Last Updated: 05/16/2024

Enterprise Master Agreement
This Enterprise Master Agreement (the “Agreement”) is entered into by and between Vendsy, Inc. dba as TRAY, a Delaware corporation with an office at 7025 East Via Solari Dr, Suite 4038, Scottsdale, AZ 85251 (“Vendsy” or “TRAY”) and the entity that entered with TRAY into an Order (as defined below) that references this Agreement (“Customer”) (TRAY and Customer are each a “Party” and collectively the “Parties”).
A. TRAY develops and commercializes Point of Sale (POS) technology and provides various POS-related services;
B. Customer operates a franchise or similar organization that uses POS technology;
C. TRAY and Customer desire to enter into this Agreement to enable franchisees and other entities affiliated with Customer to receive certain POS technology and services from TRAY under this Agreement.
Each Party agrees as follows:

  1. Definitions.
    1.1 Definitions. Unless specifically defined below, capitalized terms are defined in Schedule A below.
  2. Customer Franchisees and other Affiliated Entities.
    2.1 Operators. Certain franchisees and other entities affiliated with Customer (i.e., Operators) may be authorized to receive Deliverables from TRAY under this Agreement. To receive Deliverables from TRAY under this Agreement, each Operator must enter with TRAY into an Operator Agreement and into one or more Orders that specify Deliverables to be received by such Operator.
    2.2 Transfer Among Operators. If requested in writing by Customer with good reason (e.g., if the business relationship between Customer and an Operator ends), TRAY will permit the respective Operator (“Departing Operator”) to assign its Operator Agreement and the corresponding Services to a newly-designated Operator (“New Operator”). Upon Customer’s request, TRAY will consent to the assignment of the respective Operator Agreement to the New Operator, and will facilitate the transfer of the Services to such New Operator.
    2.3 Right to Suspend Services. If an Operator becomes a Departing Operator and Customer is unable to designate another entity as a New Operator as described in Section 2.2 above, then upon Customer’s written request TRAY will agree to suspend the remaining term of the corresponding Operating Agreement for up to twenty-four (24) months after the Services are disconnected for the Departing Operator to provide to Customer the opportunity to designate a corresponding New Operator. If Customer designates a New Operator during such period of time, TRAY will permit assignment of the respective Operator Agreement and Services to the New Operator in accordance with Section 2.2 above for the remaining term of such Operating Agreement. If Customer is unable to designate another entity as a New Operator within such period of time, unless otherwise agreed upon by Parties in good faith, TRAY will have the option to invoice Customer for the remaining balance under the respective Operating Agreement, and Customer will pay such balance.
    2.4 Logistics. If TRAY believes in good faith that additional Deliverables are required to accomplish the transfer of Services to any New Operator, TRAY will advise Customer of the cost of such additional Deliverables, and TRAY may condition the assignment of the respective Operating Agreement and Services on payment to TRAY of such costs. In the event of any transfer of Services to a New Operator, and whenever Services are disconnected for a Departing Operator, Customer must ensure that the access credentials of all affected TRAY POS terminals are reset, such that the access credentials with respect to the Departing Operator are no longer in effect after such transfer or disconnection.
  3. Professional Services; SLA.
    3.1 Professional Services. From time to time, an Operator may request TRAY to perform certain nonrecurring engineering services (“NRE Services”). Examples of NRE Services may include API integrations, customization, configuration, deployment, or other nonrecurring engineering services. In such cases, the Operator and TRAY will negotiate in good faith and will enter into an Order that specifies the scope of work and the pricing for such NRE Services.
    3.2 Supplemental Services. If TRAY and an Operator agree in writing that TRAY will perform any particular work that is not covered by an Order or for which no fees are specified, TRAY will charge in good faith its standard hourly fees applicable to similar work and will invoice the Operator on a monthly basis for that work.
    3.3 SLA. The Recurring Services received by each Operator via the TRAY cloud-based back-end portals will comply with the service levels specified in the Service Level Agreement found at tray.com/sla.
  4. Financials.
    4.1 Prices. The prices for Deliverables to be received by each Operator are set forth in a schedule attached to this Agreement or in applicable Orders entered into by TRAY and such Operator. All amounts under each Order are stated and calculated, and will be paid in United States Dollars ($ U.S.) to a bank account designated by TRAY in the USA. Fees and other amounts prepaid by Customer or any Operator are not refundable.
