Last Updated: April 16, 2020
1. Rights and Obligations of Ally
a. If requested, Ally will:
i. Enable customers to purchase goods and/or services from Merchant via i) Ally’s proprietary ordering, advertising, delivery logistics, and billing system using its associated web-based and mobile properties and apps (the “Ally Merchant Software”); ii) built upon Ally’s e-commerce, logistics, and delivery platform (“Platform”).
ii. Include Merchant on the Platform as provided herein, and will enable the transmission of orders to Merchant for pickup and/or delivery (the “Logistics Services”). The Logistics Services, together with the Delivery Services and the POS Services (each as defined below), will be referred to herein as the “Services.”
iii. Connect Merchant with delivery service providers using Ally’s Platform (the “Delivery Services”). For clarity, Ally does not itself provide delivery or logistics services; instead, Ally provides a platform for businesses to connect with delivery service providers to transport orders to customers and to receive information relating thereto. Delivery service providers are independent Platform users who access Ally’s proprietary technologies to provide on-demand delivery and logistics services, and such independent contractors control the method and manner in which they deliver orders. Accordingly, Ally will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.
iv. Connect the Ally Merchant Software and Platform with Merchant’s point-of-sale (“POS”) system (the “POS Services”). Merchant expressly permits Ally to have access to, and will ensure Ally is an authorized user on, its POS account, and Ally will be permitted to use Merchant’s POS account and data included therein in order to provide the Services. Ally disclaims any and all liability for the availability and operations of the POS Services, and all service requests in connection with the POS Services will be directed to the applicable POS provider (as identified on the Services Form) and not Ally. Merchant agrees that its use of any Ally Application Programming Interfaces in connection with the POS Services is subject to Ally Merchant POS API Terms as in effect (available at https://allynow.com/legal/enterprise-pos-api-terms).
b. Ally owns all right, title, and interest in and to the Ally Merchant Software and the Platform, and any content supplied by Ally. Ally will have sole editorial control over the Merchant Software and Platform, including the presentation of any content provided by Merchant (“Merchant Content”). Merchant Content may include, without limitation, menus, photographs, trademarks and logos. For the term of the Agreement and for six (6) months thereafter, Merchant hereby grants to Ally a royalty-free, worldwide, sub-licenseable, transferable, fully paid-up, irrevocable right and license to use the Merchant Content in connection with the Merchant Software, Platform, and for marketing and promotional purposes via any means now known or hereinafter developed. Merchant owns all right, title, and interest in and to the Merchant Content, subject to the license granted to Ally herein. Ally may remove Merchant Content on the Ally Merchant Software or Platform at any time if it believes, in its sole discretion, that such Merchant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Ally Merchant Software and Platform.
c. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, ALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE ENTERPRISE SOFTWARE, PLATFORM, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALLY WILL NOT BE LIABLE TO ENTERPRISE FOR DAMAGES RESULTING FROM THE FAILURE OF THE ENTERPRISE SOFTWARE, PLATFORM, SERVICES OR ENTERPRISE CONTENT. ALLY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO ENTERPRISE FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ALLY’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF FEES EARNED BY ALLY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
2. Additional Rights and Obligations of Merchant
a. Merchant will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Merchant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, Ally’s Confidential Information. Merchant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by Ally, Merchant will deliver to Ally (or destroy at Ally’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
b. “Customer Data” means (i) any and all information about customers generated or collected by Ally or Merchant through the Merchant Software, Platform, or Services, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Merchant acknowledges that all Customer Data is the sole and exclusive property of Ally. Accordingly, Merchant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Merchant’s obligations hereunder. Merchant (and any other persons to whom Merchant provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current best practices in Merchant’s industry in order to protect, handle, and secure Customer Data. Merchant will also be responsible for any breach of this provision by any third-party service provider engaged by Merchant. Merchant will notify Ally in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with Ally concerning any remedial measures and any disclosures to affected parties, in each case as requested by Ally or required under applicable law.
d. Merchant represents, warrants and covenants: (i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Merchant Content will not infringe or otherwise violate the rights of any third party; (iv) it will comply with all applicable retail food, beverage (including alcohol) or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (v) it will provide accurate tax rates and calculations to Ally; and (vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. In the event that Merchant includes alcohol in its menu on the Merchant Software or Platform, Merchant further represents and warrants that it maintains a valid and active liquor license and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”). Merchant will provide Ally with a copy of the Liquor Licenses and all renewals thereof, and will immediately notify Ally if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time during the Term.
e. Merchant will indemnify and hold Ally (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Merchant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Merchant’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. Ally will provide prompt notice to Merchant of any potential claim subject to indemnification hereunder. Merchant will assume the defense of the claim through counsel designated by it and reasonably acceptable to Ally, provided that Ally may use counsel of its choice at its own expense. Merchant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of Ally, which will not be unreasonably withheld. Ally will reasonably cooperate with Merchant in the defense of the claim, at Merchant’s expense.
3. Payment Terms
In consideration for Merchant’s access to the applicable Merchant Software, Platform, and/or Services, Merchant will pay to Ally a monthly software subscription fee and/or a delivery fee for the delivery service providers to be collected by Ally (collectively, the “Fees”). Subscription fees will be charged in advance on a monthly basis. Delivery fees are recommended by the Platform on a per-order-basis; though the Merchant and delivery service provider can mutually agree to a lower delivery fee. Merchant is responsible for collecting and remitting delivery fees to Ally on a weekly basis.
Unless otherwise agreed in the Ally Merchant Services Form, this Agreement may be cancelled as follows:
- By Merchant for any reason (or no reason) upon thirty (30) days’ prior written notice to Ally.
- By Merchant in the event of a material breach of this Agreement which is not cured after seven (7) days prior written notice of said breach.
- By Ally for any reason (or no reason) upon three (3) days prior written notice to Merchant.
5. Governing Law and Dispute Resolution
THIS SECTION ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS THE ENTERPRISE’S LEGAL RIGHTS. PLEASE READ IT.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE CAYMAN ISLANDS WITHOUT REGARD TO ITS CONFLICTS OF LAW RULES, NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY PARTY.
Merchant and Ally agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Los Angeles, CA, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
6. Miscellaneous Terms
In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver. A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Merchant may not assign the Agreement without the prior written consent of Ally, and if permission is secured, the assignor will provide Ally with advance written notice so that payment can be directed appropriately. Any assignment by Merchant in violation of this provision will be deemed a nullity. Ally may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors and assigns. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement. This Section 6, the customer data, ownership, confidentiality, indemnity, limitation of liability and arbitration provisions and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement. If applicable, these Terms may be signed in counterparts, each of which is deemed to be an original, but which together constitute one and the same instrument. Copies of signatures sent by facsimile or by PDF scan/email transmission are deemed to be originals for purposes of execution and proof of these Terms.
All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with the United States Postal Service if sent by certified mail; (iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Merchant will be sent to Merchant at the address provided on the Services Form under “Contact Information,” or such other address provided by Merchant and accepted by Ally in writing. All notices to Ally will be sent to the below, unless otherwise provided by Ally:
680 E Colorado Blvd. #180
Pasadena, CA 91101
Attn: Ally Legal