By executing an Order Form that incorporates this Customer Agreement or by using any services, software, or hardware provided or otherwise made available by Arryved, Inc. (“Arryved”), you agree to be bound by and comply with the terms and conditions of this Customer Agreement and the Order Form (collectively, the “Agreement”). You, the individual or entity executing such Order Form, shall hereinafter be referred to as the “Customer.” If the Customer is an entity, Customer represents and warrants that the individual(s) signing the Order Form have the right and authority to the Customer to this Agreement. Customer and Arryved may be referred to each as a “Party” and together as the “Parties.” The “Effective Date” of this Agreement is the date identified as such in the Order Form. Capitalized terms not defined in the Section in which they first appear shall have the meanings set forth in Section 14 of this Agreement.
1. Scope of Agreement
This Agreement governs (a) Customer’s access to and use of, to the extent set forth in an Order Form, (i) Arryved’s proprietary software-based subscription service which enables restaurants, vendors, and merchants to input, track, and manage Guest orders, payments, inventory, and staffing through the use of certain technology (including the Embedded Software and any updates, upgrades, modifications, or derivatives of any of the foregoing, the “Platform”); (ii) any Professional Services to be provided by Arryved or its partners to Customer; (iii) the facilitation of payments by Guests for goods and services through the Platform (“Payment Processing Services”); and (iv) support for Guests and Users in connection with the Platform (all of the foregoing, the “Services”); and (b) Customer’s purchase of any Hardware from Arryved or an authorized reseller of Arryved products in connection with the Services.
2. Right to Use the Services.
- 2.1. Access to Platform. During the Subscription Term and subject to this Agreement, Arryved hereby grants to Customer a limited, revocable, royalty-free, non-exclusive, non-sublicensable, non-transferable (except for permitted assignments as hereinafter described) right to access and use the Platform, and to permit Users to access and use the Platform, in accordance with the Documentation, subject to the specific modules, devices, users, and features selected by Customer in an Order Form, and solely for Customer’s internal business purposes and not for resale or distribution. Customer’s access to the Platform may include access to certain Arryved Apps. To the extent applicable, Customer shall ensure that each User has read and agreed to any end user license agreement presented to the User on the Arryved App.
- 2.2. Professional Services.
- 2.2.1. Arryved may provide Customer with those Professional Services which are set forth in an Order Form signed by each Party. Customer shall pay the Fees set forth in the Order Form for such Professional Services.
- 2.2.2. Customer shall: (a) reasonably cooperate with Arryved in all matters relating to the Professional Services; (b) respond promptly to any reasonable Arryved request to provide information, approvals, authorizations or decisions that are reasonably necessary for Arryved to provide the Professional Services; and (c) provide such Customer materials or information as Arryved may reasonably request to provide the Professional Services and ensure that such materials or information are complete and accurate in all material respects.
- 2.2.3. Any dates specified in an Order Form for Professional Services are estimates only and are contingent upon Customer’s timely compliance with its obligations relative to such implementation and any dependencies on Customer’s performance. If, and to the extent of, any default or breach on the part of Arryved under this Agreement that is caused in whole or in part as a result of Customer’s failure to timely perform its obligations under this Agreement and/or any Order Form, then Arryved shall be entitled to relief from all liability with respect to such failure or delay, and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ prior written notice to Customer.
- 2.3. Access to Payment Processing Services. Arryved’s Payment Processing Services allow Customer to accept Guests’ Cards as payment for Customers’ services or goods. In providing the Payment Processing Services, Arryved acts in the capacity of a payment facilitator, not a bank or payment processor. Customer shall at all times comply with the requirements of Section 4 of this Agreement and with the terms and conditions applicable to the Payment Processor and Card Network.
- 2.4. Reporting. Arryved may, from time to time and in its sole discretion, make certain reports, summaries, and analyses related to Customer’s use of the Services (“Reports”) available to Customer. Arryved retains all rights in and to the Reports and any Intellectual Property Rights therein. Customer shall use Reports only for its internal business purposes.
- 2.5. Support and Maintenance.
- 2.5.1. During the Subscription Term, provided that Customer has paid all Fees then due and payable, Arryved shall make available a problem reporting service and remote assistance (through telephone, email, or other mechanism(s)). Arryved will use reasonable efforts to provide Customer with at least thirty (30) days’ notice prior to implementing any changes to the Platform that may materially impact Customer’s use of the Services.
- 2.5.2. Arryved may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors, or bugs. Arryved will not be liable for any such interruptions, delays, errors, or bugs. Arryved may contact Customer in order to assist Arryved with the Services and obtain information needed to identify and fix any errors. The Services do not function with every mobile device and may only be used on approved Hardware. Arryved may alter which Hardware is approved as compatible with the Services in Arryved’s discretion from time to time, subject to reasonable notice.