    4.2 Payments. Each Operator will pay all fees and other amounts specified in the corresponding Operator Agreement and in each applicable Order entered into by the Operator and TRAY, using the prices described in Section 4.1 of this Agreement (such fees and other amounts are collectively the “Fees”). Unless otherwise specified in an Order, (a) all Fees for Recurring Services are due in advance of the applicable Service Term, and (b) all Fees for hardware are due in full before TRAY orders and/or ships such hardware, and (c) all other Fees are due within thirty (30) days after TRAY issues a corresponding invoice. Customer will ensure that each Operator pays to TRAY all Fees owed by such Operator to TRAY in accordance with each applicable Operator Agreement and Order. Payments that are not made on time will bear interest at an annual rate of 5% per year (or the maximum amount allowed by law, if lower). Costs of collection for undisputed Fees owed by an Operator under any Order (including legal fees) for more than ninety (90) days will be paid by the Operator.
    4.3 Prices Fixed during Service Terms. If any Deliverables received by an Operator under an Order are subject to a Service Term in such Order, (a) the prices for those Deliverables will not change during that Service Term except that TRAY may increase the prices once per calendar year by the greater of (i) five percent; or (ii) the increase in the Consumer Price Index for all Urban Consumers (U.S. city average, all items, for the most recent month available, looking back 12 months), as reported at https://data.bls.gov/, plus three percent, and (b) neither Party, nor the Operator may terminate that Order without the written consent of both Parties and the Operator until the expiration of that Service Term. For clarification, a month-to-month term is not considered a “Service Term.” In the absence of a Service Term applicable to any Deliverables, TRAY may change prices for such Deliverables at any time with thirty (30) day prior written notice to the respective Operator.
    4.4 Taxes. Prices specified under this Agreement are do not include taxes. To the extent any sales taxes, use taxes, value added taxes, or any other similar charges or fees (“Taxes”) are applicable to any Deliverables received by any Operator or any payments made by any Operator under any Order, the respective Operator will pay those Taxes to the appropriate authorities. Each Operator will reimburse TRAY for any Taxes that TRAY pays on behalf of the Operator.
  5. License and IP.
    5.1 License. The Operator Agreement and related Orders entered into by TRAY with each Operator specify the license granted by TRAY to the Operator for the Deliverables received by the Operator from TRAY.
    5.2 IP Rights. TRAY, Customer and each Operator will retain ownership of its own respective technology (including software and hardware), services and IP Rights. To the extent that TRAY, Customer or any Operator develops any new IP Rights or any new work product in connection with this Agreement, any Operator Agreement, and/or any Order, then TRAY, or respectively Customer or the Operator, as applicable, will solely own the respective IP Rights or work product develops by such party. With respect to any IP Rights that are produced jointly in connection with this Agreement by TRAY, Customer and/or any Operator, then (a) TRAY will be the sole owner of any IP Rights that relate to TRAY’s technology and services (including the Deliverables), and (b) unless otherwise agreed upon by Customer and the Operator, Customer will be the sole owner of any IP Rights that relate to Customer’s technology and services, and the Operator will be the sole owner of any IP Rights that relate to Operator’s technology and services. TRAY, Customer and each Operator will collaborate to assign IP Rights to each applicable party in accordance with the foregoing provisions of this Section 6.2.
    5.3 Reservation of Rights. Neither TRAY, nor Customer, nor any Operator grants any license or any other right that is not expressly stated in this Agreement, in an Operator Agreement, or in an Order with respect to any IP Rights or Deliverables, whether by implication, statute, inducement, estoppel or otherwise. TRAY, Customer, and each Operator hereby reserves all of its respective rights, other than any rights expressly granted in this Agreement, in an Operator Agreement, or in an Order.
  6. Confidentiality.
    6.1 TRAY, Customer and each Operator will comply with the confidentiality obligations in Schedule B (Confidentiality).
  7. Warranties and Disclaimers
    7.1 Deliverables. With respect to each Deliverable made available by TRAY to any Operator under a corresponding Order entered into by TRAY and such Operator, TRAY warrants to that Operator that during the term of the applicable Order, the respective Deliverable (excluding third party products and services, which will be subject to the respective third party warranties) will operate substantially in accordance with the applicable documentation made available by TRAY to the Operator.
    7.2 Performance. Each Party, and each Operator warrants and represents that it is a legal entity duly organized, validly existing and in good standing with the applicable authorities, and that it has all necessary corporate power and authority to execute and deliver this Agreement, each applicable Operator Agreement, and each applicable Order.
