Last Updated:06/04/2024

End Customer Agreement
This End Customer Agreement (the “Agreement”) is entered into by and between Vendsy KSA LLC (also known as TRAY) (“Vendsy” or “TRAY”) and the entity that entered with Reseller into any Order that references this Agreement (“Customer”) (TRAY and Customer are each a “Party” and collectively the “Parties” to this Agreement). This Agreement becomes effective when the first Order that references this Agreement becomes effective (the “Effective Date”).

A. Customer has entered into a commercial agreement with AlRaedah Digital Solutions, a company incorporated pursuant to the laws of the Kingdom of Saudi Arabia under commercial registration certificate 1010853106 and unified number 7033560074, having its registered address at 7830 Um Hamam Gharbi, 2314, Riyadh, Kingdom of Saudi Arabia (“Reseller” and respectively the “Commercial Agreement”);
B. TRAY and Reseller (collectively “Licensors”) have entered into a reseller agreement pursuant to which Reseller is authorized by TRAY to provide various Deliverables to Customer under the Commercial Agreement; and
C. This Agreement is entered into by Customer and TRAY and governs the use of the Deliverables by Customer.
Customer and TRAY each agrees as follows:

1. Definitions. Unless specifically defined below in this Agreement, capitalized terms are defined in Schedule A below.
2. Scope and Services.
   2.1 Scope of this Agreement. This Agreement governs the relationship between Customer and TRAY with respect to the Deliverables. This Agreement, together with the Commercial Agreement and each related Order entered into by Customer and Reseller (collectively the Contract, as defined in Appendix A), specifies the terms and conditions under which Customer will receive Deliverables from TRAY directly or through Reseller.
   2.2 Professional Services. From time to time, Customer and/or Reseller may request TRAY to perform certain nonrecurring engineering services (“Professional Services”). Examples of Professional Services may include API integrations, customization, configuration, deployment, or other nonrecurring engineering services. In such cases, TRAY, Customer and/or Reseller will negotiate in good faith and will enter into an Order that specifies the scope of work and the pricing for such Professional Services.
   2.3 Supplemental Services. If TRAY, Reseller and/or Customer agree in writing that TRAY will perform any particular work for Customer 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 either TRAY or Reseller will invoice Customer on a monthly basis for that work.
   2.4 SLA. The Recurring Services received by Customer 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.
3. License and IP.
   3.1 License. Subject to Customer’s compliance with the Contract, TRAY grants to Customer a nonexclusive license to use each Deliverable received by Customer under each Order in the normal course of the Customer’s business and in accordance with the applicable documentation made available by TRAY. The foregoing license (a) is non-sublicensable by Customer, (b) can only be assigned by Customer as expressly permitted in this Contract, (c) only applies to the Customer’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.
   3.2 IP Rights. TRAY and Customer will each retain ownership of its own respective technology (including software and hardware), services and IP Rights. To the extent that TRAY or Customer develops any new IP Rights or any new work product in connection with this Agreement and/or any Order, then TRAY, or respectively Customer will solely own the respective IP Rights or work product developed by such Party. With respect to any IP Rights that are produced jointly in connection with this Agreement by the Parties, 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) Customer will be the sole owner of any IP Rights that relate to Customer’s technology and services. Each Party will collaborate to assign IP Rights to the other Party in accordance with the foregoing provisions of this Section 3.2.
   3.3 Reservation of Rights. Neither Party grants any license or any other right that is not expressly stated in this Agreement or in an Order with respect to any IP Rights or Deliverables, whether by implication, statute, inducement, estoppel or otherwise. Each Party hereby reserves all of its respective rights, other than any rights expressly granted in this Agreement or in an Order.
4. Use of Deliverables. Customer will use the Deliverables received from Reseller 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 3 of this Agreement. Customer 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 Customer’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 or Reseller has the right to take immediate remedial action if Customer violates or permits the violation of the Use Policy, including to remove or disable access to material that violates the Use Policy. Customer 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 Customer 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.
5. Payments. Customer will pay to Reseller all fees specified in each Order with respect to each Deliverable received by Customer, in accordance with such Order.
6. Warranties and Limitations.
   6.1 Deliverables. With respect to each Deliverable made available to Customer under any Order, TRAY warrants to Customer 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 Customer.
   6.2 Performance. Each Party 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 enter into this Agreement.
   6.3 Compliance with Laws. Each Party will comply with all laws, rules and regulations applicable to its business and operations in connection with this Agreement. To the extent that the PCI DSS standard is applicable to any Deliverable made available to Customer, TRAY will ensure that the respective Deliverables remains compliant during the term of the applicable Order with such standard. Customer 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. Customer 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 Customer’s personnel whose work schedules or other data may be tracked through the Customer’s cloud-based back end portal made available by TRAY.
