Terms & Conditions:

Welcome to www.cincpro.com. The cincpro.com website and user platform is comprised of various web pages, mobile sites, and applications (collectively, “Site”) owned and operated by HBN Media, Inc. d/b/a Commissions, Inc., ("CINC", “we”, “us” and “our”). The Site, services and content, including but not limited to any website development and hosting, CINC Client webpage(s), internet marketing, IDX solutions, lead management services, and applicable custom applications (collectively, “Services”), are offered to our site owner clients (“CINC Client”), users associated with or authorized by a CINC Client (“user”), and parties who have entered into cost-sharing arrangements with CINC Clients (“contributors”) (collectively, “I”, “me”, “you” or “your”), conditioned on your acceptance without modification of the Terms and Conditions contained herein.

 

THESE TERMS & CONDITIONS & CINC’s PRIVACY POLICY, COUPLED WITH ANY APPLICABLE CINC ORDER FORM (COLLECTIVELY, “TERMS”), GOVERN YOUR USE OF CINC’S SITE AND SERVICES (COLLECTIVELY, “PLATFORM”) AND CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND CINC (“AGREEMENT”).

 

BY LOGGING INTO THE PLATFORM VIA DESKTOP COMPUTER, MOBILE WEB ACCESS OR MOBILE APPLICATION, OR BY ANY OTHER MEANS, OR BY CONTRIBUTING TO A CINC CLIENT’S SITE OR CAMPAIGN, YOU ARE INDICATING YOUR ACCEPTANCE OF, AUTHORITY TO BIND AND AGREEMENT TO BE LEGALLY BOUND BY THESE TERMS.

YOU MAY NOT USE THE PLATFORM UNLESS YOU ARE 18 YEARS OF AGE OR OLDER.

 

1. Our Communications With You. (TCPA Consent for United States Residents)

 

a. EXPRESS WRITTEN CONSENT. BY SUBMITTING YOUR CONTACT INFORMATION, YOU ARE PROVIDING YOUR EXPRESS WRITTEN CONSENT TO RECEIVE COMMUNICATIONS FROM US AT THE EMAIL ADDRESS AND TELEPHONE NUMBERS YOU ENTERED INTO OUR CONTACT FORM, OR THAT YOU LATER PROVIDE TO US OR ENTER INTO YOUR CONTACT PAGE.

b. E-MAILS, CALLS, AND TEXTS. THESE COMMUNICATIONS MAY INCLUDE TELEMARKETING MESSAGES, THROUGH THE USE OF EMAIL, LANDLINE PHONE, FAX, CELLULAR PHONE, AND TEXT MESSAGES (INCLUDING SMS AND MMS).

c. DIALER. WE MAY USE AN AUTOMATIC TELEPHONE DIALING SYSTEM (OR “DIALER”), WHICH MAY EMPLOY AN ARTIFICIAL OR PRE-RECORDED VOICE OR “ROBOTEXTS.” YOUR CARRIER’S STANDARD RATES AND CHARGES MAY APPLY.

d. NO PURCHASE NECESSARY. AGREEING TO THESE COMMUNICATIONS IS NOT A CONDITION OF PURCHASING ANY PROPERTY, GOODS, OR SERVICES FROM US.

e. REVOKING CONSENT AND OPTING OUT. YOU MAY REVOKE YOUR CONSENT TO RECEIVE COMMUNICATIONS AT ANY TIME BY REPLYING “STOP” TO ANY OF OUR TEXTS. WE WILL MAKE A COMMERCIALLY REASONABLE EFFORT TO COMPLY WITH ANY COMMUNICATIONS FROM YOU OPTING OUT, BUT REPLYING “STOP” WILL AUTOMATICALLY REVOKE YOUR CONSENT TO FURTHER TEXT COMMUNICATIONS, AND WE RECOMMEND THAT METHOD. WE MAY TAKE UP TO 30 DAYS TO STOP COMMUNICATIONS IF YOU USE A METHOD OTHER THAN THE AUTOMATIC REPLY “STOP.” YOU CONSENT TO RECEIVE A FINAL TEXT MESSAGE CONFIRMING YOUR OPT-OUT. YOU MAY REVOKE YOUR CONSENT TO RECEIVE EMAIL COMMUNICATIONS BY USING THE “UNSUBSCRIBE” LINK IN AN EMAIL OR ON THE WEBSITE OR BY ANY OTHER REASONABLE MEANS. WE WILL MAKE A COMMERCIALLY REASONABLE EFFORT TO COMPLY WITH ANY COMMUNICATIONS FROM YOU OPTING OUT OF EMAIL, BUT “UNSUBSCRIBE” WILL AUTOMATICALLY REVOKE YOUR CONSENT TO FURTHER EMAIL COMMUNICATIONS, AND WE RECOMMEND THAT METHOD. WE MAY TAKE UP TO 30 DAYS TO STOP EMAIL COMMUNICATIONS IF YOU USE A METHOD OTHER THAN “UNSUBSCRIBE”. THE “UNSUBSCRIBE” LINK WILL ALSO PERMIT YOU TO STOP TEXT COMMUNICATIONS.

f. COMMUNICATION FREQUENCY. HOW OFTEN WE SEND YOU COMMUNICATIONS WILL VARY BECAUSE THE INDIVIDUAL SALESPERSON WHO COMMUNICATES WITH YOU WILL DETERMINE THE FREQUENCY OF COMMUNICATION. You represent and warrant that:

You are at least 18 years old;

You live in the United States (or Canada, in which case the Canadian consents below apply);

You have not registered on a national or statewide Do Not Call list or, if you have, you wish to have us contact you irrespective of such prior registration;

You are the sole account holder for the email addresses and phone numbers you provided, or you have authorization from the account holder to give this consent; and

The email addresses and phone numbers you provided are accurate, and you will let us know if you release them to another person or individual.

 

Our mobile service is available only in certain states. Certain mobile features may be incompatible with your carrier or mobile device.  Contact your carrier with questions regarding these issues. 

2. Additional Communications Provisions. (For Residents of Canada)

 

In addition to the consent provided above in the Our Communications With You (United States) section, Canadian residents agree to the following provisions related to compliance with Canada’s Anti-Spam Legislation (“CASL”), Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) and Canadian provincial law including Alberta’ Personal Information Protection Act (“PIPA”), and Quebec’s Act Respecting the Protect of Personal Information in the Private Sector:

a. You agree to the provisions governing use and disclosure of personal information that are found in our Privacy Policy.

b. Because the purpose of our communications include your interest in our services, our communication with you will continue until you revoke your consent or opt-out.

c. Your personal information may also be transmitted to, used in, and stored in the United States.

 

3. Real Estate Settlement Procedures Act (RESPA). (Contributor cost-sharing arrangement)

Please be aware that financial agreements or cost-sharing arrangements could have implications under the Real Estate Settlement Procedures Act ("RESPA"). We make no representations about whether such arrangements comply with RESPA, and we disclaim any involvement in any arrangements you may have now or in the future. We recommend that you consult with an attorney, regarding the compliance of any financial or cost-sharing arrangement with RESPA and/or any other applicable laws.