    7.3 Compliance with Laws. Each Party and each Operator will comply with all laws, rules and regulations applicable to its business and operations in connection with this Agreement and each applicable Operator Agreement and Order. To the extent that the PCI DSS standard is applicable to any Deliverable made available to any Operator under any Order, TRAY will ensure that the respective Deliverables remains compliant during the term of the applicable Order with such standard. Each Operator will obtain all consents required under all applicable laws and regulations (including any consents required by VISA, MasterCard and other credit card networks) from end consumers to process POS transactions and to collect end consumer data (including any personal data and personally identifiable information) in accordance with this Agreement. Each Operator will comply with all applicable laws and regulations while using the Deliverables in connection with this Agreement, including any employment and privacy laws applicable to the Operator’s personnel whose work schedules or other data may be tracked through the Operator’s cloud-based back end portal made available by TRAY.
    7.4 Mutual Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT AND IN EACH APPLICABLE OPERATOR AGREEMENT, NEITHER TRAY, NOR CUSTOMER, NOR ANY OPERATOR PROVIDES ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, TO EACH OTHER OR TO ANY OTHER PARTY, WITH RESPECT TO ANY PRODUCTS OR SERVICES (INCLUDING ANY IP RIGHTS, TRAY DELIVERABLES, OR CUSTOMER OR OPERATOR PRODUCTS OR SERVICES), AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE OR USAGE. As Customer’s and Operator’s sole and exclusive remedy for any warranty breach by TRAY under this Section 7 relating to any Deliverables, TRAY will make commercially reasonable efforts to address any material deviations from the applicable TRAY documentation that may occur in the operation of such Deliverables, and to work with the respective Operator in good faith to address such deviations.
    7.5 Mutual Limitations. Neither TRAY, nor Customer, nor any Operator will be liable for any costs of procurement of substitute Deliverables, nor for any loss of business, loss of use or of data, interruption of business, lost profits or goodwill, or other indirect, special, incidental, exemplary or consequential damages of any kind arising in connection with this Agreement, or in connection with any Operator Agreement or Order, even if it has been advised of the possibility of such loss, and notwithstanding any failure of essential purpose of any limited remedy. This exclusion includes any liability that may arise out of third-party claims. Except for the obligation to pay the fees owed to TRAY for Deliverables under applicable Orders, under no circumstances will the total and aggregate liability of all kinds arising out of or related to this Agreement, all Operator Agreements, and all Orders, regardless of the forum and regardless of whether any action or claim is based on contract, indemnification obligations, tort or otherwise, exceed for TRAY, for Customer, or for any Operator at any point in time the total amount paid to TRAY over the twelve (12) months prior to that point in time for the Deliverables giving rise to or related to such liability. The foregoing limitation in this Section 7.5 is cumulative, with all payments for claims or damages being aggregated to determine satisfaction of the limit, and the existence of one or more claims will not enlarge that limit. Each Party, and each Operator acknowledges that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy. No claim, suit or action will be brought against TRAY, Customer or any Operator more than one year after the related cause of action first occurred. Each Operator is responsible for credit cards used and transactions performed while any POS terminal or system is in offline mode, and TRAY will have no liability if transactions are declined when the terminal or system is turned back into online mode.
  8. Term and Termination
    8.1 Term. This Agreement becomes effective on the Effective Date and will continue in effect until terminated in accordance with Section 8.2 of this Agreement (the “Term”). Except as specified in Section 8.2 or in an Operator Agreement or Order, neither Party has the right to terminate this Agreement, any Operator Agreement, and/or any Order.
    8.2 Termination.
    (a) Termination for Convenience. Either Party has the right to terminate this Agreement at any time by giving prior 90-day written notice of termination to the other Party, provided that no Operator Agreement or Order (including any Service Term specified in any Order) is in effect at that time.
    (b) Termination for Cause. This Agreement may also be terminated immediately, by written notice, (i) by either Party in the event of a material breach of this Agreement by the other Party if the circumstances that led to such breach remain uncured for 30 days from receipt of written notice of breach, or (ii) by either Party if the other Party 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.
    8.3 Effect of Termination. The provisions of Sections 1, 4 (to the extent payment obligations continue after termination), 5.2, 5.3, 6, 7, 8.3, and 9, and Schedules A and B will survive any termination or expiration of this Agreement.
