Tally Technologies, Inc.
Thank you for your interest in Tally Technologies, Inc. (“Tally,” “we,” or “us”). We welcome you to our Website at www.meettally.com (the “Site”), as well as all related web sites, downloadable software, mobile applications (including tablet applications), and products and services provided by us and certain third parties (collectively, together with the Site, our “Service”). These Terms and Conditions are a legally binding contract between you and Tally regarding your use of the Service.
Unless prohibited by applicable law, these Terms provide that all disputes between you and us will be resolved by binding arbitration, and not in state or federal court (excluding claims you can bring in small claims court). Please review the Dispute Resolution and Arbitration section below for the details regarding your agreement to arbitrate any disputes with Tally.
You agree to conduct transactions with Tally electronically. When you visit www.meettally.com or send emails to us, you are communicating with us electronically and you consent to receive any and all communications from us electronically (“Electronic Disclosures”) to the extent allowed by law. We will provide Electronic Disclosures by email, by posting notices on the Site, mobile or web application, text message, or other electronic means.
At any time, you may request a paper version of disclosures required by law to be delivered to you in writing. We will send you such disclosures free of charge.
You may refuse to receive Electronic Disclosures before using the Service. You may also update your contact information or withdraw your consent at any time by emailing us at (a) firstname.lastname@example.org, and/or writing us at (b) 375 Alabama Street, Suite 325, San Francisco, CA 94110. Once you refuse or withdraw your consent to receive Electronic Disclosures, we reserve the right to limit your use of the Service. If you withdraw your consent, you may request paper versions of any disclosures the Service was obligated by law to deliver to you in writing within the past 180 days. We will send these disclosures free of charge. After 180 days from your withdrawal of consent, we will not deliver paper copies of any Electronic Disclosures.
In order to receive Electronic Disclosures, you must have the following hardware and software:
- A computer or mobile device with an internet connection;
- A current web browser that includes 128-bit encryption with cookies enabled;
- A valid email address and phone number; and
- Sufficient storage space to save Electronic Disclosures or an installed printer to print them.
We may change these requirements and, if we do so, we will notify you promptly of any material change to these requirements.
Your use of the Service is subject to any additional terms or agreements applicable to the Service (“Additional Terms”), such as, for example, end-user license agreements for any downloadable applications we may offer, or rules applicable to particular features or content of the Service.
Tally Service Overview
Tally provides solutions you can use to help manage your credit card balances. One solution is a line of credit that you can draw down on to pay off credit card account debt held by credit card companies. After you make a draw on your Tally line, you will make payments of principal and interest to Tally to repay your Tally line. You must open a Tally line to use the Service. Terms of your Tally line are contained in your Line of Credit Agreement. Another solution allows you to use your bank account funds to make payments on your credit card accounts. The terms of this second solution are contained in the Paying Your Credit Card Accounts from Your Bank Account section below.
Tally may offer you a feature called “Tally Advisor” designed to help you pay off your credit card balances more quickly. Tally Advisor makes payment recommendations based on your balances and past spending behavior. However, we are not aware of all your facts and circumstances, and the amount and timing of any payment is ultimately your responsibility. Also, please note that Tally Advisor is being developed and may not be available to all users or on all platforms. There is no additional fee to use Tally Advisor.
The Service and Tally Advisor are not intended to provide any legal, tax or financial advice.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least 18 years old; (ii) that you have not previously been suspended or removed from the Service; (iii) you are not a data subject of the European Union as defined in the EU General Data Protection Regulation; and (iv) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations in your State and the United States. If you are legally using the Service on behalf of another person, you represent that you have the legal authority to bind that person to these Terms and that both you and that person agree to be bound by these Terms.
Accounts and Registration
To access the Service, you must register for an account. When you register you will be required to provide us with some information about yourself. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to create a password.
You are responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com or call us toll-free at 866-508-2559.
Each borrower is only permitted to register for one account. You agree not to register for multiple accounts with Tally.
Account Information from Third-Party Sites
You may direct Tally to retrieve your information maintained online by third-party financial institutions such as your bank or credit card company (collectively, “Account Information”). Tally works with one or more online financial service providers under contract to access this Account Information.
Tally does not store any user account credentials. Instead, the online financial service providers store your login credentials in a separate database.
In order to make full use of the Service, you will need to link your account on the Service with accounts you maintain at third party financial institutions that have records of your financial transaction history (“Financial Account History”). We contract with third party service providers (“Service Providers”) to access your Financial Account History through the login and password information you provide to us for third party financial institutions.
