These Brand Terms of Service constitute a binding agreement (this “Agreement”) between Join Ally, Inc., a Delaware corporation, (“Ally”) and the person or the legal entity identified as the Brand (as describe below) agreeing to be bound by this Agreement in connection with the access to and use of the Platform and the Services (as defined herein).
If you access or use the Platform or the Services as an individual not formally associated with an organization, then you are entering into this Agreement on your own behalf and you are the “Brand.” If you access or use the Platform or the Services on behalf of a company, organization, government, or other legal entity, then you are entering into this Agreement on behalf of that legal entity and that entity is the “Brand.” When you accept this Agreement on behalf of an entity, you hereby represent and warrant to Ally that you have the authority to legally bind that entity to this Agreement, and your acceptance of this Agreement will be treated as acceptance of this Agreement on behalf of the entity that you represent. Brand represents and warrants to Ally that it is legally capable of entering into and performing this Agreement and is not a person or entity barred from receiving or using the Platform or the Services under the laws of the United States or such other applicable jurisdiction. The applicable Brand is referred to herein as “Brand.” Ally and Brand are referred to herein, individually as a “party,” and collectively as the “parties.”
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE PLATFORM OR THE SERVICES, BRAND ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT. IF BRAND DOES NOT ACCEPT AND AGREE TO COMPLY WITH THIS AGREEMENT, BRAND CANNOT ACCESS OR USE THE PLATFORM OR THE SERVICES.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE (SEE SECTION 15.8), AND BRAND AGREES THAT DISPUTES BETWEEN BRAND AND ALLY WILL BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION, AND BRAND IS WAIVING ITS RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. THE SERVICES. Ally licenses its proprietary technology platform (the “Platform”) that integrates Brand’s ecommerce store (“Brand’s Store”) with authorized third party sellers (“Seller Partners”) through Seller Partners’ websites and ecommerce stores (“Seller Stores”) to enable the sale, logistics, and fulfillment of Brand’s pre-approved products (“Brand’s Products”) through Seller Stores. Ally may also provide certain configuration, training, support, and such other services in connection with the Platform (collectively, the “Services”). Brand acknowledges that Ally provides the Platform and the Services to Brand on a non-exclusive basis and Ally may provide the Platform and the Services of the same or a similar nature to third parties without any restrictions or obligations to Brand.
2. THE PLATFORM.
2.1 Access; Brand Account. Ally will make the Platform available to Brand as described in this Agreement. To access and use the Platform, Brand must register and create an account (“Account”). Brand agrees to provide accurate, current, and complete information necessary for the registration of Brand’s Account, which includes all individual authorized users. Ally reserves the right to suspend or terminate Brand’s Account or any individual authorized user’s Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false, or misleading. Brand is responsible for all login credentials of Brand’s Account, including all user names and passwords assigned to or created by its authorized users, and Ally shall not be liable for any claims, losses, or damages that may occur as a result of Brand’s failure, or the failure of its authorized users, to maintain the confidentiality of their login credentials. Brand agrees to notify Ally if any passwords are lost, stolen, or disclosed to an unauthorized third-party, or Brand become aware of any unauthorized use of or access to Brand’s Account. Ally may communicate with Brand and its authorized users via email or pushed notifications regarding the Platform, the Services, system updates, or other issues related to Brand’s Account.
2.2 Brand Responsibilities. Brand acknowledges and agrees that Brand is solely responsible for (a) all activity that occurs under Brand’s Account, including Brand’s authorized users’ activities on the Platform, (b) obtaining and maintaining all necessary rights, permissions, consents, agreements, and approvals from individuals or any other third parties for all actual or intended uses of information, data, or other content Brand will use in connection with the Platform, and (c) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and promptly notifying Ally of any known unauthorized access to or use of the Platform. Brand will, and ensure that its authorized users will, use the Platform only in accordance with this Agreement and all applicable federal, state, and local laws, regulations, rules, ordinances, codes, decrees, judgments, directives, or judicial or administrative orders, or other duly authorized actions of any governmental authority with competent jurisdiction (“Applicable Laws”). Brand acknowledges and agrees that Ally is not required to monitor or police communications or data transmitted through the Platform and that Ally shall not be responsible for the practices or content of any such communications or transmissions.
