AIYA Terms of Use

Please read these terms of use (“Agreement”) carefully as this Agreement constitutes a binding contract between the user that accepts this Agreement (“Merchant”) and AIYA Technology System, LLC, a Delaware company having its registered address at 36-18 Main St, 12th Floor Flushing, NY, 11354 (“AIYA”) governing your use of the services available through the AIYA website at (“Site”) and any mobile applications (each, an “App”) through which they may be made available (the “Services”). By signing an acceptance, checking an opt-in box, clicking on “I accept” or otherwise accepting this Agreement on the sign-up page, installing the App, or otherwise accessing or using the Services, Merchant acknowledges that they have read, understood, and agree to be bound by and comply with the terms of this Agreement. If Merchant is an entity, partnership, or other organization, then Merchant and the individual accepting this Agreement each represent that: (i) the signor for Merchant is an authorized representative of the Merchant with the authority to bind that entity to this Agreement; and (ii) such entity agrees to be bound by this Agreement. If Merchant does not agree to the terms of this Agreement, then they are not permitted to use the Services.

ARBITRATION NOTICE. Except for certain kinds of disputes described in the Arbitration provision below, Merchant agrees that disputes arising under this Agreement will be resolved by binding individual arbitration and BY ACCEPTING THIS AGREEMENT, MERCHANT AND AIYA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. MERCHANT AGREES TO GIVE UP MERCHANT RIGHT TO GO TO COURT to assert or defend Merchant rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a single ARBITRATOR and NOT a judge or jury. See the Arbitration provision below.

AIYA recommends that Merchant print a copy of this Agreement for their records. If not defined in the body of this Agreement, capitalized terms used in this Agreement are defined in the glossary at the end of this Agreement.

1. Services.

The Services may include various interconnected cloud-based data-management services and cloud-based software-as-a-service, design, marketing, hosting services, the supply of Equipment as a service or for sale. AIYA regularly updates the selection of Services available and the features associated with each Services.  

The Services may include:

• AIYA Order – which allows Merchant to collect and manage Data concerning Customer orders;

• AIYA Gateway – which serves as a secure means of communicating Cardholder data to Acquirers;

• AIYA Design – the design of logos, websites, menus and other promotional material for Merchant;

• AIYA Domain – AIYA’s purchase and license to you of a domain selected by Merchant from those offered by AIYA;

• AIYA Hosting – the hosting of an AIYA Domain and the related website for use in association with other Services;

• AIYA Marketing – though which AIYA distributes certain marketing material of Merchant;

• AIYA Social – the supply of certain social media account creation, management and content generation Services;

• AIYA POS – being a point of sale Equipment for accepting Cards;

• AIYA Robot – being a robot that assists in transporting items within the Merchant premises;

• AIYA PAD – being a digital tablet for use in entering and retrieving Data from the Services; Processor

• Other Services – Data processing, Equipment and related Services, each as described in the Application or the Account, such as they may be from time to time.

Service Selection

The specific suite of Services actually supplied to Merchant under this Agreement are those selected in the Application or the Account and in the quantities and models selected in the Application or the Account, such as they may be from time to time. Services may be subject to additional terms and conditions posted in the Account, the Site or by other means provided by AIYA, each of which are incorporated herein by reference.

AIYA will provide the Services to Merchant for the Term (as defined below) of this Agreement, subject to the payment of applicable Fees and compliance with the terms of this Agreement. Merchant may use the Services only in the operation of its own business and may not use them for personal, consumer, resale or entertainment purposes.

As part of the Services, AIYA hereby grants to Merchant a non-exclusive, non-transferable, non-assignable right to use the Services, as per the terms of this Agreement. AIYA does not convey any right, title or interest in the Services to Merchant. Merchant right to use the Services shall terminate upon any termination of this Agreement or any suspension or termination of the supply of the Services to Merchant.

Service Preferences

Services may allow Merchant to make certain selections and adjust preferences concerning the Services through the Account or by other means provided by AIYA. All such selections and preferences and related disclosure provided to Merchant shall form part of this Agreement.

Delivery

The Services may be integrated with one or more Delivery Services. For each such integration: (i) AIYA may assist in communicating Data to, from and among Merchant, Customer, Delivery Service and AIYA; (ii) Merchant is responsible to pay all Delivery Service fees to the Delivery Service directly unless otherwise indicated in the Account; and (iii) AIYA shall have no liability for the acts or omissions of any Delivery Service.

Errors

Merchant shall immediately notify AIYA of any errors by AIYA or Merchant in the supply or use of the Services. Where practicable, AIYA shall use commercially reasonable efforts to investigate errors, but makes no representation as to its ability to correct any error. Merchant shall provide AIYA with any information necessary to investigate an error in a Transaction. Merchant agrees to exercise extreme caution when initiating any financial transaction by way of instructions delivered to one of its Third Party Servicers through the Services, such as a Card transaction with an Acquirer.

2. Account 

AIYA shall provide Merchant with a unique and private Account accessible through the Service. The Account shall be a record of Transactions and Fees. AIYA shall provide Merchant with access codes for the Account; Merchant shall not disclose such codes or permit any third party to use them. Merchant has exclusive responsibility for the use of its Account. AIYA will invite Merchant to enter certain preferences and specifications within the Application or the Account that will apply to the Services; Merchant assumes exclusive responsibility for such selections even if they contain errors by Merchant or result in losses to Merchant. Merchant may grant Merchant Personnel access to the Services through the Account. Merchant remains liable for all acts or omissions of any Merchant Personnel and shall ensure that each of them complies with the terms of this Agreement.

Except as required to deliver the Services or as otherwise required by law, AIYA shall not grant any third party access to its Account.

Merchant shall notify AIYA by email to marketing@aiya.us immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party.

With the exception of Equipment supplied hereunder, if any, Merchant shall provide, at Merchant’s own expense, all hardware, applications and internet connectivity necessary to access the Services. Merchant acknowledges that the internet can be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Merchant agrees that AIYA is not responsible for any internet outages, unsecure WIFI or other connections or any other interference with Merchant’s use of or access to the Services or security breaches arising from any Merchant Device and Merchant waives all claims against AIYA in connection therewith. Merchant is responsible for supplying and maintaining a suitable premises within which Equipment is used, including but not limited to an in-door, temperature-controlled room with a flat surface and ample space for storage and operation of the AIYA Robot, where applicable.

3. Design, Marketing and Hosting Services

AIYA Design

Merchant hereby licenses its name, marks, logos and designs for use by AIYA and its suppliers as per the license set out below in the provisions of this Agreement concerning Intellectual Property Rights for use by AIYA in supplying the Services. With the exception of logos designed by AIYA for Merchant, work-product created by AIYA in the course of supplying Design, Marketing and Hosting Services (the “Design Work Product”) shall belong to AIYA and shall be subject to a limited license for Merchant to use in the ordinary course of business in together with the Services. Logos designed in the AIYA Design Service shall be the property of Merchant but shall be subject to a license to AIYA for its use in association with the Services. 

AIYA Domain

In AIYA Domain, subject to availability, AIYA shall purchase a domain selected by Merchant whereupon it shall be licensed by AIYA to Merchant for use in association with the other Services hereunder. On termination hereof, AIYA shall retain title in such domain(s) unless Merchant pays the applicable domain export Fees. For the purposes of purchasing and owning a domain as part of the AIYA Domain Service, Merchant grants AIYA a transferrable, royalty-free, worldwide license in its name and marks necessary to acquire and retain title therein. AIYA makes no representation as to the utility of any given domain with respect to Merchant nor whether it will be subject to any third party claims as to title therein.

AIYA Hosting

Wind Down

On any termination of this Agreement, Merchant shall discontinue use of AIYA Hosting and relinquish use of the IP addresses and server names assigned to you in connection with AIYA Hosting, including pointing the domain name system (“DNS”) for Merchant domain name(s) away from AIYA servers. Prior to termination of AIYA Hosting, Merchant shall move its website or server content off AIYA servers. AIYA will not transfer or FTP Merchant website or server content to another provider. If Merchant fails to move Merchant website or server content off AIYA servers prior to cancellation, AIYA will delete all such content and it will not be able to provide a copy of such content.