In order to provide you with the Service, we store your Financial Account History in our databases. Please be aware that any stored Financial Account History may be subject to corruption of data, loss of personalized settings or other interruptions in availability. In addition, any Financial Account History is only as accurate as the information provided to us by our Service Providers, which may not necessarily reflect your Financial Account History as provided to you by your financial institution. Because of this, it is your responsibility to ensure that your Financial Account History, including due dates and amounts due, is accurate. And, you agree that if your Financial Account History is incorrect or becomes outdated, and we notify you of that, you will correct it within 72 hours of our notification so we can correct the issue.
Tally uses Financial Account History to determine your eligibility for a line of credit, to pay balances you have at credit card companies, to administer your line of credit, and to respond to your questions. Tally is not responsible for the accuracy of the information provided by Service Providers or maintained by or on third-party sites, or for products or services offered by or on such sites.
By providing us and our Service Providers with information, data, passwords, usernames, PIN codes or other login information, or other materials or content through the Service, you grant us the right to use and store such information (including Financial Account History, collectively “Financial Information”) for the purpose of providing the Service to you. By providing access to Financial Information, you agree that the owner of such Financial Information has expressly agreed that, without any particular time limit, and without the payment of any fees, Tally and its Service Providers may use the Financial Information in connection with the Service.
By using the Service, you authorize us and our Service Providers, as your agents, to access your Financial Account History maintained by financial institutions on your behalf, to retrieve information requested by you, and to register for accounts requested by you. For all purposes, you give Tally and its Service Providers an irrevocable limited power of attorney, which is coupled with an interest, and you appoint Tally and its Service Providers as your true and lawful attorney-in-fact and agent, with full powers for you and in your name and all capacities, to access third party Internet sites, servers or documents, retrieve information, and use your information with the full power and authority to do and perform each and every act and thing in connection with such activities or the Service, as you might or could do yourself. YOU AGREE THAT WHEN TALLY IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES AND FINANCIAL INSTITUTIONS, TALLY IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY.
You agree that third parties may rely on this authorization, agency and power of attorney granted by you.
In addition, Tally and its Service Providers may use, modify, display, distribute and create new material using Financial Information to provide the Service to you. Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is provided by or about you, may be used by us or our third party vendors to conduct certain analytical research, performance tracking and benchmarking. We or our third party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including, helping to improve products and services and assisting in troubleshooting and technical support.
Line of Credit Applications
You may be presented with the opportunity to apply for a line of credit through the Site. When applying for a line of credit on the Site, you agree to provide current, complete, and accurate information about yourself. If any information you provide is untrue, inaccurate, not current, or incomplete, Tally has the right to terminate your line of credit application and to decline to provide to you any and all future use of the Site or your line of credit. We reserve the right to decline your application for a line of credit for any reason. Your line of credit application and any subsequent agreements related to the line of credit will be governed by separate, additional agreements between you and Tally.
Your Credit Report
We may request consumer reports on you in connection with your application for credit and subsequently in connection with any extension of credit, draw, update, renewal, review or collection of your account or any other lawful purpose. You hereby release us and agree to waive any consequence of us requesting your consumer report, including without limitation any impact on your credit score.
You are allowed to receive one free consumer report under the Fair Credit Reporting Act from each of the three U.S. national credit reporting agencies (Experian, Equifax, and TransUnion) during any 12-month period. You may also be able to receive free consumer reports as permitted by state law (you may contact your state or local consumer protection agency or state attorney general to learn more about your rights under state law). For information on obtaining a free consumer report from Experian, Equifax or TransUnion, you may contact them directly at www.experian.com, www.equifax.com, and www.transunion.com.
Use of Credit Profile for Identity Verification
As part of account opening and credit application process, you agree that your consumer report may be obtained to confirm your identity to help avoid fraudulent transactions in your name.
Paying Your Credit Card Accounts from Your Bank Account
- Overview. You can use the Service to help you make payments on your credit card accounts with funds from your bank account. We have partnered with Silicon Valley Bank (“Bank Partner”) to provide this feature of the Service (this “Feature”). To use this Feature, you must maintain a valid bank account that you designate as the account to which payments to the credit card accounts that you also designate should be withdrawn from (“Funding Account”). Funds withdrawn from your Funding Account are held in a pooled account established by, and held at, the Bank Partner. These funds are later transferred from the pooled account to your designated credit card issuer to make the payment on the credit card account you instruct to be made. It is important you understand that you do not have access to, or control over, the pooled account. The pooled account does not pay you interest. Funds held in the pooled account are not eligible for Federal Deposit Insurance Corporation insurance. You authorize us to share any information you provide or we obtain relating to this Feature with our Bank Partner or any other party we use to provide this Feature. We may change bank partners or other parties we use.
