Terms of Service

Last updated: October 30, 2019

The following Terms of Service (the “Agreement”) will govern your use of the Services (defined below) and is entered into between you and Ally Technologies, Inc. (“Ally”, “we”, “us” or “our”), a business located at 10400 NE 4th St., Suite 500, Bellevue, WA 98004, USA. This Agreement applies to all visitors, users, and others who access or otherwise use the Services.

This Agreement takes effect when you agree to the terms of this Agreement. You may show your agreement to and acceptance of these terms by either executing an Order Form or Statement of Work referencing this Agreement, clicking the check box linking to this Agreement, or otherwise accessing or using the Services.  By executing an Order Form or Statement of Work referencing this Agreement, clicking the check box linking to this agreement or otherwise accessing or using the Services, you represent and warrant that (a) you are lawfully able to enter into contracts (e.g., you are not a minor), (b) you have legal authority to bind the entity that you represent, and (c) you have read, understood, and hereby agree to this Agreement.

We may periodically make changes to this Agreement. By using the Services, you accept this Agreement and any modifications that we may make to this Agreement. You are responsible for regularly reviewing this Agreement and any policies that apply to your use of the Services to stay informed of any changes. If you continue to use the Services after the effective date of any modified terms or policies, you agree to be bound by them as of the date of the modification. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST CEASE USING THE SERVICES.

1. Ally Services and Set-up

    (a) Services. Ally provides the Ally project management tool and also offers other services and related mobile apps (“Mobile Apps”), as further described at www.ally.io and other websites where this Agreement is posted (collectively, the “Services”).

      (b) Account Setup. When you set up an account or have an account set up for you (“Ally Account”) to use the Services, you will be required to choose a password and user ID, and will be required to provide other registration information (collectively, “Registration Information”). You agree and represent that all Registration Information provided by you is accurate and up-to-date. If any of your Registration Information changes, you must update it in your Ally Account. If Ally believes that the Registration Information you provide is not correct, current, or complete, Ally reserves the right to refuse you access to the Services, and to terminate or suspend your Ally Account at any time. However, Ally has no obligation to verify the accuracy, currency, completeness, or usefulness of any Registration Information that you have provided.

   (c) Ally Account Credentials. You understand that you are responsible for maintaining the confidentiality of the username, password and any other authentication credentials for your Ally Account and those of any users you authorize under your Ally Account (“Permitted Users”), and you are fully responsible for all activities that occur under your Ally Account, including the purchase of any of the Services. You agree (i) to promptly notify Ally if you suspect any unauthorized use of your Ally Account (including usernames, passwords or any other authentication credentials) or any other breach of security, and (ii) not to share any username, password or any other authentication credentials with any other user or use the username, password or any other authentication credentials of any other user. You acknowledge that Ally is not responsible for any loss or damage arising from the theft or misappropriation of any username, password or other authentication credentials. Ally recommends that you use strong passwords for your Ally Account, never use the same password on multiple sites or services, and change your password frequently. You are directly responsible to Ally for the conduct, acts and omissions of your Permitted Users and will ensure that your Permitted Users comply with this Agreement.

   (d) Professional Services; Statements of Work for Professional Services; Change Orders. Subject to the terms and conditions of this Agreement, Ally may perform implementation, integration, training or other professional services for you, all of which will be considered Services where applicable under this Agreement. The specific details of the professional services to be performed (including scope of work, fees, payment schedule and timeline) will be determined on a per-project basis, and the details for each project will be described in a Statement of Work for professional services. Each Statement of Work for professional services will constitute a separate work engagement. All changes to a Statement of Work for professional services requested by either party will only be effective upon signing of a mutually agreed change order. If work on a Statement of Work for professional services is materially delayed, postponed, or discontinued by you, Ally may suspend performance of professional services under such Statement of Work.  