Merchant Identification

Merchant shall provide all information reasonably sought by AIYA in order to identify the Merchant and the business that it operates. Merchant name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by all such registries and such information may be displayed publicly on the Whois database.

Abusive Activities and Other Threats

Merchant may not use AIYA Hosting or Merchant website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of AIYA network or will damage the systems of, or cause a disruption of internet services to, AIYA customers, or third-parties. Server hacking or other perpetration of security breaches is prohibited and AIYA reserves the right to remove sites containing information about hacking or links to such information. Use of Merchant website as an anonymous gateway is prohibited. It is prohibited for Merchant to operate software or scripts run on AIYA Hosting that cause the server to load beyond a reasonable level, as determined by us. AIYA reserves the right to remove Merchant website temporarily or permanently from AIYA servers if Merchant is in breach hereof or there are activities that threaten the stability of AIYA network.

Storage and Security

The total amount of usable storage capacity for Merchant particular AIYA Hosting may differ from the represented capacity, as there is required space for the operating system, system files, and other supporting files. In association with AIYA Hosting or otherwise, Merchant shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to Merchant website or server content; (2) maintain independent archival and backup copies of Merchant website or server content; and (3) ensure the security, confidentiality and integrity of all Merchant website or server content transmitted through or stored on AIYA servers. All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 250,000 inodes per account for Linux® hosting accounts or 500,000 files and folders per account for Windows® hosting accounts. The plans are also limited to no more than 1,000 tables per database and no more than one gigabyte of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to reduce the number of inodes, files and folders, tables or gigabytes (as the case may be), or may be temporarily or permanently suspended, in AIYA sole discretion. All Linux hosting plans are subject to the following limitations: no more than (1) 25% of one CPU core; (2) 512MB of RAM; (3) 100 website connections; (4) 100 active processes; (5) 1 MB/s disk IO. In the event these limitations are exceeded, Merchant site may slow down or not be served until more resources are added. More resources may be added for additional fees.

Website Content

Even if AIYA provides AIYA Design for a given site, Merchant shall be solely responsible for providing, updating, uploading and maintaining Merchant website or server and any and all files, pages, data, works, information or materials on, within, displayed, linked or transmitted to, from or through Merchant website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. It may be necessary for AIYA support staff to modify, alter or remove the content of Merchant hosted product which it may execute at its sole discretion. Merchant website or server content shall also include any registered domain names provided by Merchant or registered on behalf of Merchant in connection with AIYA Hosting.

If you request that AIYA install any Third Party Software (defined below) not provided as part of AIYA Hosting, Merchant represents and warrants that (1) it has the right to use and install the Third Party Software, (2) Merchant has paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the Intellectual Property Rights of any other person or entity.

Disabilities Compliance

The Americans with Disabilities Act and other Laws may impose certain requirements on the design and content of Merchant websites and other Merchant Disclosure (collectively, “ADA Compliance”). For greater certainty, Merchant assumes exclusive responsibility for reviewing all material used in its website and Merchant Disclosure – whether supplied in part or in whole by AIYA – to ensure that it meets the requirements of ADA Compliance. AIYA makes no representation whatsoever as to the compliance of any content that it may supply, edit, process or post hereunder with ADA Compliance requirements or any other Laws whether supplied by AIYA Design or otherwise.

Uptime

AIYA offers a AIYA Hosting uptime guarantee of 99.8% (“Service Uptime Guarantee”) of available time per month. If AIYA fails to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), Merchant may contact AIYA and request a credit of 5% of Merchant monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from AIYA and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of Merchant website but merely affect access to Merchant website such as FTP and email; (4) causes beyond AIYA control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.

Third Party Software

Definition and Scope. As part of AIYA Hosting, AIYA may cause to be installed or Merchant may be allowed to use certain software, widgets, or other applications developed, owned, or licensed by a third-party (“Third Party Software”). Merchant use of Third Party Software may be subject to additional terms. If the Third Party Software is accompanied by or requires a license agreement from the third-party provider, Merchant use of the Third Party Software is subject to that license agreement, in addition to this Agreement.

Merchant may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third Party Software. Additionally, Merchant may not sell, modify, re-use reverse-engineer, decompile, disassemble, reverse compile, create derivative works of or attempt to derive the source code from the Third Party Software.

AIYA may provide Merchant personal information to third-party providers as required to provide the Third Party Software. AIYA reserves the right to modify, change, or discontinue provision of the Third Party Software at any time.

AIYA makes no representations or warranties about any Third Party Software offered in connection with AIYA Hosting, and expressly disclaims any liability. Merchant will indemnify, defend, and hold harmless AIYA from and against any and all claims imposed upon or incurred by AIYA directly or indirectly arising from Merchant use or misuse of Third Party Software. The providers of the Third Party Software are third-party beneficiaries to this Agreement for purposes of enforcing their rights under this Agreement.  

The AIYA Hosting may be operated in either or both Linux® and Windows® environments, as determined by AIYA.

AIYA Marketing

Merchant shall ensure that all AIYA Marketing content it is correct and complete. Merchant shall ensure that all of its Products are consistent with the content of AIYA Marketing campaigns. Marketing carried out through AIYA Marketing is not guaranteed to produce any change in Merchant business.

AIYA Social

Merchant hereby grants AIYA the right, as its agent, to open and operate social media accounts in the name or and on behalf of the Merchant. Merchant shall review posts made using such accounts to verify that they are true and accurate and shall immediately instruct AIYA to remove any postings that are not.

Other Services

Whether or not detailed herein, other Services available to the Merchant through the Account or otherwise by AIYA shall be governed pursuant to the terms of this Agreement.

Changes in Services

AIYA reserves the right to update, modify or discontinue any Services at its sole discretion.

4. Equipment

In addition to the other provisions hereof, the following are terms applicable with respect to all Equipment that Merchant procures from AIYA, as indicated in the Application or through the Account. Equipment is either purchased by Merchant or supplied as a service, as selected by Merchant in the Application or Account.

Purchase of Equipment by Merchant

Where Merchant has opted to purchase Equipment from AIYA, as indicated in the Application or in the Account, except as set out in the Equipment Warranty (below) the Equipment is sold on an AS-IS-WHERE-IS basis without any warranty whatsoever. Merchant assumes liability for the Equipment as of when it is either delivered to the Merchant or picked-up by Merchant’s delivery or courier service. Merchant shall pay Fees in consideration of all Equipment purchased by Merchant hereunder as indicated in an Application or through the Account. Equipment purchased by Merchant hereunder shall be used only together with the other Services of AIYA supplied hereunder.

Equipment-as-a-Service

If Merchant opts to not purchase Equipment but instead elects Equipment-as-a-service in an Application or in the Account, AIYA grants Merchant a right to use the Equipment owned by AIYA (“AIYA-owned Equipment”) in exchange for the applicable Fees, subject to the terms hereof (for all Equipment supplied, the “Equipment Services”). The Equipment shall be used only by Merchant and only in conjunction the Services and integrated Third Party Servicer Services and for no other purpose. Within ten (10) days of receipt of the Equipment, Merchant shall report all damage thereto or defects therein, failing which AIYA shall not be under any obligation to provide any replacements or repairs in relation to the Equipment.

Equipment Services Fees

In consideration of the Equipment Services, Merchant shall pay the corresponding Fees set out in the Application or the Account.

Equipment Warranty

Whether purchased by Merchant or supplied as a Service, AIYA provides the following warranty on the Equipment which is the only warranty supplied in respect of Equipment (the “Equipment Warranty”). For the purposes of the Equipment Warranty, the term “Original Purchaser” means that person, firm, association, or corporation to whom the Equipment was originally sold or supplied by AIYA.