  9. General
    9.1 Insurance. During the term of this Agreement and for at least one year after any termination or expiration of this Agreement, each Party will maintain insurance policies with financially sound and nationally reputable insurers rated A-VII or better by A.M. Best Company as follows: (a) Commercial General Liability Insurance with limits of at least $1 Million per occurrence and at least $2 Million in the aggregate; (b) Workers’ Compensation and Employers’ Liability Insurance, of the type and amount required by laws and regulations applicable to that Party under this Agreement; and (c) coverage for Cyber and Privacy liability arising out of technology services, including invasion of privacy violations and data security breach of networks that are under that Party’s control, with a limit of at least $1 Million per occurrence and at least $1 Million in the aggregate. Each Party will provide the other party with certification of such insurance upon request.
    9.2 Assignment. Neither Party has the right to assign this Agreement without the consent of the other Party, except that either Party has the right to assign this Agreement without the need to obtain such consent in connection with a corporate reorganization or a sale or transfer of all or substantially all of its stock, assets or business (a “Permitted Transaction”). Neither TRAY nor any Operator has the right to assign any Operator Agreement or any Order entered into by TRAY and such Operator without the consent of Operator or respectively TRAY, except that (a) TRAY has the right to assign each Operator Agreement or each Order without the need to obtain such consent in connection with a Permitted Transaction, and (b) Operator has the right to assign its Operator Agreement and all of its Orders as expressly permitted in Section 2 of this Agreement (i.e., as a Departing Operator).
    9.3 Notices. Unless otherwise specified in this Agreement or in the Operator Agreement, all notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement or of any Operator Agreement will be in writing and will be personally delivered or sent by overnight courier service to TRAY, to Customer, or to the respective Operator, as applicable, at the address set forth in this Agreement or in the applicable Operator Agreement. Any communications between TRAY, Customer and Operators that relate to business and logistical collaboration under specific Orders may be conducted over telephone, email, or by other means reasonable under the circumstances.
    9.4 Relationship of Parties. Neither this Agreement, nor any Operator Agreement or any Order creates any relationship of agency, franchise, fiduciary duty, partnership, or employment between TRAY, Customer, and/or any Operator. Accordingly, neither TRAY, nor Customer, nor any Operator will have the authority, either express or implied, to make any contract, commitment, or representation, or incur any debt or obligation on behalf of each other.
    9.5 Applicable Law and Venue. This Agreement, each Operator Agreement, and each Order will be governed by and construed and interpreted in accordance with the laws of the State of Delaware, USA, applicable to contracts entered into and to be performed within that state. Each Party, and each Operator hereby acknowledges and agrees that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, or to any Operator Agreement or Order. Each Party and each Operator hereby irrevocably consents to the exclusive and personal jurisdiction and venue of any State or Federal court located in Delaware for any dispute that may arise in connection with this Agreement, any applicable Operator Agreement, or any applicable Order.
    9.6 Injunctive Relief. Notwithstanding anything to the contrary in this Agreement, in the event of a breach under Schedule B (Confidentiality), each Party and each Operator, as applicable, without limiting any of its other respective rights or remedies, will be entitled to specific performance and injunctive and/or equitable relief, in addition to other remedies afforded by law, to protect its interests.
    9.7 Force Majeure. Each Party and each Operator, as applicable, will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that Party or respectively Operator, including but not limited to, war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, hacking or other cyber-attacks, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this Agreement or any Operator Agreement or Order, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical or yield failures.
    9.8 Construction. For purposes of this Agreement, unless otherwise required by the context: the singular number will include the plural, and vice versa; the verb “may” indicates a legal right to perform the respective activity but does not establish a legal obligation to perform that activity; and the words “include,” “including” and “for example,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” The headings in this Agreement and each Operator Agreement and Order are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement. This Agreement and/or any Operator Agreement or Order may be translated and/or executed in languages other than English, but each Party and each Operator, as applicable, agrees that the English version will control.
    9.9 Miscellaneous. No amendment or modification of this Agreement will be valid unless approved in writing by authorized representatives of each Party. No amendment or modification of any Operator Agreement or Order will be valid unless approved in writing by authorized representatives of TRAY and the respective Operator. This Agreement includes Schedules A and B, and all such Schedules are expressly incorporated and made a part of this Agreement. This Agreement and each Operator Agreement supersedes all prior agreements and understandings relating to its subject matter between the respective parties, including any oral representations. In case of any conflict between this Agreement and any Order, the terms of the Order will prevail to the extent of the conflict. Waiver of breach of any provision of this Agreement or of any Operator Agreement or Order on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion. This Agreement and each Operator Agreement or Order may be executed in counterparts.

