1) Be responsible for backing up applications and their own systems

(2) Be responsible for securing access to Systems

(3) Be responsible for providing anti-virus and malware technologies

(4) Be responsible for deploying and maintain disaster recovery services with Cinch or another provider of disaster recovery solution.

Cinch will provide the following services with respect to Monitoring:

(1) Monitoring Cinch Cloud infrastructure, infrastructure networks, top-layer management and user-management interfaces, and computing, storage, and network hardware for availability, capacity, and performance.

Customer will:

(1) Be responsible for monitoring their own Application, systems, and servers

(2) Be responsible for Monitoring the assets deployed or managed by Customer, including, but not limited to virtual machines, operating systems, applications, specific network configurations, operating system, or application vulnerabilities

Customers will also have access to Cinch-provided operating system templates to the extent that:

(1) Published templates cannot be accessed from the Service Catalog

(2) Published templates cannot be instantiated without modification

(3) Published templates cause errors at first run time

(4) There are substantial hangs or excessive delays in the retrieval of a template from the Service Catalog

The configuration of a published template affects the virtual machine’s interaction with the hypervisor

Time synchronization issues (NTP) exist

Customer will:

(1) Be responsible for licensing and consumption of 3rd party software

(2) Be responsible for maintaining accurate recording for reporting of consumption of 3rd party licensing

Cinch will provide a catalog of supported virtual server deployment templates that you may deploy into your Cinch environments for Private Cloud and Virtual Public Cloud. Cinch will maintain and update these templates from time to time. Templates that are provided by Cinch may be removed at any time. Customer is responsible for selecting, deploying, and configuring templates appropriate to its needs, and for activating related licenses, and maintaining compliance with such license terms.
b. In order to comply with Cinch’s legal obligations to its third-party licensors, Customer will not be permitted to export, download, or remove certain templates or any installed forms of certain templates for installation or use outside of the IaaS Service Offering. Customer may implement or import virtual server deployment templates if it has sufficient legal rights to deploy and use the software and information contained in such templates

The Cinch Platform includes the following network services as a part of the core cloud subscription:

(1) Network Address Translation (NAT): Separate controls for Source and Destination IP addresses, as well as port translation.

(2) Dynamic Host Configuration Protocol (DHCP): Configuration of IP pools, gateways, DNS servers, and search domains.

(3) Firewall: Our Firewall Management service provides 24x7 firewall administration, and response to security and device health events.

(4) Site-to-Site Virtual Private Network (VPN): Uses standardized IPsec protocol settings to interoperate with all major VPN vendors.

(5) Static Routing: Static routes for destination subnets or hosts.

(6) Dynamic Routing: Supported protocols include OSPF and BGP. This feature is available when customer subscribes to Direct Connect offering.

(7) Blended Internet with BGP.

Clients will also have access to Cinch-provided Tools, including:

(1) Cinch Tools Installation and Configuration

(2) Cinch Tools for optimization

(3) Performance tuning as it relates to Cinch tools and drivers

Customers are responsible for the following:

(1) Your organization, virtual data center, or organization network administration, configuration, and modification.

(2) User-deployed and configured assets such as virtual machines, custom developed or third-party applications, custom or user-deployed operating systems, network configuration settings, and user accounts.

(3) Operating system administration including the operating system itself or any features or components contained within it.

(4) Performance of user-deployed virtual machines, custom or third-party applications, your databases, operating systems imported or customized by you, or other assets deployed and administered by you that are unrelated to services provided by Cinch.

Cinch will:

(1) Maintain processes and procedures to intended to ensure the health and availability of the Cinch Cloud and infrastructure in the Cinch Area (as defined in Section 10 below); and

(2) Maintain processes and procedures to release new code versions, hot fixes, and service packs related to the Cinch Cloud components in the Cinch Area.

Customer is responsible for:

(1) Custom or third-party applications, databases, and administration of the Customer Area (as defined in Section 4 above); and

(2) Administration of self-service features, up to the highest permission levels granted to you, including but not limited to virtual machine and network functions, backup administration, user configuration and role management, general account management.

“Cinch Area” means the areas of the Cinch infrastructure and systems for which Cinch has sole administrative control. “Customer Area” means the portions of the systems where Customer assumes full or partial control, permission, or access to modify an environment.