2.3 Platform Ownership; Limited License. Ally and its licensors reserve sole and exclusive ownership of all right, title, and interest in and to the Platform, including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights embodied therein. Subject to Brand’s compliance with this Agreement, Ally grants Brand a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Term to access and use the Platform (subject to Brand having a valid Account as described below). Ally and its licensors reserve all rights and licenses in and to the Platform not expressly granted to Brand under this Agreement.
2.4 Platform Restrictions; Prohibited Uses. Brand acknowledges that the Platform contains trade secrets of Ally and its licensors, and Brand agrees not to access or use the Platform in any manner inconsistent with Ally’s proprietary rights. Brand will not, and agrees not to: (a) use, or permit the use of, the Platform except as expressly authorized under this Agreement; (b) interfere with or disrupt the integrity or performance of the Platform or any third-party application or third-party data or content contained therein; (c) reverse engineer, decompile, disassemble, decrypt, or otherwise tamper with the Platform; (d) derive the trade secrets, source code, object code, algorithms, or such other code (in the form in which it is customarily read and edited) of the Platform; (e) defeat, avoid, by-pass, remove, disable, deactivate or otherwise circumvent any software protection mechanisms, restrictions on access, or any other features or functionalities of the Platform; (f) gain unauthorized access to the Platform; (g) disseminate viruses, adware, spyware, worms, or other malicious code in or through the Platform; (h) overload, flood, spam, or otherwise create an undue burden on the Platform infrastructure; (i) reproduce, copy, modify, adapt, translate, emulate, or create derivative works of the Platform; (j) distribute, sell, sublicense, or otherwise transfer or provide access to the Platform; (k) access the Platform for the purpose of building a similar or competitive product or service; (l) monitor availability, performance, or functionality of the Platform for any benchmarking or competitive purposes; (m) remove, alter, or obscure any proprietary or intellectual property rights notices or marks appearing on the Platform; (n) use the Platform in any manner that is unlawful, in violation of any third party rights, or in violation of this Agreement; or (o) attempt to do any of the foregoing acts, or assist or permit any third party to do any of the foregoing acts. Ally may suspend or terminate Brand’s right to access and use the Platform at any time without notice if Brand fails to comply with this Agreement.
2.5 Feedback and Derivative Works. Brand is not required to provide (a) any suggestions, comments, requests, recommendations, or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works, or other intellectual property (“Derivative Works”) related to the Platform or any test features, services, or products to which Brand is given access. If Brand provides any Feedback or Derivative Works to Ally, Brand grants Ally a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use (or not use), or incorporate into the Platform, any Feedback or Derivative Works without compensation to Brand and without implying or creating any interest on Brand’s part in the Platform that may be based on such Feedback. Brand may not create Derivative Works relating to the Platform or any test features, services, or products to which Brand is given access, except with prior express written consent from Ally.
2.6 System Integration and Support. The Platform must be integrated into Brand’s designated third party service provider’s systems hosting Brand’s Store (e.g. Shopify) (“Brand Systems”) according to the documentation provided by Ally (the “Integration”). Each party shall be solely responsible for maintaining its own systems that are integrated with the other party with respect to the Integration, such that Ally is responsible for the Platform and Brand is responsible for the Brand Systems in connection with the Integration.
2.7. Use of Third Party Applications in Connection with the Platform. Ally may integrate with or make available various third party applications and services for use in connection with the Platform, including those in connection with the Brand Systems (the “Third Party Applications”). Brand’s use of such Third Party Applications, and any exchange of data between Brand and such Third Party Applications is solely between Brand and such Third Party Applications. Ally does not warrant or support Third Party Applications or any other non-Ally product or service, regardless of whether such Third Party Applications are promoted or made available through the Platform or are designated by Ally as “certified” or “working with” the Services or Ally. Brand acknowledges and agrees that (a) Third Party Applications may have access to Brand’s data in connection with the interoperation and support of such Third Party Applications with the Platform, (b) Brand’s use of such Third Party Applications may require Brand to agree to a separate agreement or terms and conditions with such Third Party Applications, which will govern Brand’s use of such Third Party Applications, and (c) as between Brand and Ally, Brand is solely responsible for reviewing such Third Party Applications’ policies and practices to ensure that they meet Brand’s legal and business requirements. To the extent Brand authorizes the access to or transmission of Brand’s data through Third Party Applications, Ally shall not be responsible for any use, disclosure, modification, or deletion of such data by such Third Party Applications or for any act or omission on the part of such Third Party Applications. Ally shall have no liability for any claims, losses, or damages arising out of or in connection with Brand’s or its authorized users’ use of any Third Party Applications that are accessed from or used in combination with the Platform.