We ask that you review and your continued use of the Platform confirms your compliance with one of the below statements:

- I am not in a relationship or cost sharing agreement with a third-party contributor for the use of the proposed website; however, if I do enter into one, our agreement will be RESPA compliant; or
- I am in a relationship or cost sharing agreement with a third party for the use of the proposed website, and our agreement is RESPA compliant.

4. Account Access and License Grant.

a. Account Access. Your use of the Platform may be provided in connection with an agreement entered into between CINC and a CINC Client, such as a real estate brokerage, agency or other business that you have a business relationship or agreement with. You acknowledge and agree that CINC and / or CINC Client: (a) may have access to your use of the Platform and Your Content, as defined below; (b) may have the right to create, monitor and control your user logins, passwords and accounts and your access or denial, suspension or termination of access to the Platform; and (c) you hereby consent and authorize CINC and CINC Client to have all such rights and access as set forth in this section; and (d) you hereby consent and authorize CINC and CINC Client to have all such rights and access as set forth in this section, including but not limited to the right to verify your eligibility to use the Platform, including providing any required Multiple Listing Service (“MLS”) or Realtor® association membership(s), usernames, or passwords. When you provide your membership or National REALTOR® Database System number to access certain Services provided by CINC or a CINC Client, you authorize CINC to provide that information to required third parties, such as CINC Client, third-party vendors, Third-Party Servicers, MLS or Realtor® associations.  We may transmit your information to the required third-parties to verify your eligibility to receive the requested materials and access.  

CINC shall have the right, but not the obligation, to monitor use of the Platform, including but not limited to reviewing all activity and the content and materials uploaded by you or others, including but not limited to Your Content, for the purpose of determining compliance with these Terms, as well the right to remove or refuse any information for any reason in accordance with applicable law, and to use data collected therefrom for any other purposes. Notwithstanding these rights, you and any associated CINC Client remain jointly and severally liable for Your Content. You shall take all steps necessary to protect your login(s) and password(s), to safeguard the security and integrity of the Platform, and to protect against unauthorized access and use. You shall immediately notify CINC of any violation of the foregoing. Any access to the Platform using your login and password shall be deemed access by you. CINC has no liability for or relating to any disputes between you and any CINC Client, user or contributor or for CINC and CINC Client’s access or use of the Platform or Your Content. CINC may maintain, correct and modify, and may upgrade and/or update the Platform at any time in its discretion with or without notice to you.

b. License Grant. We grant you a limited non-transferrable, non-exclusive right to access and use the Platform, identified in an applicable CINC Order Form, as applicable, for your own personal, individual and internal real estate activities as expressly authorized under these Terms. No right to download, modify, sub-license or sub-let is granted under these Terms. The Platform may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any commercial purpose without the express written consent of CINC.

5. Use of Platform

a. Intended Use. The Platform is intended to be used solely for the following permissible purposes: display of your authorized MLS listings; providing relevant real estate data to consumers; and advertising or otherwise assisting your real estate services, which may include communications with consumer(s) (collectively “Intended Use”).

6. Scope of Platform.

a. Functionality. Please note that the scope of Platform functionality may be limited, please refer to your CINC Order Form for details.   At any time, without notice, and at our sole discretion, CINC may modify, introduce, and / or discontinue any Platform feature or functionality, including but not limited to advertising services and products, and may also adjust any associated fees accordingly.

b. Third-Party Services, Data, Links and Advertising. The Platform may include services and activities provided by third-parties, or contain third-party listing data, links to third-party websites, advertisers, services, listings, special offers, integrations with third-party applications (including but not limited to Facebook, Google, Realtor.com, AgentPronto.com, LinkedIn, Instagram, X and Twilio) or other events or activities that are not owned or controlled by CINC (each, a “Third-Party Servicer”). CINC does not endorse or assume any responsibility for any such Third-Party Servicer or any information, materials, products, or services by any Third-Party Servicer. Certain functionality of the Platform may be delivered by or delivered to Third-Party Servicers. By using the Platform you hereby acknowledge and agree that we may share certain information and data about you, including but not limited to Your Content with such Third-Party Servicers as necessary for the functionality of the Platform. If you utilize or access a Third-Party Servicer from the Platform, you do so at your own risk. Access grant and restrictions may apply to Third-Party Servicers. You expressly release, waive, relieve and hold harmless CINC from any and all liability arising from your use of any Third-Party Servicer, and the service and/or content they provide. Additionally, your dealings with or participation in promotions of advertisers found on the Platform, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such Third-Party Servicer. You agree that CINC shall not be responsible for any loss or damage of any sort relating to your interactions with such Third-Party Servicer.

c. Artificial Intelligence. You hereby acknowledge and agree that CINC, through the Platform, may use Artificial Intelligence (“AI”) or may utilize a third-party vendor to use AI (“AI Use”) on your behalf (any AI Use through the Platform shall be referred to as “Platform AI”). Platform AI includes any input to the Platform AI (“Input”) and receiving output from the Platform AI based on the Input (“Output”). Input and Output are collectively “AI Content.” You are responsible for AI Content, including ensuring that it, and any use of it, does not violate any applicable law, these Terms, the Privacy Policy, and /or your Compliance Obligations.

Due to the nature of CINC’s Platform AI and AI generally, Output may not be unique and other users may receive similar output from the Platform AI, which CINC is hereby permitted to sublicense to other users.

Additionally, CINC is hereby permitted to use and sublicense AI Content for the following purposes: (1) to train AI; (2) to provide, maintain, develop and improve the Platform AI; (3) to comply with applicable law; and (4) to enforce CINC Terms and policies; (5) to maintain or service the Platform’ and (6) as otherwise agreed to by you. The laws regarding the notice, consent, and governance requirements for using the Platform AI or AI Content may vary from state to state. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using the Platform AI and AI Content. CINC expressly disclaims all liability with respect to your use of the Platform AI and the AI Content.

AI and machine learning are rapidly evolving fields of study. CINC regularly improves the Platform AI and strives to make the Platform AI and AI Content more accurate, reliable, safe and beneficial. Given the probabilistic nature of AI, use of the Platform AI will, in some situations, result in Output that does not accurately reflect real people, places or facts.

i. You understand and agree:

1. Output will not always be accurate. You should not rely on Output from the Platform as a sole source of truth or factual information, or as a substitute for professional advice or your judgment. Inaccurate Output may appear to be valid and accurate and may include exhaustive, factual details that would tend to make the inaccurate Output appear credible. You should be aware of these potential inaccuracies and take steps to mitigate them, such as by independently verifying statements or findings within the Output or otherwise generated by the Platform AI.

2. You must evaluate Output for accuracy and appropriateness for your use case(s), including using human review and other risk mitigations as appropriate, before using or sharing Output from the Platform.