- Authorization. By initiating a payment through this Feature, you authorize us to charge your Funding Account to make your payment on your credit card account. We may set a maximum dollar amount for payment or other restrictions if we reasonably believe restrictions are necessary or advisable for security reasons or to prevent misuse, fraud or an illegal act.
- Timing. To help ensure that there is enough time for payment to be made before the due date for your credit card account, you must submit payment instructions at least 5 business days prior to the due date.
- Stopping Payments. As permitted, you may stop a payment if you do so by 5:00 pm Pacific Time on the day you initiate payment. If you initiate a payment after 5:00 pm Pacific Time, you will have until 5:00 pm Pacific Time on the next day to stop a payment. You must email us at firstname.lastname@example.org to stop payment.
- Inability to Access Funds from Funding Account. If funds cannot be accessed from your Funding Account to complete your payment instructions for any reason (for example, non-sufficient funds, closed account, inability to locate account, or reversal by you and/or your bank), the transaction will not be completed.
- Errors. ALL QUESTIONS ABOUT TRANSACTIONS MADE THROUGH THIS FEATURE MUST BE DIRECTED TO US, AND NOT TO THE BANK OR OTHER FINANCIAL INSTITUTION WHERE YOU HAVE YOUR FUNDING ACCOUNT. We are responsible for this Feature and for resolving any errors we caused.
We will not send you a periodic statement listing transactions that you make through this Feature. The transactions will appear on the Funding Account statement issued by your bank or other financial institution. SAVE ANY RECEIPTS OR INFORMATION WE MAKE AVAILABLE TO YOU WHEN YOU USE THIS FEATURE AND CHECK THEM AND YOUR TALLY ACCOUNT HISTORY ON THE SITE AGAINST THE FUNDING ACCOUNT STATEMENT YOU RECEIVE FROM YOUR BANK OR OTHER FINANCIAL INSTITUTION. If you have any questions about one of these transactions, call or write us at email@example.com and 866-508-2559.
IF YOUR CREDENTIALS TO ACCESS THIS FEATURE ARE LOST OR STOLEN, NOTIFY US AT ONCE by calling or writing to us at firstname.lastname@example.org and 866-508-2559.
You could lose all the money in your Funding Account (plus your maximum overdraft line of credit). If you tell us within 4 business days after you learn of the loss or theft of your credentials, you can lose no more than $50 if someone used your credentials without your permission.
If you do NOT tell us within 4 business days after you learn of the loss or theft of your credentials, and we can prove we could have stopped someone from using your credentials without your permission if you had told us, you could lose as much as $500.
For purposes of this Section of the Terms, our business days are Monday through Friday. Holidays are not included.
- Unauthorized Transactions. You must notify us immediately if you suspect or believe that a transaction has occurred through this Feature that you did not authorize or that you believe an incorrect amount was authorized. You may contact us at email@example.com and 866-508-2559. If your Funding Account statement or Tally account history on the Site shows payments you did not make tell us at once. If you do not tell us within 90 days after the statement or history was transmitted or made available to you, you may not get back any money you lost after the 90 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods. If you initially provide information to us by telephone, we may require that you send your complaint or question in writing within ten (10) business days. You will be asked and are required to provide us with the following information: your name; the email address registered for this Feature; a description (including dollar amount) of the transaction that you believe is unauthorized or in error; a reference/transaction ID; an explanation why you believe there was an unauthorized transaction or error; and any other information we reasonably request. We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we provisionally credit your account and we determine that no error occurred, we may reverse the credit. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.
We will tell you the results within 3 business days after completing our investigation. If we decide that there was no error, we will send you an explanation. You may ask for copies of the documents that we used in our investigation.