Schedule A: Definitions

  1. “Deliverable” means any product, software, documentation, data, or Service that is received by Customer under this Agreement, in the form provided by TRAY, and as specified in an applicable Order. Deliverables may include hardware products (e.g., POS systems, electronic tablets, cash registers, credit card readers, printers, and other POS peripherals) and software (e.g., cloud-based software, client-installed software, applicable programming interfaces (APIs), mobile apps, etc.). For convenience purposes, to “receive”, “provide” or “make available” (and derivatives of these words) a Deliverable under this Agreement means that software, documentation, data and any other copyrightable items are licensed by TRAY (and not sold), hardware products are sold or leased by TRAY, and Services are provided or performed by TRAY, in each case in accordance with this Agreement, the applicable Operator Agreement, and the applicable Order.
  2. “IP Rights” means any and all intellectual property rights anywhere in the world, including all (a) patents (“Patents”), (b) copyrights and all other similar rights in software, documentation, and other works of authorship (“Copyrights”), (c) trade secrets rights and other similar rights in oral, electronic and written confidential information (“Trade Secrets”), (d) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations (“Trademarks”), (e) rights in all moral and economic rights of authors and inventors, however denominated; and (f) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software, data or services, and including all applications, registrations, issuances, grants and other formalized rights to any of the foregoing.
  3. “Operator” is a party affiliated with Customer that that operates one or more business locations, and which is authorized by both Customer and TRAY to receive Deliverables under this Agreement. An Operator may be a Customer franchisee, a subsidiary of Customer, or another entity affiliated with Customer. Either Party may remove an Operator from this Agreement with thirty-day prior written notice to the other Party, except that no Operator can be removed for as long as it is subject to a Service Term under an Order.
  4. “Operator Agreement” means an agreement entered into by TRAY and an Operator pursuant to which the Operator receives Deliverables from TRAY. The Operator Agreement is found at the following location: [tray.com/legal/operator_agreement.pdf].
  5. “Order” or “Order Form” means any order form, purchase order, quotation, sales agreement, statement of work (SOW), amendment, or other document that describes specific Deliverables and corresponding prices to be received by an Operator, and that is accepted by Customer and/or the Operator on one hand, and TRAY on the other hand. Orders may be submitted and accepted electronically or in writing.
  6. “Services” means any services provided by TRAY to Customer under this Agreement, including recurring services (e.g., cloud-based subscription services) (“Recurring Services”) and Professional Services (as defined in Section 2 of this Agreement.
  7. “Service Term” means any fixed term specified in any Order for any Services. Unless otherwise provided in the applicable Order, each Service Term will automatically renew for a renewal term with the same duration as the original Service Term (a “Renewal Term”), and will continue to subsequently auto-renew for consecutive Renewal Terms, unless either Party provides written notice rejecting the upcoming Renewal Term at least ninety days before the upcoming renewal date.

    Schedule B: Confidentiality
  8. Confidential Information” means any information disclosed to each other by Customer and/or any Operator on one hand, and TRAY on the other hand, in connection with this Agreement, or in connection with any Operator Agreement or Order (each a “Discloser” or “Recipient” of Confidential Information, as applicable). Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, that should reasonably be considered confidential considering its nature and the circumstances of its disclosure. Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items. The Deliverables and any modifications or additions made in connection with this Agreement to the Deliverables will be the Confidential Information of TRAY. Customer’s and each Operator’s technology, and any modifications or extensions made in connection with this Agreement to such technology, will be the Confidential Information of Customer or of the respective Operator. Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.