Cinch will use commercially reasonable technical and organizational measures designed to provide the following:

(1) Physical security measures intended to protect Cinch’s data centers from physical security breaches.

(2) Information security measures intended to protect the Cinch Area.

(3) Network security measures intended to protect the Cinch Area.

(4) Monitoring for potential security events in the Cinch Area; and

(5) Patching and vulnerability management of the systems Cinch uses to deliver the IaaS environment, including the application of patches it deems critical for the target systems. Cinch will perform routine vulnerability scans of the Cinch Area intended to identify critical risk areas for the systems it uses to deliver the IaaS service. Critical vulnerabilities will be addressed in a commercially reasonable manner.

Customer is responsible for:

(1) Information security measures to protect the networks, information systems, data, content or applications in the Customer Area, including without limitation any patching, security fixes, encryption, access controls, roles and permissions granted to Customer’s internal, external, or third-party users;

(2) Network security measures to protect the networks, including software defined networks, within the Customer Area, including measures such as maintaining effective firewall rules, exposing communication ports only as necessary to conduct business, preventing and promiscuous access.

(3) Monitoring for potential security events in the Customer Area.

(4) Security monitoring and response for the Customer Area, including detecting, classifying, and remediating all security events in the Customer Area, through the use of such measures as vulnerability scanning tools or monitoring tools, or that are required for Customer’s compliance or certification program; and

(5) Identifying and remediating compromised virtual environments within the Customer Area and resolving all related issues. Cinch reserves the right to suspend all or any portion of the Service Offerings if compromised environments are detected by Cinch to protect Cinch’s infrastructure and business operations.

Customer is required to utilize a reputable anti-virus program to protect the Customer Area, which must be running, up to date, and properly configured.

Offline Data Transfer is an optional data migration service for the purpose of transferring large numbers of virtual machines, virtual apps, or templates from your local private environments to the Cinch Cloud. These migration capabilities support onboarding to the Cinch platform, export from the Service Offering, and synchronization of templates between the Cinch platform and Customer’s on-premises data centers.

Cinch will provide:

(1) A physical storage device shipped to Customer; and

(2) After the device is received back by Cinch, the transfer of data from the device into Customer’s Service Offerings.

Customer is responsible for:

(1) Following the documentation accompanying the storage device.

(2) Returning the storage device by Customer’s preferred carrier at Customer’s expense to Cinch within 45 calendar days from Cinch’s date of shipment.

(3) Backing-up and encrypting any data, applications, virtual machines, or other content transmitted via the service.

Cinch will not be responsible for any data loss or any other loss or damage that may occur as a result your use of the Offline Data Transfer service. If any Cinch storage device is not received by Cinch in equivalent working condition within 45 days from Cinch’s date of shipment, Customer will pay Cinch a replacement fee for any such storage device plus any shipping and handling charges, as each will be assessed by Cinch. Customer’s use of the Offline Data Transfer service is entirely at Customer’s own risk.

Direct Connect is an optional dedicated networking link that helps connect remote customer data centers, and those in the same facility as Cinch, to customer instances in Cinch environments. Direct Connect enables customers to leverage high-output and low-latency connections provided by a network service provider. The dedicated connection circuit will consist of the Direct Connect service (which is provided by Cinch) and the network connection and service from the customer site into the Cinch data center (which is provided by your chosen network service provider, who must have a point of presence in the relevant Cinch data center).

There will be separate network connection fees, for which you are responsible, assessed by your network service provider, and/or Cinch.

The network service provider will provide you networking services and will assess separate fees under separate service contract terms. These separate fees and terms must be managed with your chosen network service provider, which is separate from your relationship with Cinch.

As part of this service, Cinch will:

(1) Provision, manage and support the Cinch side of the connection

(2) Coordinate with your selected network service provider to ensure successful circuit provisioning and connection from your Cinch instance to the network service provider’s point of presence in the relevant Cinch data center(s).

Cinch will work with your carrier, or our carrier to provide P2P connections from your infrastructure to the Cinch cloud.

You will be responsible for:

(1) Contracting with a network service provider for all private network service connectivity unless you have agreed to have Cinch manage the service.

(2) Complying with all applicable terms and conditions of the network service provider

(3) Providing all applicable network service provider circuit information to Cinch Support that is required for provisioning completion.