- Our Responsibility. We will use commercially reasonable efforts to provide this Feature. If we do not perform as provided in this Section, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:
- if you do not have enough money in your Funding Account;
- if the payment is rejected or returned by your credit card issuer;
- if you have provided incorrect information;
- if the Funding Account is closed;
- if you incur any late fees due to a lack of funds in your Funding Account;
- if you incur any penalty interest due to a lack of funds in your Funding Account;
- if the payment would go over the credit limit on your overdraft line;
- if we provided notice that this Feature is unavailable;
- due to circumstances beyond our control (for example, fire, flood, interference from an outside source or any failure by your computer, software, or Internet connection); or
- based on other exceptions stated in these Terms.
- Confidentiality. We will disclose information to third parties about payments you initiate or make:
- where it is necessary for completing payments;
- in order to verify the existence and condition of your Funding Account for a third party, such as a credit bureau or merchant;
- in order to comply with government agency or court orders;
- if you give us your written permission;
- with our Bank Partner or any other third party we use to provide this Feature; or
- as provided elsewhere in these Terms.
Alerts and Notices
By agreeing to these Terms you are giving your express consent in writing to be contacted by us through your mobile device or by email for any reason in connection with the Service.
From time to time, we may issue notices or alerts (“Alerts”) to you, or you may choose to set up voluntary Alerts based on certain criteria, to the extent made available by the Service. Automatic Alerts may be sent to you in certain situations, e.g., changes in your registration information or material changes to these Terms. You may also create voluntary Alerts customized to suit your own preferences. To the extent not prohibited in accordance with applicable law, we may add or delete categories of Alerts from time to time.
Alerts may be sent to your e-mail address and, based on your preferences, communicated by additional means, such as, by pop-up notices on your mobile device. Since Alerts may include financial information or personal data, please be aware of the methods you choose to receive Alerts in order to safeguard your information.
Please be aware that Alerts may be delayed or prevented from being delivered to you for a variety of reasons. Therefore, we cannot guarantee the accuracy or timely arrival of any Alerts.
Mobile Device Usage
Use of the Service may be made available through a browser on a mobile device or through an application running on a mobile device. You are responsible for all costs incurred by you with respect to using the Service on a mobile device, including data usage fees and other telecommunications fees.
Changes to the Terms
We reserve the right, at our discretion, to change these Terms on a going forward basis at any time. Although we may make a reasonable attempt to notify you if we make any changes that materially modify your rights or obligations via email, text to your mobile phone or other agreed-to method, please check these Terms periodically for changes. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your use of the Service. All other changes are effective upon publication of the changed Terms.
You are permitted to use content delivered to you through the Service only on the Service. You may not copy, reproduce, distribute, or create derivative works from this content for commercial use. You agree not to reverse engineer or reverse compile any of the service technology, including without limitation any Java applets associated with the Service.
The Site, its content, any materials downloaded, and all intellectual property relating to the Site (including copyrights, patents, database rights, graphics, designs, text, logos, trade dress, trademarks and service marks) are owned by Tally or third parties and all right, title and interest them remain the property of Tally and/or such third parties (collectively, the “Content”). All Content is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
You are authorized only to view and retain a copy of the pages of the Site for your own personal, non-commercial use. You may also view and make copies of relevant documents, pages, images or other materials on the Site for the purpose of transacting business with Tally. You agree that you will not duplicate, publish, modify, create derivative works from, participate in the transfer of, post on the Internet, or in any way distribute or exploit the Site, or any portion of the Site for any public or commercial use without the express written consent of Tally. Additionally, you agree that you will not (i) remove or alter any author, trademark or other proprietary notice or legend displayed on the Site (or printed pages produced from the Site); and (ii) make any other modifications to any documents or information obtained from the Site other than in connection with completing information required to transact business with Tally.
As a condition of your use of the Site, you agree that you will not, and you will not take any action intended to: (i) access data that is not intended for you; (ii) invade the privacy of, obtain the identity of, or obtain any personal information about any Tally client or user of the Site; (iii) probe, scan or test the vulnerability of the Site or the Tally network or breach security or authentication measures without proper authorization; (iv) attempt to interfere with service to any user, host or network or otherwise attempt to disrupt our business, including by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing” or “crashing;” or (v) send unsolicited mail, including promotions and/or advertising of products and services. If you violate our system or network security, it could result in civil or criminal liability to you.