AIYA warrants to the Original Purchaser of Equipment supplied to Original Purchaser that such Equipment, and all parts thereof, will be free from defects in material and workmanship under normal use and service for a period of one (1) year from the date of shipment of the Equipment to the Original Purchaser or one (1) year from the date that shipper of Original Purchaser picks up the Equipment from AIYA. During this one (1) year warranty period, AIYA will repair or replace any defective part or portion thereof returned to AIYA by the Original Purchaser which AIYA determines was defective due to faulty material or workmanship. AIYA will pay the return costs if the Equipment or part thereof was defective.

This warranty does not apply to any Equipment or part thereof that has been subjected to misuse, neglect, alteration, or accident, such as accidental damage to the exterior finish, operated contrary to the recommendations specified by AIYA; or repaired or altered by anyone other than AIYA in any way so as to, in AIYA’s sole judgement, affect its quality or efficiency. This warranty does not apply to any Equipment that has been moved from the location where it was originally installed. The warranty is subject to the user’s normal maintenance and care responsibility as set forth in any manuals supplied with or for the Equipment, such as cleaning and is in lieu of all other obligations of AIYA. AIYA neither assumes, nor authorises any other person to assume for AIYA, any other liability in connection with AIYA’s products. 

Removal or defacement of the original Serial Number or Model Number from any Equipment shall be deemed to release AIYA from all obligations hereunder or any other obligations, express or implied. Parts furnished by suppliers to AIYA are guaranteed by AIYA only to the extent of the original manufacturer’s express warranty to AIYA. Failure of the Original Purchaser to receive such manufacturers warranty shall in no way create any warranty, expressed or implied, or any other obligation or liability on AIYA’s part in respect thereof. 

Under no condition does this warranty give the Original Purchaser the right to replace the defective Equipment with a complete Equipment of the same manufacturer or of another make. Unless authorised by AIYA in writing, this warranty does not permit the replacement of any part to be made with the part of another make or manufacturer. No claims can be made under this warranty for spoilage of any products for any reason, including system failure. AIYA shall not be liable in any manner for any default or delay in performance hereunder caused by or resulting from any contingency beyond AIYA’s control, including, but not limited to, war, governmental restrictions or restraints, strike, lockouts, injunctions, fire, flood, acts of nature, short or reduced supply of raw materials, or discontinuance of the parts by the original part manufacturer. 

The preceding paragraphs set forth the exclusive remedy for all claims based on failure of, or defect for AIYA products sold, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability, implied by statute, common-law or otherwise and AIYA and its agents shall not be liable for any claims for personal injuries or consequential damages or loss, howsoever caused. Upon the expiration of the warranty period, all such liability shall terminate. 

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY, AIYA DOES NOT WARRANT ANY PRODUCTS OR SERVICES OF OTHERS 

This warranty supersedes and excludes any prior oral or written representations or warranties. The sole and exclusive remedies of any person relating to the Equipment, and the full liability of AIYA for any breach of this warranty, will be as provided in this warranty. Other than this AIYA One Year Limited Warranty or Original Purchaser agrees and acknowledges that no other warranties are offered or provided in connection with or for the Equipment or any other part thereof. The liability of AIYA for breach of any warranty obligation hereunder is limited to: (i) the repair or replacement of the Equipment on which the liability is based; or (ii) at AIYA’s option, the refund of the amount paid for said Equipment. Any breach by AIYA with respect to any item or unit of Equipment shall be deemed a breach with respect to that item or unit or service only IN NO EVENT WILL AIYA BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES IN THE NATURE OF PENALTIES.

No Other Warranty and Limitation of Liability

Other than as expressly provided above, AIYA makes no warranty or representation as to fitness for purpose or merchantability of the Equipment and the Merchant hereby accepts the Equipment on an as-is-where-is basis. Under no circumstances shall AIYA be liable to Merchant for any loss, claim or other damages for any malfunction or damages occurring because or in any way related to the Equipment, other than as provided above. AIYA is not liable for any acts or omissions of an Acquirer or other Third Party Servicer, whether or not their acts or omissions are related to instances of Equipment Services or other Services. All limitations of liability applicable to Equipment apply to Software in relation to Equipment. Where Laws require Merchant to hold a permit or license to operate Equipment, Merchant shall have exclusive responsibility to obtain such permit or license and AIYA makes no representation as to the suitability of any Equipment in support of obtaining any such permit or license.

Title

Unless it is purchased by Merchant, during and following the Term, AIYA shall retain full title in all AIYA-owned Equipment. AIYA may, at its discretion, require Merchant to affix labels indicating AIYA’s title in the Equipment on the Equipment. As of the end of the Term, Merchant shall return the AIYA-owned Equipment to the AIYA at the expense of Merchant. For the Term, the Merchant will protect the AIYA-owned Equipment from loss, theft, damage or any legal encumbrance. Upon request by AIYA, Merchant shall deliver to AIYA a copy of its insurance policy naming AIYA as an additional loss payee in respect of the AIYA-owned Equipment. Merchant shall be responsible for all insurance, permits and taxes associated with the use of the Equipment. Applicable taxes will vary depending on the location of the Merchant.

Installation

Fees may include the initial installation of the Equipment at the premises of the Merchant, but do not include subsequent re-installations. Merchant shall bear sole and exclusive responsibility for the electricity, internet and data connections required to use the Equipment and for any and all ribbons, paper rolls, supplies, cash tills, rolls, lids, magnetic disks, tapes, keys and coin trays and other peripheral materials required to operate the Equipment.

Security Interest

Merchant hereby grants a security interest to AIYA in the AIYA-owned Equipment pursuant to which AIYA is permitted to file a UCC-1 financing statement for the Term hereof and until all amounts owing to AIYA are paid. If payment is not made when due, or on other breach by Merchant, AIYA shall have the right to enter or to dial into Merchant any premises where the AIYA-owned Equipment is located and take possession of the AIYA-owned Equipment without demand and without the necessity of resorting to legal process. Merchant expressly grants permission to AIYA or its designees for such entry or disablement and Merchant agree not to interfere with and to cooperate in such removal and to pay for all reasonable expenses therefore, including legal fees.

5. Limitations. 

Prohibited Merchants

The following Persons are prohibited from using the Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have procured services from AIYA and have been terminated for cause by AIYA; and (iv) individual consumers. The Services may not be used for individual consumer use. Merchant must be a duly registered and licensed business, charitable organization or not-for-profit organization to use the Services. AIYA reserves the right to decline to provide Services or terminate Services to one or another type of business; AIYA shall notify Merchant of prohibited business types through the Site, the Account or the App. In any case, any business that is illegal or operates in support of illegal activity is prohibited from using the Services.

Prohibited Products

Merchant represents that it has all necessary licenses and certifications, including those applicable to food safety and sanitation, to supply its Product. Merchant shall cause all Product to include such disclosure as may be required by law or recommended including but not limited to allergy warnings.

Merchant shall not use the Services in conjunction with any of the following:

• People (e.g. entertainment providers), wildlife, animals, or remains/parts;

• Illegal items; stolen goods;

• Fireworks, explosives, firearms, weaponry, ammunition, and their parts; information on how to make such devices;

• Items encouraging violent or illegal activity;

• Sexually explicit or obscene adult items or materials;

• Any of the following without a signed addendum with AIYA:

• Alcohol

• Tobacco/vape products

• Cold medicine, pharmaceutical products, over-the-counter medications, vitamins, medical devices, or supplements

• Recreational drugs or drug paraphernalia, including but not limited to cannabis or CBD products, Kratom, or inhalants including nitrous oxide;

• Any single item exceeding 50 lbs;

• Any other item that is prohibited for delivery without a permit or license under applicable local laws;

• Hazardous materials, including medical waste, or poisonous or flammable items, except for materials that are:

• (i) ORM-D or (ii) limited quantity shipment AND a Consumer Commodity, AND

• In quantities that do not require placarding

• Money, gift cards, lottery tickets, payment instruments, cryptocurrency or transferable securities;

• Items "prepared tableside";

• Raw meats or shellfish;

• Endangered animal or wildlife products; items made of endangered animal or wildlife products (ivory, rhino horn, eurasian caviar, bushmeat, foie gras);

• Items that promote hate or terrorist groups;

• Products that claim or promote specific medical outcomes;

• Any items that are likely to be perceived as threatening, obscene, harassing, inappropriate, or otherwise violate any applicable terms and conditions that govern your relationship with AIYA or any Delivery Service or other Third Party Servicer.