- 2.6. Users; Access and Security.
- 2.6.1. Customer is solely responsible for maintaining the security and control of its premises and equipment (including Hardware and Embedded Software). Customer is responsible for implementing and maintaining appropriate technical, organizational, and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware, and Customer’s obligations under this Agreement. For the avoidance of doubt, this includes access controls and ensuring that only those individuals that need access to Guest Data are provided with such access. In all cases, this obligation shall not limit Customer’s obligations regarding the implementation of any security measures required under Applicable Law and Rules.
- 2.6.2. Customer may permit certain Users to access and use the Services; provided that Customer shall be responsible for its Users’ use of the Services and its Users’ compliance with this Agreement. Customer shall ensure that its Users are informed of all applicable obligations and restrictions hereunder and that its Users have agreed to Arryved’s Terms of Service, available at https://www.arryved.com/terms-of-service/.
- 2.6.3. Each User will either select or be assigned a unique user identification name and password (“User Credentials”) for access to and use of the Services. Customer will ensure that the User Credentials issued to or created by a User will be used only by that User. User Credentials may not be shared between multiple Users. Customer is solely responsible for maintaining the confidentiality and security of all User Credentials and shall be responsible for all use of the Services using the User Credentials. Customer shall notify Arryved promptly upon becoming aware of any actual or suspected (a) unauthorized use of User Credentials; or (b) any other breach or suspected breach of this Agreement or Arryved security practices. Arryved reserves the right to terminate any User Credentials which Arryved reasonably determines may have been used by an unauthorized third party or by any User or individual other than the User to whom such User Credentials were originally assigned.
- 2.6.4. As part of the Services, Arryved may from time to time communicate with Customer using the contact methods provided by Customer at the time of application and/or during Customer’s use of the Services. Customer expressly agrees that if it or any of its Users provide a mobile phone number or email address to Arryved, Arryved is authorized to contact Customer or Users, including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Customer.
- 2.7. Use Restrictions. Except as expressly permitted by this Agreement, Customer shall not, and shall not permit any third party to, directly or indirectly: (a) use the Services for the benefit of any third party (except for the benefit of Guests to the extent permitted herein); (b) access or use the Platform except for its intended purpose, as specified herein and in the Documentation; (c) remove any Arryved Marks from the Platform or any component or output thereof; (d) use the Services to build or support, or assist a third party in building or supporting, products or services competitive with the Services; (e) conduct any penetration or vulnerability testing on the Platform, the Hardware, or Arryved’s network; (f) use the Platform to develop or market any product, software or service that is functionally similar to or derivative of the Platform, or for any other purpose not expressly permitted herein; (g) alter, modify, translate, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Platform; (h) sell, distribute, rent, assign, lease, timeshare, post, link, or otherwise commercially exploit the Platform or use the Platform as a service bureau; (i) copy any features, functions, text, or graphics of the Platform, including without limitation, the structure, sequence, or organization of the Platform; (j) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with Arryved’s provisioning of the Services (including but not limited to the use of automated systems or software (e.g., screen scraping) to extract data from the Platform or other aspects of the Services); (k) use any unauthorized robot, spider, scraper, or other automated means to access the Platform or engage in any scraping, data mining, harvesting, data aggregating or indexing of the Platform; (l) use the Platform to store or transmit any virus, worm, trap door, time bomb, trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data; or (m) violate or breach any operating procedures, requirements, or guidelines regarding Customer’s access to and use of the Services that are posted on or through the Platform or otherwise provided or made available to Customer.
- 2.8. Auditing. As part of this Agreement, Arryved shall, with reasonable notice, have the right to perform an audit of Customer’s facilities, systems, and personnel to verify Customer’s compliance with Section 2.7 if it has a reasonable suspicion of a breach or potential breach of the terms of this Agreement. Customer will provide full cooperation to Arryved and its Representatives in connection with any such audit.
- 2.9. Third-Party Property. As part of Customer’s access to and use of the Services, Customer may access tools, components, modules, sites, links, or other materials from third parties (collectively, “Third Party Property”). Arryved has no ownership or control over the content, characteristics, or specifications of Third Party Property, and Arryved hereby expressly disclaims all responsibility or liability therefor. Use of or access to Third Party Property may be subject to additional legal terms and conditions effective between Customer and the third party proprietors, administrators, or licensors of such Third Party Property. Arryved shall have no responsibility or liability in connection with such terms.
- 2.10. Guest Communications; Guest Data. Customer shall comply with each of the following requirements:
- 2.10.1. Any Guest who requests delivery of Transaction receipts via text message or email must individually enter their Guest Data in the appropriate space displayed on the applicable device, except where the Guest expressly requests that Customer enter the Guest Data on the Guest’s behalf.
