This Merchant Participation Agreement (“Agreement”) is made and entered into as of the date Merchant accepts this Agreement in accordance with Section 1 below (“Effective Date”), by and between Cinch Technologies, Inc. (“Company” or “Cinch”) and the merchant accepting this Agreement in accordance with Section 1 below (“Merchant”). Each of Company and Merchant may be referred to herein as a “party” or collectively as “parties.” Capitalized terms used in this Agreement without definition have the meanings given them in Section 3 below.
Acceptance of Agreement. By clicking “I Accept” below, Merchant’s authorized representative (“Authorized Representative”) accepts this Agreement on behalf of Merchant and acknowledges that Authorized Representative (a) is authorized to accept this Agreement on behalf of Merchant and (b) has read and understood this Agreement. Merchant agrees that this Agreement is binding on Merchant as if executed in writing.
Cinch Network. Company has established a network of point-of sale (“POS”) merchants (the “Cinch Network”) located within Cinch Approved communities (the “Community”) and has developed a program under which End Users may use the Cinch Mobile Wallet (“eWallet”) to make purchases at participating merchants (“Cinch Service” or “Cinch Program”). As part of its participation in the Network, Merchant agrees to offer a discount, incentive, or other benefit (the “Benefit”) to persons making purchases with the eWallet. Company agrees to market and promote Merchant’s participation and provision of the Benefit. This Agreement governs Merchant’s acceptance of the eWallet at Merchant’s United States locations (collectively, “Locations”). Nothing in this Agreement shall require Company to approve a merchant as a merchant in the Cinch Network, which shall only be done at the Company’s sole discretion. Merchant agrees to allow the use of the eWallet only for purchases of goods and services legally sold by Merchant. Under this Agreement, Merchant shall not accept Transactions, authorize Transactions, or receive payments on behalf of any other party.
Definitions. Except as otherwise set forth in this Agreement, the terms below shall be defined as follows:
“Applicable Law” means any international, federal, state or local law, regulation or rule and official interpretations thereof issued by a regulatory authority that govern or relate to this Agreement or any of the services or Transactions related to this Agreement, or the issuance, sale, authorization or usage of the eWallet.
“End User” means any subscriber, purchaser, person or entity that uses the eWallet to originate a Transaction.
“Cinch Mobile Wallet” or “eWallet” means the payment services described herein that enable Merchant to accept payments from End Users at Merchant’s Locations.
“Transaction” means an End User’s use of the eWallet to make a purchase or return at a merchant that participates in the Cinch Network, such as the Merchant.
Changes to the Cinch Service: Cinch may, in its sole discretion, terminate, change, suspend, modify, or discontinue any or all aspects of the Cinch Service, temporarily or permanently, at any time with or without notice to Merchant, and Merchant agrees that Cinch shall not be liable to Merchant or any third party as a result of taking any such action,
Appointment as Agent: Merchant hereby appoints Cinch as its agent for purposes of receiving payment from End Users enrolled in the Cinch eWallet program. When an End User funds his or her Cinch eWallet, it will, in effect, constitute a payment to the Merchant for goods or services up to the amount of funds remaining in the End User’s Cinch eWallet at the time of payment if such End User chooses to pay with his or her eWallet. At the time an End User loads funds into his or her Cinch eWallet, Cinch will provide a digital receipt to the End User indicating that the payment of funds is, in effect, a payment to merchants participating in the Cinch Network.
Acceptance: Merchant shall accept the eWallet when presented by an End User as payment for any goods and services sold at all of Merchant’s Locations up to the value of funds in the eWallet. If requested, Merchant shall display Cinch-approved signage at the POS. Except as may be funded under a co-branding agreement or otherwise required, Merchant will not offer more favorable terms for a customer’s use of another payment method. Merchant is responsible and jointly and severally liable for the obligations of Merchant’s Locations under the Agreement. Merchant acknowledges and agrees that Transactions can be paid for only through an End User loading funds into the End User’s eWallet. Merchant shall not permit an End User to withdraw cash from the End User’s eWallet, transfer funds to another individual, or engage in an international transaction. Merchant shall not accept any Transaction over $1,000.
