Last updated: July 13, 2020
BY CLICKING "CONFIRM PURCHASE", SIGNING THE ORDER FORM, OR BY ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF
THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT
ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE USE ANY OF THE SOFTWARE.
The Agreement is an agreement between you ("Licensee") and Align.ly LLC ("Align.ly") for the Align.ly software products
(the "Software") and any documentation Align.ly provides with the Software (the "Documentation"). The provisions of the
Agreement are as follows:
Align.ly reserves the right to update and change these Terms of Service without notice.
Violation of any of the terms below may result in the termination of your Service.
- Hereby grants to Licensee a non-exclusive and non-transferable license for the Company to use the Software solely for
the internal business purposes of Licensee. Software shall also include any upgrades, modified versions, bug fixes or
updates of the Software provided by Align.ly.
- Licensee shall not:
(i) Provide, rent, lease, lend, use for time sharing, application service provider or service bureau purposes,
or otherwise use or allow others to use the Software for their own benefit or for the benefit of third parties;
(ii) Modify, adapt, translate, incorporate into or with other software, or create a derivative work of, any part
of the Software;
(iii) Disclose the results of any benchmarking of the Software, or use such results for its own competing software
(iv) Copy, reproduce or duplicate the Software, by any means or in any manner, except for backup purposes; or
(v) Decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code,
underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever.
- Licensee shall defend, indemnify, and hold harmless Align.ly from and against any claims, loss, liability, or damages
(including reasonable attorneys' fees) arising out of Licensee's use of the Software.
- Notwithstanding the foregoing, Licensee may configure or modify those support files that are provided by Align.ly and
are not compiled or encrypted, and such configured or modified files can be copied and distributed by Licensee.
- Licensee shall pay Align.ly the license fees set forth in the Agreement for the Software for the term of the Agreement.
- The Software fees for each term of the Agreement shall be paid by Licensee in advance for each such term. Align.ly shall
invoice Licensee for all such fees. All invoices not paid when required shall bear interest at the rate of 12% per annum
until paid in full.
- Such fees are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Licensee
will pay or reimburse Align.ly for all federal, state, dominion, provincial, or local sales, VAT, use, personal property,
import, export, excise or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by
the Agreement, other than taxes based upon Align.ly's net income.
Intellectual Property Rights
- The Software is owned by Align.ly, and its structure, organization and code are the exclusive intellectual property and
valuable trade secrets of Align.ly. All intellectual property rights in and to the Software are the sole and exclusive
property of Align.ly. Except for the right to use the Software as specifically stated in Section 1, Licensee is not granted
any other rights in the Software. Licensee acknowledges that the Software is protected by copyright and other intellectual
property laws. The Software and Documentation, including, without limitation, trade secrets, performance data, design,
features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods
and procedures of operation and other information relating to or obtained therefrom, by use, examination or otherwise,
which is not generally publicly known are the valuable trade secrets of Align.ly, and shall be deemed to be confidential
information of Align.ly ("Confidential Information"). Licensee shall use the same degree of care to protect the Confidential
Information from improper use or non-disclosure as Licensee would use with respect to Licensee's own information of like
importance which Licensee does not desire to have published or disseminated, but in any event no less than reasonable care.
Licensee will not use any Confidential Information for any purpose not expressly authorized under the Agreement and will
not disclose to third parties any such Confidential Information.
- Align.ly warrants to Licensee during the period in which Licensee is current in the payment of all fees ("Warranty Period")
that (i) the Software will be free from any virus, mechanism, feature or any other code or instruction that (A) cause the
Software (without the knowledge of Licensee) to remotely transmit information to Align.ly or any third party; or (B) may be
used to permit access to, or use of, the Software or computer system on which the Software is loaded, or to which the Software
is linked, by Licensee or any third party; and (ii) the Software will be free from defects in its media and will operate
substantially in accordance with the Documentation. If Licensee discovers a failure to comply with this Section 4(a) during
the Warranty Period, Licensee shall promptly notify Align.ly of such failure and provide Align.ly with sufficient information
in written or electronic form so that Align.ly can reproduce such failure.
