Terms of Use

Cinchkey INC. TERMS OF USE
Effective Date: November 30, 2016

These terms of use (“Terms of Use”) are provided on behalf of Cinchkey Inc. and its successors, subsidiaries and affiliates (“Cinchkey,” “we,” “us” and “our”). By using www.cinchkey.com, the mobile or touch versions, including any pages thereof (the “Site”), you acknowledge that you have read, understand and agree to be bound by these Terms of Use, including the Arbitration Agreement, regardless of whether or not you are a registered user of the products or services (each a “Service” and collectively referred to as the “Services”) accessed through the Site. The Site and/or Services and all content that are included in, on or that are otherwise a part of the Site and/or Services are owned, controlled or licensed by Cinchkey. If you do not wish to be bound by these Terms of Use, you should not access or use the Site or Services. You also agree to our Privacy Policy, located at www.cinchkey.com, which is incorporated in these Terms of Use. In addition to these Terms of Use and our Privacy Policy, you may enter into other agreements with us and we may provide other rules regarding use of the Site that will govern your use of the Services offered on the Site. If there is any inconsistency between these Terms of Use and another agreement or rules applicable to Service offered on the Site, then the other agreement or rules will take precedence as it applies to the Service.

 

ABOUT OUR SERVICES

The Site provided by Cinchkey is a platform through which merchants (“Merchants”) can post self-designed promotional offers for the sale of Store Credit (“Promotional Offer”). Each Merchant and individual who registers with the site or purchases or obtains a Promotional Offer via the Site agrees that the Merchant is the seller and issuer of the Promotional Offer and is solely responsible to individuals for the care, quality, provision and delivery of the Store Credit and/or goods and services represented thereby. By posting a promotion and issuing a Promotional Offer the Merchant agrees to these Terms of Use including without limitation, the Merchant Agreement. And, by purchasing or obtaining any Promotional Offer via the Site, individuals agree to these Terms of Use, including without limitation, the Customer Agreement.

 

ELIGIBILITY

The Site is intended solely for individual users who are 18 years of age or older and able to create a binding legal obligation and Merchants that are organized under the laws of the United States have a principal place of business in the United States (“U.S.Business ”). Any registration or use of the Site by any individual under 18 and by a Merchant that is a non-U. S. Business is unauthorized and in violation of these Terms of Use. By using the Site, you represent you are 18 or older, if you are an individual, and that you are a U.S.Business , if a Merchant, and that your use of the Site or Services does not violate any applicable law or regulation, and that you agree to and will abide by all of the terms and conditions of these Terms of Use. If an individual will only purchase a Promotional Offer or participate in other available Services through the Site by registering on the Site, and any purchase will be subject to the applicable Customer Agreement set forth in these Terms of Use. If any individual or Merchant violates any of these Terms of Use, or violate any other agreement with us, we may terminate your registration and/or prohibit you from using or accessing our Services or the Site.

 

REGISTRATIONS AND APPLICATIONS

When you register as an individual or Merchant, design and post a Promotional Offer, or purchase any Promotional Offers through the Site, you agree to provide current, complete and accurate information about yourself and/or your business. If any information you provide is untrue, inaccurate, not current or incomplete, or you are in breach of any term of these Terms of Use, your Merchant or Customer Agreement, as applicable, or the Privacy Policy, we have the right to cancel your registration, Account, terminate your Promotional Offer, terminate any agreement we have with you and restrict your future use of the Site and our Services. By using the Site you acknowledge and agree that Cinchkey is required to comply with U.S. Treasury Sanctions enforced by the Office of Foreign Assets Control (“OFAC”) based on U.S. foreign policy and national security goals. This may prohibit Cinchkey from doing business with certain individuals and businesses or from engaging in certain activities. You agree that we may request information from you to establish your identity and ensure compliance with these requirements. We reserve the right to reject any registration and/or decline any Merchant or individual.

