CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT (NDA)

By Registering or using the System you agree to a Confidentiality & Non-Disclosure Agreement.  All non-public facing pages are considered confidential and proprietary to ALLY.  Confidentiality is defined in PROPRIETARY RIGHTS.  Non-public facing pages are defined as pages that require a user name and password to access.  Customer agrees not to, and will not, register or purchase services to the System in an attempt to gain knowledge of the function, design, algorithm, layout, processes, functions or any other aspect of the System.  As such you agree not to directly or indirectly develop a competing service or develop a competing service via a third party.  Further, you agree not to utilize System access to assist in modifying an existing service, directly or indirectly that is not part of the ALLY System.  Sharing System user names and password, providing screen captures, and/or any written or photo graphic descriptions violates the terms of your Confidentiality and Non-Disclosure Agreement.  In the event you or a third party disclose Confidential information in any way, including but not limited to developing a competing system, or incorporate features in part or parts of the System into another  system, you agree to forfeit in full all gross revenues generated by such systems to ALLY for the entire operation of such duplicated system.  Additionally you agree to pay 3 times that gross revenue amount to ALLY in damages.  Further you agree to terminate the duplicated service and turn over all rights and source code to ALLY.  You agree to finance all costs associated with having a third party reimburse ALLY as well as destroy their duplicated system.  Finally, you agree not to retain any records, written, photographic or digital of such a duplicated system and destroy all source code that you or the third party my posses.

SUBSCRIPTION SERVICES AGREEMENT

Agios World Wide, Incs d/b/a AllyConnect.com (hereinafter referred to as "ALLY") offers to you the customer (hereinafter REFERRED to as “you” “your” or “customer”) access to its website and web-based software application (collectively, referred to as the "System") conditioned on your acceptance without modification of this agreement (the "Agreement").

This Agreement governs the use of the products and services provided to you through the system (collectively, the “Services”) provided by ALLY in accordance with the terms of this agreement and the Customer’s order form (“Order Form”), which is incorporated into and made part of this Agreement. This Agreement will take precedence and will override any online or “click-through” agreement that may be provided in connection with the Services, which will not be given any effect.

ALLY may, at its sole discretion, change, update, amend or modify these Terms of Use at any time and without notice to you, and your continued use of this System constitutes your acceptance of such modifications. It is your obligation to visit this page to review any such modifications.

If you do not unconditionally accept these Terms of Use, you may not use the System.

 

1. SERVICES

1.1           Services. Subject to Registration and/or the payment of all fees for the use of the Services (“Subscription Fees”) and the other terms set forth in this Agreement, ALLY grants Customer a non-exclusive, non-transferable, revocable, limited license during the term set forth in the applicable Order Form and any renewal terms (the “Subscription Term”) to access the System and use the Services for its internal business purposes. You agree that ALLY may provide your Account (as such term is defined below) statements and all messages and notifications to you electronically through ALLY’s System or via email.

1.2           Additional Services. Once ALLY has validated and set up your Account, you may order and pay for Services at which time you may be required to recertify your compliance with regulations and / or laws applicable to one or more of ALLY’s Services.

1.3           Data Storage. Subject to System use and/or your continued payment of all fees when due, ALLY agrees to store data associated with your Account that you saved prior to your Security Credentials timing-out or logging out of your Account while your Account is active and for a period of thirty (30) days after Account termination. ALLY is not responsible for any data lost as a result of your failure to save it prior to time-out of your Security Credentials or logging out of your Account. ALLY shall have neither the obligation to provide data storage services nor any liability for maintenance or destruction of your data upon the expiration of the thirty (30) day period. Accounts may be allocated a maximum amount of storage space in which event your use of excess data storage space may result in additional fees. Should the maximum limit be met, a system generated notification shall be provided with an opt-in / opt-out choice to proceed.

1.4           User Conduct. ALLY expects users of the System and ALLY’s Services to interact with ALLY and each other in a courteous manner and in compliance with all laws. Vandalism, obscene or abusive language, harassment, threats, exploitation of children or abuse of any nature or form on the System including via email, post or other transmission is strictly prohibited. Impersonation of others or misrepresenting your affiliation with ALLY or another is prohibited. You and every user of the Services is responsible for ensuring that any material uploaded to the System and/or disclose, publicly or privately, with respect to your use of the Services is accurate. ALLY does not monitor or control such information and therefore cannot guaranty its accuracy, quality or integrity. You may not upload to, distribute or otherwise publish through the System any material that you know is false, misleading, contains viruses or malicious code, defamatory, vulgar, obscene, threatening, libelous, infringes upon another’s proprietary rights is invasive of another’s privacy or publicity rights, hateful, racially or ethnically insulting or which may constitute or encourage a criminal offense, violate any law or another’s rights or otherwise give rise to liability.