- Align.ly's sole liability and Licensee's exclusive remedy with respect to breach of such limited warranty shall be
limited to providing Licensee with an error correction, replacing the non-conforming Software, or if neither is
commercially feasible, refunding the license fees received for the non-conforming Software provided Licensee thereafter
discontinues all use of such Software.
- Align.ly does not warrant the performance or the results Licensee may obtain by using the Software or Documentation.
Licensee acknowledges that there is a risk data can be damaged or corrupted and there is no guarantee that such damage
or corruption can be reversed or recovered. Licensee shall be responsible for backing up its own data and the costs of
restoring such data from any backup.
- Licensee acknowledges that the Software interacts with other software and databases operated by your specific Customer
Relationship Management System ("CRM") Licensee acknowledges that Align.ly is not responsible in any manner for the
performance of the Software or any issues of accessibility to the extent same are caused by any changes by your CRM to its
application programming interface.
- Except as expressly set out in this Section 4, Align.ly makes no representations, warranties or conditions, express,
statutory or implied, with respect to the Software or the Documentation. ALIGN.LY EXPRESSLY DISCLAIMS ALL OTHER
REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Align.ly does not warrant that the
Software will meet Licensee's requirements or that it will function uninterrupted, error free or that all defects in the
Software will be corrected. Align.ly makes no representation or warranty regarding accessibility to, or the privacy or
security of, any of Licensee's information, files or data. Licensee assumes the entire risk as to the results and
performance of the Software. Licensee acknowledges that it has independently determined that the Software meets its
business requirements and that it has not relied on any representation by Align.ly as to the suitability of any item
for any particular purpose. Align.ly does not represent or warrant that the Software will be capable of achieving any
particular result or results in Licensee's business or operations. Except as expressly stated otherwise in the Agreement,
Software is provided and licensed on an "AS IS" basis without warranty or representation of any kind.
Intellectual Property Indemnification
- Align.ly shall indemnify Licensee against all liability to third parties (including reasonable attorney's fees) arising
from any claim alleging that the Software infringes any patent or copyright of any third party within Canada, the United
States of America or any current member state of the European Union, provided that (i) Licensee promptly notifies Align.ly
of any such third party demand, action, suit or proceeding, threatened or actual, against Licensee (a "Claim"), (ii)
Licensee may not settle or compromise any Claim, and (iii) Align.ly, at its sole option, may elect to conduct the defense
of any Claim, including, without limitation, any settlement or compromise thereof, in which case Licensee shall cooperate
reasonably in such defense at Align.ly's cost. Align.ly may at any time (i) procure for Licensee the right to continue the
use of the Software; (ii) replace or modify the Software so as to be non-infringing without materially diminishing the
functionality thereof; or (iii) if Align.ly reasonably determines that options (i) and (ii) are not commercially practical,
terminate the Agreement effective immediately upon written notice to Licensee and refund to Licensee a pro-rated amount of
fees starting from the date of infringement.
- The indemnification obligations of Align.ly in this Section 5 set forth the sole and exclusive remedy of Licensee, and
the sole and exclusive liability of Align.ly, with respect to any Claim.
Limitation of Liability
- In no event whatsoever will Align.ly be liable for punitive, exemplary or similar damages; damages for loss of profits
or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored
data; or indirect, consequential or special damages of any kind.
- The maximum total liability of Align.ly, for any claim whatsoever, under any circumstances, regardless of the cause of
action and including, without limitation, claims for breach of contract, tort, negligence or otherwise, and Licensee's sole
remedy therefore, shall be strictly limited to an amount not to exceed the amount of fees paid by Licensee to Align.ly
hereunder during the one (1) year period immediately preceding the date of such claim.