BY USING THE SERVICE YOU AGREE NOT TO:
Use the Service for any illegal purpose, or in violation of any local, state, national, or applicable international law;
Violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
Post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, as determined by us;
Interfere with security-related features of the Service, including by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
Interfere with the operation of the Service or any user’s enjoyment of the Service, including by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code; (ii) making unsolicited offers or advertisements to other users of the Service; (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, procedures or operations of such networks, equipment, or servers;
Perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the accounts of others without permission, or falsifying your age or date of birth;
Sell or otherwise transfer Service access or any Service-related content or any right or ability to view, access, or use any Service-related content or materials;
Provide Financial Information to us which you do not have the authority to provide;
Open more than one Tally account;
Use the Feature to make payments to anyone outside the United States or its territories, make payments to unlawful Internet gambling sites, make payment to or at the direction of any government agency or entity, or make any court-ordered payments;
Attempt to do any prohibited conduct, or assist or permit any persons in engaging or attempting to engage in any prohibited conduct.
Termination of Use; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, we, in our sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you or we terminate your account, you will remain obligated to pay all outstanding amounts owed to us or on your line of credit, if any, relating to your use of the Service incurred prior to termination.
Links to Other Websites and Services
The Site may contain links to outside services and resources, the availability and content of which Tally does not control. We are not responsible for examining or evaluating, and we do not warrant the offering of these services and resources or the content of their web sites. Tally does not assume any responsibility or liability for the actions, products, and content of these and any other persons. Any concerns regarding any such services or resources should be directed to the service or resource.
Disclaimer of Warranties
PLEASE READ CAREFULLY AS THIS AFFECTS YOUR LEGAL RIGHTS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TALLY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
TALLY MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TALLY OR ITS SERVICE PROVIDERS THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Limitation of Liability
PLEASE READ CAREFULLY AS THIS AFFECTS YOUR LEGAL RIGHTS.
YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. YOU AGREE THAT TALLY OR ITS AFFILIATES WILL NOT BE LIABLE FOR ANY HARMS, WHICH LAWYERS AND COURTS OFTEN CALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF TALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH HARMS, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES; (iii) ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICE; or (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY OTHER PERSON.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. HOWEVER, EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS LIMITATION OF LIABILITY SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
To the extent permitted by applicable law, you agree to protect and fully compensate Tally and its affiliates from any and all claims, losses, damages, penalties, fines, forfeitures, legal fees (including legal fees incurred in connection with the enforcement of your indemnification obligation) and related costs, judgments, and any other costs, fees and expenses incurred by Tally or its affiliates caused by or arising from your use of the Service, your violation of these Terms or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.
Any failure by Tally to exercise any rights or enforce any of these Terms is not a waiver of such rights or terms. If any provision of these Terms or their application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of these Terms, or the application of such provision in other circumstances, will not be affected, and each provision will be valid and enforced to the fullest extent permitted by law.
Dispute Resolution and Arbitration
THIS SECTION AFFECTS YOUR RIGHTS. PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS.
GENERALLY. In the interest of resolving disputes between you and Tally in the most expedient and cost effective manner, to the extent permitted by applicable law, you and Tally agree that any and all disputes arising in connection with the Service will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Service, whether based in equity, contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of the Service.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TALLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION.
EXCEPTIONS. We both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, or (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available.
ARBITRATION RULES. Any arbitration between you and Tally will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. Your arbitration filing fees will be governed by the Consumer Rules. If it is determined by the arbitrator that you cannot afford such fees, Tally will pay all arbitration fees and expenses.
HEARING. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a nonappearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules.
NO CLASS ACTIONS. YOU AND TALLY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Tally agree otherwise, the arbitrator may not join more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
ENFORCEABILITY. You agree that the enforceability of these arbitration provisions will be determined by the arbitrator as provided in the AAA Rules. You agree that the arbitration provisions of these Terms in effect at the time of demand or action, and not the time of your or our alleged injury, will be the provisions that will be applied by the arbitrator or a court. If class actions provisions are found to be unenforceable or if the entirety of the arbitrations provisions are found to be unenforceable, then the entirety of the arbitration provisions will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Governing Law Section below will govern any action arising out of or related to these Terms.
To the extent permitted by applicable law, (i) these Terms will be governed by the laws of the State of California without regard to conflict of law principles, and (ii) to the extent that any lawsuit or court proceeding is permitted under these Terms, we both agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes.
The Services are offered by Tally, located at 375 Alabama Street, Suite 325, San Francisco, CA 94110. You may contact us by sending correspondence to this address or by emailing us at email@example.com. Tally is available Monday through Friday from 9 a.m. to 5 p.m. Pacific Time. If you would like these Terms emailed to you, please email us at firstname.lastname@example.org and request a copy to be sent to your e-mail address.