2. USE OF THE SERVICES

2.1           Access to the Services. Customer is responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed to access the System and Services. As part of the registration process, Customer will create its own username and password for its account on the System (“Account”). Customer will determine the access controls for its employees, contractors and agents who are authorized to use the Services (“Authorized Users”) within the company (each with a user login and password) and Customer will be responsible for the activity occurring under its Account by its Authorized Users (including compliance with this Agreement). Customer will: (i) maintain the accuracy, completeness, and timeliness (within 30 days of any change) of the information provided in the account registration, Order Form, and Authorized Users; and (ii) notify ALLY immediately of any unauthorized use of its Account or any other known or suspected breach of security. If ALLY has reasonable grounds to suspect that the information you have provided is or becomes untrue, inaccurate, incomplete, or there is a or possibility thereof of security breach, ALLY may suspend or terminate your Account and refuse any and all current or future use of the System and/or all or any part of the Services.

2.2           Authorized Users. Authorized User passwords are for named individual Authorized Users and cannot be shared or used by more than one (1) Authorized User; provided, however, Additional User accounts created under a master subscription account (but not passwords) may be reassigned from time to time to new Authorized Users replacing former Authorized Users who have terminated their employment or some other prior relationship with Customer, changed job status or function, or otherwise no longer require use of the Services.

2.3           Ally Authorization. When you register, you authorize ALLY to make any credit, employment and investigative inquiries as may be appropriate, including to consumer reporting agencies, to validate registration information you provide both prior to ALLY authorizing your Account and from time to time. When prompted, you also agree to execute a separate Background Check authorization, and shall: (i) provide true, accurate and complete information as prompted by the registration form; (ii) at all times have the authority to agree to the terms of Service herein for yourself and on behalf of any business entity for which you register, create one or more Accounts and use the System and Services; (iii) not impersonate or misrepresent your identity, your right to use the applicable registered mobile device(s), credit card(s) or other selected payment option, or permit anyone else to do so; (iv) maintain and promptly update all registration and other Account information to keep it true, accurate, current and complete; and (v) not engage in any harmful or abusive activities that may disrupt the System, its ability to provide and any user’s ability to use the System or violate any laws, rules or regulations.

2.4            Age Requirements.  You must be at least 18 years or older to register or utilize the AllyConnect system.

2.5           Limitations. Customer agrees not to, and will not, allow Authorized Users or any third-party to: (i) use the System and / or Services except as expressly authorized in this Agreement and the Order Form; (ii) resell, sublicense, or otherwise share or commercially exploit the System and / or Services with or for any third party other than as authorized in this Agreement and the Order Form; (iii) alter, modify or create derivative works of the System and / or Services; (iv) decompile, disassemble or reverse-engineer the underlying software that is part of the System and / or Services or otherwise attempt to derive its source code; (v) frame or mirror the System and / or Services; (vi) use the System and / or Services either directly or indirectly to support any activity that is unlawful or illegal; (vii) access the System and / or Services for purposes of monitoring its availability, performance or functionality, or for any other bench marking or competitive purposes; (viii) interfere with or disrupt the function, security, or use of the System and / or Services or any of the data contained therein; or (ix) attempt to or gain unauthorized access to the System and / or Services or its related systems or networks. (ix)

3. PAYMENT TERMS

3.1           Subscription Fees. Subscription Fees for the Services are set forth on the Order Form when you register your Account or as provided hereunder. You agree to pay all registration, periodic, per order and other fees for each of the Services ordered by you or through your Account at the rates designated each time you place an order, plus all applicable taxes. All payment obligations herein are non-cancellable and once paid are nonrefundable and FINAL. You are responsible for payment of all taxes, even if those taxes are not collected by ALLY at the time of subscription payment,

3.2           Payment Terms. Should ALLY agree in writing to invoice you at the physical or email address provided in your Account registration, you agree to pay all invoices within fifteen (15) days of the invoice date. Fees will be charged to your Account in US Dollars, at the rates as of the date you order the specific Services. Late payment will bear interest at the rate of 1.5% of the overdue balance per month (or the maximum permitted by law, whichever is lower), plus any expenses associated with collections, including attorney fees and costs. All amounts payable to ALLY under this Agreement will be made without the right of setoff, deduction, withholding or counterclaim.  All payments are final, and ONLY ALLY has the right to decide if a refund is to be issued and the amount of the full or partial refund.