- 2.10.2. Any communications provided to Guests as part of the Services, including without limitation loyalty programs and marketing communications, or otherwise receive communications from Customer as part of the Services, must have provided their contact information as part of the Services and have consented to these communications as required by Applicable Law and Rules;
- 2.10.3. Customer shall not send any communications, including transactional or commercial messages, to Guests in violation of Applicable Law and Rules, including without limitation the Telephone Consumer Protection Act of 1991, to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced).
- 2.10.4. To the extent required by Applicable Law and Rules, if Customer amends or terminates its loyalty program, Customer will provide reasonable notice of such change or termination of its loyalty program to Guests.
- 2.10.5. Customer shall not send any communications, including transactional or commercial messages, to Guests in a manner not consistent with the purposes for which the Guest has provided consent or has provided the Guest Data.
3. Hardware; Embedded Software.
Customer shall purchase one or more units of Hardware in connection with the Services. Customer shall be responsible for the proper use, storage, and disposal of all such Hardware. Customer acknowledges and agrees that with respect to Hardware, change of title and ownership, and risk of loss, shall transfer to Customer at the point of shipment or, if later, the date on which Customer pays all amounts owed for the Hardware. Except for Embedded Software, which is licensed and not sold, title to the Hardware shall pass to Customer upon shipment by Arryved. Embedded Software is licensed to Customer under this section on a limited, non-exclusive, revocable, non-sublicensable, non-transferable basis, solely for the purposes of using the Hardware. Customer may use the Embedded Software only in connection with the Hardware in which it is embedded, and may not modify, distribute, copy, or reverse engineer the Embedded Software.
4. Payment Processing Terms.
- 4.1. Authorization. Customer hereby agrees that Arryved may share information about Customer and Customer’s payment details with the relevant payment provider(s) as necessary to provide the Payment Processing Services. If Arryved or the payment provider(s) conclude that Customer is not eligible to use the Services, Arryved may decide, in its sole discretion, to terminate this Agreement. Customer acknowledges and agrees that it shall, at all times, remain in compliance with the all applicable agreements with Payment Processor(s). Arryved’s Payment Processing Services allow Customer to accept Guests’ Cards as payment for Customer’s services or goods. In providing these Payment Processing Services, Arryved acts in the capacity of a payment facilitator, not a bank or payment processor. Arryved partners with certain Payment Processor(s) to process Card payments and deposit revenue unto Customer Bank Accounts. The effectiveness of this Customer Agreement is contingent upon Customer’s completion of an Application for Merchant Card Processing and Customer’s agreement to and compliance with the Payment Processor’s Merchant Card Processing Agreement. With respect to the Payment Processing Services, Customer shall, at all times (a) ensure compliance with Cardholder data security and storage requirements; (b) maintain fraud and Chargebacks below Card Network thresholds; (c) review and understand the terms of the Merchant Card Processing Agreement; and (d) comply with Card Network rules.
- 4.2. Customer Obligations. Customer represents and warrants that it will comply with and will contractually require its suppliers and agents to comply with, the provisions of the Cardholder Information Security Program (CISP) and PCI DSS, or other security program as required by the Card Network and demonstrate compliance with these security obligations. Customer further represents and warrants that it will not: (a) discriminate against Cards or Card issuers (e.g., limited acceptance options) except as permitted by the Payment Processor; (a) submit any Transaction to Arryved that was previously charged back and subsequently returned to Customer, irrespective of approval by a person authorized to use the relevant Card or the accounts established in connection with the relevant Card (a “Cardholder”); (b) knowingly submit any Transaction that is illegal or that the Customer should have known was illegal; (c) submit a Transaction that it knows, or should have known is either fraudulent or not authorized by the Cardholder; (d) require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed, nor request a Card Verification Value 2 (“CVV2”) for a card-present Transaction, nor retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales Transaction, nor any other data prohibited by the applicable Card Network regulations or the Agreement, including CVV2; (e) add a surcharge to Transactions, except as expressly permitted by, and in full compliance with Applicable Laws and Rules.
- 4.3. Restrictions. Except as otherwise permitted by Arryved in writing, the Payment Processing Services may only be used in the United States of America; provided, however, that Arryved reserves the right to restrict Customer’s ability to accept certain payments in United States territories. As such, Customer may not export or otherwise make available the Payment Processing Services directly or indirectly, outside of the United States of America, and Customer acknowledges that the Services may be subject to export restrictions imposed by Applicable Law and Rules, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII). Without limiting the generality of the foregoing, Customer shall not act as a payment intermediary or aggregator on behalf of any third party. This means that Customer may not use the Services to handle, process or transmit funds for any third party. Customer is also prohibited from using the Services to process cash advances.