End User Information: Merchant acknowledges and agrees that the Cinch Service is not designed for Merchant to accept, and Merchant agrees not to request, obtain, or retain, any non-public personal information of End Users. The parties acknowledge that the Gramm-Leach-Bliley Act (“GLBA”) governs the disclosure of non-public personal information about consumers, including End User information. The parties shall comply with the applicable terms and provisions of the GLBA and other Applicable Law, including, but not limited to, the provisions of the GLBA regarding the security, re-use, sharing and re-disclosure of non-public personal information.
Cinch eWallet: The funds loaded into an End User’s eWallet will be held by Cinch at Cinch’s bank until such time as the End User designates a purchase from a Merchant. Merchant acknowledges that the funds from different End Users are pooled with funds representing balances for other End Users. Any interest earned on the pooled account, as between Company and Merchant, will be the property of Company. Prior to the Effective Date of this Agreement, Merchant shall provide Company with an ACH authorization that will permit Company to credit and debit a bank account designated by the Merchant for the payment and receipt of funds under the Cinch Program.
Returns: Merchant agrees that, whenever an End User requests a refund or returns a purchase in connection with a completed Transaction, Merchant will ensure that any refund or return of funds to that End User by the Merchant, if any, will be made using only the Cinch Service and through no other payment method. Merchant will remit to Cinch any refund or return of funds, and Cinch will credit such funds to the End User’s eWallet.
No Charge to End Users: Merchant agrees that it will not charge (or recharge) End Users any fee for using the eWallet to purchase or return Merchant’s goods or services.
Information Updates: Merchant will promptly notify Company if any information provided to Company is changed or is no longer accurate or complete.
Cinch Rules. Merchant agrees to comply with Company’s identification and security policies and procedures supplied to Merchant from time to time.
Fraud Detection and Assistance. Merchant agrees to cooperate with Company to investigate any suspected illegal or fraudulent activity, including without limitation, returning to Company any amount that the Merchant holds to the credit of an End User that Company suspects is the subject of any illegal or fraudulent activity and providing Company with information on an End User’s Transactions with the Merchant.
Company Proprietary Information. Company or its licensors own all right, title, and interest, including without limitation all copyright, trademark, and other intellectual property rights, in and to the Cinch App and Cinch Service and all components used in the provision thereof, including without limitation, all software, business methods, business processes, website designs, graphics, text, content, API instructions, trade names, trade secrets, and know-how, and all documentation in relation to the foregoing, used in the provision of the Cinch App and Cinch Service (“Proprietary Information”). Except as expressly stated herein, this Agreement does not transfer any right, title, or interest in the Cinch App and Cinch Service or the Proprietary Information to the Merchant. Company grants to the Merchant a non-exclusive, non-transferable license to display certain logos and trademarks of Company as Company may from time to time designate, in the Merchant’s Locations and on the Merchant’s Website(s) for the sole purpose of advising the Merchant’s customers at its Locations and on its Website(s) of Merchant’s acceptance of Cinch. The Merchant acknowledges that it is prohibited from any use, reproduction, decompilation, reverse engineering, modification, or distribution of any Cinch App, Cinch Service, or Proprietary Information that is not expressly authorized in this Agreement. Merchant may not sell, resell, assign, or otherwise transfer rights to the Cinch App and Cinch Service or any Proprietary Information. All Proprietary Information may be used only in connection with Merchant’s use of the Cinch Service and must cease immediately upon termination of this Agreement for any or no reason.
Merchant Information. Merchant hereby grants to Company a non-exclusive, non-transferable, non-assignable, royalty-free license to use Merchant’s trademarks, service marks, and logos (“Merchant Marks”) solely for the purpose of marketing and offering the Cinch Service. All uses of the Merchant Marks by Company, including all goodwill arising there from shall inure solely to the benefit of Merchant. Company agrees it will not use, register, or otherwise appropriate any name, mark, or logo which is similar to or may be confused with any name, mark, or logo licensed by Merchant other than in the provision of the Cinch Services. All rights with respect to the Merchant Marks not specifically granted herein are retained by Merchant.