3. You must not use any Output relating to a person for any purpose that could have a legal or material impact on that person, such as making credit, educational, employment, housing, insurance, legal, medical or other important decisions about them.

4. The Platform may provide incomplete, incorrect, or offensive Output that does not represent CINC’s views. If Output references any third-party products or services, including but not limited to those provided by Third-Party Servicers (collectively, “third-party”), it does not mean the third-party endorses or is affiliated with CINC or that CINC endorses or is affiliated with such third-party.

5. The Platform AI is trained on particular sets of data, which despite CINC’s intentions, may be biased and cause Output to reflect bias.

6. You are responsible for all decisions made, advice given, actions taken, and failures to take action based on your use of the Output, and CINC shall have no liability for such decisions, advice, actions, or failures to act.

ii. Artificial Intelligence Disclaimer of Warranties and Limitation of Liabilities. IN ADDITION TO THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 14, CINC DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE AI OR THE AI CONTENT (THE “AI PLATFORM”). CINC DOES NOT REPRESENT OR WARRANT THAT: (a) THE AI PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; (b) THE AI PLATFORM WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE; (c) ANY DATA PROVIDED BY OR THROUGH THE AI PLATFORM (INCLUDING THE AI CONTENT OR ANY THIRD PARTY CONTENT) WILL BE ACCURATE OR COMPLETE OR FIT FOR ANY PURPOSE OR USE THAT YOU PLAN TO MAKE OF THE SAME; OR (d) SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO YOUR CONTENT OR YOUR DEVICES OR THE AI CONTENT OR ANY THIRD PARTY TECHNOLOGY USED IN CONNECTION WITH THE AI OR THE PLATFORM. NEITHER CINC NOR ANY OF ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS, SHALL BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES IN CONNECTION WITH ANY: (a) DATA MADE AVAILABLE TO YOU OR THROUGH YOUR, CINC’S, OR ANY THIRD-PARTY VENDOR’S USE OF THE AI OR ANY RESULTS OR OUTPUT DERIVED FROM, BASED UPON, OR OTHERWISE ARISING FROM OR IN CONNECTION WITH ANY ACCESS TO, REVIEW, PROCESSING, DEPLOYMENT, IMPLEMENTATION OR OTHER USE OR EXPLOITATION OF THE DATA MADE AVAILABLE TO YOU THROUGH SUCH USE; OR (b) DISPUTE YOU MAY HAVE WITH ANY THIRD PARTY PERSON OR ENTITY ARISING FROM OR IN CONNECTION WITH THE AI OR ANY DATA OR OUTPUTS. ALL SUCH DISPUTES ARE BETWEEN YOU AND ANY SUCH THIRD PARTIES. ACCORDINGLY, YOU HEREBY IRREVOCABLY RELEASE CINC FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES, INCLUDING BUT NOT LIMITED TO ANY SUMS CINC EXPENDS TO INVESTIGATE AND DEFEND ITSELF AGAINST SUCH CLAIMS.

d. Call Recording. Certain Platform features and services involve recording the content of phone calls and/or processing data / transcribing phone calls (collectively “Call Data”). Notwithstanding any other applicable provisions or prohibitions of use set forth in these Terms, you agree and acknowledge that you are solely responsible for complying with all applicable laws in any relevant jurisdiction when using call recording features and Call Data, including but not limited to, providing all required notices and obtaining consents from employees, individual consumers, or any other person regardless of their relationship with you as required by law. CINC expressly disclaims all liability with respect to Call Data and your or any third party’s recording of conversations. You hereby release and agree to hold harmless CINC from and against any damages or liabilities of any kind related to Call Data and/or the recording of any conversations or meetings using, or the processing of any such recordings by, the Platform features or services.

e. Platform Templates. As a courtesy to you, CINC may provide certain forms, documents, templated notices, policies or other documents for the purpose of assisting you with meeting your Compliance Obligations (each a “Platform Template”). You acknowledge and agree that the Platform Templates are for informational purposes only, do not constitute legal advice, are not drafted, designed, or revised to meet any or all Compliance Obligations applicable to you or your use of the Platform, the Platform AI, or any other feature or Service related to the Platform. We do not guarantee the legal accuracy or applicability of any Platform Template for your legal needs. You understand that it is your responsibility to ensure that you provide any and all notices required in accordance with your Compliance Obligations or any other legal requirements applicable when using the Platform. We are not liable or responsible for any Platform Template that you may use when using our services. Utilize Platform Templates at your own risk; we give no representations or warranties, express or implied, that the Platform Templates are complete, accurate, or free from errors or omissions.

f. Technical Support, Maintenance, and Training. Email technical support and phone technical support is included with all services monthly. Maintenance may include minor fixes (textual changes, logo changes, new agent photo,, etc.). Change requests will normally be completed within (5) business days of receipt via email to your account manager or the CINC support team.

g. Storage and Retention.   You agree that CINC has no responsibility or liability whatsoever for the deletion, corruption or failure to store any material, template, content, form or document maintained by CINC or maintained or utilized in the Platform, including but not limited to Your Content, as defined below. You are solely responsible for any applicable record retention requirements you may have related to your use of the Platform. CINC may, at its discretion, retain Your Content for its own permissible uses, but makes no representations it will be accessible or exportable to you. If you wish to save documents, you should export the documents to another location, such as saving the documents on your computer or some other external storage medium.

7. Prohibited Activities.

You agree that you will not do any of the following: (a) reproduce, duplicate, disseminate, copy, modify, translate, or create derivative works based on the Platform; (b) sell, rent, lease, loan, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform; (c) use the Platform for any use other than the expressly authorized Intended Use set forth above, including to conduct electronic, individual or bulk transfers, migrations, downloads or extractions of data, records, files or information from the Platform; (d) (directly or indirectly) reverse engineer, decompile, disassemble, decipher, bypass or circumvent the security and restrictions of the Platform (or other accounts or computer systems connected to the Platform, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the of any part of the Platform (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (e) remove or otherwise alter any proprietary notices or labels from the Platform or any portion thereof; (f) use the Platform if you are a competitor of CINC, except with CINC’s prior written consent; (g) design, build or develop any product or service that competes against the Platform or that provides the same or similar services or functionality as the Platform; (h) violate the security of any computer network, or crack, hack or circumvent any passwords or security encryption codes and / or use the Platform to distribute or execute any action directed by any type of injurious code, including but not limited to: trojans, key loggers, viruses, malware, botnets, denial of service attacks, flood or mail bombs, logic bombs or other actions which CINC reserves the sole right to determine to be malicious in intent; (i) run any mail-list, listserv, any form of auto-responder or “spam” on the Platform, or any processes that run or are activated while you are not logged into the Platform, or that otherwise interferes with the proper working of the Platform (including, without limitation, by placing an unreasonable load on the Platform’s infrastructure); (j) through the use of manual, automated or any other means, engage in action that “crawls,” “scrapes,” or “spiders” any page, data or portion of or relating to the Platform; and/or (k) violate your Compliance Obligations, outlined below, violate applicable laws, rules and regulations or otherwise use the Platform in any way not expressly provided for by these Terms.