      (e) Free Trials and Free Services. From time to time, Ally may offer trials of certain versions of the Services for a specified period of time free of charge (each, a “Free Trial”) or may offer a tier of the Services free of charge (“Free Services”). If you register on our website for a Free Trial, we will make the Services available to you under the Free Trial until the earlier of (i) the end of the Free Trial period for which you registered to use the Services, (ii) the start date of any subscription ordered by you for such Services, or (iii) termination by us in our sole discretion. If you register on our website for Free Services, we will make the Services available to you under the Free Services until the earlier of (i) the start date of any paid subscription ordered by you for such Services, or (ii) termination by us in our sole discretion. Additional Free Trial or Free Services terms and conditions may appear on the registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Ally reserves the right, in our absolute discretion, to determine your eligibility for a Free Trial or Free Services, and, subject to applicable laws, to withdraw or to modify a Free Trial or Free Services at any time without prior notice and with no liability, to the greatest extent permitted under law. ANY CONTENT YOU ENTER INTO THE SERVICES, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS WITHIN 90 DAYS AFTER THE END OF YOUR FREE TRIAL PERIOD YOU SUBSCRIBE TO THE SAME OR A HIGHER TIER OF THE SERVICES OR EXPORT YOUR CONTENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ALLY’S INDEMNITY OBLIGATIONS DO NOT APPLY TO FREE TRIALS OR FREE SERVICES.

2. Fees and Payment

      (a) Election and Fees.

      (i) The fees for the Services are set forth on the Ally pricing page (“Pricing Page”) or on an executed Order Form or Statement of Work between you and Ally, each of which is incorporated into and made a part of this Agreement. Fees for the Services may be payable in advance, in arrears, per user, or as otherwise described on the Pricing Page or on an executed Order Form or Statement of Work between us. You agree to pay Ally the fees indicated for the Services you purchase and for the indicated term (“Subscription Term”) and for any other fees set forth on an executed Order Form or Statement of Work between us.  Stated fees do not include any related taxes (including sales and use taxes, duties or other governmental taxes or fees), all of which are your responsibility and will be charged to your Payment Method in addition to the fees.

      (ii) Fees for subscription-based Services will be invoiced to you or charged to your Payment Method on the day your Services plan selection goes into effect and will cover fees for your Services plan selection for the payment period indicated. Fees for other Services will be charged according to the applicable Pricing Page, Order Form or Statement of Work. At the end of the indicated Subscription Term for subscription-based Services, and unless otherwise set forth in the applicable Order Form or Statement of Work, your purchased Services will automatically renew for successive renewal Subscription Terms of equal length to the initial Subscription Term and the applicable fees will continue to be invoiced to you or charged to your Payment Method on a recurring basis until you change your Services plan selection or terminate this Agreement. The amount of the charge for each renewal Subscription Term will be the then-current fee applicable to the Services plan and Subscription Term you selected as set forth on the Pricing Page or otherwise communicated to you. You acknowledge that the amount of the charge may increase if the applicable fee increases. If applicable, you hereby authorize Ally to charge your Payment Method for such recurring charges

      (iii) You may upgrade, downgrade or terminate your Subscription Services plan selection at any time. Plan downgrades and terminations will take effect only at the end of your current term and must be made at least 30 days prior to the start of your next renewal Subscription Term in order to avoid billing of the next renewal Subscription Term’s fees at the prior rate. Services upgrades will take effect immediately and you will be charged a prorated fee for the remainder of your current Subscription Term based on the difference in price between your current plan and the upgraded plan.

      (b) Payment Method. Ally may, from time to time, offer various expedited payment methods, including payment by credit card, debit card, or direct debit. If you select such a payment method when purchasing the Services, or provide such a payment method on an Order Form or Statement of Work (the “Payment Method”), you authorize Ally to charge you for Services through such Payment Method and agree to make payment using such Payment Method and to keep your payment-related information up to date. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the “Payment Method Provider”). If Ally does not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from Ally. Your non-termination or continued use of the Services reaffirms that Ally is authorized to charge your Payment Method.

      (c) Payment Matters. If your Payment Method fails or your account is past due, Ally reserves the right to either suspend or terminate your use of the Services. If Ally has agreed to issue invoices to you, payment of all invoices is due within 14 days of invoice receipt. You agree to submit in writing to Ally any disputes regarding any fees invoiced to you within 14 days of invoice receipt, or charged to your Payment Method within 60 days of such charge, otherwise such dispute will be waived and such invoices and charges will be final and not subject to challenge. Ally reserves the right to charge you interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate permitted by applicable law, whichever is lower. You will also reimburse any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by Ally to collect any undisputed amount that is not paid when due. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Services except (i) as expressly set forth in this Agreement, the Pricing Page or an executed Order Form or Statement of Work between us; (ii) as otherwise required by applicable law; or (ii) at our sole and absolute discretion. All fees for Services are subject to change without notice; however, Ally will use reasonable efforts to notify you at least 30 days before any fee increase and fee changes will not take effect until your next renewal.