Merchant Disputes. Merchant acknowledges that Company does not act as a buyer or seller of goods or services bought or sold by the Merchant through the acceptance of Cinch. The Merchant agrees that any dispute regarding any product or service purchased or sold by the Merchant through the acceptance of Cinch is between the Merchant and the End User that purchased or sold the goods or services, and agrees that Company shall not be a party to any such dispute.
Merchant Representations and Warranties. Merchant represents and warrants continually during the Term that: (a) Merchant will at all times comply with all Applicable Law and will not receive or transfer funds, or accept or use the Cinch Service, in connection with any illegal, fraudulent, or deceptive activity, including without limitation, for illegal gambling, money laundering, or terrorist financing; (b) all of the information about the Merchant and its business provided to Company by the Merchant is true, accurate, and complete; and (c) Merchant has the necessary rights, power, authority, and capabilities to enter into this Agreement and perform its obligations hereunder, and performance of its obligations will not violate any Applicable Law.
Audit. Merchant acknowledges and agrees that Company and Company’s bank shall be permitted to conduct reasonable audits of Merchant’s performance under this Agreement at any time during Merchant’s normal business hours. Merchant agrees to cooperate fully and promptly with any reasonable request from Company or Company’s bank to obtain any records that are related in any way to this Agreement or Merchant’s ability to comply with its terms.
Settlement. Pursuant to this Agreement you are authorizing Cinch to settle funds to your bank account (listed below) for goods and services purchased. Merchant authorizes Cinch to provide instructions to Cinch’s bank for purposes of the movement and reconciliation of funds between or among Cinch’s bank, Company, Merchant, and Merchant’s bank to provide payments, reimbursements, or refunds for Transactions (“Settlement”). Company agrees to provide reconciliation instructions to its bank within 48 hours of a Transaction. Merchant acknowledges and agrees that all Company reconciliation entries to Merchant’s account are conclusive for purposes of calculating the amount owed to the Merchant under the Cinch Program, after deduction of applicable fees and other amounts (the “Settlement Amount”) unless an entry with which the Merchant has a concern is disputed in good faith by the Merchant in writing within thirty (30) calendar days following receipt of the Settlement Amount. In the event Merchant so disputes an entry within such thirty (30) day period and as a result any errors on the part of Company in calculating the Settlement Amount are discovered, Company will promptly notify the Merchant of such error. If such error results in Company owing any amount to the Merchant, Company will pay such amount to the Merchant. If such error results in the Merchant owing any amount to Company, Merchant will pay such amount to Company or Company may deduct such amount from a future reconciliation entry. Applicable Cinch Fees are 5% plus 2.9% transaction fee.
Indemnification. The Merchant shall indemnify Company and its affiliates, subsidiaries, agents and subcontractors, from and against any and all claims, damages, causes of action, suits, losses, liabilities, obligations, expenses, penalties and costs (including reasonable legal fees) arising out of or in connection with Merchant’s: (a) acceptance of Cinch Services; (b) breach of this Agreement, (c) negligent or wrongful act or omission, (d) failure to perform under this Agreement, (e) non-compliance with any term, condition, representation or warranty under this Agreement, (f) sale of goods or services to End Users; or (g) a third party alleging that Merchant’s use of the Cinch Service in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates Applicable Law.
Disclaimer of Warranties. Except for any express warranties set forth in this Agreement, Company provides the Cinch Service on an “AS IS” and “AS AVAILABLE” basis, and makes no warranties, whether express, implied, or statutory, or any warranties of any kind whatsoever in connection with the Cinch Service, including, without limitation, any implied warranties of merchantability, title, non-infringement or fitness for a particular purpose, or any warranties arising out of a course of dealing or conduct, all of which are hereby expressly disclaimed except where implied or statutory warranties cannot be disclaimed by Applicable Law. Company does not warrant that the operation of the Cinch Service will be error-free, available or will meet Merchant’s requirements. Company’s sole liability for any errors, acts or omissions arising out of the provision of the Cinch Service shall be limited to the reperformance of the Cinch Service at no charge to Merchant. Except for the foregoing reperformance of the Cinch Service, Company shall not be liable for any claim, loss or damage arising or alleged to arise out of the provision of the Cinch Service under this Agreement, regardless of the form of action. In no event shall Company be liable for any failure or delay in providing the Cinch Service arising from any Force Majeure.