   6.4 Mutual Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, NEITHER TRAY, NOR CUSTOMER, NOR RESELLER PROVIDES ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, TO EACH OTHER OR TO ANY OTHER PARTY, WITH RESPECT TO ANY DELIVERABLES, IP RIGHTS, OR CUSTOMER PRODUCTS), 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 sole and exclusive remedy for any warranty breach by TRAY under this Section 6 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 Customer in good faith to address such deviations.
   6.5 Mutual Limitations. Neither Party, nor Reseller 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 Deliverables, any Order or the Commercial Agreement, 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 by Customer for the Deliverables under applicable Orders, under no circumstances will the total and aggregate liability of all kinds arising out of or related to this Agreement, the Commercial Agreement, 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 the Licensors together on one hand, or for Customer on the other hand, at any point in time the total amount paid by Customer 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 6.5 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 Reseller acknowledges that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy. No claim, suit or action will be brought in connection with this Agreement or the Deliverables against TRAY, Reseller or Customer more than one year after the related cause of action first occurred. Customer 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.
7. Confidentiality and Privacy.
   7.1 Confidentiality. Each Party will comply with the confidentiality obligations in Schedule B (Confidentiality).
   7.2 Privacy. Each Party will comply with the privacy policy that such Party maintains and makes public through its website.
8. Term and Termination.
   8.1 Term. This Agreement becomes effective on the Effective Date and will remain in effect until any of the following occurs: (i) the Commercial Agreement expires or terminates; or (ii) Customer and TRAY agree in writing to terminate this Agreement, or (iii) either Customer or TRAY terminates this Agreement as permitted in Section 8.2 below.
   8.2 Termination for Convenience. Either Party has the right to terminate this Agreement at any time by giving prior 30-day written notice of termination to the other Party, provided that no Order (including any Service Term specified in any Order) is in effect at that time. Either Party has the right to terminate any Order at any time by giving prior 30-day written notice of termination to the other Party, provided that no Service Term is in effect at that time for any Deliverables covered by such Order.
   a. Termination for Cause. This Agreement may be terminated immediately, by written notice, by either Party (i) 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) 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.
9. General
   9.1 Assignment. Neither Party has the right to assign this Agreement without the consent of the other Party, except that (a) TRAY 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”), and (b) Customer has the right to assign this Agreement along with the Commercial Agreement if and when Customer is allowed to assign the Commercial Agreement.
   9.2 Notices. Unless otherwise specified in this Agreement, all notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement will be in writing and will be personally delivered or sent by overnight courier service to the other Party at the last known address of the other Party. Any communications between the Parties that relate to the Deliverables may be conducted over telephone, email, or by other means reasonable under the circumstances.
   9.3 Relationship of Parties. Neither this Agreement, nor the Commercial Agreement, nor any Order creates any relationship of agency, franchise, fiduciary duty, partnership, or employment between the Parties. Accordingly, neither Party 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.
   9.4 Applicable Law and Venue. This Agreement will be governed by the laws of the Kingdom of Saudi Arabia. Each Party acknowledges and agrees that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each Party hereby agrees that the judicial authorities in Riyadh, Kingdom of Saudi Arabia will have jurisdiction to resolve any dispute that may arise between the Parties in connection with this Agreement.
   9.5 Injunctive Relief. Notwithstanding anything to the contrary in this Agreement, in the event of a breach under Schedule B (Confidentiality), each Party, 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.
   9.6 Force Majeure. Each Party 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, including 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 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.
   9.7 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 are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement. This Agreement may be translated and/or executed in languages other than English, but each Party agrees that the English version will control.
   9.8 Miscellaneous. No amendment or modification of this Agreement will be valid unless approved in writing by authorized representatives of each Party. This Agreement includes Schedules A and B, and all such Schedules are expressly incorporated and made a part of this Agreement. This Agreement supersedes all prior agreements and understandings relating to its subject matter between the Parties, including any oral representations. Waiver of breach of any provision of this Agreement on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion. This Agreement may be executed in counterparts.
   9.9 Non-TRAY Issues. Customer is solely responsible for all technology and services other than the Deliverables, including all technology and services provided to Customer by any other party beyond TRAY. For clarification, TRAY is not responsible for resolving any non-TRAY issues that may affect the operation of the Deliverables. To the extent Customer continues to escalate non-TRAY issues repeatedly, TRAY reserves the right to charge Customer reasonable fees for responding to such issues.