5. Intellectual Property and Data.
- 5.1. Customer Data. Customer owns all Customer Data. Customer hereby grants to Arryved a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display, manipulate, reproduce, transfer, sublicense, and transmit Customer Data in connection with the Services including the development of potential offerings or other future services under consideration by Arryved (whether developed independently by Arryved or through a third party). Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Data. Customer is solely responsible for the accuracy, quality, content, and legality (including compliance with all Applicable Law and Rules) of Customer Data, the means by which Customer Data is acquired, and any transfer and use of Customer Data outside of the Service by Customer or any third party authorized by Customer. Customer represents, warrants, and covenants that it has all rights necessary (including without limitation all required individual consents) to upload the Customer Data to the Services and to otherwise have such Customer Data used or shared, as applicable, by Arryved in relation to the Services. Customer will not upload or store any data or materials containing any such information in violation of this Section.
- 5.2. Guest Data. The Parties acknowledge and agree that each party may collect Guest Data in connection with the Services. Each Party shall comply with all Applicable Law and Rules in collecting and processing Guest Data, including laws applicable to direct marketing, telemarketing, and unsolicited e-mails or text messages. To the extent Customer’s use of the Guest Data is outside the scope described in this Agreement or within Arryved’s Privacy Statement, Customer shall be solely responsible for putting in place any additional controls (e.g., notice and consent) and governance in relation to such use. Arryved agrees to protect Customer Data with no less than reasonable and appropriate administrative, technical, and physical data security safeguards taking into account the nature and sensitivity of the data. Arryved is under no obligation to share any Guest Data which is collected by Arryved and unavailable to Customer for any reason. If a Guest ceases to consent or affirmatively revokes consent for Customer’s collection, use or disclosure of their Personal Information, Customer must promptly cease all such use, and advise Arryved of any changes to consent impacting Personal Information which Customer may have provided to Arryved.
- 5.3. Service Data. Notwithstanding anything to the contrary in the Agreement, Arryved may create de-identified data from Customer Data and Guest Data that does not identify Customer, its Users, its Guests, or any other identifiable individual, household, user, browser, or device (the “Service Data”). Service Data may include data analysis across Arryved, its customers, and its partners. During the Subscription Term and at any time thereafter, Arryved may use or share Service Data for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of its products and services, the development of new products and services, or otherwise. Upon creation, as between Customer and Arryved, Arryved shall own and retain all Intellectual Property Rights in and to the Service Data entirely without obligation to Customer and may use and disclose the Service Data in its sole discretion.
- 5.5. License to Customer Marks. Customer hereby grants Arryved a nonexclusive, royalty-free right and license to use and display Customer’s Marks on its website, marketing collateral and other public disclosures, or to otherwise identify Customer as a customer of Arryved. Arryved obtains no rights in the Customer Marks except for the limited right described in this Section 5.5, and Customer retains all right, title, and interest in and to the Customer Marks. All use of the Customer Marks by Arryved will inure to Customer.
- 5.6. Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Arryved with any feedback or suggestions regarding the Services, including potential improvements or changes thereto (collectively, “Feedback”), such Feedback shall not be considered Confidential Information of Customer, and Arryved may use, disclose, and exploit such Feedback in any manner it chooses. Customer may voluntarily submit Feedback at any time. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
- 5.7. Ownership of Arryved IP. Customer acknowledges and agrees that the Service, the Documentation, the Platform, the Feedback, the Embedded Software, the Service Data, the Guest Data, the Arryved Marks, and any and all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of Arryved provided under the Agreement (including all Intellectual Property Rights embodied therein or associated with any of the foregoing) (collectively, the “Arryved IP”) are and shall remain solely and exclusively owned by Arryved or its licensors. This Agreement in no way conveys any right, title, or interest in the Arryved IP other than the limited licenses provided under this Agreement. All rights with respect to the Arryved IP not licensed to Customer hereunder are fully reserved by Arryved and/or its licensors.
6. Data Privacy and Security.
As part of this Agreement and Customer’s use of the Service (including the provision and use of Customer Data and Guest Data), Customer agrees that it will collect, store, and use Personal Information collected as part of this Agreement and the Services in a manner consistent with all Applicable Law and Rules applicable to data privacy and data security, including those related to disposal and international transfer. Customer is fully responsible for the security of all data in its possession or control as a result of using the Services (including without limitation the Customer Data and Guest Data).
Customer shall use encryption to transmit any Personal Information collected using the Platform. If Arryved makes available new versions of its Platform to address a security breach or security vulnerability regarding Personal Information, then Customer shall promptly implement such updates, to the extent the update does not install automatically.
7. Fees and Payments.
- 7.1. Fees. Customer shall pay Arryved the Fees set forth in the Order Form and make such payment in accordance with the instructions and schedule set forth in the Order Form. Arryved may charge interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Except with respect to Processor Fees, which are determined by the Payment Processor, the Fees will not increase until the Subscription Term renews, provided that Customer’s usage of the Service does not exceed the limitations set forth in the Order Form; however, Arryved reserves the right to increase its rates for subsequent renewal Subscription Terms. Arryved shall use commercially reasonable efforts to notify Customer of an increase in Fees at least sixty (60) days before such increase takes effect.