 

YOUR ACCOUNT

To access our Services, you will be required to register and create an account on the Site (an “Account”). If you choose to create an Account, you agree to provide only accurate, complete registration information, and you will keep that information up-to-date if it changes. You may not disclose your user name or password to any third party. You are solely responsible for maintaining the Security of your user name or password. If you learn of any unauthorized use of your password or Account, please contact us immediately. You may be required to log in in order to use certain parts of the Site. We will assume that anyone using the Site or transacting through your Account is you. You agree that you are solely responsible for any activity that occurs under your Account. You can terminate your Account at any time but the terms and conditions of this Terms of Use continue to apply to anything that occurred prior to your termination.

 

YOUR CONTENT AND INFORMATION SHARING

By providing information or content on the Site, you expressly agree to all of the following:

• You grant us a non-exclusive, transferable, sub-licensable, royalty-free world license to use any information or content that you provide in connection with your use of the Site and our Services, subject to the privacy provisions described in our Privacy Policy. We have the right to review, delete, edit, modify, reformat, excerpt or translate any of your information or content.

• You are solely responsible for the content and information you make available through or in connection with our Services.

• All the information and content posted on the Site or privately transmitted through the Site or via other means in connection with our Services is the sole responsibility of the person from which that content originated. We will not be responsible for any errors or omission in any information or content posted by a Merchant or individual.

• We will not share or sell any of your information with any third party, except as specifically described in our Privacy Policy, which is incorporated by reference into these Terms of Use.

 

RESTRICTIONS ON USE

You agree to abide by all applicable laws and regulations in your use of the Site and our Services. In addition, you agree that you will not do any of the following:

• register for more than one Account, or register for an Account on behalf of an individual or business other than yourself or your business or on behalf of any group or entity;

• post or otherwise make available content, or take any action on the Site that is harmful, tortious threatening, abusive, harassing, hateful, racist, pornographic, obscene, violent, misleading, defamatory, or invasive of the privacy of another person;

• post or otherwise make available content, or take any action on the Site, that may constitute libel or slander or that infringes or violates someone else’s rights or is protected by any copyright or trademark or other proprietary right, or otherwise violates the law;

• access data or content that is not intended for you;

• post or otherwise make available content that in our judgment is objectionable, such as content that is harmful, threatening, inflammatory, obscene, fraudulent, invasive of privacy or publicity rights, hateful or otherwise objectionable; that restricts or inhibits any other person from using or enjoying the Site; or that may expose us or our Merchants or individuals to any harm or liability of any type;

• post or otherwise make available any unsolicited or unauthorized advertising, solicitations or promotional materials, or any other form of solicitation;

• impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;

• post or otherwise make publicly available on the Site any personal or financial information of any third party;

• solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;

• use the Site or our Services in any manner that could damage, disable, overburden or impair the Site;

• harvest or collect email addresses or other contact information of our Merchants or individual users from the Site by electronic or other means, including via the use automated scripts;

• post or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or

• post any Promotional Offer that is illegal or potentially dangerous for individual users or that violates our terms.

 

FEES & PAYMENT

Services offered on the Site may require the payment of fees and other amounts. These Services are subject to separate agreements into which you must enter prior to participating in such Service. For individuals, you will select a Promotional Offer for purchase and make payment in accordance with its terms. For Merchants you agree to pay the following fees and other charges identified in the Merchant Agreement when you post a Promotional Offer. If you elect to sign up for such Services, you shall pay all applicable amounts, as described on the Site or the applicable agreement in connection with such Services selected by you. We reserve the right to change fees and at any time, subject to applicable law. You authorize us, directly or through third parties, to make any inquiries we consider necessary to validate your Account and financial information as provided while signing up for such Services. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to pay for any such taxes that might be applicable to your use of the Services and payments made by you to us. Other amounts and the terms for payment of those amounts are described on specific registration pages as you progress through your application (and from time to time thereafter).

 

COPYRIGHT/TRADEMARK COMPLAINTS

If you believe that any material on the Site infringes upon any copyright that you own or control, you may send a written notification to us via email at support@cinchkey.com, or via regular mail at

Cinchkey Inc.,
150 Greenwich Street, 29th Floor
New York, NY 10007

In your notification, please:

• confirm you are the owner, or authorized to act on behalf of the owner, of the copyrighted work that has been infringed;

• identify the copyrighted work or works you claim have been infringed;

• identify the material that you claim is infringing or is the subject of infringing activity and that is to be removed (please include information reasonably sufficient to permit us to locate the material);

• provide your contact details, including an email address; and

• provide a statement that the information you have provided is accurate and that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.