Furthermore, you agree that you will not transmit, distribute, post, store, and/or link, information, software, or materials, including but not limited to Your Content, on or through the Platform that: (i) are unlawful, threatening, abusive, harassing, defamatory, discriminatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, offensive, profane, contains or depicts pornography, or is otherwise inappropriate as determined by us in our sole discretion; (ii) you know are false, misleading, untruthful or inaccurate; (iii) constitute unauthorized access or use of another use’s client’s data; (iv) impersonate any person or entity, including any of our employees or representatives; or (v) except as otherwise required by the unique features of the Platform or subscribed Services, include anyone's personally identifiable information (“PII”) or sensitive financial information; and/or (vi) violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.

8. Compliance Obligations and Responsibilities.

a. General Compliance Obligations and Responsibilities: You acknowledge that you are aware of and agree to abide by all of your compliance obligations, including but not limited to those necessary to satisfy: these Terms & Conditions, legal obligations associated with the practices disclosed in CINC’s Privacy Policy, applicable Order Forms, all applicable domestic, international, federal, state, local, province, or territory laws, acts, rules and regulations (including but not limited to all applicable licensing / advertising / marketing / record retentions requirements, RESPA, Fair Housing, Can-Spam, and FTC), third-party contractual requirements, rules and policies (including but not limited to any applicable multiple listing service / realtor association / third-party vendor or service provider) and industry standards / code of ethics obligations and those set forth in Subsection b. below relating to the applicable requirements of the Telephone Consumer Protection Act (47 U.S.C. 227) and its implementing regulations (“TCPA”), the Telemarketing Sales Rule (16 C.F.R. Part 310) as implemented and applied (“TSR”) and applicable state laws related to automated calling, texting or other delivery of telemarking message (collectively “Compliance Obligations”). CINC makes no representations or warranties that the Platform meets your Compliance Obligation needs and CINC shall not be responsible for, and you are solely responsible for understanding your Compliance Obligations and determining if the Platform meets all applicable Compliance Obligations. As a condition of use, you promise not to use the Platform for any purpose that is prohibited under these Terms or any other Compliance Obligation. Furthermore, you also understand and acknowledge that your use of the Platform may require additional obligations and disclosures to end users / consumers. You are responsible for all of your activity in connection with the Platform and the activity of any employee, agent or authorized user and ensuring all Compliance Obligations are met. If you are unsure whether your use of the Platform complies with applicable Compliance Obligations, please consult an appropriate professional, such as an attorney. You further agree that, upon reasonable notice you will cooperate with assessments, audits, or other steps performed by or on behalf of CINC to confirm that you are complying with these Terms.

b. Telephone Consumer Protection Act, Telemarketing Sales Rule and State Automated Calling Compliance Obligations and Responsibilities: You shall use the Platform in compliance with the TCPA (and its consent requirements), TSR, and all applicable state laws related to automated calling, texting or other delivery of telemarking messages. You shall be solely responsible for the content of all messages, including but not limited to any AI Use, the selection of recipients of the messages, the procurement from the recipient of all applicable consents (which consents must, among other things, satisfy the TCPA and TSR requirements and all applicable state law and federal law requirements), and the manner, time, and means of delivery of such messages.

Without limiting and in addition to the foregoing, to the extent you use the Platform to facilitate or effect the delivery of any SMS/text messaging to your contacts, you represent and warrant that no outreach via the Platform will be attempted for marketing purposes unless the called party has supplied their express written consent by accepting (via signature acceptable under the E-Sign Act) a clear and conspicuous disclosure, that is displayed to the called party in a manner in accordance with law, as part of a transparent and non-misleading consumer experience whereby the called party agrees to provide express written consent to receive marketing or promotional messages to a specific  phone number  via the use of automated telephone dialing equipment, or prerecorded or artificial voice messages, or via automated text messages.

Each and every use you make of the Platform to contact any called party shall constitute a representation and warranty by you that: (i) you have familiarized yourself with your Compliance Obligations, including but not limited to all applicable regulations, standards, and case law respecting properly obtaining valid express written consent; (ii) that you have obtained the needed consent from the called party with respect to that outreach attempt; and (iii) that you will maintain a record of the express written consent for seven years and will supply such record to CINC within two business days of request, irrespective of the termination of this Agreement.

You further represent and warrants that the express written consent it obtains will comply in all respects with the TCPA, TSR or any other laws, rules, or regulations (whether state or federal), related to the granting of consent (or such analogous acts). You also represent and warrant that you will not upload for use of the Platform any lead for which the called party has not provided the requisite consent under the TCPA, TSR or applicable state law, as the case might be.  Further, in the event of any opt out by any called party, you represent and warrant that you will obtain any required prior consent for that called party before recommencing any outreach campaign to the called party. In no event shall CINC owe any responsibility to review or validate the existence or suitability of any consent record.

c. Service Provider. The parties acknowledge and agree that as it pertains to the processing and use of personal information through the Platform, CINC is processing information on your behalf (i.e., in the role of a “processor,” or “service provider” as those terms are defined under applicable privacy laws). As a service provider, we will only process information on your behalf for the purposes set forth in these terms and we will not: (i) retain, use, disclose, or otherwise process personal information except as necessary for the business purposes specified in the Terms; (ii) retain, use, disclose, or otherwise process personal information in any manner outside of our direct business relationship with you; or (iii) combine any personal information with personal information that we receive from or on behalf of any other third party or that we collect from our own interactions with individuals, provided that we may so combine personal information for a purpose permitted under applicable laws (e.g., if directed to do so by you).

 

9. Term, Automatic Renewal & Termination.

a. Term and Automatic Renewal: This Agreement commences on the date this Agreement is acknowledged by you and continues in effect until the term identified in the applicable CINC Order Form (“Initial Term”).   You also agree that this Agreement shall automatically renew at the end of the Initial Term on a month-to-month basis (“Renewal Term(s)”) at the prevailing month-to-month rate in effect at that time, until cancelled by you as outlined below. For prevailing rates, please contact CINC at Support@CINCPro.com or call 855-246-2717. 

b. Termination. Your Initial Term and any subsequent Renewal Term may be cancelled by you by contacting CINC at Support@CINCPro.com, 855-246-2717 or online in your CINC Platform dashboard . Cancellation notice for CINC Clients must be provided prior to the expiration of the Initial Term and any subsequent Renewal Term(s) and shall be effective at the end of the next full month / billing cycle it was received. Cancellation notice for contributors, will be effective at the close of the then current billing cycle.