2.8. Beta Access. Brand may be invited to participate in the review, use, and testing of pre-release versions of the Platform or new features or functionalities of the Platform which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or similar terms (“Beta Access”). Brand acknowledges and understands that its participation in such Beta Access is not required, is at Brand’s own risk, is made available on an “as is” basis only, and may be subject to additional terms related to their use.
3. BRAND’S STORE AND LOGISTICS.
3.1 Ownership. Brand and its licensors reserve sole and exclusive ownership of all right, title, and interest in and to the Brand’s Store and its contents, including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights embodied therein.
3.2 Trademark and Branding. Brand hereby grants to Ally, its affiliates and Seller Partners, a limited, nonexclusive, worldwide, royalty-free license to use, reproduce, distribute, display, market, and promote Brand’s and Brand’s Products’ names, logos, trade names, service marks, trademarks, and brand assets (collectively, the “Brand Marks”), as provided by Brand to Ally or used in connection with the Platform from time to time, during the Term of this Agreement and solely in connection with the promotion and sale of Brand’s Products on Seller Stores under this Agreement. The use or display of Brand Marks on the Platform or Seller Stores under this Agreement does not create any right, title, or interest of Ally or Seller Partners therein or thereto beyond the limited license under the terms and conditions of this Agreement. As between the parties all use of Brand Marks, including the goodwill and reputation associated therewith, will inure to the benefit of Brand.
3.3 Seller Partners. The sale of Brand’s Products on Seller Stores is subject to Brand’s prior approval on the Platform. Brand may, in its sole discretion, accept or reject any Seller Partner.
3.4 Products and Inventory. The Platform will automatically sync images, descriptions, inventory, and prices of Brand’s Products from Brand’s Store to Seller Stores. Seller Partners may edit images and descriptions on Seller Stores. Brand has exclusive control over Brand’s Products inventory and prices. Brand is solely responsible for maintaining accurate inventory for Brand’s Products on Brand’s Store.
3.5 Order Fulfillment. The Platform will automatically sync all orders for Brand’s Products sold on Seller Stores (“Partner Orders”) to Brand’s Store for order fulfillment. Brand is solely responsible for fulfillment of Partner Orders. Each Partner Order must be shipped within one (1) business day after receipt of notice of such Partner Order. If a Partner Order cannot be fulfilled, Brand must notify Ally in writing at email@example.com or via Brand’s Account within one (1) business day after receipt of notice of such Partner Order.
3.6 Customer Service. Brand is solely responsible for customer service for all Partner Orders, including Partner Order questions, status updates, returns, and refunds. All customer service requests must be answered within two (2) business days.
4. FEES AND PAYMENT.
4.1 Fees and Expenses. Brand will pay transaction based fees for Partner Orders, as follows: (a) to Ally, as detailed at https://joinally.co/pricing (“Ally Fees”), (b) to each Seller Partner, at the pre-approved percentage of sales revenue from such Seller Partner’s Partner Orders as set by Brand and each Seller Partner in the Platform (“Seller Fees” and collectively with Ally Fees, the “Fees”). Brand will be responsible for its own expenses in its performance of this Agreement including, without limitation, cost of goods sold, logistics, fulfillment, and shipping of Brand’s products (“Expenses”). All amounts payable by Brand under this Agreement are exclusive of taxes and duties, and Brand will be solely responsible for, and will pay all applicable federal, state, and local sales, use, excise, personal property, and other similar taxes, other than taxes on Seller Partner or Ally’s net income.
4.2 Payment Terms. All payments for Partner Orders will be processed by Seller Stores. Brand authorizes Ally to automatically deduct the Fees due to Ally and Seller Partners pursuant to this Agreement from revenues generated by Partner Orders via the Platform. For each Partner Order, Brand will receive an amount equal to the applicable Partner Order’s sales revenue less the Fees (“Brand Revenue”), which will be paid to Brand by automatic payment processing via the Platform. To the extent that Fees are not settled by automatic payment processing via the Platform, Brand must remit payment to Ally all Fees due to Ally and Seller Partners within ten (10) days after receipt of an invoice or written demand for payment. All invoices and payments must be made in United States Dollars. Any late payments will accrue interest equal to the lesser of one percent (1.5%) per month or the maximum amount allowable under law, compounded monthly. Ally and Seller Partners shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from Brand.