3. Certain Customer Responsibilities and Additional Requirements

      (a) Grant of License. As between you and Ally, and except as otherwise expressly stated in this Agreement, you will own and retain all rights, title, and interest in and to all data, information, text, graphics, images, links, and all other content and materials submitted by you or on your behalf, or that you allow us to access or upload from your systems, for processing by the Services, as well as any information that Ally collects directly from your users (collectively, the “Customer Content”). You hereby grant to Ally and its suppliers a non-exclusive, worldwide, transferable, sublicensable, and fully paid-up right and license to analyze, process, use, disclose, transfer, publish, display, compile, create derivative works of and otherwise exploit, the Customer Content for purposes of providing, developing and improving the Services and operating our business.

    (b) Responsibility and Use of Customer Content. You are solely responsible (and assume all liability and risk) for determining whether or not Customer Content is legal, appropriate or acceptable, and whether you have the right to provide, access and use such content and grant to Ally and its suppliers the right to access and use such content under this Agreement. Ally will not be responsible for the Customer Content. Ally reserves the right at all times, at its discretion and without notice to you, to remove or refuse to store or use any Customer Content within the Services. Ally also reserves the right to access, preserve and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; or (iv) protect the rights and property of Ally, its users and the public. You acknowledge that you are responsible for setting access rights and privileges for any of your Permitted Users.

      (c) Copyright Policy. Ally honors and recognizes copyright law and expects all customers and users of the Services to comply as well. Ally reserves the right to terminate the account of any customer or user who continuously violates or is believed to be continuously violating the rights of copyright owners. Please also see the Ally DMCA Policy.

4.  Ally IP

      (a) Ownership of Ally IP. Ally and its licensors will own and retain all rights, title, and interest in and to the Services and all materials therein, including software (including Mobile Apps, as defined below, and any other necessary software used in connection with the Services), Java applets, images, text, graphics, designs, illustrations, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information, data, other files and the arrangement thereof, content belonging to other users, Documentation and all work product and deliverables under each Order Form and Statement of Work (collectively, “Ally IP”). “Documentation” means any user documentation, on any media, provided by Ally for use with the Services.

      (b) Limited License. During the term of this Agreement, and as applicable to the Services you purchase, you are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Services (including Mobile Apps) and Documentation for your internal business purposes, subject to the terms and conditions of this Agreement. For the avoidance of doubt, you must comply with any scope restrictions or limitations for the Services you purchase.

    (c) Restrictions. You agree that you will not (i) copy, modify, publish, adapt, create derivative works of, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Services (including Mobile Apps) or other Ally IP or cause others to do so; (ii) remove, alter, cover or obfuscate any copyright notice or other proprietary rights notice placed on or displayed by the Services (including Mobile Apps) and Documentation, whether in machine language or human readable form; (iii) “frame” or “mirror” any part of the Services, without Ally’s prior written authorization; (iv) use meta tags or code or other devices containing any reference to Ally or the Services in order to direct any person to any other website for any purpose; (v) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Services (including Mobile Apps) or Documentation to any third party or use the Services (including Mobile Apps) or Documentation to provide time sharing or similar services for any third party or make any commercial use of the Services (including Mobile Apps) or Documentation, other than as intended; (vi) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Services or Documentation; (vii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (viii) use any automated methods or processes to create user accounts or access the Services, (ix) remove, circumvent, disable, damage or otherwise interfere with any security or other technological features or measures of the Mobile Apps and other Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach any security measures; or (x) use the Services (including Mobile Apps) or other Ally IP other than for their intended purpose. Any use of the Services (including Mobile Apps) or other Ally IP other than as expressly authorized herein, without the prior written consent of Ally, is strictly prohibited and will violate and terminate the license granted herein. You agree to promptly notify Ally in writing of any unauthorized use of the Services, Documentation or other Ally IP that comes to your attention, cooperate and assist with any actions taken by Ally to prevent or terminate unauthorized use of the Services, Documentation and other Ally IP, and use reasonable efforts to prevent any such unauthorized use of the Services, Documentation and other Ally IP.

      (d) Reservation of Rights. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. Ally reserves all rights not expressly granted herein in the Services (including Mobile Apps) and the other Ally IP. This license is revocable at any time.

5. Communicating with you Electronically—Permission to Text

    (a) You agree and consent to our communicating information, notices, messages, service alerts, announcements, agreements, privacy notices, disclosures or other communications (“Electronic Communications”) associated with the Services to you and Permitted Users electronically by posting such Electronic Communications in your Ally Account, e-mailing such Electronic Communications to the e-mail address on file or by sending such Electronic Communications to you and Permitted Users via SMS text message to the mobile number on file in the relevant Ally Account.