Term. The term of this Agreement shall commence on the Effective Date and shall continue for a term of one (1) year (“Initial Term”). After the Initial Term, this Agreement will automatically renew for consecutive periods of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”), subject to Section 18.
Termination. If and for so long as the Merchant is in breach of any of the Merchant’s obligations, representations or warranties under this Agreement, or for reasonable business, security or fraud prevention purposes, Company may: (a) suspend or restrict performance of Company’s obligations under this Agreement; (b) terminate or suspend this Agreement; or (c) terminate or limit Transactions at Merchant’s Locations. Company may terminate this Agreement immediately if: (v) Company suspects or has evidence of fraud committed by Merchant or Merchant’s affiliates, subsidiaries, agents or subcontractors; (w) upon being instructed by regulatory authorities; (x) Merchant files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (y) a receiver, trustee, or similar officer is appointed for the business or property of Merchant; or (z) Merchant adopts a resolution for discontinuance of its business or for dissolution. Company shall have no liability to Merchant as a result of the termination of this Agreement.
Effect of Termination. Upon termination of this Agreement, Company will: (i) cancel any pending purchase Transactions, and (ii) transfer to the Merchant by check or electronic transfer any funds owed to Merchant under the Cinch Program less any fees or other charges due under this Agreement. Upon termination of this Agreement, Merchant will be removed as a merchant on the Cinch App. Upon termination of this Agreement, the Merchant shall, at its sole cost and expense: (w) cease accepting Cinch at its Locations, except that Merchant shall redeem goods and services up to the amount in an End User’s eWallet if the Transaction was completed prior to termination; (x) cease using the Cinch Service; (y) cease using and promptly return or, upon Company’s request, destroy any and all Confidential Information belonging to Company; and (z) cease using and promptly return to Company any software obtained from Company pursuant to any other Agreement between the parties.
Mutual Dispute Resolution and Arbitration Agreement. If a dispute arises between Merchant and Company (a “Dispute”), the parties will work in good faith to quickly and amicably resolve the dispute. A party may trigger the dispute resolution process described in this Section (“Dispute Resolution Process”) by providing a written claim notice (“Claim Notice”) to the other party. The Claim Notice shall (i) describe the nature of the Dispute in reasonable detail, including a summary of argument supporting the party’s position, (ii) identify, if reasonably practicable, the dollar amount at issue, (iii) be accompanied by reasonable supporting documentation for that party’s claims; and (iv) provide the name and title of the executive who will represent that party, as well as any other person who will accompany the executive. Within thirty (30) days from the date a Claim Notice is delivered the executives of both parties shall discuss the Dispute by phone (“First Discussion”). At no time prior to the First Discussion shall any party initiate an arbitration except if the other party refuses to participate in the First Discussion.
Any dispute arising under or related to this Agreement or the Cinch Service (including the arbitrability of such a dispute and the existence, validity, interpretation, performance, termination, or breach thereof) that has not been resolved pursuant to the immediately preceding paragraph shall be finally settled through binding arbitration. The arbitration shall be administered by JAMS and conducted pursuant to the terms of this Agreement and, where not inconsistent with this Agreement, the then current JAMS Comprehensive Arbitration Rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce and, notwithstanding the provision dictating the applicable substantive law, the arbitration shall be governed by the Federal Arbitration Act. The arbitrator shall be a retired judge or justice and must have previously served as an arbitrator at least five (5) times where an award was rendered following a hearing on the merits. The arbitration hearing shall be held at a location mutually agreeable by the parties. At least fifteen (15) days following the parties’ exchange of information as required by JAMS Rule 17 and at least sixty (60) days before any arbitration hearing can begin, the parties must participate in a mediation in New York, New York before a mutually agreed upon mediator or, if the parties cannot agree upon a mediator, a mediator appointed by JAMS. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be reasonably necessary to prepare for or conduct the arbitration hearing. No party may apply to any court or arbitrator for any provisional, injunctive or ancillary relief unless and until necessary to enforce an order from the arbitration. The arbitrator is not empowered to award punitive or exemplary damages, except as may be required by statute, or any pre-award interest; nor may the arbitrator award any incidental, indirect or consequential damages, including damages for lost profits or harm suffered by third parties. The arbitrator shall issue a reasoned final award. A final award rendered in connection with arbitration pursuant to this section shall be binding upon the parties, and if fully satisfied within thirty (30) days of being issued, no party may seek to confirm the final award. If a final award is not fully satisfied within thirty (30) days then a party may apply to have judgment upon such an award entered and enforced in any court of competent jurisdiction.