3.3           Billing Disputes. All billing disputes must be reported to ALLY in writing within thirty (30) days of the date of the invoice. If ALLY verifies the billing error, it will credit your Account. ALLY does not provide refunds of any kind nor does it refund amounts for transactions reflected on your Account statement that are over thirty (30) days old.

4. RENEWAL

4.1           Renewal Terms. The Services will be provided for the Subscription Term. Prior to the end of the Subscription Term, ALLY may send Customer a notice of the then-current annual Subscription Fees for renewal (a “Renewal Notice”), and Customer will be required to pay such renewal fees on the earlier of the commencement of a new renewal term or as set forth in the Order Form or Renewal Notice. All payment obligations herein are non-cancelable and once paid are nonrefundable and FINAL.

4.2           Fees.  Service fees are determined by ALLY and are subject to change at any time without notice.

 

5. CUSTOMER DATA

5.1           Customer Data. Customer will control access to and the use and management of all content, data and information provided through its Account by any Authorized User, or collected or processed by any Authorized User, or otherwise generated in connection with or as a result of Customer’s use of the Services (“Customer Data”) and Customer (and its Authorized Users) are responsible for providing all Customer Data in an appropriate format and otherwise complies with all other terms of this Agreement. Customer is responsible for the accuracy, quality, integrity and legality of the Customer Data and of the means by which Customer (or its Authorized Users) acquired and use the Customer Data. Customer represents and warrants that it and its Authorized Users will abide by all applicable laws and regulations and any other applicable terms and conditions in connection with the access and use of the Customer Data through the Services.

5.2           Data Security. ALLY will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of the Customer Data as solely determined by ALLY. Customer is responsible for properly configuring and using the System and Services and taking appropriate steps to maintain the security of Customer Data.

5.3           Data Access. ALLY may access Customer Data as necessary to identify or resolve technical problems or respond to problems with the System and Services. Notwithstanding any other provision, ALLY may disclose Customer Data if ALLY determines that such action is reasonably necessary: (i) to comply with the law, regulatory requirements, or legal or regulatory process; (ii) to enforce this Agreement; or (iii) to respond to claims that Customer is using the System and / or Services to perform or support activities that violate the law or the rights of others. Unless prohibited by law or legal process, ALLY will use its commercially reasonable efforts to not disclose Customer Data without giving Customer prior notice of the request for such disclosure and a reasonable period of time to respond to such request.

5.4           Usage Data. ALLY may collect usage data with respect to the use of the Services (“Usage Data”). ALLY uses Usage Data for internal business purposes, such as improving, testing and providing the System and / or Services and developing additional upgrades and services. ALLY may disclose Usage Data in aggregate form (e.g., data aggregated from all customers’ use of the Services, but may identify Customer or any other customer) for promotion, statistical analysis, market analysis, financial analysis, reporting and other such purposes, including but not limited to specific Services provided to other customers of the System and / or Services.