 

CHANGES AND MODIFICATIONS

We reserve the right to temporarily or permanently modify or discontinue the Site or Services, or any portion of the Site or Services, for any reason, without notice to you. We shall have the sole and absolute right, but not the obligation, to review, edit, post, refuse to post, remove, monitor Merchant and individual user content. We may also change these Terms of Use from time to time without notice to you. Please review these Terms of Use from time to time because your continued access or use of the Site after any modifications have become effective shall be deemed your conclusive acceptance of the modified Terms of Use.

 

LINKS

We are not responsible for the information practices employed by sites linked to or from our Site. In most cases, links to third-party websites are provided solely as pointers to information on topics that may be useful to our Merchants or individual users. Since third-party websites may have different privacy policies and/or security standards governing their sites, we advise you to review the privacy policies and terms and conditions of these sites prior to providing any personal information.

 

YOUR USE AND ACCESS OUTSIDE OF THE UNITED STATES

We make no claims that the Site or the contents are appropriate for or may be downloaded or accessed outside of the United States. Only individuals who reside in the United States and U.S. businesses are eligible to use this Site and the Services. If you access the Site from outside the United States, you do so at your own risk and are responsible for compliance with the applicable laws of the country or jurisdiction where you may be located. You may not use or export any content of the Site in violation of United States export laws and regulations or any other United States or foreign, federal, state or local statute, rule or regulation. The Site and its contents are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to local law or regulation.

 

NO WARRANTY; ERRORS; DISCLAIMERS

The Site and our Services are provided “as is” and without any representation or warranty, whether express, implied or statutory. Calculators and tools on the Site provide you with estimates that may be different than actual amounts. You agree that we may promptly correct any error that we discover, including any error in calculating pricing or discounts. You agree to provide any additional consents necessary to correct any errors that occur.

ALTHOUGH WE WILL USE REASONABLE EFFORTS TO PROVIDE AN ACCURATE SITE/SERVICES, ALL ASPECTS THEREOF, INCLUDING ANY MERCHANT AND INDIVIDUAL USER PROVIDED CONTENT, PROMOTIONAL OFFERS, PRODUCTS OR OTHER PROGRAMS ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” WE AND OUR OFFICERS, DIRECTORS, EMPLOYEES AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE “CINCHKEY PARTIES”) DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE, THE SERVICES, ANY DOCUMENTATION PROVIDED OR MADE AVAILABLE TO YOU AND ANY OTHER PRODUCTS AND RELATED MATERIALS AND/OR SERVICES PROVIDED TO YOU BY ANY OF THE CINCHKEY PARTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES: (I) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND WORKMANLIKE EFFORT; (II) AS TO THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SITE, ITS CONTENT OR THE SERVICES OR ANY ASPECT THEREOF; (III) ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (IV) DESCRIPTIONS OF PROMOTIONAL OFFERS, PRODUCTS OR OTHER AVAILABLE PROGRAMS; (V) MERCHANT AND INDIVIDUAL USER CONTENT PROVIDED THROUGH THE SITE, (IV) RELATING TO THE SITE OR SERVICES CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY CINCHKEY PARTY; AND (V) THAT ACCESS TO OR USE OF THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY RELIANCE UPON THE SITE AND/OR SERVICES IS AT YOUR OWN RISK AND THE CINCHKEY PARTIES MAKE NO WARRANTIES.

THESE DISCLAIMERS ARE INDEPENDENT OF ANY OTHER TERM IN THESE TERMS OF USE.

 

LIMITATION OF LIABILITY

You agree that all access and use of the Site and its contents and your use of the Services is at your own risk. Neither we nor any third party involved in creating, producing or delivering the Site and/or the Services has or will have any responsibility for any consequences relating, directly or indirectly, to any action or inaction that you may take based on the Site and/or the Services, or any aspect thereof.