- 7.2. Taxes. All amounts due hereunder are exclusive of all sales, use, excise, service, value added or other taxes, duties, and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service. Customer shall be solely responsible for all such taxes, duties, and charges (except for taxes imposed on Arryved’s income). If Arryved is required by the applicable taxing jurisdiction to charge Customer taxes for the provision of Services under this Agreement, Arryved shall include the corresponding tax amount on the applicable invoice. If in a given calendar year Customer exceeds $600 in gross revenue, Arryved may report annually to the Internal Revenue Service (IRS) and applicable state tax authorities as required by Applicable Law and Rules, Customer’s name, address, telephone number, Tax Identification Number (including, but not limited to a Social Security Number (SSN), or Employer Identification Number (EIN)), applicable IRS account numbers, the total gross dollar amount of the Transactions which Customer receives in a calendar year, and the total gross dollar amount of the Transactions which Customer receives for each month in the applicable calendar year, without regard to adjustments for applicable credits, cash equivalents, discount amounts, fees, refunded amounts, or any other amounts, the dates of any Transactions, designated merchant category codes, applicable backup withholding details. Such criteria and thresholds noted above may vary, depending on Applicable Law and Rules. Customer further acknowledges and agrees that Arryved may take action in accordance with Applicable Law and Rules, including initiating backup withholding, when appropriate.
8. Term & Termination.
- 8.1. Term. This Agreement becomes effective on the date on which the first Order Form is executed by the Parties. This Agreement shall remain in effect until all Order Forms have expired or terminated. The start and end date of Customer’s access to the Service or any part thereof shall be as set forth in the applicable Order Form.
- 8.2. Termination for Breach. Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and, where such breach is curable, has not cured such breach within thirty (30) days’ receipt of written notice thereof. In the event Customer terminates this Agreement due to Arryved’s uncured breach, Customer shall be entitled to a pro rata refund of any Fees paid for Services not delivered as of the date of termination, to the extent such Fees have been paid in advance. In the event Arryved terminates this Agreement due to Customer’s uncured breach, all amounts due under the then-effective Order Form(s) shall immediately become due and payable and Customer shall not be entitled to any refund of Fees paid in advance. Except as expressly set forth in this Agreement, all Fees for Services are non-refundable and non-cancellable. Upon termination of this Agreement by either Party, all Order Forms shall immediately expire. Termination notices to Arryved shall be sent to [email protected].
- 8.3. Suspension. Arryved may suspend Customer’s User Credentials and access to the Services, and/or may terminate the Agreement upon written notice to Customer in the event any of the following occur: (a) any amount owed by Customer under this or any other Agreement with Arryved that is not subject to a good faith dispute is sixty (60) or more days overdue; (b) Customer provides any inaccurate, untrue or incomplete information to Arryved in connection with the Services; (c) Arryved determines that Customer is incurring excessive Chargebacks; (d) Customer violates Sections 2.7, 4.2, 4.3, 5.4, 6, or 12; (e) any agreement between Arryved and its Payment Processor pursuant to which Arryved is authorized to provide access to Payment Processing Services terminates or expires; (f) (1) Arryved determines in its discretion that any change to, clarification or interpretation by a regulatory authority or Card Network of, or enactment of any Applicable Law and Rules, would render any portion of the Services illegal, otherwise have a material adverse effect upon the Services or a Party, or pose unreasonable risk to Arryved or (2) Arryved is directed to terminate the Agreement or the Services by a regulatory authority, Payment Processor, or Card Network; or (g) for any reason upon ninety (90) days’ prior written notice to Customer. As determined it its sole discretion, Arryved, its payment provider(s), and/or one or more Card Network(s) may terminate this Agreement immediately and without notice for any suspected issues that could potentially cause a violation of this Agreement, the Card Network rules, any law or regulation, or may impose a potential security threat, data breach, fraud or other crime, or damage to the Card Network(s).
- 8.4. Effects of Termination; Survival. Upon any termination of this Agreement: Customer’s right to access and use the Services covered by the applicable Order Form(s) will terminate (a) all rights granted to Customer hereunder shall terminate and Arryved shall no longer provide access to the Service to Customer, and (b) Customer shall cease using the Service. Except in the event that Customer terminates in accordance with Section 8.2, termination shall not relieve Customer’s obligation to pay all Fees accrued and payable before the effective date of termination. Any obligations that have accrued prior to termination shall survive termination of this Agreement. Upon any such termination or expiration, all Sections of this Agreement which by their nature should survive termination or expiration will survive, including without limitation, the following Sections: 2.8, 4, 5.7, and 7, through 14.