Schedule A: Definitions

1. “Contract” means the following considered together: (a) this Agreement, (b) the Commercial Agreement entered into by Reseller and Customer, and (c) each Order entered into by Customer and Reseller with respect to any Deliverables. In the event of any conflict between any of the foregoing agreement, the Orders will prevail over the Reseller Agreement, and this Agreement will prevail over each Order and over the Reseller Agreement.
2. “Deliverable” means any product, software, documentation, data, or Service that is originally provided by TRAY to Reseller, and that is received by Customer from Reseller. Each Deliverable refers to the respective product, software, documentation, data, or Service in the form provided by TRAY (i.e., and not modified by any other party), 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 to Customer by TRAY (and not sold), hardware products are sold or leased to Customer by Reseller or by TRAY, and Services are provided to Customer by TRAY with the approval of Reseller, in each case in accordance with this Contract.
3. “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.
4. “Order” or “Order Form” means any order form, purchase order, quotation, sales agreement, statement of work (SOW), amendment, or other document entered into by Customer and Reseller, where such Order (a) references this Agreement, and (b) describes specific Deliverables and corresponding prices to be received by Customer from Reseller. Orders may be submitted and accepted electronically or in writing.
5. “Services” means any services provided by TRAY to Customer under this Agreement with the approval of Reseller, including recurring services (e.g., cloud-based subscription services) (“Recurring Services”) and Professional Services (as defined in Section 2.2 of this Agreement.
6. “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

1. Confidential Information” means any information that is exchanged between Customer and TRAY, whether directly or through Reseller, in connection with this Agreement and/or in connection with the Deliverables. Customer and respectively TRAY are each considered a “Discloser” or “Recipient” of Confidential Information when disclosing or respectively receiving Confidential Information to each other (whether directly or through Reseller). 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 technology, and any modifications or extensions made in connection with this Agreement to such technology, will be the Confidential Information of Customer. 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.
2. 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.
3. Consumer Data. Customer will own all data relating to Customer’s end consumers and to the POS transactions processed using the Deliverables covered by this Agreement (such data “Transaction Data”). Customer will comply with all applicable privacy laws in the course of collecting, storing and using the Transaction Data. Customer 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 Customer to configure and use the Deliverables, and to provide to Customer the Servies, analytics, sales reporting and other data-related features made available by TRAY in the Customer’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 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.
4. Deletion of Data. Upon any termination or termination of this Agreement, or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this 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.