Product Quality

Merchant shall ensure that its Product and the services it provides to actual and potential Customers are compliant with all Laws and commensurate with the expectations of a reasonable potential Customer. Merchant shall be responsive to Customer complaints.

Limitations on Use

Merchant shall use Services in accordance with this Agreement and the applicable Guide. Merchant shall not itself and shall not permit any third party to: (i) permit any party to access or use the Services other than the Merchant Personnel authorized under this Agreement; (ii) modify, adapt, alter or translate any software of AIYA Systems underlying the Services; (iii) license, lease, rent, loan, distribute, or otherwise transfer the Services to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under Law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software or AIYA Systems underlying the Services; (v) use or copy the any software or AIYA Systems underlying the Services except as expressly allowed hereunder; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass or harm another individual; (ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (x) except if, and solely to the extent that, such a restriction is impermissible under Laws, interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Merchant may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Merchant is prohibited under Laws from using the Services, Merchant may not use them.

6. Merchant Data, Disclosures and Security.

Merchant hereby authorizes AIYA to, directly or through third parties, make any inquiries and conduct any investigation to verify Merchant identity.

The Services require certain information concerning Merchant, including but not limited to Merchant name, address, phone number, email address, Bank Account information and other Third Party Servicer account information. Merchant agrees that all information it provides to AIYA shall be complete and accurate and Merchant shall promptly correct any errors in the information provided to AIYA.

Subject to the AIYA Privacy Policy, posted here https://www.aiya.us, Merchant and each of Merchant Personnel hereby grant AIYA the right to collect, store, use, process and disclose Merchant Data for the purpose of providing the Services and its integration with Third Party Servicer Services selected by Merchant. Where Merchant Data includes data concerning third parties, such as Customers, for example, Merchant states that it has obtained the necessary consents for AIYA to collect, process, store such data hereunder from the relevant data subjects. Data collected by AIYA is subject to the AIYA Privacy Policy, posted at the Site and incorporated herein by reference. Subject to Law, where AIYA is subject to a subpoena request for Merchant Data, AIYA shall provide Merchant with an opportunity to contest the request, failing which AIYA shall cooperate with the request.

Merchant hereby authorizes AIYA and each Third Party Servicer to each obtain from the others and disclose to the others Merchant Data in so far as is necessary to supply their respective services either hereunder or under their respective Third Party Servicer Agreements.

The Services shall collect Merchant Data concerning Customers, including certain non-public personal information, such as name, address, Card information, food order selections. AIYA collects, stores, processes, uses and discloses such information as an agent of Merchant hereunder. Merchant represents that it has obtained such consents from Customer as are required by Applicable Law for AIYA to collect, use and disclose Customer information.

Where required by Law, AIYA will disclose Merchant Data to law enforcement agencies. AIYA reserves the right to keep Merchant Data for the term of this Agreement and for five (5) years thereafter.

Merchant Disclosures

AIYA Order and other Services will allow for Merchant to communicate certain information concerning the Products and the Merchant in the form of Merchant Disclosure. Merchant shall ensure that all Merchant Disclosure is accurate and compliant with Laws. Merchant shall cause Merchant Disclosure to include all necessary or recommended warnings, including but not limited to allergy and health warnings. AIYA does not edit or censor Merchant Disclosure and shall not be responsible for its content nor for any omissions. Merchant shall ensure that Merchant Disclosure is available in both English and such other languages as are most commonly used by Merchant in communicating with Customers or potential Customers.

Accuracy

Merchant has sole responsibility for the accuracy, appropriateness and completeness of all Merchant Data. AIYA will use the Merchant Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Merchant Data.

Security

AIYA will take reasonable steps to help protect Merchant Data. However, Merchant understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. AIYA reserves the right to cooperate with local, state and federal authorities in investigations of improper or unlawful activities and this may require the disclosure of Merchant’s personal information. AIYA may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.

Merchant shall secure Merchant Data in its possession or under its control. Merchant assumes exclusive responsibility for ensuring the security of Merchant Device and the Data on it. AIYA is not liable for the operation or failure of Merchant Devices or those of any third party, including but not limited to processors, hosting services, internet service providers and other Third Party Servicers. Merchant shall not operate Merchant Device in a manner that does not meet the applicable security requirements of AIYA, indicated in the Account or on the Site, or those of Third Party Servicers.

AIYA is not responsible for performing, and is not liable for any failure to perform, any back-up of any Merchant Data or other data provided, transmitted, processed, or stored by Merchant in or through the Services. It is Merchant’s responsibility to back-up onto a Merchant Device all Merchant Data, including all data and records that Merchant submits to AIYA.

Breach of Security

In the event of an actual or suspected breach of security regarding Personal Data while in the possession of either Party, the Party connected with the breach shall, subject to Law, notify the other Party promptly and cooperate with the investigative actions of the other Party, its representatives, and any appropriate law enforcement entity. As used herein, a breach of security regarding such Personal Data shall include, but is not limited to any unauthorized access, unauthorized disclosure, unauthorized use, loss, theft, misplacement or compromise of the integrity of any Personal Data. 

Sharing

AIYA shall disclose Merchant Data to those representatives of Merchant identified by Merchant for such purposes and also to such Third Party Servicers as Merchant has selected. AIYA has no liability for any collection, processing, storage, use or disclosure of Merchant Data by any Third Party Servicer or any other third party. AIYA reserves the right to decline to share Merchant Data with any third party where AIYA believes that such sharing may expose Merchant or AIYA to excessive security, financial or reputational risk, provided however that AIYA shall never be liable for any act or omission of any third party with respect to Merchant Data or otherwise. AIYA makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility or liability for, the quality, content, nature, veracity or reliability of any Merchant Data.

Feedback

In the event that Merchant provides AIYA any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), Merchant agrees that AIYA may use the Feedback to modify the Services and that Merchant will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Merchant hereby grants AIYA a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Merchant provides the Feedback on the Services or through any other method of communication with AIYA.

Limitations

Merchant shall not take possession of or enter into the Account any data: (i) that Merchant does not have the lawful right to copy, transmit, distribute, and display (including any Merchant Data that would violate any confidentiality or fiduciary obligations that Merchant might have with respect to the Merchant Data); (ii) for which Merchant does not have the consent or permission from the owner of any personally identifiable information contained in the Merchant Data; (iii) that infringes, misappropriates or otherwise violates any Intellectual Property Rights or violates any privacy rights of any third party; (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any Laws or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

Personal and other Sensitive Data

The Services may allow Merchant to collect, store and process Merchant Data that is Personal Data of a sensitive nature such as, for example, Merchant Personnel timesheets, wages, tips, geolocation, performance, Customer payment information, orders, food allergies, address, geolocation and other non-public Personal Data. Merchant states that Personal Data and other Merchant Data that it collects, stores, processes or discloses via the Services or Equipment shall be administered in accordance with a Merchant Privacy Policy that is consistent with Laws and that is also disclosed to Customers and other relevant third parties prior to their disclosure of Personal Data to the Merchant. Merchant has the exclusive responsibility to ensure that it has provided to each Customer all necessary Merchant Disclosure concerning Personal Data and also obtained from them the necessary consents with respect thereto. AIYA has the right, but not the obligation, to review Merchant Personal Data consents prior to the use thereof; no such review shall be construed as legal advice or a representation as to their effectiveness under Law.