- 8.5. Retrieval of Customer Data. Subject to the Payment Processing Terms, Customer acknowledges and agrees that Arryved has no obligation to retain Customer Data and that Arryved will have the right to irretrievably delete and destroy Customer Data after thirty (30) days following the termination of this Agreement. Customer agrees it will continue to permit Arryved access to Customer’s Bank Account until all amounts due under this Agreement are paid in full. Customer further acknowledges and agrees that Arryved shall have no obligation to provide Customer with access to Customer Data, Guest Data, or any other data or information, or to provide assistance in retrieving Customer Data or Guest Data, after thirty (30) days following the effective date of termination.
9. Representations and Warranties; Disclaimer of Warranty.
- 9.1 . Customer Representations and Warranties. Customer represents and warrants that Customer meets the following minimum requirements: (a) Customer is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (b) Customer has provided its legal name or business name under which it sells goods and/or services; (c) the taxpayer identification number identified by Customer is Customer’s legal taxpayer identification number; (d) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement; (e) Customer has the right to provide or make available the Customer Data; (f) Customer’s use of the Services, including all Transactions initiated by Customer, will comply with all Applicable Law and Rules; (g) any Transaction processed by Customer will accurately describe the goods being sold and delivered to the applicable Guest; (h) Customer has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Customer’s obligations under this Agreement.
- 9.2. Arryved Representations and Warranties.
- 9.2.1. Platform Warranty. Arryved represents and warrants that the Platform, when used in accordance with Documentation, will conform to the Documentation in all material respects. Arryved does not warrant that it will be able to correct all reported defects or that use of the Platform will be uninterrupted or error free. Arryved makes no warranty regarding features or services provided by any third parties, including the Payment Processing Services. Arryved does not warrant that the Payment Processing Services, which may permit Customer to process payments on a compatible mobile device, will be compatible with Customer’s mobile device or third-party carrier. Customer’s use of the Platform may be subject to the terms of Customer’s agreements with its mobile device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and Customer is solely liable for the payment of all such carrier fees. Arryved retains the right to modify the Platform in its sole discretion. Customer’s sole remedy for Arryved’s breach of the warranty in this paragraph shall be that Arryved shall remedy the applicable error, or if Arryved is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the Fees, excluding Processor Fees, prepaid for the Platform for the remainder of the Subscription Term.
- 9.2.2. Hardware Warranty. The limited hardware warranty provided during the launch process constitutes the complete warranties provided by Arryved to Customer relating to the Hardware.
- 9.2.3. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9.2, ARRYVED MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (B) THAT THE SERVICE OR HARDWARE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE; OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
10. Limitations of Liability.
- 10.1. Disclaimer of Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF DATA, LOST PROFITS OR REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICE ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 10.2. Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ARRYVED’S TOTAL CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ARRYVED (EXCLUDING PAYMENT PROCESSOR FEES) DURING THE PREVIOUS TWELVE (12) MONTHS OF THE THEN-CURRENT SUBSCRIPTION TERM.
- 10.3. Exclusions. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL NOT APPLY TO: (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11; (C) LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 12; AND (D) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON THE USE OF THE SERVICE).
- 10.4. Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT ARRYVED HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
- 11.1. Claims Against Customer. Arryved shall defend any claim, suit or action against Customer and its directors, officers and employees (“Customer Indemnified Parties”) brought by a third party against a Customer Indemnified Party to the extent based on an allegation that the Platform infringes, misappropriates, or otherwise violates any Intellectual Property Rights of such third party (each, a “Customer Claim”), and Arryved shall indemnify and hold Customer harmless, from and against damages, losses, liabilities and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim.
- 11.2. Claims Against Arryved. Customer shall defend, any claim, suit or action against Arryved and its directors, officers and employees (“Arryved Indemnified Parties”) brought by a third party to the extent that such claim, suit or action arises out of arising out of (a) Customer’s use of the Services, other than those attributable to Arryved’s gross negligence or willful misconduct, or for which Arryved is responsible as set forth in Section 11.1 above; (b) Arryved’s processing activities on behalf of Customer; (c) the business of Customer; (d) any Transaction; (e) any noncompliance with any Applicable Law and Rules by Customer or its Users; (f) any non-compliance with Section 5.4 of this Agreement; (g) Customer’s or any Users’ breach or nonperformance of any provision of this Agreement; (h) Customer’s or its Users’ reliance on any Report or other information generated through the Services; (i) any tax assessment; or (j) any claims against Arryved related to the use by Arryved of any Customer Data or any of Customer’s intellectual property (each, an “Arryved Claim”) and Customer shall indemnify and hold Arryved harmless, from and against Losses that are specifically attributable to such Arryved Claim or those costs and damages agreed to in a settlement of such Arryved Claim.