4.3 Payment Disputes. Brand agrees to notify Ally of any disputed amounts due on the Platform or under this Agreement within five (5) days after receipt of notice of the amount due or the invoice date. In the event that Ally does not receive a written notification of a disputed amount or invoice, with rationale and support therefore specifically set forth therein, within five (5) days after receipt of notice of the amount due or the invoice date, such amount due or invoice will be deemed valid and payable and may not thereafter be disputed. Brand specifically agrees that this provision is reasonable and that Ally and Seller Partners will rely upon this provision in making payments to third parties.
5.1 Term. This Agreement, as may be updated from time to time, will become effective on the earlier of the date that Brand accepts this Agreement, the date that Brand creates Brand’s Account, or the date that Brand or its authorized users start using the Platform, and will remain in full force and effect until Brand’s Account has been closed or Brand’s access to or use of the Platform has been terminated (the “Term”).
5.2 Termination for Cause. Either party may suspend performance or terminate this Agreement, at its election, with immediate effect, in the event that the other party: (a) is in material breach of this Agreement and fails to cure such breach within ten (10) days after written notice by the non-breaching party (including details sufficient to identify the material breach), or (b) ceases its business operations or becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and such proceedings are not dismissed within sixty (60) days.. Termination shall become effective immediately if the material breach is not capable of remedy or after the lapse of such cure period if the material breach is capable of remedy, unless the breach specified in the written notice has been remedied or a plan for remedying in a prompt and effective manner has been proposed to and accepted by the non-breaching party and the breaching party has proceeded diligently to cure.
5.3 Effect of Termination. Upon termination of this Agreement, unless otherwise agreed by the parties in writing, (a) Brand must (i) fulfill any Partner Orders made on or before the effective date of termination and (ii) continue to provide customer service for all Partner Orders completed on or before the effective date of termination, (b) Ally will terminate access to the Platform and cease rendering any Services, and (c) each party will return or destroy the other party’s Confidential Information in a timely manner pursuant to Section 6.6.
5.4 Survival. Sections 2.3, 2.5, 3.1, 5.4, 6, 7.4, 8, 9, 10, 11, 12, 14, and 15 of this Agreement, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination of this Agreement, will survive and continue in full force and effect after any termination of this Agreement.
6.1. Confidential Information. “Confidential Information” means nonpublic information or data revealed by or through a party (the “Disclosing Party”), whether in writing, orally, or by other means, to the other party (the “Receiving Party”) in connection with this Agreement, including without limitation, (a) the terms, conditions, or other facts with respect to this Agreement; (b) information expressly or implicitly marked or disclosed as confidential, including, without limitation, all forms and types of financial, business, scientific, technical, economic, or engineering information; (c) a party’s proprietary information, including without limitation, plans, compilations, patterns, formulas, designs, drawings, specifications, methods, techniques, processes, procedures, data, know-how, ideas, research, development, projects, products, services, contracts, relationships, proposals, finances, pricing and costs, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; (d) information traditionally recognized as proprietary trade secrets; (e) the identification of and other information relating to a party’s employees, vendors, clients, or customers; and (f) all copies of any of the foregoing or any analyses, studies, compilations, or reports that contain, are based on, or reflect any of the foregoing.
6.2 Exceptions. Confidential Information does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party (or any person to whom the Receiving Party disclosed such information); (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) was independently developed by Receiving Party without use of the Confidential Information; (d) is authorized, in writing, by the Disclosing Party to be disclosed; or (e) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement, confidentiality obligation, or fiduciary duty which prohibits disclosure and the Receiving Party has no reason to believe that such source may be restricted from making such disclosure.
6.3 Ownership of Confidential Information. Disclosing Party shall retain all right, title, and interest in and to its Confidential Information. Neither the execution and delivery of this Agreement, nor the furnishing of any Confidential Information shall be construed as granting to Receiving Party either expressly, by implication, estoppel, or otherwise, any license under any patent, copyright, trade secret or other intellectual property or proprietary rights now or hereafter owned or controlled by Disclosing Party, nor any right to use, copy, sell, develop, or exploit the Confidential Information made available to Receiving Party, except to fulfill the purpose of this Agreement.