Where the Services include templates of consents concerning Personal Data or other terms (e.g. website terms), AIYA makes no representation as to the effectiveness thereof and offers no legal opinion as to their enforceability. Merchant agrees to retain legal counsel and such other professional advisors as are necessary to ensure that all Merchant Disclosure and the Merchant Privacy Policy is consistent with Law and enforceable. Merchant shall ensure that such documents include such consents of the Data subjects as are necessary for their data to be included in the Services and Equipment and also collected, stored and processed by AIYA hereunder.

Merchant will not submit through the Services any:

• unencrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (“HIPAA”) (“PHI”);

• any encrypted PHI unless the Parties have entered into a mutually acceptable Business Associate Agreement (“BAA”) in accordance with HIPAA;

• any unencrypted Personal Data subject to regulatory protection under applicable laws of the United States federal, state, or local governmental authorities; and

• any encrypted Personal Data without providing prior notice and obtaining prior consent from the data subject, as required by applicable law.

Biometric Authentication Feature

Certain Equipment may include a feature that enables Merchant Personnel or other counterparties to access the Equipment or Services via biometric authentication, such as but not limited to fingerprints (each such security measure being “Biometric Authentication”). Merchant shall ensure that Merchant Disclosure and the Merchant Privacy Policy address Biometric Authentication and related Personal Data consents. Where required by Law, Merchant shall allow Merchant Personnel to use methods of authentication that are other than Biometric Authentication. Merchant shall not allow the Equipment or Services to be used so as to facilitate in discrimination on the basis of physical disability or other illegal bases of discrimination and shall ensure that it complies with ADA Compliance requirements and other Laws.

California Consumer Privacy Act (“CCPA”)

Merchant will undertake the following obligations which are in addition to those otherwise set forth herein: 

• Merchant shall comply with all applicable requirements of the CCPA, including regulations from the California Attorney General, when collecting, using, retaining, or disclosing personal information, as that term is defined in the CCPA. 

• Merchant shall comply with additional state or federal privacy laws that may be enacted in the future. The obligations set forth in Section shall apply equally to future privacy legislation that applies to Merchant and/or the services under this Agreement. 

• Merchant shall only collect, use, retain, or disclose Personal Data for the purposes of Merchant Business as per the Merchant Disclosures and Merchant Privacy Policy. 

• Merchant shall not collect, use, retain, disclose, sell, or otherwise make Personal Data available for Merchant’s own commercial purposes or in a way that does not comply with the CCPA. If a Law requires Merchant to disclose Personal Data for a purpose unrelated to the purpose of this Agreement, Merchant must first inform AIYA of the legal requirement and give the AIYA an opportunity to object or challenge the requirement, unless the law prohibits such notice. 

• Merchant shall limit Personal Data collection, use, retention, and disclosure to activities with the Services reasonably necessary and proportionate to achieve the purposes of this Agreement. 

• Merchant shall promptly comply with any AIYA request or instruction requiring Merchant to provide, amend, transfer, or delete the Personal Data, or to stop, mitigate, or remedy any unauthorized processing.

• Merchant shall immediately notify AIYA if it receives any complaint, notice, or communication that directly or indirectly relates to AIYA’s compliance with the CCPA. 

Financial Data Storage Only

The Services do not include the supply of any payment processing, accounting, financial, investment, legal or other professional advice. AIYA is not a bank, payment processor, accounting or other professional services firm. AIYA does not hold any licenses for the supply of any banking payment, accounting, financial, investment, legal or other financial or professional advice and none of the Services shall be construed as including any such services. Data presented in the Services, such as financial information, for example, shall not be construed as reflective of the financial status of Merchant or any third party nor are they necessarily compatible with any specific accounting standards, such as GAAP (generally accepted accounting principles). Merchant shall be exclusively responsible for retaining third party bank, Acquirer, payment processing, accounting, financial, investment, legal and other financial or professional advice. Merchant retains exclusive responsibility for calculating, charging, collecting and remitting sales tax on its goods and services, where applicable.

Merchant Call Monitoring

AIYA may monitor and record support-related and other outbound calls to Merchant, as well as inbound calls to AIYA by Merchant or Merchant Personnel, for compliance, support, training and other purposes. Merchant agrees that AIYA may record any call between Merchant and AIYA relating to the Services and agrees to (i) notify all relevant Merchant employees that calls with AIYA may be monitored and (ii) indemnify and hold harmless AIYA from any claim arising as a result of AIYA’s monitoring or recording of calls between AIYA and Merchant’s representatives.

7. Intellectual Property Rights

AIYA Intellectual Property Rights

AIYA expressly reserves all Intellectual Property Rights in the Services, Equipment, AIYA System and all materials provided by AIYA hereunder. All right, title and interest in the Services and all other materials provided by AIYA hereunder, any update, adaptation, translation, customization or derivative work thereof, and all Intellectual Property Rights therein will remain with AIYA or its licensors. AIYA reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services without prior notice to Merchant or consent of Merchant. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“AIYA Materials”), are protected by Intellectual Property Rights Laws of the United States and other jurisdictions. 

Right to Use Services

Merchant is hereby granted a non-exclusive, non-transferrable limited right to use the Services for the term of this Agreement only.

AIYA Branding

Merchant shall not remove any AIYA branding from any Equipment and shall cause such branding to be disclosed in a manner prescribed by AIYA from time to time. When requested by AIYA, Merchant shall display a plaque, poster or counter-top display disclosing the fact of AIYA supplying the Merchant with Services. Merchant shall not use any such AIYA Material other than as directed by AIYA.

Software License

Certain of the Equipment requires Software to operate. Therefore, as element of the Equipment Services, AIYA hereby grants to Merchant, during the term hereof, a non-exclusive, non-transferable, limited license (the “License”) to use the Software supplied with Equipment, upon the terms and conditions hereinafter set forth. The Software shall be used by Merchant solely for its internal business purposes and only to operate Equipment. Merchant acknowledges and agrees that AIYA does not convey any right, title or interest in the Software to Merchant other than the License granted herein and hereby, and that all proprietary and trade secret rights relating to the Software shall be the property of AIYA. Nothing in this Agreement shall confer or grant to Merchant any Intellectual Property Rights in the Software or other software of AIYA other than the limited License of use described above.

Merchant hereby acknowledges and agrees that the License granted hereby is an object code only license. Merchant further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Software in other than object code form. Merchant shall not alter or otherwise modify the Software.

The Software, including its source and object codes, documentation (including all descriptive material concerning the functions and technical specifications of the Software, user manuals, technical manuals, and other materials issued to Merchant in connection with the License), appearance, structure and organization, is a proprietary product of AIYA and is protected by copyright and other laws. Title to the Software, and any copy, update, modification or merged portion thereof, shall at all times remain with AIYA. Merchant acknowledges that AIYA expressly reserves the entire right, title and interest in and to the Software, and retains the exclusive right to reproduce, publish, sell, modify, distribute, prepare derivative programs of, and license to other licensees, the Software. Merchant shall not remove any trademarks, proprietary legends, or copyright notices from the Software, or reproduce, publish, sell, modify, distribute, prepare derivative programs of, or sublicense the Software in any manner.

Merchant shall make no copies of the Software, or any component thereof, or any Software documentation, for any purpose whatsoever without the prior written consent of AIYA (which consent may be given or withheld in AIYA's sole and absolute discretion).

As a condition of AIYA’s grant of the License to Merchant hereunder, Merchant hereby: (i) agrees to provide AIYA with access, at reasonable times and upon reasonable notice, to all computer Equipment used to process the Software, including, without limitation, any server that supports the Software; and (ii) grants to AIYA the right to audit, inspect and review all of Merchant’s books and records regarding the Software during ordinary business hours and upon reasonable notice.

The License shall terminate on any termination of this Agreement or any suspension of the supply of the Services.