Notwithstanding the above, CINC reserves the right to deny access to the Platform to any person or entity at our sole and absolute discretion. You acknowledge and agree that CINC may stop providing the Platform or restrict your use of the Platform at any time, without notifying you in advance, if CINC has reasonable belief that any of the following has occurred, including, without limitation, failure to pay any required Fees or for any violation of the Platform’s Intended Use, you Compliance Obligations, these Terms & Conditions and/or the Privacy Policy.

c. Effects of Termination. In the event of any termination this Agreement for any reason, including but not limited to, as a result of failure by CINC Client to deliver complete and accurate information in a timely manner or if CINC Client terminates without cause prior to the expiration of the Initial Term or any subsequent Renewal Term(s), CINC Client shall pay all Fees due and payable through the date of termination; and shall pay an amount equal to the remaining unpaid fees that would, absent such termination, have become due and payable for the period remaining in the Initial Term or any subsequent Renewal Term. In the event of cancellation or termination of this Agreement, whether by you or us, Sections 12-16, of the Terms will continue in full force and effect.

10. Fees & Billing.

a. Fees. You shall pay, and CINC is authorized to automatically charge to the credit card designated when your order is submitted or subsequently updated by You all fees specified in the your Order Form for the following, where applicable: (i) the published nonrefundable set-up fee, (ii) hosting fees, (iii) advertising fee, comprised of ad spend and management fee, on a monthly basis as determined by you at the time your order is submitted, (iv) the Telecom Management Fees, and / or (v) contributions by contributors, (collectively “Fees”) for the Initial Term and each Renewal Term(s). In regard to Fees, You further agree (1) any applicable discounts apply only to the then current term and not subsequent Renewal Term(s); (2) you are solely responsible for the payment of all sales, use, value added, or other tax obligations arising out of or in connection with this Agreement and Your use of the Platform; (3) all automatic renewals will be at prevailing rates (for prevailing rates, please contact CINC at Support@CINCPro.com or call 855-246-2717); (4) You consent to the use of your original payment method, unless acceptable alternative payment method is provided; and (5) all Fees must be paid in U.S. Dollars and are non-refundable. Any unpaid Fees owed by a contributor are the sole responsibility of the CINC Client, site owner.

b. Billing. For CINC Clients and contributors, CINC has my permission to charge the Fees to the credit / debit card(s) I place on file every month I remain a CINC Client/contributor. CINC Clients and contributors understand CINC will charge the credit / debit card(s) at the beginning of the month for the full amount of Fees owed. If the credit / debit card(s) payment declines or fails for any reason CINC Clients and contributors understand CINC may continue to charge the credit / debit card(s) in increments up to $500 until the totally Fees amount owed is paid in full. CINC Clients understand that if CINC charges the credit / debit card(s) by any amount greater than the monthly Fee amount owed, CINC will do so only after giving such CINC Client prior notice of such charge..   In the event that your account is over 90 days past due the full contracted Fees are accelerated and will be due immediately and may be turned over to a collection agency if not paid immediately. CINC reserves the right to suspend or terminate your account and all access to the Platform if Fees are not paid. Such suspension or termination shall not relieve you of the obligation to pay the Fees due. Furthermore, you agree to pay CINC its reasonable expenses, including attorneys' and collection agency fees, incurred in enforcing its rights under these Terms.

11. Proprietary Rights.

a. Your Content. Any and all materials, data and information that you provide, make available or have someone provide on your behalf to CINC or any Third-Party Servicer is “Your Content.” Your Content may include but is not limited to: data, documents, photographs, text, images, audio, video, Call Data, User Personal Information, AI Content or any other content or materials. Your Content does not include any the CINC’ Intellectual Property, URL(s), Domain Name(s) and/or Network or Internet Protocol Address(es) provided by CINC and/or the Platform or services provided herein. You hereby grant to CINC a non-exclusive, worldwide, royalty-free, perpetual, sublicensable license and right to host, use, process, reproduce, display, train AI, and transmit Your Content for use in the Platform and pursuant to and in accordance with these Terms. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Content, and for obtaining all rights related to Your Content required by CINC to ensure Platform functionality. CINC has no obligation to verify the information provided in Your Content and disclaims any responsibility for its accuracy and authenticity and you use the same at your own risk. You represent and warrant that: (a) you have the written consent of each and every identifiable natural person in Your Content to use such person’s name or likeness in the manner contemplated by the Platform and these Terms, and each such person has released you and CINC from any liability that may arise in relation to such use; (b) Your Content and CINC’ use thereof as contemplated by these Terms and the Platform will not violate any law or infringe any rights of any third party, including but not limited to any copyrights, trademarks, service marks or other intellectual property rights, publicity rights, or privacy rights; (c) CINC may exercise the rights to Your Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; (d) all of Your Content and other information that you provide to CINC is truthful and accurate; and (e) Your Content complies with all of your Compliance Obligations. You agree to defend, indemnify and hold harmless CINC and its employees, officers, agents, and directors and affiliates from and against any liability arising from Your Content. CINC reserves the right to change, condense or delete any content, information, or materials available with or used in connection with the Platform (including Your Content) that CINC deems, in its sole discretion, to violate any provision of these Terms.

b. CINC Intellectual Property “CINC Intellectual Property” shall mean CINC’s ownership of all Confidential Information (as defined below), including but not limited to the Site, the Services, the Platform, Feedback, and of all copyrights, patents, trade secrets, service marks, trademarks, proprietary rights, domain name registrations, visual interfaces, interactive features, graphics, design, compilation, computer code, and other intellectual property rights in and to the Platform (“CINC Intellectual Property”). You shall not contest or otherwise challenge: (a) CINC’s designation of its Confidential Information (as defined below) as trade secrets and commercially sensitive and confidential and proprietary information; or (b) CINC’s ownership of CINC Intellectual Property. CINC is the owner of all CINC Intellectual Property and no title or ownership of the Confidential Information or CINC Intellectual Property is transferred to you by way of these Terms. Except for the express limited rights granted to you to use the Platform set forth above, no other rights, whether express or implied, are granted to you, and are reserved to and retained by CINC. You agree that any feedback, suggestions, improvements, enhancements, input and/or feature requests relating to the Services provided by you to CINC (“Feedback”) shall be owned solely by CINC, shall be included as part of the CINC Intellectual Property, and CINC shall be free to use and/or incorporate such Feedback in connection with the Platform.