5.5 Data Collection and Storage. The ALLY System collects and stores certain Customer Data that you provide in connection with your Account. When you create an Account, the System will automatically collect and store, some or all of the following information: (i) your name; (ii) physical mailing and email address; and (iii) billing information associated with the credit/debit card associated with your Account. Social Security Numbers and personal photographs will also be collected with respect to certain Services, for example ID Badges and AllyConnect profile creation.. By providing Customer Data in connection with Account registration, you are certifying to ALLY that each individual whose Customer Data you provide has consented to the collection and sharing of his or her Customer Data as described in this Agreement. You may be required to affirm this certification in connection with your use of certain of the Services. Although it may access the complete background screening reports ordered with respect to the individual employees who are the subjects of the reports, ALLY routinely only stores the individual’s compliance rating/score resulting from each background check company’s application of ALLY’s proprietary background screening standard. ALLY employs third parties to perform or offer services on its behalf. Such third parties will have access to Customer Data as necessary to perform their services. Although you initially provide credit/debit card information associated with your Account when you register, the System immediately transmits this information to the payment gateway service provider. Third party companies, not ALLY, store your social security and credit card information in their databases to process your transactions. . In addition to that which you provide, information, including Customer Data, may be collected from other sources and combined with that which you provide. Once received, ALLY stores Customer Data (non-social security and credit card information) in its secure database in the United States in accordance with U.S. laws. You represent and warrant to ALLY that you will obtain from your employees and all other individuals whose Customer Data you upload to the System their consent to the collection, use, sharing and storage of each such individual's Customer Data in accordance with this Agreement. ALLY retains all data collected in connection with your Account and use of the Services for as long as your Account is open or you use the System and / or Services and for a reasonable time thereafter. Please note that some or all of the information you provide or that ALLY collects may be required for the System to function properly, and we may be required by law to retain certain information for a specific period of time. ALLY may also duplicate its database, including Customer Data, for System performance and disaster recovery purposes. These redundant database copies may be stored at secure locations inside and/or outside the United States.

5.6 Device and Location Data. ALLY connect will collect and store device and location data during Account registrations, Account renewals, System and Service usage. Device and location data includes, but is not limited to, device model, mac address, IP address, operating system, device name, geo location, device associated phone number, device name, and date and time stamps. Customer agrees not to hide or spoof such information while using the System and / or Services.

5.7           Use and Sharing of Data. In addition to the non-Customer Data and Customer Data described above, the System automatically captures transaction information related to your use of the System and / or Services. ALLY uses this and all Customer Data and location information: (i) to provide the Services, including reporting, and for any other specific purpose for which such information was provided; (ii) to provide customer service and support; (iii) for billing purposes; (iv) to handle disputes; (v) to provide your Account activity history to you; (vi) to develop new features; (vii) to provide you with a better user experience and improve the overall quality of the System; (viii) as disclosed at the time such information is provided; or (ix) as otherwise disclosed herein. ALLY may disclose Customer Data to its legal, financial and other advisors in connection with seeking their counsel. In addition, ALLY may disclose Customer Data to its clients, third parties providing services to ALLY’s clients, or other third parties: (z) to comply with applicable laws; (y) to respond to governmental inquiries; (xi) to comply with valid legal process or orders; (w) in an emergency; v) to protect the System, the Services, ALLY’s rights or property, the rights or safety of ALLY customers or others; or (u) to investigate fraud, a problem, claim or dispute. If ALLY, or an ALLY division, unit or subsidiary, were to sell all or any part of ALLY’s assets or equity, partner or merge with or be acquired by one or more third parties or if it were to cease operations, ALLY may, in its sole discretion, transfer, sell or assign non-Customer Data, Customer Data and other information collected through access to the System and / or use of the Services. All information collected, including Customer Data, would then be subject to the acquiring entity’s privacy terms which may differ from those of ALLY. As a result, upon completion of the transaction, one or more of these entities may contact you directly.

5.8           Lost, Deleted or Corrupted Data, Images or Documents.  ALLY is not responsible for any lost, deleted, or corrupted data, images or documents no matter the cause of such lost, deleted or corrupted data, images or documents.  ALLY will not provide a copy of any data at any time.  Customers only point of access to data, images, and documents is through the normal use of the System.

5.9           Sharing Data with Other Customers.  The Service of the ALLY System is to share data in an efficient manner for business purposes.  The ALLY System will share all data, images and documents you enter into the System with other Customers of the System as that is the intent of the System.  By using the system you agree that ALLY may share your data, images, and documents with other Customers.

5.10          NOTICE TO CALIFORNIA RESIDENTS ABOUT YOUR PRIVACY RIGHTS. ALLY may share Customer Data for direct marketing purposes. However, you should know that, in addition to the other rights described in this Agreement, if you reside in California, you have the right to request information regarding those third parties, if any, with whom ALLY may have shared your Customer Data for direct marketing purposes during the past year. You have the right to submit a request to ALLY at its designated address and receive the following information within 30 days of its receipt of that request: (i) the types of personal information disclosed to third parties during the immediately preceding calendar year, (ii) the names and addresses of third parties that received the personal information, and (iii) if the nature of a third party’s business cannot be reasonably determined from the third party’s name, examples of its products or services. You are entitled to receive a copy of this information in a standardized format. Please note that the information provided will not be specific to you individually. All such requests must be in writing and sent to ALLY.

