Ally Splurge Alert Mobile Application Beta Test
Terms and Conditions
These terms and conditions (the “Terms and Conditions”) contain important information regarding participation in a beta test of a pre-release version of the Ally Splurge Alert mobile application (the “App”) provided by Ally Financial Inc. (“Ally”). Please read the Terms and Conditions carefully. By submitting a request to participate in the beta test of the App (the “Beta Test”) or downloading, installing or using the App, you indicate that you have read, understand and agree to be bound by the Terms and Conditions and that you will comply with all of the requirements set forth in the Terms and Conditions. If you do not agree to the Terms and Conditions, do not submit a request to participate in the Beta Test and do not download, install or use the App.
1. Beta Test
(a) Ally has determined to allow a limited number of people to participate in the Beta Test in order to provide feedback and comments to Ally regarding the features, capabilities and performance of the App. You wish to test and evaluate the App’s suitability and accordingly agree to participate in the Beta Test on the terms and conditions set forth herein. Your participation in the Beta Test is completely voluntary.
(b) Ally will allow you to access and use the App during the Beta Test, which will run for approximately 60 days, as determined by Ally, unless otherwise extended or terminated by Ally in its discretion (the “Test Period”). Ally may, in its sole discretion, terminate the Test Period, the Beta Test or your participation in it at any time. Likewise, you may stop participating in the Beta Test at any time. Termination of the Beta Test or your participation in the Beta Test will not terminate your obligations under this Agreement.
(c) In order to participate in the Beta Test, you must own an App-compatible (as determined by Ally in its discretion) mobile device (iPhone 6 or later, running iOS 8 or later) and have Internet connectivity and mobile phone service. Ally will not provide a mobile device to you if you do not have one or provide Internet connectivity or mobile phone service. You are responsible for any costs you may incur in connection with your use of the App or any device or service.
(d) If you create or are provided with any confirmation code, password or other credentials in connection with the App, you shall keep it confidential and shall not share or permit any third party to access it. You are responsible for all uses of any such password, confirmation code or other credentials and for all activity relating to the use of the App while it is installed on your device. Prior to installation of the App, you shall ensure that your mobile device on which the product is installed is password-protected, and you shall maintain such password protection and not provide your password to any third party during the Test Period.
(e) You understand that the version of the App used in the Beta Test is not ready for commercial release and may malfunction or contain bugs or errors. Ally may, but has no obligation to, provide support services for the App during the Test Period. Ally is not obligated to fix any bugs or errors in or associated with the App.
(f) You agree, if requested by Ally, to provide feedback and comments regarding your use of the App. This may take place via an online survey, telephone, e-mail or another means agreed upon by you and Ally.
(g) If Ally releases a generally available version of the App, your access to and use of the App will be subject to separate terms and conditions. Ally does not guarantee that the App will be made generally available or that any generally available version of the App will contain functions similar to the version of the App made available during the Beta Test.
2. Alerts. The App is intended to encourage users to save money by alerting them when users are in or near areas where retail stores, restaurants and similar establishments, of a type designated by the users, are located. The alerts are sent via notifications in the App and via automated text messages. When you use the App, you will receive such alerts via the App and via automated text messages sent to you at the mobile telephone number that you provided. You will also receive an automated text message when you sign up to use the App. Consenting to receive such texts is not a condition of any purchase. Text messages may contain marketing material.
3. Feedback. During or after the Beta Test, you are likely to provide feedback, comments, observations or other information relating to the App, the Beta Test or your use of the App, whether in writing, orally, by demonstration or otherwise (“App Feedback”). You hereby grant to Ally an exclusive, fully paid-up, perpetual, irrevocable, unrestricted, worldwide license to use, reproduce, modify, display, perform, sell, make or have made derivative works of, distribute, sublicense and otherwise exploit such App Feedback, without the payment of royalties, fees or any other consideration to you and without any accounting to you or further permission from you.
4. Ownership. You acknowledge that Ally owns and retains all rights in and relating to the App and all components thereof, including, without limitation, all patent rights, copyrights, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto. Ally does not grant you and you do not have any express or implied right in any patents, copyrights, trademarks or trade secrets of Ally or in any Confidential Information (as defined below).