12. Confidentiality.

a. Personal Information. You represent, warrant, covenant and agree that you shall comply with all relevant and/or applicable state and federal data privacy standards and all United States, foreign and other applicable laws, rules and regulations governing data, banking and financial information, real estate, the purchase or sale of real estate, real estate transactions, agencies and brokers, privacy, personal data and personal information and PII (as defined below) including the EU-US Data Privacy Framework, the General Data Protection Regulation (GDPR) (EU) 2016/679, the California Consumer Privacy Act (CCPA) AB-375, and any other applicable laws, rules, regulations and guidelines, and all other requirements reasonably requested by CINC (collectively, the “Data Privacy Standards”). You represent, warrant, covenant and agree that for so long as you maintain, possess, acquire, disclose, use, or have access to any PII, you shall at all times maintain the PII in strict confidence and shall not disclose it to anyone or use it for any purposes except as expressly authorized in these Terms and as permitted by applicable law and the Data Privacy Standards, and you shall be and remain in strict compliance with the Data Privacy Standards and that you shall notify CINC within twenty-four (24) hours if you are no longer in compliance with such Data Privacy Standards. CINC shall have the right, at any time, to require you to remove, destroy or purge any information from your possession, custody or control that constitutes PII when required by any of the Data Privacy Standards. CINC shall have the right, but not the obligation, upon reasonable prior notice, to audit you to confirm your compliance with these Terms and the Data Privacy Standards, which audit may include on-site inspections, requests for copies of documents and records, interviews with employees and representatives, proof of compliance, and written certifications executed under oath. The term “PII” means personal information, personally identifiable information, non-public information (NPI), any information about an individual, information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context, and any other information protected or regulated under applicable law and includes: (a) any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; (b) credit card, debit card and other banking and payment information; (c) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information; (d) any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non-public personal information; (e) is Personally Identifiable Information, as defined by state breach notification statutes; (f) non-public information (NPI) as defined and/or used by applicable state, federal or local laws, rules or regulations; (g) information appearing on applications for obtaining financial services (such as credit card or loan applications), or on account histories (such as bank or credit card histories), a person’s status (current or previous) with a banking, credit, lending or other financial organization, including names, addresses, telephone numbers, Social Security numbers, PINs, passwords, account numbers, salaries, medical information, and account balances; and (h) any information or materials protected by applicable state, federal or local laws, rules or regulations or governing real estate or its purchase or sale, real estate brokers, agents, transactions or related documents.

b. Confidential Information. You will treat and hold all confidential, commercially sensitive, proprietary, and/or non-public information (“Confidential Information”) received from CINC in strict confidence and will not use or disclose to anyone any of the information except as otherwise expressly permitted by these Terms. The term “Confidential Information” shall include PII, all user logins and passwords, CINC’ Intellectual Property, the Platform and its features, functionality, workflow, algorithms, screen displays and methods, system updates and all documentation relating thereto. Any information provided by CINC through the Platform shall be considered Confidential Information of CINC. Upon termination, cancellation, or expiration of these Terms for any reason whatsoever, or at CINC’ request at any time, you shall return to CINC all Confidential Information or at CINC’ option, destroy such information.

c. Compelled Disclosure. CINC reserves the right to fully cooperate with any law enforcement or duly authorized regulatory authorities or court order requesting or directing CINC to disclose any of Your Content, or any other data, information, the identity of anyone posting content or using the Platform or publishing or otherwise making available any materials that are believed to violate these Terms. BY ACCEPTING THESE TERMS, YOU WAIVE, RELEASE AND HOLD CINC HARMLESS FROM AND AGAINST ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY CINC DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER CINC OR LAW ENFORCEMENT OR DULY AUTHORIZED REGULATORY AUTHORITIES.

13. Dispute Resolution - Mandatory Binding Arbitration and Class Action Waiver

READ THIS ARBITRATION AGREEMENT CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. For example, if we elect to require you to arbitrate any claim, you will not have the right to a jury trial or the right to participate in a class action in court or in arbitration.

Binding arbitration lets an independent third party resolve a Claim without using the court system, judges, or juries. Either you or we may require the submission of a Claim to binding arbitration at any reasonable time, even if a lawsuit or other proceeding has begun. If either you or we don't submit to binding arbitration following a lawful demand, the one who fails to so submit bears all costs and expenses (including attorney's fees and expenses) incurred by the other in compelling arbitration.

Neither you nor we will be entitled to:

• • Join, consolidate, or combine Claims by or against others in any arbitration; or
  • Include in any arbitration any Claims as a representative or member of a class; or
  • Act in any arbitration in the interest of the general public or in a private attorney general capacity.

YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW.  If you do not reject this Arbitration Agreement and a Claim is arbitrated, neither you nor we will have the right to: (1) have a court or a jury decide the Claim; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action, private attorney general or other representative action in court or in arbitration; or (4) join or consolidate a Claim with claims of any other person.  The right to appeal is more limited in arbitration than in court and other rights in court may be unavailable or limited in arbitration.

This Arbitration Agreement describes when and how a Claim (as defined below) arising under or related to the Terms & Conditions and Privacy Policy between you and us may be arbitrated. Arbitration is a method of resolving disputes in front of one or more neutral persons, instead of having a trial in court in front of a judge and/or jury. If a claim is arbitrated, each party waives its, his or her respective rights to a trial before a jury in connection with the Claim. It can be a quicker and simpler way to resolve disputes. As solely used in this Arbitration Agreement, the terms “we,” “us” and “our” mean “us” as defined above, our parent companies, wholly or majority owned subsidiaries, affiliates, commonly-owned companies, management companies, successors, assigns and any of their employees, officers and directors. For purposes of this Arbitration Agreement, these terms also mean any third party providing any goods or services in connection with the Terms & Conditions and Privacy Policy, if such third party is named as a party by you in any lawsuit between you and us.

a. Your Right to Reject Arbitration: You may reject this Agreement by mailing a rejection notice to: 300 Galleria Pkwy SE, Suite 1500, Atlanta, GA 30339.  Attn. Terms & Conditions and Privacy Policy Arbitration Rejection, within 30 days after you agree to these Terms & Conditions. Any rejection notice must include your name, address and telephone number; the date you agreed to the Terms & Conditions that your rejection notice applies to; and your signature. Your rejection notice will apply only to this Agreement in the Terms & Conditions and Privacy Policy, but will not affect any term of any other contract between you and us (including without limitation any prior or subsequent agreement), nor will it change your obligation to arbitrate claims or matters covered by any prior or subsequent agreement to arbitrate, including each agreement to arbitrate that arises pursuant to the Terms & Conditions on our website which is not the subject of a valid rejection notice. 

b. What Claims Are Covered: “Claim” means any claim, dispute or controversy between you and us, whether preexisting, present or future, that in any way arises from or relates to the Terms & Conditions or Privacy Policy, your use of this website and the Platform, your Account, any transaction in your Account, the events leading up to the Terms & Conditions or Privacy Policy (for example, any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), communications between you and us and the manner of communicating, any product or service provided by us or third parties in connection with the Terms & Conditions or Privacy Policy, the collection of amounts due and the manner of collection, enforcement of any and all of the obligations a party hereto may have to another party, compliance with applicable laws and/or regulations (including but not limited to the TCPA or TSR or applicable state laws related to automated calling, texting or other delivery of telemarking messages to contact them using the Platform for marketing or other purposes), or the relationships resulting from any of the foregoing. “Claim” has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims and federal, state, local and administrative claims and claims which arose before the effective date of this Arbitration Agreement. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity and claims for money damages and injunctive or declaratory relief.