6. SUPPORT TERMS

6.1           Support Terms. ALLY will provide technical support for the Services in accordance with the terms and conditions set forth in Exhibit A (“Support Terms”). Customers requiring additional support services, additional support contacts or support outside of the standard hours may purchase such additional support services from ALLY, if available.

7. TERMINATION

7.1           Account Termination.                You may terminate your Account at any time, subject to payment in full of any and all outstanding fees and charges. ALLY may retain all account data as described above at its sole discretion. To terminate your Account and access to ALLY’s System and / or Services at any time, please contact ALLY Customer Service at support@Allyconnect.com. Please note that uninstalling ALLY’s mobile application (when such mobile application is available to you) from your mobile device will not terminate your Account, your ability to access ALLY’s System and / or use ALLY’s Services. ALLY may suspend or terminate your Account and/or your access to all or any part of the System and / or the Services at any time with or without notice to you if (i) you fail to make any payments when due, (ii) the credit card and/or mobile device associated with your Account is denied, reported lost, stolen, suspended or terminated for any reason and you do not replace it with a new one within a reasonable period of time, (iii) your Account is inactive; (iv) you misuse the System and / or the Services; (v) you misrepresent yourself or commit a fraudulent act or (vi) you fail to comply with this Agreement.

7.1           Suspension of Services. ALLY reserves the right to suspend Customer’s access to the System and / or Services if Customer has undisputed past due, until all such undisputed amounts are paid in full. ALLY also reserves the right to suspend Customer’s access to the System and / or Services if ALLY reasonably determines that Customer or any of its Authorized Users: (i) use of the System and / or Services disrupts or poses a security risk to the System and / or Services, may harm ALLY’s systems or may subject ALLY or any third-party to liability; (ii) are using the System and / or Services for fraudulent or illegal activities; or (iii) are using the System and / or Services in breach of this Agreement.

7.2           Default by Customer.   In the event (i) Customer fails to timely and fully make any payment required hereunder, and such payment breach is not cured within one (1) days after written notice thereof, or (ii) Customer breaches any other provision of this Agreement and such breach is not cured within thirty (30) days after receipt of written notice thereof, then ALLY may, at its sole option, either (a) terminate any and all Services and / or System access, (b) suspend the affected Service to which the breach is related without further notice to Customer, including the suspension of System access and / or (c) pursue any other remedies available to ALLY by law, or in equity.

7.3           Default by ALLY.   Customer may terminate a Service in the event ALLY breaches this Agreement with respect to such Service and such breach is not cured within thirty (30) days after ALLY’s receipt of written notice by certified US Mail thereof, provided that if a breach subject to this Section 7.3 cannot be cured within thirty (30) days, but is capable of being cured within a reasonable time thereafter, then Customer may not terminate the Service if ALLY commences to cure within said thirty (30) days and thereafter diligently and continuously pursues such cure to completion, or ALLY provides Customer reasonable assurance that the same breach to the same Service will not subsequently occur.

7.4           Effect of Termination. Upon expiration or receipt of notice of termination of this Agreement, Customer will: (i) cease using and accessing the System and / or Services and any licenses granted under this Agreement will immediately terminate, provided that, for a period of up to thirty (30) days, Customer may access the System and / or Services only in order to retrieve and download its Customer Data stored in the Services, and (ii) pay any fees accrued or payable to ALLY prior to the effective date of termination. Except as set forth above, ALLY will have no obligation to maintain or provide any non-Customer Data and / or Customer Data and, unless legally prohibited, retains the right to delete or maintain all non-Customer Data and / or Customer Data in its systems or otherwise in its possession or under its control. Any post-termination assistance from ALLY is subject to the mutual agreement of the parties, including the mutual acceptance of any reasonable fees and terms for such assistance.

8. PROPRIETARY RIGHTS

8.1           ALLY Intellectual Property. ALLY owns all worldwide right, title and interest in and to the System and Services and the underlying software platform and technology that ALLY uses to provide the Services (“ALLY IP”), including all worldwide intellectual property rights therein. This Agreement does not convey any proprietary interest in or to any ALLY IP or rights of entitlement to the use thereof except as expressly set forth herein. Customer acknowledges and agrees that the Subscription Fees paid pursuant to this Agreement apply only to the use of the System and Services by Customer. Any feedback, comments and suggestions Customer may provide regarding the System and Services (“Feedback”) is given entirely voluntary and ALLY will be free to use, disclose, and exploit such Feedback as it sees fit, and without any obligation or restriction of any kind.