        (b) Unless and until you opt-out of receipt of Electronic Communications via SMS text messaging, you expressly give us permission to send you text messages to your and Permitted Users’ mobile devices. You acknowledge and understand that such text messages may cause you and Permitted Users to incur charges from the wireless service provider or deductions from the applicable calling or texting plans. Text messages may include information about our Services, including modifications to this Agreement or our Privacy Policy or Data Processing Agreement, and other communications Ally may desire to send.

        (c) Electronic Communications are deemed to be received – at the latest – when they are sent to you or Permitted Users at the last email address or wireless phone number provided us. You will ensure that your and Permitted Users’ email address and wireless phone number will be kept up to date in order that we may communicate with you and Permitted Users.

6. Feedback

Ally welcomes and encourages feedback, comments, and suggestions for improvements to the Services (including Mobile Apps) and Documentation (“Feedback”). By providing Feedback, you agree that all Feedback becomes Ally’s exclusive property. Additionally, you grant Ally a non-exclusive, perpetual, irrevocable, paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Feedback.

7. Trademarks

“Ally”, Ally’s logos and any other trade name or slogan contained in or used in connection with the Services are trademarks or service marks of Ally, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Ally or the applicable trademark holder. In addition, the look and feel of the Services (including Mobile Apps), including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Ally and may not be copied, imitated or used, in whole or in part, without Ally’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in connection with the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Ally.

8. Compliance with Laws

You agree that you will use the Services and provide, access and use Customer Content in compliance with all applicable local, state, national and international laws, rules and regulations. You will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Services to transmit or otherwise distribute any content that you do not have the necessary rights in or that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Ally; (b) interfere or attempt to interfere with the proper working of the Services or prevent others from using the Services; or (c) use the Services for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Ally’s sole discretion, and may subject you to state and federal penalties and other legal consequences. Ally reserves the right, but will have no obligation, to review the Customer Content and use of the Services, including in relation to Ally user complaints or disputes, in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.

9. Confidential Information

        (a) Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, security practices and policies, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the effective date of this Agreement. Confidential Information includes any portion of this Agreement and its terms that is not publicly available on our website. “Confidential Information” excludes information that (i) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (ii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; or (iii) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality.

         (b) Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such information as Confidential Information under the terms of this Agreement. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.

         (c) Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information.  With respect to your Customer Content, we will make your Customer Content available for download at any time upon your request during the term of this Agreement and for a period of 90 days following expiration or termination of this Agreement (excluding Customer Content resulting from Free Trials, which are covered by Section 1(e)).  Following such 90-day period, we may purge your Customer Content from our systems. The obligations in this Section 9 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 9 for as long as such information remains a trade secret under applicable law.

         (d) Privacy Policy. Ally collects personal and other information in connection with the Services. By using the Services, you agree to be bound by the terms of our Privacy Policy and Data Processing Agreement.

10. Representations and Warranties

Without limiting any other representation, warranty or covenant of either party herein, each party hereby represents and warrant to the other that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it will perform it obligations hereunder in compliance with all applicable laws, rules and regulations. Further, you hereby represent and warrant to Ally that (i) you have the right to grant to Ally and its suppliers the rights granted herein and that none of the Customer Content contains any material that infringes upon any third-party right, including rights arising from contracts between you and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or which slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; and (ii) none of the Customer Content provided by you hereunder contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Services, or intercept or expropriate any system data or personal information from the Services.

11. Term; Termination

The term of this Agreement will continue until terminated. Without limiting Ally’s rights to terminate as set forth elsewhere in this Agreement, Ally may terminate this Agreement immediately upon written notice to you for breach of Section 3, 4, 8, 9 or 10. In the event of a material breach by either party of any other provision of this Agreement, the non-breaching party may terminate this Agreement upon 5 business days’ prior written notice without liability to the other party. Either party may terminate this Agreement for convenience at any time upon at least 10 business days’ prior written notice to the other party. Upon termination of this Agreement, you will be responsible for paying (a) fees payable for the remainder of any ongoing Subscription Terms, unless this Agreement was terminated by you for Ally’s uncured material breach or was terminated by Ally for convenience, and (b) any other amount due under this Agreement through the effective date of termination, and you authorize Ally to charge your Payment Method immediately upon termination for the full amount payable hereunder. No refunds of fees paid under this Agreement will be provided. Termination of this Agreement will not relieve either party of any obligations or liabilities that have accrued prior to the termination date (including obligations to pay fees, taxes, interest and collection costs) and is without prejudice to any other rights and remedies either party may have. In addition, each party’s obligations as provided in the following sections of this Agreement will survive termination: 2, 3, 4(a), 6-9, 11-16 and 17 (excluding (a)).