All Rights Reserved

AIYA reserves all rights not expressly granted to Merchant in this Agreement. The Service is protected by copyright, trade secret and other Intellectual Property Rights. AIYA owns the title, copyright and other worldwide Intellectual Property Rights in the Service. This Agreement does not grant Merchant any rights to any of the names, trademarks or service marks of AIYA. Merchant may not transfer, assign or sub-license the right to use the Services under this Agreement. Merchant acknowledges that the cloud-based and hosted Services will not include copies thereof being delivered to Merchant, other than via the Account, Equipment or (where available) the App, subject to the EULA.

Merchant License to AIYA

Merchant hereby grants AIYA a license to use Merchant Data, Merchant names, logos and trademarks to incorporate each of them into the Services, as appropriate. AIYA may also use the name, logos and trademarks of Merchant in order to disclose to third parties that Merchant is a client of AIYA, including but not limited to Customers and other potential Merchant clients of AIYA. For example but without limitation, use of the Merchant name and marks is necessary for AIYA Marketing Services. During and following the Term, AIYA may make and retain a copy of anonymized Merchant Data in order to (i) improve its Services; (ii) improve security; and (iii) generate aggregate statistical information. Merchant represents that it has all necessary Intellectual Property Rights in any and all material supplied to AIYA hereunder for AIYA to use such material for AIYA Marketing or otherwise within the Services. Merchant represents that none of the Merchant Data or any marks, names or logos of Merchant licensed to AIYA hereunder infringe any third party Intellectual Property Rights. Merchant shall indemnify and hold AIYA harmless from and against any third party claims that AIYA is in breach of third party Intellectual Property Rights related to material supplied to AIYA hereunder. Merchant hereby licenses to AIYA the right to use and commercialize each AIYA Domain used in association with the Services for the term hereof and thereafter.

8. Indemnification.

Merchant shall defend, indemnify, and hold harmless AIYA, its employees, officers, directors Affiliates, suppliers, licensors, Third Party Servicers and other customers against any and all liability including damages, recoveries, deficiencies, interest, penalties, losses and reasonable attorney’s fees arising out of or relating to: (i) any breach of the terms hereof; (ii) any breach of a Third Party Servicer Agreement; (iii) any violation of any Laws; (iv) any use of Equipment, the Services, Merchant Data by Merchant or a Third Party Servicer or other third party; (v) Merchant use of the Services, including in combination with any third party service; (vi) any Transaction; (vii) any financial transaction occurring as a result of data communicated via the Services; (viii) any act or omission of any Third Party Servicer or Customer; (ix) costs incurred by AIYA enforcing the terms hereof or responding to any subpoena relating to Merchant, Merchant Data or a Third Party Servicer; (x) any claim by a governmental taxing authority; or (xi) any dispute between Merchant and any third party or Merchant Personnel.

9. Term, Termination and Suspension

Term

The term of this Agreement (“Term”) shall begin as of when Merchant accepts this Agreement, completes the Application or obtains an Account and shall continue in respect of each Service for the term indicated in the Application. If Equipment Services involving AIYA-owned Equipment and other Services are purchased together, then the Equipment Services shall carry a minimum Term of thirty-six (36) months which Term shall automatically renew for additional and successive one (1) month terms unless terminated in accordance with this Agreement.

Termination

Either party may terminate this Agreement at any time for any reason or for no reason. Merchant may terminate by closing their Account or such other means as the Services may provide. AIYA may terminate this Agreement by notice to Merchant through the Account, by email to the contact information provided in the Application or by other electronic notice to other contact information provided by Merchant to AIYA.  

Suspension

AIYA may, at its discretion, suspend Merchant access to or otherwise modify, the Services and any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, AIYA’s internet network; (ii) comply with any Law; (iii) otherwise protect AIYA from potential legal liability or harm to its reputation or business; or (iv) because AIYA has opted to change the Services. AIYA will use commercially reasonable efforts to notify Merchant of the reasons for such suspension or termination action as soon as reasonably practicable. Nothing contained in this Agreement will be construed to limit AIYA’s actions or remedies or act as a waiver of AIYA’s rights in any way with respect to any of the foregoing activities. AIYA will not be responsible for any loss or damages incurred by Merchant as a result of any termination or suspension of access to or use of the Services.

Procedure on Termination

On termination of this Agreement, the Merchant shall forego the Fees paid for the then current month but shall not be charged for the subsequent months.

With respect to Equipment Services, on any termination hereof before the end of the then current Term, Merchant shall be liable for a lump sum payment totaling the full amount of Fees for the whole Term notwithstanding termination (such amount being, the “Early Termination Fee”). The Early Termination Fee, where applicable, shall be payable no later than ten (10) days following termination of this Agreement.

On any termination hereof, Merchant shall cease using the Services and shall return all Equipment to AIYA at its own expense no later than ten (10) days following termination. In the event that Merchant does not return Equipment to AIYA, Merchant shall remain liable to pay (i) the applicable Fee for each month during which the Merchant retains the Equipment or (ii) pay the retail price of the Equipment as per then applicable AIYA pricing, whichever is higher, as calculated by AIYA.

10. Merchant Support.

AIYA will use commercially reasonable efforts to provide Merchant with technical support services relating to the Services via its technical support website, email, or telephone.

AIYA may update the Services in its sole discretion which updates may alter, add or remove functionality of the Services. AIYA may also, from time to time, schedule downtime for maintenance and upgrades to the Services.

11. Fees.

Fees

Merchant shall pay the Fees and all applicable taxes to use the Services. All Fees are in U.S. dollars and are non-refundable, unless otherwise provided herein. AIYA reserves the right to amend the Fees by posting new Fees on the Account or by email notice or other notice through the Services; such changes shall take effect within thirty (30) days unless accepted by Merchant earlier or if Merchant does not close their Account within such delay. Certain Fees shall vary from month to month as specified in the Fee applicable disclosure including those related to AIYA Order that vary as a function of the number of orders.

Payment

Merchant shall authorize AIYA to collect payment of Fees from the Merchant Bank Account or a credit card, debit card or other means of payment provided to AIYA; Merchant authorizes AIYA to charge all Fees and other amounts owing hereunder from such payment method. If Merchant pays any Fees with a credit card, AIYA may seek pre-authorization of Merchant’s credit card account prior to Merchant’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Merchant’s purchase.

The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If Merchant activates or updates recurring payments through the Services, Merchant authorizes AIYA to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Merchant’s account, all accrued sums on or before the payment due date for the accrued sums. If Merchant uses the Services to update or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.

Without limitation, AIYA reserves the right to suspend the Services until all Fees or other amounts owing hereunder are paid in full or terminate this Agreement for late payment.

Fees quoted do not include, and Merchant shall hold AIYA harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of AIYA.

ACH Consent

Merchant desires to effect settlement of credits and debits from Merchant Bank Account(s) by means of ACH and/or wire transfer in conjunction with the Services for Merchant by AIYA. In accordance with this desire, Merchant authorizes AIYA and/or its affiliates to initiate debit and credit entries to Merchant Bank Account (the details of which are provided by Merchant through the Account or by other means acceptable to AIYA). Merchant shall maintain sufficient funds in Merchant Bank Account to cover such debit transactions. Merchant states that Merchant has the authority to agree to such transactions and that Merchant Bank Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until AIYA receives written notice from Merchant revoking it. This authorization is for the payment of Fees or any other sums owed to AIYA. Merchant certifies that the appropriate authorizations are in place to allow Merchant to authorize this method of settlement. All changes to the identification of Merchant Bank Account under this authorization must be made in writing in accordance with the Agreement. Merchant understands that if the information supplied as to the ABA Routing Number and Account Number of the Merchant Bank Account is incorrect, and funds are incorrectly deposited, AIYA will attempt to assist Merchant in the recovery of such funds but has no liability as to restitution of the same. AIYA’s assistance in recovering the funds, where available, will be billed to Merchant at AIYA’s current hourly rate for such work. Merchant acknowledges that the origination of ACH transactions to the Merchant Bank Account must comply with the provisions of U.S. law.