However, “Claim” does not include: (i) any dispute or controversy about the validity, enforceability, coverage or scope of this Arbitration Agreement or any part thereof (including, without limitation, the Class Action Waiver set forth below, subparts (a) and (b) of the part (k) set forth below titled “Rules of Interpretation” and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide; but disputes about the validity or enforceability of the Terms & Conditions or Privacy Policy as a whole are for the arbitrator and not a court to decide; (ii) seeking and obtaining from a court of competent jurisdiction (notwithstanding ongoing arbitration and without waiver of rights under this Arbitration Agreement) provisional or ancillary remedies including but not limited to injunctive relief, temporary restraining orders, property preservation orders, foreclosure, sequestration, eviction, attachment, replevin, garnishment, and/or the appointment of a receiver; (iii) the exercising of any self-help or non-judicial remedies by you or us; (iv) any individual action in court by one party that is limited to preventing the other party from using a self-help remedy and that does not involve a request for damages or monetary relief of any kind; or (v) any individual action brought by you against us in small claims court or your state’s equivalent court, if any. But if that action is transferred, removed or appealed to a different court, we then have the right to choose arbitration.

c. Electing Arbitration; Starting an Arbitration Proceeding:  Either you or we may elect to arbitrate a Claim by giving the other party written notice of the intent to arbitrate the Claim or by filing a motion to compel arbitration of the Claim.  This notice may be given before or after a lawsuit has been filed concerning the Claim or with respect to other Claims brought later in the lawsuit, and it may be given by papers filed in the lawsuit, such as a motion to compel arbitration.  Each of the arbitration administrators listed below has specific rules for starting an arbitration proceeding.   Regardless of who elected arbitration or how arbitration was elected, the party asserting the Claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding.  Thus, if you assert a Claim against us in court, and we elect to arbitrate that Claim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding.  Similarly, if we assert a Claim against you in court, you assert a counterclaim against us, and we elect to arbitrate that counterclaim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding.  Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis).  Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement.

d. Choosing the Administrator: The party starting the arbitration proceeding must choose one of the following arbitration organizations as the Administrator: the American Arbitration Association (the “AAA”), 120 Broadway, Floor 21, New York, N.Y 10271, www.adr.org., or JAMS, 1920 Main St. Ste. 300, Irvine, CA 92614, www.jamsadr.com. You may contact these organizations directly if you have any questions about the way they conduct arbitrations or want to obtain a copy of their rules and forms (which are also available on their websites).  A single arbitrator shall be appointed.  If for any reason the Administrator selected is unable or unwilling to serve or continue to serve as Administrator, the other company will serve as Administrator. If neither the AAA nor JAMS is able or willing to serve as Administrator, we and you will mutually agree upon an Administrator or arbitrator or a court with jurisdiction will appoint the Administrator or arbitrator (or arbitrators, in the case of a three-arbitrator panel provided for in Section “j”, below).  No company may serve as Administrator, without the consent of all parties, if it adopts or has in place any formal or informal policy that is inconsistent with and purports to override the terms of the Class Action Waiver in section (e) of this Arbitration Agreement. In all cases, the arbitrator(s) must be a lawyer with more than 10 years of experience or a retired judge. Arbitration of a Claim must comply with this Arbitration Agreement and, to the extent not inconsistent or in conflict with this Arbitration Agreement, the applicable rules of the arbitration Administrator.

e. Class Action Waiver: Notwithstanding any other provision of the Terms & Conditions or Privacy Policy, if either you or we elect to arbitrate a Claim, neither you nor we will have the right: (a) to participate in a class action, private attorney general action or other representative action in court or in arbitration, either as a class representative or class member; or (b) to join or consolidate Claims with claims of any other persons.  No arbitrator shall have authority to conduct any arbitration in violation of this provision or to issue any relief that applies to any person or entity other than you and/or us individually. (Provided, however, that the Class Action Waiver does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers including you.  This means that we will not have the right to compel arbitration of any claim brought by such an agency).

f. Location of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to your residence.

g. Cost of Arbitration: Each Administrator charges fees to administer an arbitration proceeding and the arbitrator also charges fees. This includes fees not charged by a court. At your written request, we will pay all filing, hearing and/or other fees charged by the Administrator and arbitrator to you for Claim(s) asserted by you in an individual arbitration after you have paid an amount equivalent to the fee, if any, for filing such Claim(s) in state or federal court (whichever is less) in the judicial district in which you reside. (If you have already paid a filing fee for asserting the Claim(s) in court, you will not be required to pay that amount again). In addition, the administrator may have a procedure whereby you can seek a waiver of fees charged to you by the Administrator and arbitrator. We will always pay any fees or expenses that we are required to pay by law or the Administrator’s rules or that we are required to pay for this Arbitration Agreement to be enforced. With respect to Claim(s) asserted by you in an individual arbitration, we will pay your reasonable attorney, witness and expert fees and costs if and to the extent you prevail, if applicable law requires us to or if we must bear such fees and costs in order for this Arbitration Agreement to be enforced. We will not ask you to pay or reimburse us for any fees we pay the Administrator or the arbitrator or for our attorneys’ fees and costs unless (1) the arbitrator finds that you have acted in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), and (2) this power does not make this Arbitration Agreement invalid. At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

h. Governing Law: The Terms & Conditions or Privacy Policy evidences a transaction involving interstate commerce and, therefore, this Arbitration Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”), and not by any state arbitration law. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court, or by state or local laws that relate to arbitration proceedings. The arbitrator will apply the same statutes of limitation and privileges that a court would apply if the matter were pending in court. The arbitrator will have the authority to hear and rule on appropriate dispositive motions for judgment on the pleadings, for failure to state a claim, or for full or partial summary judgment. All parties (the AAA/JAMS, the arbitrators, you and we) must, to the extent feasible, take any action necessary to ensure that an arbitration proceeding, as described in this Arbitration Agreement, is completed within 180 days of filing the Claim with the AAA or JAMS. This provision will be liberally construed to ensure the enforcement of this Arbitration Agreement. In determining liability or awarding damages or other relief, the arbitrator will follow the applicable substantive law, consistent with the FAA that would apply if the matter had been brought in court. The arbitrator may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court, including, without limitation, punitive damages (which shall be governed by the Constitutional standards employed by the courts) and injunctive, equitable and declaratory relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim).  The arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Terms & Conditions or Privacy Policy, the Administrator’s rules or applicable law.

i. Right to Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.

j. Arbitration Result and Right of Appeal: Judgment upon the award given by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except in a dispute between the same parties, in which case it could be used to preclude the same claim from being re-arbitrated.  If the amount of the Claim exceeds $25,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator.  (If an appeal is not filed within that time period, the arbitration award shall become final and binding). The panel shall reconsider de novo (anew) any aspect of the initial award requested by the appealing party.  This means that they shall reach their own findings of fact and conclusions of law rather than deferring in any manner to the original arbitrator. The decision of the panel shall be by majority vote.  Reference in this Arbitration Agreement to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken.   The costs of such an appeal will be borne in accordance with subparagraph (g) above, captioned “Cost of Arbitration.” Any final decision of the appeal panel is subject to judicial review only as provided under the FAA.