WE WILL NOT BE HELD LIABLE FOR ANY DEFECTS, FAULTS, INTERRUPTIONS OR DELAYS IN THE OPERATION OR TRANSMISSION OF ANY PRODUCT, AND/OR ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SITE AND/OR THE SERVICES. UNDER NO CIRCUMSTANCES WILL ANY OF THE CINCHKEY PARTIES BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS, ARISING OUT OF, BASED ON, RESULTING FROM OR IN CONNECTION WITH THE SITE AND/OR THE SERVICES OR ANY PRODUCTS, THESE TERMS OF USE OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING, EVEN IF THE CINCHKEY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL OF THESE LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT, TORT OR OTHERWISE, AND EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOACTION ARISING OUT OF OR PERTAINING TO THESE TERMS OF USE MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.

 

INDEMNITY/RELEASE

You agree to indemnify, defend and hold harmless the Cinchkey Parties from and against any and all third party actions, suits, claims and/or demands and any associated losses, expenses, damages, costs and other liabilities (including reasonable attorneys’ fees), arising out of or relating to your submitted content, use or misuse of any aspect of the Services or the Site, any Promotional Offer or products or services purchased through the Site, or any additional products or services purchased or obtained by you from the Merchant, or your violation of these Terms of Use. You will cooperate as fully as reasonably required in the defense of any such claim or demand. We and any third party involved in creating, producing or delivering the Site and/or the Services reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, at your expense, and you will not in any event settle any such matter without our prior written consent and that of any such third party. You are responsible for your interactions with Merchants and other individual users of the Site. To the extent permitted under applicable laws, you agree to release Cinchkey from any and all claims or liability related to any product or service of a Merchant, regardless of whether such product or service is a Promotional Offer available through the Site, any action or inaction by a Merchant, including, but not limited to any harm caused to you by action or inaction of a Merchant, a Merchant’s failure to comply with applicable law and/or failure to abide by the terms of a Promotional Offer or any other product or service purchased or obtained by you from the Merchant, and any conduct or Merchant or individual user content, whether online or offline, of any other third-party.

 

ARBITRATION AGREEMENT

PLEASE READ THE FOLLOWING ARBITRATION TERMS CAREFULLY. BECAUSE YOU AND WE HAVE AGREED TO ARBITRATE ALL DISPUTES, NEITHER OF US WILL HAVE THE RIGHT TO LITIGATE THAT DISPUTE IN COURT, OR TO HAVE A JURY TRIAL ON THAT DISPUTE, OR ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES.

You agree that any dispute between us (a “Dispute”) shall be resolved exclusively by arbitration. A Dispute is any unresolved disagreement between us that arises out of or relates in any way to these Terms of Use. A Dispute also includes any disagreement about whether this arbitration agreement (“Arbitration Agreement”) is enforceable or valid, the meaning of this Arbitration Agreement, and whether a disagreement is a “dispute” subject to binding arbitration as provided for in this Arbitration Agreement. However, in the event of a default, nothing in this Arbitration Agreement shall preclude us from exercising the lawful remedies of a secured creditor under applicable law, including, but not limited to, repossession, foreclosure, and set off. Unless otherwise agreed to in writing, the arbitration, including the selecting of the arbitrator, will be administered by JAMS, under its Streamlined Arbitration Rules (the “Rules”) by a single neutral arbitrator agreed to by the parties within thirty (30) days of the commencement of the arbitration. In the event that the parties are not able to agree on an arbitrator within 30 days, one will be selected by JAMS. Notwithstanding the provisions specifying the governing law of these Terms of Use, the arbitration provisions will be governed exclusively by the Federal Arbitration Act (Title 9 of the U.S. Code). Either party may initiate the arbitration process by filing the necessary forms with JAMS. To learn more about arbitration, you can call any JAMS office or review the materials at www.jamsadr.com. If you initiate the arbitration, you will be required to pay the first one hundred seventy-five dollars ($175) of any filing fee. We will pay any filing fees in excess of one hundred seventy-five dollars ($175) and we will pay all of the arbitration fees and costs. If we initiate the arbitration, we will pay all of the filing fees and all of the arbitration fees and costs. We will each bear all of our own attorney’s fees and costs except that you are entitled to recover your attorney’s fees and costs if you prevail in the arbitration and the award you receive from the arbitrator is higher than our last written settlement offer. The arbitration shall be held in the location that is most convenient to your residence. If a JAMS office does not exist in the county where you live, then we will use (or is otherwise unavailable), then the party seeking arbitration may select another accredited arbitration provider with offices close to your residence. Disputes must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis, and the arbitrator will not award relief for or against anyone who is not a Party. In the event the preceding sentence is deemed unenforceable for any reason by an arbitrator or a court of competent jurisdiction, such determination shall automatically render the remaining arbitration provisions (but not the jury trial waiver provisions) of this Arbitration Agreement unenforceable as to the affected dispute(s). Subject to the foregoing provisions regarding attorney’s fees and costs, the arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under these Terms of Use. The arbitrator, however, is not authorized to change or alter these Terms of Use or to make any award that would extend to any transaction other than yours. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between us.