12. Confidential Information.

Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Merchant Data shall, without limitation, be Merchant Confidential Information. AIYA Data shall, without limitation, be AIYA Confidential Information.

13. Merchant Representations and Warranties.

Merchant represents and warrants to AIYA that:

13.1. Merchant has the legal authority to bind Merchant organization to this Agreement and to perform hereunder and under each Third Party Servicer Agreement to which Merchant is a party. Merchant is the exclusive owner of the Account and is not operating the Account on behalf of any third party.

13.2. Merchant has the legal capacity to enter into this Agreement and perform Merchant obligations hereunder.

13.3. Merchant is a business, charitable organization or not-for-profit organization and shall use the Services for only business purposes and not for individual consumer purposes.

13.4. Merchant shall immediately advise AIYA of defects in the Services or any claim or threatened claim against AIYA. Merchant shall immediately notify AIYA of any defects in the Merchant Business or Product for which a Third Party Servicer has been used as a payment method.

13.5. Merchant use of the Services conforms to all Laws and the terms of this Agreement.

14. No Warranties by AIYA.

Content; Third Party Servicers

Content from Third Party Servicers, other users, suppliers, advertisers, and other third parties may be made available to Merchant through the Services. AIYA does not control such content; Merchant agrees that AIYA is not responsible for any such content. AIYA does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content and AIYA assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by AIYA. AIYA is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Merchant understands that by using the Services, Merchant may be exposed to third-party websites that Merchant finds offensive, indecent or otherwise objectionable. AIYA makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services including but not limited to Third Party Servicer Services. AIYA provides these links for Merchant’s convenience only and does not control such third parties. AIYA’s inclusion of links to such links or integrations does not imply any endorsement of the materials on such third party services or any association with their operators. The Services may contain links to sites that are operated by AIYA but which operate under different terms. It is Merchant’s responsibility to review the privacy policies and terms and conditions of any other site Merchant visits. MERCHANT AGREES THAT IN NO EVENT WILL AIYA BE LIABLE TO MERCHANT IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.

Services

THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIYA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AIYA DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE AIYA ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. MERCHANT ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM MERCHANT’S USE OF OR ACCESS TO THE SERVICES, MERCHANT’S DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. MERCHANT UNDERSTANDS AND AGREES THAT MERCHANT USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT MERCHANT’S OWN DISCRETION AND RISK, AND THAT MERCHANT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO MERCHANT’S PROPERTY (INCLUDING MERCHANT’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.

AIYA MAKES NO REPRESENTATION AS TO THE COMMERCIAL RESULTS OF ANY SERVICE.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND MERCHANT MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

Robot

AIYA ROBOT IS A MACHINE THAT WILL AUTONOMOUSLY MOVE WITHIN THE PREMISES IN WHICH IT IS ACTIVATED. MERCHANT COVENANTS TO USE AIYA ROBOT WITH CAUTION AND SHALL WARN CUSTOMERS AND INSTRUCT CUSTOMERS TO SUPERVISE CHILDREN IN THE VISCINITY OF THE AIYA ROBOT TO BE CAREFUL AND NOT INTERFERE IN ITS NORMAL OPERATION. MERCHANT SHALL NOT DELIBERARELY OPERATE THE AIYA ROBOT TO COLLIDE WITH PEOPLE OR OBJECTS AND SHALL SUPERVISE ITS OPERATION AT ALL TIMES. MERCHANT MUST USE THE ROBOT IN COMPLIANCE WITH THE APPLICABLE GUIDE AND AIYA SHALL NOT BE LIABLE FOR LOSSES, CLAIMS OR OTHER LIABILITIES ARISINGFROM ANY FAILURE TO DO SO.

15. Limitation of Liability.

IN NO EVENT WILL AIYA BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL AIYA’S SUPPLIERS OR THIRD PARTY SERVICERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

IN NO EVENT SHALL AIYA BE LIABLE TO MERCHANT FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL AIYA BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

TO THE EXTENT THAT AIYA MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF AIYA’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

AIYA shall not be liable for any claims, losses or liabilities related to any Merchant Business, Product, Customer or Third Party Servicer.

16. Notices.

Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and addressed as follows:

For AIYA, addressed to Merchant Care at: legal@aiya.us; or (ii) 36-18 Main St, 12th Floor Flushing, NY, 11354; and

For Merchant, to the addresses or email address provided by Merchant on Application (as such address or email address may be updated by Merchant from time to time in accordance with this Agreement).

AIYA may change its contact information by giving notice of such change to the Merchant. Merchant may change its contact information by using the currently available interfaces on AIYA’s website. For contractual purposes, Merchant (i) consents to receive communications from AIYA in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that AIYA provides to Merchant electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Merchant’s consent to receive Communications and do business electronically, and AIYA’s agreement to do so, applies to all of Merchant’s interactions and transactions with AIYA. The foregoing does not affect Merchant’s non-waivable rights. If Merchant withdraws such consent, from that time forward, Merchant must stop using the Services. The withdrawal of Merchant’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between AIYA prior to the time Merchant withdraws its consent.

By providing AIYA with Merchant’s mobile telephone number, Merchant consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Services. While AIYA does not charge a fee for text messages, Merchant’s carrier may charge standard messaging, data, and other fees. Merchant is responsible for these charges. AIYA may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. AIYA is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.

17. Governing Law and Arbitration.

PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH MERCHANT MAY SEEK RELIEF, AND REQUIRES YOU ARBITRATE DISPUTES WITH AIYA. If Merchant has a dispute with AIYA, AIYA will first seek to resolve such a dispute through our support team. 

All disputes arising under or in connection with the Agreement will be submitted to binding arbitration in New York, New York, USA pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth below.

Arbitration. All disputes that cannot be resolved pursuant to the internal issue resolution process identified above will be submitted to and settled by final and binding arbitration. The arbitration will take place in New York, New York, USA and will apply the governing law of this Agreement. The final and binding arbitration will be performed by a single arbitrator who is a practicing commercial lawyer in English and in accordance with and subject to the Commercial Arbitration Rules of the AAA then in effect. The decision of the arbitrator will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Notwithstanding the foregoing, each party may seek injunctive relief in a court of competent jurisdiction, where appropriate, to protect its rights pending the outcome of the arbitration.

Jurisdiction/Venue; Governing Law. With respect to Merchants located in the U.S., this Agreement shall be governed by and construed in accordance with the laws of the State of New York (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in New York, New York, USA. Subject to the arbitration provision set out above, each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.

NOTICE: BOTH MERCHANT AND AIYA AGREE TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY AGREEING TO THIS AGREEMENT, BOTH MERCHANT AND AIYA ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. BOTH MERCHANT AND AIYA CONFIRM THEIR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.

18. General Provisions.

18.1. E-SIGN CONDSENT. Under the Electronic Signatures in Global and National Commerce Act (“E-Sign”), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) your electronic signature is associated with the Agreement and related documents, (2) you consent and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic documents shall be governed by the provisions of E-Sign. You agree (i) that the Agreement and related documents shall be effective by electronic means (ii) to be bound by the terms and conditions of this Agreement and related documents and (iii) that you have the ability to print or otherwise store the Agreement and related documents.

18.2. Assignment. Merchant may not assign this Agreement or any of its rights or obligations hereunder to any third party without prior written consent of AIYA. Any assignment in violation of this section shall be void. AIYA may assign this Agreement without restriction and without any notice to Merchant. The terms of this Agreement shall be binding upon permitted successors and assigns. Merchant agrees that on a sale of all or substantively all of the assets of AIYA, AIYA may include in the sale the copy of Merchant’s payment method (e.g. credit card information) used to pay Fees hereunder.

18.3. Right to List as a Merchant. Merchant agrees that AIYA may utilize Merchant’s entity name in listings of current customers. Use of Merchant’s name in any other marketing materials or press announcements will be submitted to Merchant in advance for approval, and such approval will not be unreasonably withheld.