  9. Obligations. With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care, (b) Recipient will only use such Confidential Information as expressly permitted under this Agreement, and (c) Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities). Recipient further agrees to keep confidential the terms of this Agreement, except as reasonably needed in connection with bona fide conversations with prospective investors or acquirers. Recipient will not reverse engineer, disassemble or decompile any Deliverables or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
  10. Consumer Data. Each Operator will own all data relating to Operator’s end consumers and to the POS transactions processed using the Deliverables covered by this Agreement (such data “Transaction Data”). Each Operator will comply with all applicable privacy laws in the course of collecting, storing and using the Transaction Data. Each Operator grants to TRAY a perpetual and irrevocable license, with the right to sublicense to TRAY’s affiliates, to use the Transaction Data in connection with TRAY’s business, including to assist that Operator to configure and use the Deliverables, and to provide to that Operator the Servies, analytics, sales reporting and other data-related features made available by TRAY in the Operator’s cloud-based portal. Additionally, TRAY has the right to use the Transaction Data in an aggregate and anonymized format (without uniquely identifying individuals or entities) in the course of its business and to improve the Deliverables, provided that TRAY makes available to Customer and Operators services using such aggregated metrics and data that are similar to those provided to other TRAY customers. TRAY will also comply with all privacy laws applicable to TRAY in connection with the Transaction Data to the extent that TRAY has access to such Transaction Data.
  11. Deletion of Data. Upon any termination or termination of this Agreement or of any Operator Agreement, or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this Agreement or under the applicable Operator Agreement (together with all copies and derivatives of such Confidential Information), except that Recipient may continue to temporarily hold a copy of such information for data retention purposes in accordance with its data retention policy, as required by applicable laws (e.g., as required by PCI DSS data retention requirements), or as otherwise permitted under this Agreement.

Schedule A: Definitions

  1. “Deliverable” means any product, software, documentation, data, or Service that is received by Customer under this Agreement, in the form provided by TRAY, and as specified in an applicable Order. Deliverables may include hardware products (e.g., POS systems, electronic tablets, cash registers, credit card readers, printers, and other POS peripherals) and software (e.g., cloud-based software, client-installed software, applicable programming interfaces (APIs), mobile apps, etc.). For convenience purposes, to “receive”, “provide” or “make available” (and derivatives of these words) a Deliverable under this Agreement means that software, documentation, data and any other copyrightable items are licensed by TRAY (and not sold), hardware products are sold or leased by TRAY, and Services are provided or performed by TRAY, in each case in accordance with this Agreement, the applicable Operator Agreement, and the applicable Order.
  2. “IP Rights” means any and all intellectual property rights anywhere in the world, including all (a) patents (“Patents”), (b) copyrights and all other similar rights in software, documentation, and other works of authorship (“Copyrights”), (c) trade secrets rights and other similar rights in oral, electronic and written confidential information (“Trade Secrets”), (d) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations (“Trademarks”), (e) rights in all moral and economic rights of authors and inventors, however denominated; and (f) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software, data or services, and including all applications, registrations, issuances, grants and other formalized rights to any of the foregoing.
  3. “Operator” is a party affiliated with Customer that that operates one or more business locations, and which is authorized by both Customer and TRAY to receive Deliverables under this Agreement. An Operator may be a Customer franchisee, a subsidiary of Customer, or another entity affiliated with Customer. Either Party may remove an Operator from this Agreement with thirty-day prior written notice to the other Party, except that no Operator can be removed for as long as it is subject to a Service Term under an Order.
  4. “Operator Agreement” means an agreement entered into by TRAY and an Operator pursuant to which the Operator receives Deliverables from TRAY. The Operator Agreement is attached below in Schedule C.
  5. “Order” or “Order Form” means any order form, purchase order, quotation, sales agreement, statement of work (SOW), amendment, or other document that describes specific Deliverables and corresponding prices to be received by an Operator, and that is accepted by Customer and/or the Operator on one hand, and TRAY on the other hand. Orders may be submitted and accepted electronically or in writing.
  6. “Services” means any services provided by TRAY to Customer under this Agreement, including recurring services (e.g., cloud-based subscription services) (“Recurring Services”) and Professional Services (as defined in Section 2 of this Agreement.
  7. “Service Term” means any fixed term specified in any Order for any Services. Unless otherwise provided in the applicable Order, each Service Term will automatically renew for a renewal term with the same duration as the original Service Term (a “Renewal Term”), and will continue to subsequently auto-renew for consecutive Renewal Terms, unless either Party provides written notice rejecting the upcoming Renewal Term at least ninety days before the upcoming renewal date. Unless otherwise specified in an Order, the Service Term shall be five (5) years.