8.2           Confidentiality. Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure (“Confidential Information”) in connection with the use and/or performance of the System and Services. The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not disclose (without the disclosing party’s prior authorization) to any third person any such Confidential Information. Confidential Information does not include any information that the receiving party can show: (a) is or becomes generally available to the public (not including System demonstrations), or (b) was in its possession or known prior to receipt from the disclosing party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed).

9. DISCLAIMERS

9.1           Services Warranty. Customer will report any problems with the System and / or Services to ALLY in accordance with the Support Terms. All support requests will be handled by ALLY in accordance with the Support Terms. The obligations of ALLY and Customer’s remedies set forth above are ALLY’s sole obligations and Customer’s sole remedy with respect to any non-conformance with the foregoing warranty.

9.2           AS-IS; No Warranties. EXCEPT AS PROVIDED HEREIN, ALLY DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND LIABILITY WITH RESPECT TO THIS AGREEMENT, ANY OTHER DOCUMENTS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, THE SYSTEM AND SERVICES AND YOUR USE THEREOF, WHETHER EXPRESS, IMPLIED OR IMPOSED BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR COURSE OF CONDUCT. YOU AGREE THAT YOUR ACCESS TO ALL OR ANY PART OF SYSTEM AND / OR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SYSTEM AND ALLY’S SERVICES, INCLUDING WITHOUT LIMITATION, ALL MATERIALS, CONSUMER REPORTS, INFORMATION, PRICES AND OTHER PRODUCTS, SERVICES OR OFFERS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALLY HEREBY DISCLAIMS ANY AND ALL DAMAGES FOR, ARISING OUT, OF OR RELATED TO YOUR INABILITY TO ACCESS THE SYSTEM OR USE OF THE SERVICES, ALLY’S BREACH OF THIS AGREEMENT, OR ANY CLAIM BY YOU OR ANY THIRD PARTY, INCLUDING IF YOU CAUSE PROPERTY DAMAGE, BODILY INJURY, OR DEATH USING YOUR MOBILE DEVICE TO ACCESS ALLY’S MOBILE APPLICATION WHILE DRIVING. NOTWITHSTANDING ANYTHING CONTRARY HEREIN, ALLY MAKES NO REPRESENTATION OR WARRANTY AND EXPRESSLY DISCLAIMS THAT THE SYSTEM OR THE SERVICES WILL MEET YOUR NEEDS, THAT YOUR USE WILL BE ERROR-FREE OR THAT YOUR USE OR BUSINESS OPERATIONS WILL BE UNINTERRUPTED. ALLY DISCLAIMS LIABILITY FOR FAILURE TO COMPLETE YOUR TRANSACTION DUE TO INABILITY TO CONNECT TO ANY PART OF THE SYSTEM OR PAYMENT PROCESSOR CLEARANCE ISSUES OR FOR ANY OTHER REASON.

9.3           NO ADVICE. ANY INFORMATION OR GUIDANCE ACCESSED THROUGH THE SYSTEM AND / OR CONTAINED WITHIN OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY TRAINING, IS PROVIDED SOLELY AS A COURTESY AND IS NOT LEGAL ADVICE OR COUNSEL. ALLY EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS WARRANTIES AND ANY LIABILITY WITH RESPECT TO ANY INFORMATION OR GUIDANCE PROVIDED.

