TRAY Operator Agreement

This Operator Agreement (the “Operator Agreement”) is entered into by and between Vendsy, Inc. dba as TRAY, a Delaware corporation with an office at 495 Brickell Ave, Unit 905, Miami, Florida 33131 (“Vendsy” or “TRAY”) and the entity that entered with TRAY into an Order (as defined below) that references this Operator Agreement (“Operator”).

1. TRAY entered into an Enterprise Master Agreement (the Agreement) with an entity that operates a franchise or similar organization (Customer, as defined in the Agreement);
2. Operator is a franchisee of, or is otherwise affiliated with Customer;
3. Operator and TRAY now desire to enter into this Operator Agreement and into one or more related Orders to enable Operator to receive Deliverables (as defined in the Agreement) from TRAY under this Operator Agreement and the Agreement.

Operator and TRAY each agrees as follows:

1. Scope:  This Operator Agreement and the Agreement (jointly denoted the “Contract”) govern the relationship between Operator and TRAY.  This Contract, together with each related Order entered into by Operator and TRAY, specifies the terms and conditions under which Operator will receive Deliverables from TRAY.  Capitalized terms used and not defined in this Operator Agreement are defined in the Agreement.  
2. License.  Subject to Operator’s compliance with this Contract, TRAY grants to Operator a nonexclusive license to use each Deliverable received from TRAY under each Order in the normal course of the Operator’s business and in accordance with the applicable documentation made available by TRAY.  The foregoing license (a) is non-sublicensable by Operator, (b) can only be assigned by Operator as expressly permitted in this Contract, (c) only applies to the Operator’s location where the Deliverable was deployed or used initially, and (d) will remain in effect for the duration of the applicable Service Term specified in the corresponding Order.
3. Use of Deliverables.  Operator will use the Deliverables received from TRAY solely to conduct POS transactions in the course of its normal business, as expressly permitted in this Contract, and within the scope of the license in Section 2 of this Operator Agreement.  Operator will not itself, and will not permit others to: (a) use the Deliverables to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws or regulations; (b) perform or disclose any benchmarking or availability testing of the Deliverables; (c) perform or disclose any performance or vulnerability testing of the Deliverables without TRAY’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Deliverables; (d) share passwords among Operator’s personnel, or otherwise permit more than one user to access any Deliverables using a single account, ((a) through (d) collectively, the “Use Policy”).   In addition to its other rights and remedies under this Agreement, TRAY has the right to take immediate remedial action if Operator violates or permits the violation of the Use Policy, including to remove or disable access to material that violates the Use Policy.  Operator will ensure that all passwords and all access to the accounts held by its authorized users to access the Deliverables are kept secure and confidential, and Operator will be responsible for all access and losses that may occur to the extent caused by security lapses, failure to keep confidential access credentials, or other misconduct by its personnel, or to the extent occurring under any account or using any login credentials of any of its personnel.
4. Warranties and Limitations.  The provisions of Section 7 of the Agreement will apply to this Operating Agreement and to each related Order.
5. Term and Termination.
6. Term. This Operator Agreement becomes effective on the Operator Agreement Effective Date and will remain in effect until any of the following occurs: (i) the Agreement expires or terminates; or (ii) Operator and TRAY agree in writing to terminate this Operator Agreement, or (iii) either Operator or TRAY terminates this Operator Agreement as permitted in Section 5.b below.
7. Termination for Convenience.  Either Operator or TRAY has the right to terminate this Operator Agreement at any time by giving prior 90-day written notice of termination to Operator or respectively to TRAY, provided that no Order (including any Service Term specified in any Order) is in effect at that time.  Either Operator or TRAY has the right to terminate any Order at any time by giving prior 90-day written notice of termination to Operator or respectively to TRAY, provided that no Service Term is in effect at that time for any Deliverables covered by such Order.
8. Termination for Cause.  This Operator Agreement and each Order may be terminated immediately, by written notice, by either Operator or TRAY (i) in the event of a material breach of this Agreement by TRAY or respectively Operator if the circumstances that led to such breach remain uncured for 30 days from receipt of written notice of breach, or (ii) if TRAY or respectively Operator ceases to do business without a successor, makes an assignment for the benefit of creditors, or files or has filed against it a petition of bankruptcy or other insolvency proceeding that is not resolved within sixty (60) days.
9. Extension by Customer.  Operator agrees that the term of this Operating Agreement and/or of any Order may be extended, and any Service Term may be added to any Deliverables covered by any Order, pursuant to a written agreement entered into by TRAY and Customer (in this case, Customer would be acting on behalf of Operator).
10. Confidentiality.  TRAY and Operator agree that the provisions of Section 6 and Schedule B (Confidentiality) of the Agreement will apply to this Operator Agreement, and any information exchanged between TRAY and Operator under this Operator Agreement will be considered Confidential Information under the Agreement.  Further, Operator acknowledges and agrees that if requested by Customer, TRAY has the right to give to Customer full access to Operator’s transactions and data as stored in the Deliverables, including personal information and POS transaction data.
11. Financials. 
12. The provisions of Section 4 (Financials) of the Agreement will apply to this Operator Agreement.
13. TRAY will provide to Operator a monthly summary showing the Fees owed by Operator under each Order.
14. Unless otherwise specified in an Order, TRAY will automatically charge Operator all Fees for Recurring Services specified in each Order (“Recurring Fees”), on an annual basis via a form of payment acceptable to TRAY.  Unless otherwise specified in an applicable Order, these Recurring Fees will be charged for each Operator location in advance for the following twelve (12) months starting with the applicable Start Date, and on each annual anniversary of the Start Date for each such location.  The “Start Date” for an Operator location is the date 14 days before the go-live date of such location.
15. Operator will provide payment information to TRAY or its affiliates at least 30 days in advance of each go-live date and hereby authorizes TRAY to electronically and automatically debit its account for the Fees owed to TRAY for as long as Operator continues to access the Deliverables.  Operator will ensure that enough funds are available for each automated transfer.
16. Should Operator fail to pay any Fees within thirty (30) days after the payment is due, TRAY may approach Operator for payment.  TRAY has the right to suspend the operation of the Deliverables to that Operator if payment of any portion of the Fees that is not reasonably disputed in good faith by the Operator has not been made in full within thirty (30) days after the respective payment was due.  Reinstating operation of Deliverables after suspension in accordance with the foregoing clause may take up to one (1) business day and will be subject to payment to TRAY of a $500 account reinstatement fee per each Operator location.
17. In the event of any expiration or termination of this Operator Agreement or of any Order, Operator will pay to TRAY all Fees owed and then-unpaid by Operator, including all Fees applicable to all Deliverables received by Operator through the date of such expiration or termination.  
18. Incorporation by Reference. Operator acknowledges that it has been provided with a copy of the Agreement for review.  Operator and TRAY each agrees to comply with all of its obligations specified under the Agreement to the extent such obligations are applicable this Operator Agreement and/or to any Order entered into by Operator and TRAY. 
19. Non-TRAY Issues.  Operator is solely responsible for all technology and services other than the Deliverables, including all technology and services provided by Operator, Customer, or any other vendor or affiliate of Operator or of Customer.  For clarification, TRAY is not responsible for resolving any non-TRAY issues that may affect the operation of the Deliverables.  To the extent Operator continues to escalate non-TRAY issues repeatedly, TRAY reserves the right to charge Operator reasonable fees for responding to such issues.

General.  The provisions of Section 9 of the Agreement will apply to this Operator Agreement