BECAUSE YOU AND WE HAVE AGREED TO ARBITRATE ALL DISPUTES, NEITHER OF US WILL HAVE THE RIGHT TO LITIGATE THAT DISPUTE IN COURT, OR TO HAVE A JURY TRIAL ON THAT DISPUTE, OR ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES.

 

INTELLECTUAL PROPERTY

You agree that “www.cinchkey.com,” “Cinchkey” and all logos related to our products and Services are our or our licensors’ trademarks or registered trademarks. You may not copy, imitate or use them without our prior written consent. In addition, all page headers, custom graphics, button icons and scripts are our service marks, trademarks and/or trade dress. You may not copy, imitate or use them without our prior written consent. All right, title and interest in and to the Site, any content thereon, our products and Services, the technology related to our products and Services, any and all technology and any content created or derived from any of the foregoing are our or our licensors’ exclusive property.

 

TELEPHONE CONSUMER PROTECTION ACT (TCPA) CONSENT

We may contact you at any phone number you provide. When you give us your mobile phone number, we have your consent to contact you at that number about your use of the Site and Services including your purchases, promotions, and your Account, as applicable. Your consent allows us to use text messaging, automatic dialing technology and artificial or prerecorded voice messages for information and calls related to the Site and Services, but not for sales or telemarketing calls unless you expressly agree. It may include contact from companies working on our behalf to provide Services to you. Message and data rates may apply. You may contact us at any time to change these preferences at support@cinchkey.com.

 

ELECTRONIC COMMUNICATION

The communications between you and Cinchkey are electronic. You consent to receive communications from Cinchkey in an electronic form and agree that the Electronic Signatures in Global and National Commerce Act applies to our ability to conduct business with you by electronic means. We will communicate with you by email or by posting notices on the Site. You agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Notices from us will be considered delivered to you and effective when sent to the email address you provide on the Site or from which you otherwise email us. We reserve the right, in our sole discretion, to provide you with any communications in paper format and to discontinue electronic provision of communications at any time. It is your responsibility to update your contact information including email and postal address and telephone number when it changes.

 

MISCELLANEOUS

These Terms of Use shall be governed in all respects by the laws of the State of Delaware, without regard to its provisions relating to conflict of laws. If you obtain Services, the Services will be governed by federal laws and the laws of the State of Delaware to the extent not preempted, without regard to any principle of conflicts of laws. Subject to the terms of the Arbitration Agreement, any dispute or claim between us not subject to arbitration shall be decided exclusively by a federal or state court of competent jurisdiction located in New York County, New York. Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is found to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. YOU AND CINCHKEY EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE SITE OR THESE TERMS OF USE. YOU AND CINCHKEY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BANNED. Your obligations under these Terms of Use are binding on your successors, legal representatives and assigns. You may not assign or transfer (by operation of law or otherwise) your right to use the Site and/or the Services or any aspect thereunder, in whole or in part, without our prior written consent.

 

QUESTIONS

Please contact us via email at support@cinchkey.com with any questions regarding these Terms of Use.