6.4 Limitation on Disclosure. Receiving Party shall not use Disclosing Party’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Agreement. Receiving Party shall not, without the prior written consent of Disclosing Party, copy or otherwise reproduce Disclosing Party’s Confidential Information, or disclose, disseminate, or otherwise communicate, in whole or in part, Disclosing Party’s Confidential Information to any third party except to the Receiving Party’s officers, directors, employees, agents, and representatives who need to know the Confidential Information and are bound by confidentiality obligations at least as restrictive as those contained herein. Receiving Party agrees to protect Disclosing Party’s Confidential Information from disclosure with the same degree of care used to protect the confidentiality of its own Confidential Information, but in no event less than reasonable care. If Receiving Party becomes aware of, or has reasonable grounds to suspect any unauthorized disclosure of Disclosing Party’s Confidential Information, Receiving Party shall immediately notify Disclosing Party in writing.
6.5 Compelled Disclosure. In the event that Receiving Party becomes compelled by law or order of court or administrative body to disclose any Disclosing Party’s Confidential Information, Receiving Party shall be entitled to disclose such Confidential Information, provided that: (a) Receiving Party provides Disclosing Party with prompt prior written notice of such requirements to allow Disclosing Party to take any necessary action to safeguard the Confidential Information; and (b) if required to do so, Receiving Party shall furnish only that portion of Disclosing Party’s Confidential Information which is legally required to be disclosed and shall exercise its commercially reasonable efforts to obtain assurances that Confidential Information will be treated in confidence.
6.6 Return of Confidential Information. Receiving Party shall return or destroy (in Disclosing Party’s sole discretion and election) any Confidential Information disclosed to Receiving Party, at the earliest of (i) Disclosing Party’s written demand for return or destruction of its Confidential Information, (ii) the completion of the use by Receiving Party as permitted herein, or (iii) within ten (10) days following the date of termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Mutual Representations. Each party represents and warrants that (a) it has the right to enter into this Agreement and to fully perform its obligations hereunder; (b) by entering into this Agreement, it does not violate any agreement existing between it and any other person or entity; (c) this Agreement, when executed and delivered, will constitute the legal, valid, and binding obligations of such party, enforceable against it in accordance with its terms; (d) it will secure all necessary approvals and permissions, in the performance of its duties and the use of all materials provided by the other party hereunder; and (e) it will comply with all Applicable Laws.
7.2 Ally Representations. Ally represents and warrants that (a) Ally owns the Platform or it has the authority to grant the licenses and permissions granted hereunder, and (b) the Platform, and the intended use thereof in accordance with the terms of this Agreement, do not infringe, violate, or misappropriate any third party rights, including without limitation, copyright, trademark, trade secret, privacy, publicity, or other proprietary or intellectual property rights.
7.3 Brand Representations. Brand represents and warrants that (a) Brand owns Brand’s Store and Brand Marks, or it has the authority to grant the licenses granted hereunder; (b) Brand’s Store and Brand Marks, and the intended use thereof in accordance with the terms of this Agreement, do not infringe, violate, or misappropriate any third party rights, including without limitation, any copyrights, trademarks, trade secrets, privacy, publicity, or other proprietary or intellectual property rights.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. ALLY MAKES NO REPRESENTATION OR WARRANTIES THAT THE PLATFORM WILL MEET BRAND’S REQUIREMENTS; THAT PERFORMANCE OR RESULTS ARE GUARANTEED; THAT THE PLATFORM WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; OR WITH RESPECT TO THE QUANTITY OR QUALITY OF SELLER PARTNERS, CONVERSION RATES, OR REVENUES EXPECTED UNDER THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, FROM ANY SOURCE, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. INDEMNIFICATION. Each party shall indemnify, defend (at its own cost and expense) and hold other party and its officers, employees, and agents harmless from and against any and all third party claims, suits, demands, damages, losses and expenses (including reasonable attorneys’ fees) (“Claims”) arising out of or related to such party’s material breach of this Agreement or such party’s acts or omissions in connection with this Agreement, provided that the Claims do not result from the other party’s negligence or willful misconduct. If a party entitled to indemnification (“Indemnified Party”) becomes aware of any Claims it believes is indemnifiable hereunder, the Indemnified Party shall give the other party (“Indemnifying Party”) prompt written notice of such Claims. Notice shall (a) describe the basis on which indemnification is being asserted and (b) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Claims in the possession of Indemnified Party. Indemnifying Party shall assume the defense of any such Claims. Indemnified Party shall cooperate, at the expense of Indemnifying Party, with Indemnifying Party and its counsel in the defense. Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such Claims. Any compromise or settlement of such Claims shall require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed. The foregoing indemnities will be in addition to, not in lieu of, all other legal rights and remedies that each party may have.