- 11.3. Indemnification Process. As conditions of the indemnification obligations in Sections 11.1 and 11.2 above: (a) the applicable Customer Indemnified Party or Arryved Indemnified Party (the “Indemnitee”) will provide the indemnifying party (the “Indemnitor”) with prompt written notice of any Arryved Claim or Customer Claim, as applicable (each, a “Claim”) for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby); (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim; and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment that requires that the Indemnitee make an adverse admission or any monetary payment without the prior written consent of the Indemnitee (such consent not to be unreasonably withheld).
- 11.4. Exclusions. Arryved’s obligations in Section 11.1 above shall not apply to any Claim to the extent arising from or relating to: (a) misuse of the Services not strictly in accordance with the Documentation, Arryved’s instructions, and this Agreement; (b) any modification, alteration or conversion of the Services not created or approved in writing by Arryved; (c) any combination of the Services with any computer, hardware, software or service not provided by Arryved; (d) Arryved’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data. If the Services is or may be subject to a Customer Claim, Arryved may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Services as contemplated herein; (ii) replace or modify the Services so that it becomes non-infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any prepaid Fees for the Services associated with the then-current Subscription Term. Arryved’s obligations in this Section 11 shall be Arryved’s sole obligations, and Customer’s sole remedies, in the event of any intellectual property infringement or misappropriation claims, suits, or actions.
- 12.1. Definitions. “Confidential Information” means information that is disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) hereunder during the term of this Agreement that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, Guest Data, User data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. Receiving Party shall not have any obligations of confidentiality for any information that: (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, Receiving Party; (b) is rightfully in Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information; or (d) is rightfully obtained by Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Services, Documentation, and each component thereof shall be deemed Confidential Information of Arryved, regardless of whether or not they are labeled or identified or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
- 12.2. General Obligations. Receiving Party shall, during the term of this Agreement and thereafter, (a) not disclose Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 12; and (d) protect all Confidential Information from unauthorized use, access or disclosure in the same manner as Receiving Party protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) Receiving Party from disclosing Confidential Information to the extent required by Applicable Law and Rules, rule or regulation (including a court order or other government order); provided that Receiving Party provides Disclosing Party prior written notice of such disclosure, to the extent permitted, and reasonably cooperates with efforts of Disclosing Party to seek confidential treatment thereof, to the extent such cooperation is requested by Disclosing Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 12 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
- 12.3. Return or Destruction. Except as otherwise expressly provided in this Agreement, Receiving Party will return to Disclosing Party, or destroy or erase, Confidential Information in its possession in tangible form, upon the termination of this Agreement; provided that: (a) Receiving Party may retain a copy of Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto; (b) Receiving Party may retain copies of Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers; and (c) Receiving Party may retain Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
- 12.4. Injunctive Relief. Each Party acknowledges that a breach or threatened breach of this Section 12 would cause irreparable harm to the non-breaching Party, the extent of which would be difficult to ascertain. Accordingly, each Party agrees that, in addition to any other remedies to which a Party may be legally entitled, the non-breaching Party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 12 by the other Party or any of its employees or agents.
- 13.1. Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by either Party without the prior written consent of the other Party (not to be unreasonably withheld or delayed), except that either Party may assign or transfer this Agreement without the other Party’s consent (a) to any of its affiliates, or (b) upon a change of control of a Party, a sale of all or substantially all assets of that Party, or by operation of law. Customer understands and agrees that, in the event its assignment of the Agreement results in a material change in Service usage, Arryved may require a renegotiation of Fees.
- 13.2. Entire Agreement; Precedence; Amendment. This Agreement (including the Order Form) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. In the event of conflict between the terms of this Agreement and the Order Form, the Order Form will control and take precedence only with respect to pricing, payment and other such commercial matters that do not affect the Parties’ fundamental responsibilities and risk allocations herein. Each Party hereby rejects the inclusion of any pre-printed terms and conditions on any purchase orders or other such contract documents. All amendments must be in signed writing by each Party.
- 13.3. Notices. Either Party may give any notices issued in connection with this Agreement to the other Party at the address listed on the Order Form by (a) personal delivery, (b) certified mail, return receipt requested, (c) national overnight courier or (d) email.
- 13.4. Force Majeure. Except for payment obligations, neither Party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any other similar event beyond such Party’s control, and (b) could not have been prevented by the non-performing Party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing Party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing Party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such Party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.
- 13.5. Choice of Law. Any question, claim or controversy arising out of or related to this Agreementwill be governed by and construed in accordance with the federal and state laws of the State of Colorado, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
- 13.6. Compliance with Laws. Each Party shall comply with those laws, rules, and regulations that are specifically applicable to such Party.
- 13.7. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- 13.8. Waiver. No waiver by either Party of any provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- 13.9. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court or tribunal of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
- 13.10. Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.