    Schedule B: Confidentiality
  8. Confidential Information” means any information disclosed to each other by Customer and/or any Operator on one hand, and TRAY on the other hand, in connection with this Agreement, or in connection with any Operator Agreement or Order (each a “Discloser” or “Recipient” of Confidential Information, as applicable). Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, that should reasonably be considered confidential considering its nature and the circumstances of its disclosure. Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items. The Deliverables and any modifications or additions made in connection with this Agreement to the Deliverables will be the Confidential Information of TRAY. Customer’s and each Operator’s technology, and any modifications or extensions made in connection with this Agreement to such technology, will be the Confidential Information of Customer or of the respective Operator. Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.
  9. Obligations. With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care, (b) Recipient will only use such Confidential Information as expressly permitted under this Agreement, and (c) Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities). Recipient further agrees to keep confidential the terms of this Agreement, except as reasonably needed in connection with bona fide conversations with prospective investors or acquirers. Recipient will not reverse engineer, disassemble or decompile any Deliverables or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
  10. Consumer Data. Each Operator will own all data relating to Operator’s end consumers and to the POS transactions processed using the Deliverables covered by this Agreement (such data “Transaction Data”). Each Operator will comply with all applicable privacy laws in the course of collecting, storing and using the Transaction Data. Each Operator grants to TRAY a perpetual and irrevocable license, with the right to sublicense to TRAY’s affiliates, to use the Transaction Data in connection with TRAY’s business, including to assist that Operator to configure and use the Deliverables, and to provide to that Operator the Servies, analytics, sales reporting and other data-related features made available by TRAY in the Operator’s cloud-based portal. Additionally, TRAY has the right to use the Transaction Data in an aggregate and anonymized format (without uniquely identifying individuals or entities) in the course of its business and to improve the Deliverables, provided that TRAY makes available to Customer and Operators services using such aggregated metrics and data that are similar to those provided to other TRAY customers. TRAY will also comply with all privacy laws applicable to TRAY in connection with the Transaction Data to the extent that TRAY has access to such Transaction Data.
  11. Deletion of Data. Upon any termination or termination of this Agreement or of any Operator Agreement, or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this Agreement or under the applicable Operator Agreement (together with all copies and derivatives of such Confidential Information), except that Recipient may continue to temporarily hold a copy of such information for data retention purposes in accordance with its data retention policy, as required by applicable laws (e.g., as required by PCI DSS data retention requirements), or as otherwise permitted under this Agreement.

    Schedule C
    Operator Agreement
    This Operator Agreement (“Operator Agreement”), effective as of [DATE] (the “Operator Agreement Effective Date”), is entered into by Operator Name and TRAY, Inc. dba TRAY (“TRAY”).
    A. 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);
    B. Operator is a franchisee of, or is otherwise affiliated with Customer;
    C. 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:
  12. 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.
  13. 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.
  14. 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.
  15. Warranties and Limitations. The provisions of Section 7 of the Agreement will apply to this Operating Agreement and to each related Order.
  16. Term and Termination.
    a. 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.
    b. 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.
    c. 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.
    d. 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).
  17. 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.
  18. Financials.
    a. The provisions of Section 4 (Financials) of the Agreement will apply to this Operator Agreement.
    b. TRAY will provide to Operator a monthly summary showing the Fees owed by Operator under each Order.
    c. 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.
    d. 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.
    e. 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.
    f. 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.
  19. 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.
  20. 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.
  21. General. The provisions of Section 9 of the Agreement will apply to this Operator Agreement mutatis mutandis.
    Acknowledged and agreed by both TRAY and Operator:
    _____ (Operator) Vendsy, Inc. (TRAY)
    Signature: ______
    Name: ______
    Title: ______
    Date: ______ Signature: ______
    Name: ______
    Title: ______
    Date: ______

Schedule A: Definitions

  1. “Deliverable” means any product, software, documentation, data, or Service that is received by Customer under this Agreement, in the form provided by TRAY, and as specified in an applicable Order. Deliverables may include hardware products (e.g., POS systems, electronic tablets, cash registers, credit card readers, printers, and other POS peripherals) and software (e.g., cloud-based software, client-installed software, applicable programming interfaces (APIs), mobile apps, etc.). For convenience purposes, to “receive”, “provide” or “make available” (and derivatives of these words) a Deliverable under this Agreement means that software, documentation, data and any other copyrightable items are licensed by TRAY (and not sold), hardware products are sold or leased by TRAY, and Services are provided or performed by TRAY, in each case in accordance with this Agreement, the applicable Operator Agreement, and the applicable Order.