5. License; Restrictions. Ally hereby grants you a limited, revocable, non-exclusive, nontransferable license to use the App solely on an App-compatible mobile device that you own and solely during the Test Period and in connection with the Beta Test. After the conclusion of your participation in the Beta Test, or at any earlier time that Ally requests, you shall remove the App from your device. You shall not use the App for any purpose other than the Beta Test. You shall not translate, modify copy, reverse engineer, decompile, or disassemble the App. You shall not sublicense, transfer or distribute the App to any third party or permit use of the App or your Account Information by any third party. You shall not use the App in any manner that violates any law, infringes upon any intellectual property, personal or proprietary rights of any person or entity or invades the privacy of any person. All rights not expressly granted to you with respect to the App are reserved. Ally may further restrict or modify the manner in which you are permitted to use the App at any time and for any reason as determined by Ally in its discretion. The App may be unavailable, inaccessible or wholly or partially non-functional from time to time.
7. Confidentiality. During the Beta Test, Ally may disclose to you, and you may have access to, Confidential Information. “Confidential Information” means any trade secrets of Ally and all non-public, confidential or proprietary information concerning the App, the Beta Test and/or Ally, including, but not limited to, all software, specifications and technical or creative documentation, material or information that may be provided to you by Ally, all App Feedback and all information concerning Ally’s business and/or marketing plans and/or activities. You shall not at any time during the term of this Agreement or thereafter disclose to any third party or permit any third party to access any Confidential Information or use any Confidential Information other than as necessary in connection with your participation in the Beta Test. At the termination of this Agreement, you shall return to Ally and not retain any all Confidential Information in your possession. You shall not at any time issue any public statement concerning the App or the Beta Test.
8. Indemnification; Release. You (a) shall indemnify, defend and hold Ally and its parent companies, subsidiaries and affiliates, each of their agents and contractors and all of their respective officers, directors and employees harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, reasonable fees for attorneys and expert witnesses) that result from any breach by you of any of your covenants, representations, warranties or obligations herein or are based on any assertion that, if proven, would constitute such a breach, and (b) hereby release Ally and its parent companies, subsidiaries and affiliates, each of their agents and contractors and all of their respective officers, directors and employees from and against any losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) that result from or arise out of or in connection with the use of the App and/or your participation in the Beta Test (including, without limitation, in connection with any actual or alleged data loss, data misuse and/or malfunction of or error or bug in the App).
9. Injunctive Relief. You acknowledge and agree that a breach or threatened breach of this Agreement would cause irreparable injury to Ally for which money damages would be an inadequate remedy and that Ally shall be entitled to injunctive relief without bond, to restrain you from such breach or threatened breach. Nothing in this Section 10 shall be construed as preventing Ally from pursuing any and all remedies available to it.
10. No Warranty. THE APP IS A PRE-RELEASE PRODUCT THAT IS NOT READY FOR COMMERCIAL RELEASE AND MAY CONTAIN “BUGS,” ERRORS, HARMFUL COMPONENTS AND DEFECTS. ALLY IS PROVIDING THE PRODUCT “AS IS.” ALLY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE APP OR THE BETA TEST. ALLY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE APP AND/OR THE BETA TEST, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES OF NON-INFRINGEMENT.
11. Limitation of Liability. ALLY WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING WITH RESPECT TO THE BETA TEST, THE APP OR THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE AND/OR NOTICE WAS GIVEN REGARDING SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL LIABILITIES AND DAMAGES WHETHER ARISING IN TORT, CONTRACT, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION ANY AND ALL LIABILITIES AND DAMAGES BASED ON OR RELATING TO ANY LOSS OF DATA, ANY ERROR IN ANY TRANSMISSION OR ANY FAILURE OR DEFECT OF THE APP OR THE BETA TEST. IN NO EVENT WILL ALLY’S LIABILITY TO YOU IN CONNECTION WITH THE APP AND/OR THE BETA TEST EXCEED $100. PARTICIPATION IN THE BETA TEST IS VOLUNTARY AND YOU VOLUNTARILY ASSUME ALL RISKS RELATING TO THE BETA TEST AND/OR THE USE OF THE APP.
(a) Survival. Sections 1(g) and 3-12 will continue in full force and effect even after the Beta Test has been terminated or completed and/or your participation in the Beta Test has been terminated and will survive any termination or expiration of this Agreement.
(b) Governing Law; Jurisdiction. The laws of the State of New York, excluding its conflicts of law rules, govern this Agreement. You irrevocably (i) agree that the federal and state courts located in New York County, New York will have sole and exclusive jurisdiction over any suit or other proceeding arising out of or based upon this Agreement, (ii) submit to the venue and jurisdiction of such courts, (iii) consent to personal jurisdiction by such courts and (iv) waive any objection that any such court is an improper or inconvenient forum.
(c) Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby.
(d) Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. You acknowledge that in entering into this Agreement you have not relied on any statements or promises not contained in this Agreement. This Agreement may only be changed or amended by a writing signed by both you and Ally.