9.4LINKS. THE SYSTEM MAY CONTAIN LINKS TO OTHER INTERNET WEBSITES OR RESOURCES. WHEN YOU LINK TO THOSE SITES, YOU LEAVE ALLY’S SYSTEM. ALLY HAS NO CONTROL OVER SUCH WEBSITES AND RESOURCES, THEIR CONTENT AND RESOURCES OR THE BUSINESS PRACTICES OR POLICIES OF OPERATORS OF SUCH SITES. PLEASE USE CAUTION AND REVIEW THE TERMS OF USE AND PRIVACY POLICIES OF ANY SITES THAT YOU VISIT TO LEARN MORE ABOUT THEIR INFORMATION-GATHERING AND SHARING PRACTICES. ALLY EXPRESSLY DISCLAIMS ALL RESPONSIBILITY OR LIABILITY FOR THE AVAILABILITY OR ACCURACY OF SUCH EXTERNAL WEBSITES OR RESOURCES OR THE CONTENT THEREON. ALLY DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SITES OR RESOURCES. THE INCLUSION OF ANY LINK ON THE SYSTEM DOES NOT IMPLY THAT ALLY ENDORSES THE LINKED SITE. YOUR USE OF ANY LINKS IS AT YOUR OWN RISK. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALLY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OF OR RELIANCE ON ANY GOODS, SERVICES OR MATERIALS AVAILABLE ON OR THROUGH ANY SUCH LINK, WEBSITE OR RESOURCE.

9.5          NOTIFICATIONS.  THE SYSTEM MAY PROVIDE EMAIL AND OTHER TYPES OF USER ACCOUNT ALERTS AND NOTIFICATIONS.  THESE NOTIFICATIONS ARE PROVIDED ONLY AS A COURTESY AND ARE NOT GUARANTEED.  IT IS THE RESPONSIBILITY OF THE ACCOUNT USER(S) TO PERIODICALLY LOGIN AND CHECK THEIR ACCOUNT AND UPDATE APPLICABLE ACCOUNT, BILLING, AND COMPLIANCE INFORMATION WHEN NEEDED TO MAINTAIN THE SERVICE OR APPLICABLE COMPLIANCE.

10. LIMITATION OF LIABILITY

10.1         Limitation of Liability. ALLY’S SOLE LIABILITY, AND THAT OF ITS officers, directors, employees, suppliers, licensors, service providers, agents, affiliates and parents, IS LIMITED TO ALLY’S SUBSCRIPTION FEES BUT (NOT THOSE OF ANY THIRD PARTY) ACTUALLY RECEIVED BY ALLY FROM YOU AS A RESULT OF YOUR USE OF THE SYSTEM AND SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR TWO HUNDRED DOLLARS AND ZERO CENTS ($200.00), WHICHEVER IS LESS. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN ALLY AND YOU. ALLY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.   WITHOUT INTENDING TO LIMIT THE FOREGOING, YOU MUST BRING ANY CLAIMS YOU MAY HAVE AGAINST ALLY WITHIN SIX (6) MONTHS OF THE DATE THE CLAIM AROSE OR BE FOREVER BARRED. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10.2         Exclusion of Damages. IN NO EVENT SHALL ALLY AND ITS LICENSORS, SUPPLIERS, BUSINESS PARTNERS, AFFILIATES AND PARENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROFITS, BUSINESS, GOODWILL OR LOSS OF USE, EVEN IF ALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

11. INDEMNITY

11.1         By ALLY. ALLY will defend, indemnify and hold Customer harmless from and against any third party suit, claim, action or demand, including any damages, liability or costs (including reasonable attorneys’ fees) resulting therefrom (a “Claim”), alleging that the ALLY IP infringes any registered copyright or trademark of a third party. If Customer’s use of the System and / or Services is, or in ALLY’s opinion is likely to be, enjoined due to a Claim, ALLY may, at its sole option and expense: (i) procure for Customer the right to continue using the System and / or Services under the terms of this Agreement; (ii) replace or modify the System and / or Services so that they are non-infringing; or (iii) if ALLY is unable to achieve either of the foregoing, then ALLY may terminate the license and ALLY’s obligations hereunder with respect to the infringing System and / or Services and will refund Customer the unused portion of the Subscription Fees paid for the parts of the Services for which the use is legally prohibited. The foregoing states ALLY’s entire liability and Customer’s exclusive remedy for infringement claims and actions.

11.2         By Customer. INDEMNITY: You agree to indemnify and hold harmless ALLY, its officers, directors, employees, suppliers, licensors, service providers, agents, affiliates and parents (collectively, the "ALLY Parties") from any loss, liability, damages, fees, costs, claims, penalties or demands including reasonable fees of attorneys and other professionals, and any interest thereon, whether or not brought to suit, due to, arising out of or related to your use of the System and / or Services. Your indemnification of ALLY Parties includes, without limitation, claims arising out of alleged violation of any law, statute, regulation, or rule of any jurisdiction as amended including without limitation, the Fair Credit Reporting Act (“FCRA”), the Gramm-Leach-Bliley Act of 1999 (“GLB”), Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and the Sarbanes-Oxley Act of 2000 (“SOX”), third party claims of any nature or sort, any injury, damage, loss or harm (whether to you or any third party) arising out of or related to your use of the System and / or Services, including your breach of this Agreement.