- No action arising out of or relating to the Agreement, or Align.ly's obligations hereunder, regardless of form, may be
brought by Licensee more than twelve (12) months after the facts giving rise to the cause of action are known to Licensee.
Term and Termination
- The term of the Agreement shall commence on the date of acceptance below by Licensee and shall thereafter continue for
an initial term outlined in the Agreement. The Agreement shall thereafter renew for a series of successive terms, provided
that either party shall have the right to terminate the Agreement as of any such renewal date by providing at least 60 days
prior written notice of termination.
- Without limiting any other rights or remedies available to Align.ly, Align.ly has the right to terminate the Agreement
immediately and without notice to Licensee, if:
(i) Licensee is in breach or default of any of its obligations under the Agreement, other than with regard
to payment, and such breach or default continues unrectified for 10 days following the provision of written notice of
such breach or default to Licensee;
(ii) Licensee voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for
the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against Licensee under a
bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition
is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with
respect to Licensee's assets;
(iii) Licensee ceases to carry on its business; or
(iv) Align.ly has not received any payment when due either under the Agreement or otherwise.
- Upon termination of the Agreement for any reason whatsoever, any license that Licensee has to use any Software will
terminate immediately and Licensee shall, at Align.ly's option, destroy or return all Software and Documentation.
Governing Law and General Provisions
- The Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding the application of its
conflict of law rules. The Agreement will not be governed by the United Nations Convention on Contracts for the
International Sale of Goods, the application of which is expressly excluded.
- If any part of the Agreement is found void and unenforceable, it will not affect the validity of the balance of the
Agreement, which shall remain valid and enforceable according to its terms.
- Licensee shall not ship, transfer or export the Software into any country or use it in any manner prohibited by the
United States Export Administration Act or any other applicable export control law, restriction or regulation.
- If Licensee is the U.S. Government or an agency thereof, Licensee (i) with respect to civilian agencies, will grant
protection for the Software as "commercial computer software" and related documentation in accordance with the terms of
48 C.F.R. 12.212 of the Federal Acquisition Regulations; and (b) for use by or on behalf of the Department of Defense,
will grant protection for any Software as "commercial computer software" and related documentation in accordance with the
terms of 48 C.F.R. 227.7202-1 of the DoD FAR Supplement.
- The Agreement may not be assigned by Licensee without the prior written consent of Align.ly.
- The termination of the Agreement will not affect the survival and enforceability of any provisions of the Agreement
which are expressly or impliedly intended to remain in force after such termination or expiration, as
Sections 1(b), 2, 3, 6, 7(c) and 8 shall survive any termination of the Agreement.
- Align.ly will have no obligation to perform its obligations hereunder to the extent and for the period that Align.ly
is prevented from doing so by reason of force majeure or any cause beyond its reasonable control.
- All notices, requests, demands and other communications required or permitted under the Agreement shall be deemed
to have been delivered to a party at the address indicated below (i) when actually received in the case of hand delivery
as evidenced by a signed receipt; (ii) the business day after being given to a reputable overnight courier service,
with a reliable system for tracking delivery, for delivery the following day; (iii) when sent by confirmed facsimile
with a copy sent by United States mail within two (2) business days of the transmission; or (iv) upon receipt, when
mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. A party may
from time to time change its address, facsimile number or designee for notification purposes by giving the other
party prior written notice of the new address, facsimile number or designee and the date upon which such change will
- The Agreement sets forth the entire agreement between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements. There are not and shall not be any oral statements, representations, warranties,
undertakings or agreements between the parties. Align.ly may elect to change or supplement the terms of the Agreement
from time to time at its sole discretion. Align.ly will exercise commercially reasonable business efforts to provide
notice to Licensee of any material changes to the Agreement. Within five (5) business days of posting changes to the
Agreement, they will be binding on Licensee. If Licensee does not agree with the changes, Licensee should discontinue
using the Software. If Licensee continues using the Software after such five (5) business day period, Licensee will be
deemed to have accepted the changes to the terms of the Agreement.