The above obligations to arbitrate shall not prevent a party from seeking a preliminary injunction, temporary restraining order, specific performance or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute.
Exclusive jurisdiction and venue for arbitration or any other legal action or proceeding in any way related to the Cinch Service or this Agreement shall be in New York, New York. Any matter brought before a court shall be brought solely in the state or federal courts located in New York, New York.
Third Party Beneficiary. The parties expressly acknowledge and agree that no party shall be deemed a beneficiary of this Agreement.
Notices. All notices and approvals required by this Agreement shall be in writing and shall be deemed to have been duly given upon receipt if (a) personally delivered; (b) sent by certified or registered mail, postage prepaid, return receipt requested; or (c) sent by an overnight carrier to the address immediately below, or at such other address of which the notifying party hereafter receives notice in conformity with this section.
Cinch Key Technologies, Inc.
7 World Trade Center, 10th Floor
250 Greenwich Street
New York, NY 10007
Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes all prior Agreements, understandings, and arrangements, oral or written, between the parties with respect to the subject matter hereof.
Modification. Unless otherwise provided in this Agreement, Company may amend any of the provisions of this Agreement by notice in writing to the Merchant, such amendment to take effect not less than thirty (30) days from the date of the notice.
Cumulative Remedies. All remedies conferred upon or reserved in favor of a party are cumulative and are in addition to any other remedy given hereunder or existing at law or in equity.
Independent Contractors. The parties hereto are independent contractors and this Agreement does not establish a partnership or joint venture among them. No party has the right to bind the other party to any agreement.
Waiver. Neither party shall be deemed to have waived any of its rights, powers, or remedies hereunder except by a writing signed by an authorized agent or representative of the party to be charged. The waiver by either party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
Survival. All representations and warranties contained in this Agreement, and all obligations of the parties that by their term or nature extend beyond the Term, shall survive any termination or expiration of this Agreement.
Subcontracting. Company may engage the services of one or more affiliates, subsidiaries, agents or subcontractors in order to perform its obligations under this Agreement.
Counterparts. This Agreement may be executed and delivered by the parties in counterpart, each of which shall be deemed an original and both of which together shall constitute the same instrument.
Severability. In the event that any part of this Agreement is ruled by a court, regulatory authority or other public or private tribunal of competent jurisdiction to be invalid or unenforceable, such provision shall be deemed to have been omitted from this Agreement. The remainder of this Agreement shall remain in full force and effect, and shall be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.
Governing Law. This Agreement shall be governed by and construed in all respects in accordance with laws of the State of New York without regard for its choice or conflicts of laws principles.
Assignment. Merchant may not assign, transfer, or sub-license, including by operation of law, any of its rights, duties, or obligations under this Agreement, in whole or in part, to any person or entity without the prior written consent of Company. For the purposes hereof, a change of control of the Merchant constitutes an assignment which requires the prior written consent of Company. Company may assign any or all of its rights, duties, and obligations under this Agreement to an entity that Company directly or indirectly controls, is controlled by or is under common control with, or any third party acquiring all or substantially all of the assets relating to this Agreement, including the assignment of contractual position, novation, or any other form of substitution of Company by another party, to which assignment the Merchant hereby agrees.
Successors. This Agreement and the rights and obligations hereunder shall bind and inure to the benefit of the parties and their successors and permitted assigns.
Cinch Inc., 2017. All rights reserved.