9. LIMITATIONS OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER INDEMNIFICATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHER THEORY, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOSS OF DATA, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AMOUNTS OWED AND CLAIMS ARISING UNDER INDEMNIFICATION HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY BRAND UNDER THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTHS. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS SECTION ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10. RELATIONSHIP. Brand and Ally are independent contractors in all matters relating to this Agreement, and this Agreement will not be construed to create any partnership, joint venture, agency, employment, or any other relationship between the parties. Neither party has the authority to act on behalf of, or to enter into any contract, incur any liability, or make any representation on behalf of, the other party, unless otherwise expressly agreed to in writing signed by both parties. Each party is responsible for its respective employees, agents, representatives, contractors and subcontractors, and the foregoing’s compliance with the terms of this Agreement.
11. PUBLICITY; USE OF BRAND MARKS. Brand grants to Ally the right to identify Brand and to use Brand Marks in Ally’s brand and client lists and in print and electronic marketing materials, subject to Ally’s compliance with applicable trademark usage guidelines or other instructions provided by Brand in writing regarding the proper use of its marks. Neither party will act, directly or indirectly, in any way likely to damage or disparage the goodwill or reputation of the other party.
12. NON-SOLICITATION. Brand acknowledges that Ally has proprietary relationships with the Seller Partners that make up its network, and Brand agrees that the names, contact information, and compensation information of the Seller Partners that make up Ally’s network are proprietary trade secrets of Ally. For the term of this Agreement and for one (1) year thereafter (the “Restricted Period”), Brand will not, directly or indirectly, solicit, induce, or encourage, or cause any individual or entity to solicit, induce, or encourage, any Seller Partners in Ally’s network (except any Seller Partners introduced to Ally or the Platform by Brand) to circumvent or terminate their relationship with Ally, or attempt any of the foregoing, without the prior express written consent of Ally. This provision does not restrict Brand from contacting or soliciting any Seller Partner in Ally’s network for the purpose exploring opportunities on the Platform during the Restricted Period.
13. FORCE MAJEURE. Excluding any obligations of a party to pay monies due hereunder, neither party will be liable for any delay or failure in its performance or obligations under this Agreement due to causes beyond its reasonable control, including, without limitation, natural disaster, fire, flood, and other acts of God, war, armed conflict, terrorism, contagion, epidemic, pandemic, strikes, labor disputes, civil disturbances, government actions, power outages, interruption or failure of the Internet or any utility service, failure of third party service providers or hosting services, denial of service attacks, or other similar occurrences (each, a “Force Majeure Event”); provided that the party affected by such Force Majeure Event (a) is without fault in causing such delay or failure, (b) notifies the other party of the circumstances causing the Force Majeure Event, and (c) takes commercially reasonable steps to eliminate the delay or failure and resume performance as soon as practicable.
14. NOTICES. Ally may provide general notices related to the Platform or the Services that are applicable to all users via email or in-app notifications and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Any other notices (including all notices from Brand) must be sent via email, registered or certified mail with return receipt requested and postage prepaid, or overnight courier to the addresses of the parties and are deemed given when received. Notices to Brand will be sent via email to the primary email address for Brand’s Account and to the address associated with Brand’s Account. Notices to Ally must be sent via email to firstname.lastname@example.org and to the following address: Join Ally, Inc., Attn: Legal Department, 21411 Nectar Avenue, Lakewood, CA 90715. General questions or requests for support in connection with the Services should be directed to email@example.com.