11.2         Process. The foregoing indemnity obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense. The indemnified party may participate in such defense using its own counsel, at its own expense.

12. GENERAL

12.1         Relationship of the Parties. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. The parties are independent contractors and no partnership, joint venture or agency relationship between the parties is created by this Agreement. Neither party shall have any right or authority to assume or create any obligation of any kind in the name of or on behalf of the other party.

12.2         Assignment. The Customer may NOT assign any of its rights or obligations hereunder without the prior written consent of ALLY which consent shall not be unreasonably withheld, provided that, either party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party, may assign this Agreement in its entirety to such party’s successor without the other party’s consent. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.3         Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Wyoming, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located Wyoming and the parties hereby consent to such personal jurisdiction and venue.

12.4         Entire Understanding. This Agreement and any applicable Order Form(s) constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Any waiver, modification or amendment of any provision of this Agreement will be effective upon modification by ALLY. The failure to enforce any term of this Agreement on one occasion shall not prevent enforcement on any other occasion or the enforcement of any other term. Headings and captions shall not be considered included for purposes of interpretation or application hereof, but are for convenience only.

13. UPDATED September 1st, 2017

EXHIBIT A - SUPPORT TERMS

 

Capitalized terms not defined below will have the meaning ascribed to them in the Agreement. Additional terms used herein are defined below.

1. SERVICE LEVEL

1.1          Availability. The Services will be available 99.0% of the time per month, except for any scheduled maintenance or Service Interruptions (“Uptime Availability”). ALLY will use reasonable efforts to maintain the Services in a manner which minimizes errors and Service Interruptions in the Services.

1.2          Service Interruptions. The Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability of all or any portion of the Services, as a result of (i) system failures or (ii) circumstances beyond ALLY’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or Internet third party service provider failures or delays (“Service Interruptions”). ALLY will use reasonable efforts, circumstances permitting, to provide Customer with information regarding such Service Interruptions and the restoration of the Services following such Service Interruption.

2. MAINTENANCE AND SUPPORT

2.1          Technical Support. ALLY provides technical support through its email support program via the "Contact Us" page. All requests for support must be made to ALLY’s email program in accordance with these terms. ALLY provides technical support eight hours per day, from 9 AM – 5 PM EST, Monday – Friday (excluding recognized public holidays).  Support response time is based on priority of your request, which is determined by ALLY.

2.2          Maintenance. ALLY will make updates (error corrections, bug fixes, enhancements and/or improvements) to the System and / or Services on an ongoing basis. ALLY will schedule maintenance during appropriate, non-peak usage hours (except in the case of emergencies) wehn possible and to the extent possible will provide advance notice of any planned service disruption.

2.3          Customer Responsibilities. Only Customer’s Account administrator(s) may contact ALLY’s technical support personnel. In connection with submitting a problem report, Customer must: (i) notify ALLY promptly of problems with the System and / or Services, and provide ALLY with any documentation available regarding the error sufficient to allow ALLY to reproduce the error; and (ii) provide ALLY with reasonable assistance, as requested, to troubleshoot the problem.

3. SERVICE CREDITS

3.1          Service Credits. If the System and / or Services do not meet the Up Time Availability in any given calendar month (excluding any scheduled maintenance or Service Interruptions), ALLY will NOT credit Customer Subscription Fees in part or full.

3.2          Limitations. Except as set forth above, no other support services are provided by ALLY. ALLY will have no obligation to provide technical support of any kind for problems in the operation or performance of the System and / or Services to the extent caused by any of the following (each, a “Customer-Generated Error”): (a) any data (including any Customer Data), files, database or non-ALLY software used in conjunction with the Services; or (b) Customer’s use of the System and / or Services other than as authorized in the Agreement. If the problem is caused by a Customer-Generated Error, then ALLY will notify Customer as soon as ALLY is aware of such Customer-Generated Error and ALLY will have the right to invoice Customer at ALLY's then-current professional services rates for any support services performed by ALLY to correct a Customer-Generated Error.