12. Purchase Through Channel Partners

        (a) Applicability. This Section 12 only applies to purchase of Services through an authorized distributor or reseller (a “Channel Partner”). If you are uncertain as to the applicability of this section to your purchase, you should contact Ally for further information.

           (b) Channel Partners. If you ordered your Services from a Channel Partner, then the following terms apply:

                (i) This Agreement is not exclusive of any rights you obtain under your agreement with the Channel Partner (the “Channel Partner Sale Agreement”); however, if there is any conflict between the provisions of this Agreement and the Channel Partner Sale Agreement, then the provisions of this Agreement prevail. If a Channel Partner has granted you any rights that Ally does not also directly grant to you in this Agreement, or that conflict with this Agreement, then your sole recourse with respect to such rights is against the Channel Partner.

             (ii) Your Subscription Term will run for the period of time stated in the Channel Partner Sales Agreement  and,  subject to Section 11, it will expire, renew and terminate in accordance with the terms of the Channel Partner Sale Agreement.

             (iii) Section 2 does not apply to you, and your billing and payment rights and obligations are governed by the Channel Partner Sale Agreement. However, if the Channel Partner from whom you purchased the Services fails to pay Ally any amounts due in connection with your Services, then Ally may suspend your Services, with or without notice to you. You agree that your remedy in the event of such suspension is solely against the Channel Partner and that Ally is not liable to you in any manner for such suspension.

13. Indemnification

        (a) Your Indemnity. You agree to defend, indemnify and hold Ally and its affiliates and each of their respective directors, officers, employees, agents, contractors, suppliers, licensors and representatives, and affiliates of each of the foregoing, harmless from and against any losses, costs, liabilities, claims, demands, damages and expenses, including reasonable attorneys’ fees, arising out of or related to (a) your violation of any term of this Agreement, (b) your unauthorized use of and access to the Services, (c) your violation of any rights of a third party, including any right of privacy or intellectual property rights; (d) any other party’s access and use of the Services with your username, password or any other authentication credentials; (e) your violation of any applicable laws, rules or regulations, (f) Customer Content, or (h) your negligence or willful misconduct. The indemnified party agrees to give you prompt written notice of any claim and to reasonably cooperate with your defense of such claim, at your expense.

            (b) Ally Indemnity. Ally agrees to defend, indemnify and hold you and your affiliated companies harmless from and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses or settlement related thereto arising from allegations that the Services or any portion thereof infringe(s) or otherwise violate(s) such third-party’s U.S. patents, trademarks or copyrights. You must give Ally prompt written notice of any claim and reasonably cooperate with Ally’s defense of such claim, at Ally’s expense. If a claim under this paragraph is made or likely to be made, Ally may in its sole discretion: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the Services, (ii) modify the infringing component(s) to make them non-infringing, or (iii) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately without liability.

14. Disclaimers; No Warranties

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALLY AND ITS AFFILIATES AND SUBSIDIARIES MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY MATTER, INCLUDING THE SERVICES. ALLY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT OR THOSE ARISING OUT A COURSE OF DEALING OR USAGE OF TRADE. FURTHER, ALLY DOES NOT WARRANT THE RESULTS OR PROVISION OR USE OF THE SERVICES, INCLUDING THAT YOU WILL RECEIVE ANY BUSINESS BENEFITS AS A RESULT OF THE SERVICES, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. ALLY MAKES NO WARRANTY, EXPRESS OR IMPLIED, RELATED TO THE AVAILABILITY, UPTIME, OR QUALITY OF THE SERVICES, AND ALLY MAY FREELY ADD, MODIFY, UPDATE, REMOVE, AND REPLACE ANY SERVICES.