- 14.1. “Applicable Law and Rules” means all federal, state, provincial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to Customer or Arryved, as applicable, including without limitation, any applicable tax laws and regulations, the requirements of the Bank Secrecy Act as amended by the USA Patriot Act (or similar law, rule or regulation), the requirements of the Office of Foreign Assets Control, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the relevant Card Network(s) operating regulations.
- 14.2. “Arryved Apps” means, collectively, mobile applications made available by Arryved as part of the Services, for download by Customers, Users, or Guests, as applicable, that enable Customers, Users, and Guests to interact with, access and use the Services.
- 14.3. “Arryved IP” has the meaning set forth in Sectaion 5.7.
- 14.4. “Arryved Marks” means Arryved trademarks, service marks, trade names, or logos.
- 14.6. “Card(s)” means most U.S.-issued, and most non-U.S. issued, credit and debit cards with a Visa, Mastercard, Discover or American Express logo, and/or any other card types, if applicable, of which Arryved reserves the right to add or remove at any time in its sole discretion.
- 14.7. “Card Network” means VISA®, Inc. (“Visa”) and Mastercard® International, Inc. (“Mastercard”), the Discover® Network (“Discover”), and the American Express® Network (“American Express”).
- 14.8. “Chargeback” means a Transaction that is reversed or charged back to Customer’s Bank Account if the Transaction: (a) is disputed; (b) is reversed for any reason by one or more Card Network(s), Arryved’s processor, a Guest, or Arryved’s financial institution; (c) was not authorized; or (d) is unlawful, suspicious or in violation of the terms or conditions of the Agreement.
- 14.9. “Customer’s Bank Account” means the bank account (or accounts) designated by Customer on the Order Form for the facilitation of Transactions and payment of Fees hereunder.
- 14.10. “Customer Data” means any files, graphics, images, text, emails, data or other information shared or otherwise made available to Arryved by Customer in the course of using the Hardware and Services, including without limitation Customer’s name, address, contact information, User information, products, loyalty program information, logos, menus listings, pricing, promotional information, advertisements, marks, branding, transaction details, and other information or material made available by Customer or on behalf of Customer to Arryved through the Services. Customer Data may include Personal Information, whether from Users or otherwise.
- 14.11. “Customer Marks” means Customer’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to Arryved for use with the Services.
- 14.12. “Documentation” means the designated user manuals, specifications, handbooks whether physical or digital, or other online materials furnished by Arryved that describe the features, functionality, or operation of the Services, as may be updated from time to time by Arryved in its discretion.
- 14.13. “Embedded Software” means the software installed on each piece of Hardware which enables the use of the Hardware in connection with the Services.
- 14.14. “Fees” means any fees outlined in an Order Form, including without limitation, fees for the Platform, Hardware, and Professional Services, and Processor Fees.
- 14.15. “Force Majeure Events” has the meaning set forth in Section 13.4.
- 14.16. “Guest” means a customer or patron of Customer’s who orders food, drink, merchandise or related products or services through the Services.
- 14.17. “Guest Data” means data and information, which may include Personal Information, collected by Arryved via the Services, such as when a Guest enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the Transaction; (iii) Card information; (iv) Guest purchase history; and (v) location information.
- 14.18. “Hardware” means any equipment, including any terminal, tablet, cable, scanner, printer, mount, switch, or other piece of physical hardware which is made available to Customer for purchase in connection with the Services.
- 14.19. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.
- 14.20. “Payment Processing Services” has the meaning set forth in Section 1.
- 14.21. “Payment Processor” means Total System Services, Inc. (TSYS) or other third-party payment platform which Arryved uses to process the Transactions and to facilitate Customer’s use of the Cards.
- 14.22. “Personal Information” means any information that relates to an identified or identifiable individual. Depending on the laws and regulations applicable to such information and to this Agreement, Personal Information may include, but is not limited to a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses and location-based information.
- 14.23. “Platform” has the meaning set forth in Section 1.
- 14.24. “Processor Fees” means the fees determined and collected by the Payment Processor for the Transactions, including without limitation interchange fees.
- 14.25. “Professional Services” means any consulting, installation, integration, customization, non-defect related support, or other services provided to Customer hereunder.
- 14.26. “Representatives” means a Party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants, and other professional representatives), contractors and third-party service providers.
- 14.27. “Services” has the meaning set forth in Section 1.
- 14.28. “Subscription Term” means the period during which Customer is permitted to access the Platform pursuant to the Order Form, including the initial term and all renewals thereto.
- 14.29. “Transaction” means payment (whether by cash, credit card, gift card, or other method of payment) by a Guest for services (including the provision of food or drink) provided by Customer where Customer has utilized the Services. There may be more than one Transaction per table and/or per Guest.
- 14.30. “User” means an individual who is authorized by Customer to use the Services. Users may include Customer’s employees, consultants, contractors, agents, or third parties with whom Customer transacts business. Users do not include Guests.