18.4. Compliance with Export Regulations. Merchant has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold AIYA harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Merchant shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

18.5. European Union Residents. If Merchant resides in the European Union (EU) or if any transfer of information between Merchant and the Services is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Merchant consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Services.

18.6. Third Parties. AIYA reserves the right to perform some or all of its obligations hereunder using one or more third partis.

18.7. Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.

18.8. Force Majeure. Merchant acknowledges and understands that if AIYA is unable to provide Services as a result of a force majeure event AIYA will not be in breach of this Agreement and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of AIYA.

18.9. Severable. NOTHING IN THIS AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO MERCHANT. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.

18.10. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law in one instance shall not preclude enforcement thereof on future occasions.

18.11. Independent Contractors. Merchant’s relationship to AIYA is that of an independent contractor, and neither Party is an agent or partner of the other. Merchant will not have, and will not represent to any third party that it has, any authority to act on behalf of AIYA.

18.12. Entire Agreement. In the event of any conflict between this Agreement and the information provided during Application or otherwise on the Site, in the App or in the EULA, this Agreement shall control. In the event of any inconsistency between the body of this Agreement and the AIYA Privacy Policy, the former shall prevail. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

18.13. Amendments. AIYA reserves the right to change this Agreement at any time and from time to time upon notice by posting revisions to this Agreement (including the description of the Services) on the Site. Continued use of the Services after Merchant become aware of any such changes shall constitute Merchant’s consent to such changes. Merchant is responsible for regularly reviewing the most current version of this Agreement which is available on AIYA’s website.

18.14. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English.

18.15. Survival. Upon termination or expiration of this Agreement for any reason: (i) all rights and obligations of both Parties (except for Merchant’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information. The following Sections will also survive expiration or termination of this Agreement for any reason: the introductory paragraphs, Sections 4 Limitations, 5 Merchant Data Consent, 6 Intellectual Property Rights, 7 Indemnification, 8 Term and Termination, 10 Fees, 11 Confidential Information, 12 Merchant Warranties, 13 No Warranties by AIYA, 14 Limitation of Liability, 15 Notices, 16 Governing Law and Arbitration, 17 General Provisions and 18 Glossary.

19. Glossary.

The following words used in this Agreement are defined as follows:

Account means an account made available to Merchant through which Merchant can transmit instructions or receive information in relation to the Services.

ACH means Automated Clearing House payment transaction.

Acquirer means an acquiring bank or processor that is a Third Party Servicer that has agreed to supply payment processing services to Merchant.

Affiliate means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person's principal partners, shareholders, or owners of some other ownership interest. 

AIYA Data means information concerning Services or provided to Merchant by AIYA through the Account or otherwise.

AIYA Gateway means the Service of communicating Cardholder data to, from and between Customer, Merchant, AIYA and Acquirer.

AIYA Marketing means the Services of distributing promotional material related to Merchant by electronic means as per the terms of this Agreement. 

AIYA Order means the Services of a cloud-based Merchant order management system that collects, stores and distributes information concerning Merchant orders from Customers.

AIYA PAD means a tablet that is compatible with other Services and available to the Merchant through the Equipment Services.

AIYA POS means a point-of-sale terminal through which Merchant may accept Cardholder Data from Customers for Card Payment Transactions and available to Merchant through the Equipment Services.

AIYA Privacy Policy means the privacy policy of AIYA posted at https://www.aiya.us such as it is from time to time.

AIYA Robot means a robot for transporting items within a restaurant available to Merchant through the Equipment Services.

AIYA System means a cloud-based system operated by AIYA that allows Merchant to access Merchant Account and initiate Transactions.

App means an application available for download to certain mobile devices through which Merchant can access the Services, subject to the EULA.

Application means the paper or online application completed by Merchant when applying for the Services all of which is incorporated herein by reference.

Bank Account means Merchant account, if any, with bank or another Third Party Servicer.

Card means (i) a credit or debit card in the form issued under license from Visa, MasterCard or (ii) any other valid credit card, charge card or debit card accepted as a method of payment by Merchant and compatible with the Services.

Cardholder means a Customer that wishes to pay Merchant using a Card.

Confidential Information means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by Law.

Customer means a client or customer of Merchant.

Data means Merchant Data or AIYA Data.

Delivery Service means a Third Party Servicer that provides the service of delivering Merchant Product to Customers.

Equipment Services means the Service of providing the sale or a right to use certain Equipment as detailed in this Agreement.

Equipment means any of an AIYA POS, or AIYA PAD or other equipment supplied to Merchant under this Agreement.

EULA means an end-user license agreement pursuant to which the App is licensed to the Merchant for the limited purpose of accessing the Services.

Fees or Service Fees means fees payable by Merchant for use of the Services, as disclosed in the Application, the Account, on the Site or otherwise through the Services. Where Fee items are disclosed through an (i) Application; (ii) the Account; or (iii) otherwise through the Services, such Fees for such Fee items shall supersede those disclosed on the Site.

Guide means the user guide, manual, technical specifications or other documentation supplied by AIYA from time to time with respect to any Service.

Intellectual Property Rights means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

Laws shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.

MasterCard means MasterCard International, Inc.

Merchant means you and if you are using the Services on behalf of a company, entity, or organization, the entity, partnership or organization, then ‘you’ also includes such entity.

Merchant Bank Account means a bank account of the Merchant identified by Merchant as being an account from which AIYA may debit Fees or other amounts owing hereunder.

Merchant Business the business of Merchant supplying its Product to Customers.

Merchant Data means any and all non-public identifiable personal information of Merchants.

Merchant Device means computer system, tablet or phone used by Merchant to access the Services or manage Data or Merchant business.

Merchant Disclosure means information provided by the Merchant to be displayed via the Services to Customers or other third parties.

Merchant Personnel means an employee or agent of the Merchant that Merchant has authorized to access the Services.

Merchant Privacy Policy means the policy of the Merchant setting out the terms by which it collects, stores and processes non-public personal information of personnel, Customers and other counterparties.

Party means either Merchant or AIYA and “Parties” means both Merchant and AIYA.

Payment Network means Visa, MasterCard or another payment network operating in support of the issuing and processing of Card Transactions.

Person is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.

Personal Data means any information relating to an identified or identifiable natural person or, to the extent applicable under applicable laws, a household; an identifiable person is one who can be defined, directly or indirectly, notably but not limited to by reference to a user identification or unique identifier, such as name, identification number, precise geo-location data, online user identification, or by reference to one or more factors specific to physical, physiological, genetic, economic, cultural, or social identity.

Product means any product or service for sale or provided by Merchant or for which a Third Party Servicer is used to make payment or for which Services is used to assist in a payment.

Rules means the rules and regulations of Payment Networks including those of Visa (available here https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf) MasterCard (available here https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html).

Site has the meaning set out in the preamble hereof.

Software means the object code version of the SDK, HTML code, APIs, related documentation, and other software or code, including updates, to enable AIYA to provide the Equipment Services to Merchant. Unless otherwise specified, Software shall not include any source code.

Term has the meaning set out in Section 8.

Third Party Servicer Agreement means an agreement between Merchant and a Third Party Servicer concerning the supply of Third Party Servicer Services to Merchant. The BANK Agreement is a Third Party Servicer Agreement.

Third Party Servicer means a third party that has entered into Third Party Servicer Agreement with Merchant pursuant to which the Third Party Servicer provides Third Party Servicer Services to Merchant. For each Merchant that has entered Third Party Servicer Agreement with Bank, such bank is a Third Party Servicer.

Third Party Servicer Services means the services of a Third Party Servicer provided pursuant to Third Party Servicer Agreement.

Transaction means sending or attempted sending of Data, by way of the Services, between any of Merchant, AIYA, a Customer or a Third Party Servicer.

User Guide means a user guide or instructions provided by AIYA in association with a given Service (e.g. AIYA Robot User Guide).

Visa means Visa U.S.A., Inc. or Visa International, Inc.

© 2023 AIYA Technology System, LLC, New York, U.S.A.