15. Limitation of Liability and Damages

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL ALLY, ITS AFFILIATES, AND ITS SUBSIDIARIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFIT OR REVENUE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA OR CONTENT SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS, THAT RESULTS FROM THIS AGREEMENT OR THE PROVISION OR USE OR THE INABILITY TO PROVIDE OR USE THE SERVICES, EVEN IF ALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ALLY AND ITS AFFILIATES AND SUBSIDIARIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY ALLY FROM YOU DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU WILL NOT COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST ALLY MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ONLY THE LIMITATIONS WHICH ARE LAWFUL WILL APPLY TO YOU AND ALLY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

16. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

            (a) Governing Law. You agree that the Services shall be deemed solely based in Washington and this Agreement shall be governed by the laws of the State of Washington, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the state or federal courts in and for the King County, Washington, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Arbitration provision below. You agree that King County, Washington is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

         (b) Arbitration. READ THIS PARAGRAPH CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ALLY. For any dispute with Ally arising out of or relating in any way to this Agreement (including the Privacy Policy, Data Processing Agreement and any Statements of Work or Order Forms), you agree to first contact us using the contact information below and attempt to resolve the dispute with us through good faith discussions. In the unlikely event that we have not been able to resolve a dispute after 60 days, we each agree to resolve any claim, dispute or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or relating in any way to this Agreement  (including the Privacy Policy, Data Processing Agreement and any Statements of Work or Order Forms) (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Seattle, Washington, unless you and Ally agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this paragraph shall be deemed as preventing either you or Ally from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation or other violation of either party’s confidential information or intellectual property or other proprietary rights.

            (c) Class Action/Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND ALLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

17. Updates to this Agreement; Miscellaneous; Questions

        (a) Updates to this Agreement. From time to time, Ally may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its sole discretion. If Ally Updates this Agreement, it will make the Updated Agreement available here, and the Updated Agreement will indicate the date of the latest revision. Ally encourages you to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter your rights or obligations hereunder, Ally will make reasonable efforts to notify you of the Updates. For example, Ally may send a message to your email address that is currently associated with your Ally Account or generate a pop-up or similar notification when you access your Ally Account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are made available through the Services, except that (i) disputes between you and Ally will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if you do not agree with any changes to this Agreement, you may terminate this Agreement as set forth above. Your continued access to or use of the Services after an Updated Agreement has become effective indicates that you have read, understood and agreed to the current version of this Agreement.

            (b) Audit Rights. Upon 15 days’ notice, Ally may audit your use of the Services to ensure compliance with license, payment and other terms of this Agreement. You will cooperate with Ally’s auditors and provide reasonable assistance and access to information. If the audit uncovers underpaid fees owed to Ally, you will pay those fees and if the audit uncovers a material underpayment of fees or material breach, you will pay Ally’s costs incurred in conducting the audit within 30 days of written notification of the amounts owed. All information gathered as part of the audit will be treated as your Confidential Information.

         (c) U.S. Government Users. If you are a U.S. Government end user, the Services (including Mobile Apps) and Documentation are Commercial Items, as that term is defined at 48 C.F.R. §2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the U.S. Government end user (a) only as Commercial Items, (b) not as military or defense articles as defined in the International Traffic in Arms Regulations, 22 C.F.R Parts 120-130 or Export Administration Regulations, 15 C.F.R. Parts 700-799), and (c) with only those rights as are granted to all other end users pursuant to these Terms. Unpublished-rights reserved under the copyright laws of the United States.

             (d) Entire Agreement; Conflicts. This Agreement, together with the Privacy Policy, Data Processing Agreement and all Statements of Work and Order Forms, sets forth the entire agreement between Ally and you, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. If there is a conflict between the terms of this Agreement and the terms of an Order Form or Statement of Work, the terms of this Agreement will control unless the Order Form or Statement of Work states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form or Statement of Work, and then the superseded terms will only apply to the applicable Order Form or Statement of Work, and not to any other Order Form or Statement of Work.

               (e) Customer List. Ally may use your name and logo on its website and customer lists to identify you as a customer of the Services, unless you notify Ally in writing to stop doing so.

          (f) Miscellaneous. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Ally. Ally may freely assign or transfer this Agreement. Both parties are independent contractors, and neither party is an agent, representative or partner of the other. In this Agreement, “including” means “including without limitation”.  Ally may, in its sole discretion, work with licensors, vendors, contractors and other third parties to fulfill any obligations in this Agreement or to support the Services, and we may change our use of licensors, vendors, contractors and other third parties without notice to you. Any notices under this Agreement will be sent by Ally to at least one of the addresses provided to Ally in connection with your registration or updates thereto (or in a separate writing) and will be sent by you to the address for Ally shown on www.ally.io. Notices will be sent by nationally recognized express delivery service and will deemed given one business day after deposit with such delivery service. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Headings are provided for convenience but do not constitute part of this Agreement.

                 (g) Questions. If you have any questions related to this Agreement, please contact us.