(4) Cinch will not be responsible for any network connectivity outage that occurs on the network service provider’s side of the connection. Cinch’s Global Privacy Addendum applies in respect of data processed on Cinch infrastructure controlled by Cinch but not the network connection and service provided by your chosen network service provider

Metered Usage components for Virtual Private Cloud, such as Bandwidth and third-party licenses are available for consumption in excess of subscription levels at any time within the Service Order Form. You are obligated to pay for such Metered Usage components at the then-current rates published by Cinch. Such charges will be billed by Cinch as agreed upon. A list of Metered Usage components is provided in Appendix A.

Capacity may be added via the Change Request Form or Service Order Form

All Private & Public Cloud On-Demand and SaaS components are considered metered usage.

(1) Cinch is responsible for supplying one (1) cabinet in Customer’s Environment.

(2) Cinch is responsible for supplying any and all hardware and software specified in the applicable Service Order (“Cinch-Provided Systems”). Cinch shall configure the Cinch-Provided Systems and notify Customer (email sufficing) that such Cinch-Provided Systems are ready for production use, as defined in the applicable Service Order or as otherwise agreed upon by Customer and Cinch in writing. Cinch certifies that it has all rights necessary for it to provide Customer with the Cinch-Provided Systems, provided that Customer only uses such systems in accordance with the Agreement, this Addendum, and the Cinch Acceptable Use Policy, available at https://assets.cinchsoftware.io/content/legal/acceptable_use_policy.pdf.

(1) As specified in a Service Order, Cinch will provide Customer with Connectivity (measured in megabits per second (“Mbps”)), redundant providers (“Committed Bandwidth”), and burstable capacity for the Customer's Environment. Bandwidth utilization measurements (measured in Mbps) are taken once every minute on Customer’s inbound and outbound traffic at the border router for Customer’s Environment and recorded over a one calendar month period. The aggregate inbound and outbound traffic volumes are compared, and the lesser of the two is discarded (the greater of the two is the “Monthly Traffic Flow”). The top five percent (5%) of measurements of the Monthly Traffic Flow are then discarded, leaving ninety-five percent (95%) of the Monthly Traffic Flow remaining. The next highest measurement becomes the billable utilization for the entire month (the “Actual Utilization”). If the Actual Utilization exceeds the Committed Bandwidth, Cinch will bill Customer the difference at the base commit rate per Mbps (calculated by dividing the Committed Bandwidth by the fee paid for it). If the Customer consistently (i.e., exceeds its Committed Bandwidth, then, upon Cinch’s reasonable request, the parties shall negotiate and reach mutual agreement on a new Committed Bandwidth.

(2) If specified in a Service Order, Customer will initially be provided with a “/28” block of Internet protocol (“IP”) address/licenses, for its use pursuant to the Agreement. Subject to the terms of this Addendum, Cinch may provision additional IP addresses for use by Customer. Additionally, Cinch may, in its reasonable discretion, withdraw IP addresses from Customer if they are underutilized, or as otherwise necessary to efficiently operate its network.

(1) The products and services Customer provides.

(2) The number of IP addresses Customer is currently using.

(3) The number of new hosts Customer will be adding in the following 12 months.

(1) This Service Level Agreement (“SLA”) describes the performance and availability of the Power and Connectivity to Customer’s Environment. Through built-in redundancy and proactive monitoring, Cinch strives to achieve 99.99% Availability (as defined below).

(2) “Available” or “Availability” means the time (in minutes) that the system being measured, the Power or Connectivity, as applicable, is up, running, and operationally functional. "Excluded Downtime" means the time (in minutes) that the system being measured is not Available, to the extent caused by:

(3) “Percent Available” will be calculated as follows: ((Availability / (Total Minutes – Excluded Downtime)) x 100). b. In a calendar month where Cinch fails to meet any expressly stated service level commitment in this Section 11, Customer will give Cinch written notice thereof no later than ten (10) business days after the end of such calendar month. Cinch will investigate such failure promptly after its receipt of notice. If confirmed (in Cinch’s good faith and reasonable discretion), then Cinch will apply a credit of 5% of the fees paid by Customer to Cinch for the Colocation Services for such month to Customer’s next invoice.

(1) Name, company name, and contact information

(2) Priority customer assigns to the event

(3) Description of the issue