  2. “IP Rights” means any and all intellectual property rights anywhere in the world, including all (a) patents (“Patents”), (b) copyrights and all other similar rights in software, documentation, and other works of authorship (“Copyrights”), (c) trade secrets rights and other similar rights in oral, electronic and written confidential information (“Trade Secrets”), (d) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations (“Trademarks”), (e) rights in all moral and economic rights of authors and inventors, however denominated; and (f) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software, data or services, and including all applications, registrations, issuances, grants and other formalized rights to any of the foregoing.
  3. “Operator” is a party affiliated with Customer that that operates one or more business locations, and which is authorized by both Customer and TRAY to receive Deliverables under this Agreement. An Operator may be a Customer franchisee, a subsidiary of Customer, or another entity affiliated with Customer. Either Party may remove an Operator from this Agreement with thirty-day prior written notice to the other Party, except that no Operator can be removed for as long as it is subject to a Service Term under an Order.
  4. “Operator Agreement” means an agreement entered into by TRAY and an Operator pursuant to which the Operator receives Deliverables from TRAY. The Operator Agreement is found at the following location: [tray.com/legal/operator_agreement.pdf].
  5. “Order” or “Order Form” means any order form, purchase order, quotation, sales agreement, statement of work (SOW), amendment, or other document that describes specific Deliverables and corresponding prices to be received by an Operator, and that is accepted by Customer and/or the Operator on one hand, and TRAY on the other hand. Orders may be submitted and accepted electronically or in writing.
  6. “Services” means any services provided by TRAY to Customer under this Agreement, including recurring services (e.g., cloud-based subscription services) (“Recurring Services”) and Professional Services (as defined in Section 2 of this Agreement.
  7. “Service Term” means any fixed term specified in any Order for any Services. Unless otherwise provided in the applicable Order, each Service Term will automatically renew for a renewal term with the same duration as the original Service Term (a “Renewal Term”), and will continue to subsequently auto-renew for consecutive Renewal Terms, unless either Party provides written notice rejecting the upcoming Renewal Term at least ninety days before the upcoming renewal date.

    Schedule B: Confidentiality
  8. Confidential Information” means any information disclosed to each other by Customer and/or any Operator on one hand, and TRAY on the other hand, in connection with this Agreement, or in connection with any Operator Agreement or Order (each a “Discloser” or “Recipient” of Confidential Information, as applicable). Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, that should reasonably be considered confidential considering its nature and the circumstances of its disclosure. Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items. The Deliverables and any modifications or additions made in connection with this Agreement to the Deliverables will be the Confidential Information of TRAY. Customer’s and each Operator’s technology, and any modifications or extensions made in connection with this Agreement to such technology, will be the Confidential Information of Customer or of the respective Operator. Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.
  9. Obligations. With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care, (b) Recipient will only use such Confidential Information as expressly permitted under this Agreement, and (c) Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities). Recipient further agrees to keep confidential the terms of this Agreement, except as reasonably needed in connection with bona fide conversations with prospective investors or acquirers. Recipient will not reverse engineer, disassemble or decompile any Deliverables or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
  10. Consumer Data. Each Operator will own all data relating to Operator’s end consumers and to the POS transactions processed using the Deliverables covered by this Agreement (such data “Transaction Data”). Each Operator will comply with all applicable privacy laws in the course of collecting, storing and using the Transaction Data. Each Operator grants to TRAY a perpetual and irrevocable license, with the right to sublicense to TRAY’s affiliates, to use the Transaction Data in connection with TRAY’s business, including to assist that Operator to configure and use the Deliverables, and to provide to that Operator the Servies, analytics, sales reporting and other data-related features made available by TRAY in the Operator’s cloud-based portal. Additionally, TRAY has the right to use the Transaction Data in an aggregate and anonymized format (without uniquely identifying individuals or entities) in the course of its business and to improve the Deliverables, provided that TRAY makes available to Customer and Operators services using such aggregated metrics and data that are similar to those provided to other TRAY customers. TRAY will also comply with all privacy laws applicable to TRAY in connection with the Transaction Data to the extent that TRAY has access to such Transaction Data.
  11. Deletion of Data. Upon any termination or termination of this Agreement or of any Operator Agreement, or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this Agreement or under the applicable Operator Agreement (together with all copies and derivatives of such Confidential Information), except that Recipient may continue to temporarily hold a copy of such information for data retention purposes in accordance with its data retention policy, as required by applicable laws (e.g., as required by PCI DSS data retention requirements), or as otherwise permitted under this Agreement.