15.1 Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, this Agreement may be assigned by either party to any of its affiliates or in connection with a merger, consolidation, sale of all of the equity interests, or a sale of all or substantially all of the assets of the party; provided that the other party is given written notice of such assignment and the successor party agrees in writing to assume all obligations hereunder. Any purported assignment in violation of this section is null and void in each instance and constitutes a material breach of this Agreement. All the terms and conditions of this Agreement will be binding upon, will inure to the benefit of, and will be enforceable by, each of the parties and their respective permitted successors and assigns.
15.2 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person who is not a party to this Agreement.
15.3 No Waivers. A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
15.4 No Election of Remedies. No remedy herein conferred is intended to be exclusive of any other remedy. The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement without prejudice to it other remedies under this Agreement or other rights and remedies available at law or in equity.
15.5 Severability. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, under present or future law, such provision shall be deemed modified to the least degree necessary to remedy such invalidity, illegality, or unenforceability while retaining the original intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
15.6 Construction. The headings in this Agreement are for reference only and shall not affect the construction or interpretation of this Agreement. The provisions of this Agreement shall be construed in accordance with the fair meaning of the language used and shall not be strictly construed against either party.
15.7 Governing Law; Venue; Waiver of Jury Trial. This Agreement is governed by and construed in accordance with the laws of the State of California without giving effect to its conflicts of law rules. If for any reason an action proceeds in court rather than in arbitration, it must be brought exclusively in a state or federal court of competent jurisdiction located in Los Angeles County, California, and each party irrevocably consents to the exclusive personal jurisdiction and venue therein. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15.8 Mandatory Arbitration; Class Action Waiver. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Except for actions (a) to protect a party’s intellectual property, or (b) to enforce an arbitrator’s decision hereunder, ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE SUBMITTED TO AND RESOLVED EXCLUSIVELY BY CONFIDENTIAL BINDING ARBITRATION before a single neutral arbitrator administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) in accordance with its then-prevailing Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The most recent version of the JAMS Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/, and are hereby incorporated into and made a part of this Agreement. If the Parties cannot agree upon selection of an arbitrator, then the Parties agree that JAMS will appoint an arbitrator experienced in the software industry. Arbitration will be conducted in English. The location of arbitration will be Los Angeles County, California, unless otherwise agreed by the Parties. EACH PARTY AGREES THAT THE ARBITRATION WILL BE CONDUCTED IN ITS INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS, CONSOLIDATED, OR OTHER REPRESENTATIVE ACTION. Each party expressly waives its right to file a class action or seek relief on a class basis, and no arbitrator may consolidate more than one person or entity’s claims or otherwise preside over any form of a representative or class proceeding, unless otherwise agreed by the Parties. Arbitration may be initiated by any party by giving to the other party written notice requesting arbitration, which notice shall also include a statement of the claims asserted and the facts upon which the claims are based. The arbitrator does not have any power to alter, amend, modify or change any of the terms or provisions of this Agreement. Except as prohibited in this Agreement, the arbitrator will have the authority to award any remedy or relief otherwise available in a court of law. The arbitrator must provide detailed written findings of fact and conclusions of law in support of any award. Any arbitrator's award will be binding on the parties, and may be entered as a judgment in any court of competent jurisdiction. Any party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. Except as may be required by law or to enforce an arbitration award, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek equitable or injunctive relief as permitted by this Agreement or under Applicable Laws from any court of competent jurisdiction. The Parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
15.9 Entire Agreement. This Agreement, together with all exhibits and references described herein, contains the entire agreement and understanding of the parties hereto with respect to the subject matter herein, and supersedes all prior or contemporaneous discussions, negotiations, understanding, and written and oral agreements between the parties concerning this subject matter.
15.10. Modifications. Ally reserves the right to update or modify this Agreement from time to time by providing Brand with prior written notice of material changes, as determined in its sole discretion, at least thirty (30) days in advance of the effective date. Notice will be given to all users via email or in-app notification. Except as otherwise specified by Ally, the updated Agreement will be effective upon the stated effective date indicated at the top of the applicable Agreement, and when effective will supersede all prior versions. Ally may not be able to provide at least thirty (30) days prior written notice of updates to this Agreement that result from changes in Applicable Laws. By continuing to utilize the Platform or the Services, Brand’s continued access to or use of the Platform or the Services after the effective date of the updated Agreement constitutes Brand’s acceptance of the updated Agreement. If Brand does not agree to any updates, Brand should immediately stop using the Platform and the Services and promptly notify Ally in writing.