k. Rules of Interpretation: This Arbitration Agreement shall survive the termination, cancellation or suspension of the Terms & Conditions or Privacy Policy, any legal proceeding, and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Agreement, on the one hand, and the applicable arbitration rules or the other provisions of the Terms & Conditions or Privacy Policy, on the other hand, this Arbitration Agreement shall govern.  If any portion of this Arbitration Agreement is deemed invalid or unenforceable, it shall not invalidate the Terms & Conditions or Privacy Policy or the remaining portions of this Arbitration Agreement, except that:

a. The parties acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between them and is non-severable from this Arbitration Agreement. If the Class Action Waiver is limited, voided or found unenforceable, then this Arbitration Agreement (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver.  The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and

b. If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Agreement prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated.  In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court.  In no event will a Claim for public injunctive relief be arbitrated.

l. Notice of Claim; Right to Resolve; Special Payment: Prior to initiating, joining or participating in any judicial or arbitration proceeding regarding any Claim, the Claimant (the party who asserts or seeks to assert a Claim in a lawsuit or arbitration proceeding) shall give the other party written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim.  Any Claim Notice you send must include your name, address, telephone number and loan or account number.  Any Claim Notice must explain the nature of the Claim and the relief that is demanded.  You may only submit a Claim Notice on your own behalf and not on behalf of any other party.  The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests.  If: (i) you submit a Claim Notice in accordance with this paragraph on your own behalf (and not on behalf of any other party); (ii) we refuse to provide the relief you request before an arbitrator is appointed; and (iii) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $7,500 (not including any arbitration fees and attorneys’ fees and costs to which you may be entitled under this Arbitration Agreement or applicable law). We encourage you to address all Claims you have in a single Claim Notice and/or a single arbitration.  Accordingly, this $7,500 minimum award is a single award that applies to all Claims you have asserted or could have asserted in the arbitration, and multiple awards of $7,500 are not contemplated by this Section.

14. Disclaimer of Warranties and Limitation of Liabilities. CINC DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING CINC’S PLATFORM, THE SERVICES, AND THE DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE CINC PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITH “ALL FAULTS”. CINC SPECIFICALLY DOES NOT WARRANT THAT ITS PLATFORM OR ANY COMPONENT THEREOF WILL (I) PERFORM WITHOUT INTERRUPTION OR ERROR, OR THAT ALL IRREGULARITIES, ERRORS, PROBLEMS OR DEFECTS WILL BE CORRECTED, (II) BE SECURE OR FREE OF DEFECTS, MALWARE, VIRUSES, OR OTHER HARMFUL COMPONENTS, (III) MEET YOUR REQUIREMENTS OR COMPLIANCE OBLIGATIONS, INCLUDING THOSE RELATING TO THE TCPA, TSR AND OTHER APPLICABLE STATE LAWS RELATED TO AUTOMATED CALLING, TEXTING OR OTHER DELIVERY OF TELEMARKETING MESSAGES, OR (IV) BE ACCESSIBLE FROM THE CONFIGURATION THAT YOU MAY SELECT. IN NO EVENT SHALL CINC, OR ANY OF ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, AS SUCH, BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, ITS PLATFORMS, OR ANY SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST, REVENUE, DATA OR USE, SECURITY BREACH, OR INTERRUPTION OF BUSINESS, INCURRED BY YOU, USER, CLIENT/CONTRIBUTOR OR ANY THIRD PERSON OR ENTITY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF CINC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE TOTAL CUMULATIVE LIABILITY OF CINC, OR ANY OF ITS THIRD-PARTY LICENSORS, AND ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS SUCH, TO USER, CLIENT/CONTRIBUTOR OR ANY THIRD PERSON OR ENTITY FOR ANY LOSSES, SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL COMPENSATION PAID BY YOU TO CINC DURING THE CONSECUTIVE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY; OR (B) $10,000. AS USED HEREIN, “SECURITY BREACH” MEANS THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO, YOUR CONTENT, INCLUDING ANY PERSONAL INFORMATION.

15. Indemnification. You and any associated CINC Client jointly and severally agree to indemnify, defend, and hold harmless CINC, its affiliates, and their respective directors, officers, employees, and agents from any and all actions, judgments, damages, demands, liabilities, losses, costs and claims, including reasonable attorney’s fees, whether asserted or threatened claims and demands made by any third party due to or arising out of: (a) your access to or use of the Platform; (b) any claims arising out of any products or services sold or otherwise distributed by us through the Platform, including any personal or property injury and damage; (c) your breach of these Terms and/or any Privacy Policy; (d) your violation of any law or the rights of a third party, including but not limited to your Compliance Obligations; (e) any dispute or issue between you and any third party; (f) Your Content; (g) AI Content; (h) your willful misconduct; and (i) any other party’s access to and/or use of the Platform using your account and password, whether authorized or unauthorized by you. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in that case, you agree to cooperate with our defense of that claim.

16. Governing Law. The parties agree that the laws of the State of Georgia without regard to principles of conflict of laws, will govern these Terms and/or any dispute of any sort that might arise between you and CINC or its affiliates, except for the Arbitration Agreement, which is governed by the Federal Arbitration Act.

17. Assignment. The use of the Platform and grants by CINC hereunder are personal to you and may not be assigned, sub-licensed or transferred, in whole or in part, by you, whether by agreement, operation of law, sale, merger, reorganization or change of control of your company or business.   Any assignment or transfer in violation of this section shall be void and of no force or effect and shall constitute a material breach of these Terms.

18. Notice. CINC may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on the site or in the Platform, as determined by CINC in our sole discretion. CINC reserves the right to determine the form and means of providing notifications to You. CINC is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address You provide us.   All notices, requests or demands to CINC shall be delivered in writing and shall be deemed given only if delivered personally or sent via overnight delivery to CINC’ mailing address. Any legal notice sent by You to CINC must also be emailed to support@cincpro.com. Please contact us at support@cincpro.com with any questions regarding these Terms.

19. No Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under these Terms by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.

20. Changes to Terms and Authority to Bind. CINC reserves the right, at our sole discretion, to update or revise these Terms at any time without further notice. Any changes shall be effective immediately upon posting by CINC, whether you have actual notice of such changes. Your continued use of CINC’ Platform or contribution to a CINC Client’s site or campaign, Platform Fees following the posting of any changes to the Terms constitutes acceptance of those changes and your representation that you have the authority to agree and accept any and all changes. Should you wish to opt-out of such future changes, you must communicate your request to opt-out to us in writing, either by email at postmaster@cincpro.com or at this address: Commissions, Inc., 300 Galleria Pkwy SE, Suite 1500, Atlanta, GA 30339.  The opt-out shall be effective 10 days after receipt.  In the event you opt-out, our agreement will continue to be governed by the Terms & Conditions in effect at the time you originally submitted your information, or at the time of the last update to which you did not opt-out.

 

Commissions Inc.
300 Galleria Pkwy SE, Suite 1500
Atlanta, GA 30339

Phone: 855-246-2717

 

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