This Merchant Services Agreement, including Order Form(s) and all the documents, policies, processes, and additional terms referenced herein constitute a legal agreement between the restaurant that uses AIO (the "Merchant”) and AIO APP Inc.(“AIO”), which governs the Merchant's access and use of Services. By clicking to agree to this agreement, signing an agreement that includes, links to or incorporates this Agreement, executing an Order Form, or by using AIO’s Services the Merchant accepts and agrees to this Agreement, AIO’s Privacy Policy, Terms of Use, Shift Worker Terms of Use, and all other terms and conditions and policies pertaining to the Services as described here or incorporated into this Agreement by reference.
License. Subject to the Merchant’s compliance with terms and conditions of this Agreement, AIO grants to the Merchant a limited, non-transferable, non-sublicensable, non-exclusive, revocable license during the Term to permit its Employees or users authorized by the Merchant to access and use the Services solely and exclusively for the purpose of conducting the Merchant’s internal business operations within the scope of and subject to compliance with the Agreement.
Employee Usage. The Merchant acknowledges and agrees that any Employee access to or use of the Services shall be deemed to be on the Merchant’s behalf and under the Merchant’s authority. AIO shall be entitled to rely on all actions taken by Employees in connection with the Services as authorized by the Merchant. The Merchant shall be solely responsible for the acts and omissions of its Employees in connection with the use of the Services and shall ensure that Employees comply with this Agreement. The Merchant shall remain liable for any breach of this Agreement arising from or relating to Employee use of the Services.
Communication with Merchant. As part of the Services, AIO may periodically communicate with the Merchant using the methods provided by the Merchant through Order Form, AIO Account, or any other manner. The Merchant hereby expressly agrees that if the Merchant or any of its Employees provide their contact information including mobile phone number or email address, AIO will be authorized to contact the Merchant, Employees or authorized users, including without limitation at that number or email address using auto-dialing or prerecorded message, calls or text messages in order to send service-related alerts, transaction alerts and receipts, servicing alerts, and account- related messages to the Merchant.
Onboarding Information. AIO may review any information provided by the Merchant for onboarding Services, including any information provided in the Order Form, and may share such information with Third-Party Service Providers. The Merchant consents to AIO sharing information about the Merchant with Third-Party Service Providers for the purpose of providing Services to the Merchant.
Review of Information. Upon review of onboarding information or thereafter, if AIO or its Third-Party Service Providers determine, in their sole discretion, that the Merchant is not eligible to receive the Services, AIO may decline to activate or may suspend the Services upon written notice to the Merchant. AIO shall have no liability arising from such determination.
Up-to-Date Information. The Merchant will ensure that all information provided to AIO during onboarding remains complete, accurate, and up to date. The Merchant will promptly notify AIO in writing of any changes to such information. The Merchant authorizes and instructs AIO to shareupdated information with its Third-Party Service Providers as necessary in connection with the provision of the Services. AIO shall be entitled to rely on the accuracy and completeness of the information provided by the Merchant.
Information request. Unless required earlier under Applicable Law and Rules or by Third-Party Service Providers, the Merchant will provide any information requested by AIO within five (5) business days following such request. The Merchant must also provide AIO with access to inspect the Merchant’s business location(s) upon request.
Authorization and Documentation. The Merchant, each of its then-current beneficial owners (i.e., persons who directly or indirectly have greater than a 25% ownership stake in the Merchant), and its then-current designated control person (i.e., an individual having significant responsibility to control, manage or direct the Merchant), each authorize AIO to obtain, and will provide to AIO upon request, identity-verifying information about the Merchant, beneficial owners, and such designated control person from time-to-time, including documentation as necessary, consumer reports on the Merchant and such beneficial owners and designated control person, including information related to criminal history, or any other information necessary to comply with the Applicable Law and Rules.
The Merchant acknowledges and understands that it will be solely responsible and liable for:
Maintaining the security and control of its premises and equipment, including Hardware and associated firmware;
Maintaining the security and confidentiality of its AIO Account, including usernames and passwords;
All acts and omissions of Employees and authorized users in connection with the AIO Account, whether or not such activities were expressly authorized by the Merchant;
Ensuring the accuracy, completeness, and ongoing updating of all information provided to or maintained within the AIO Account;
Securing any necessary consents and approvals for sharing the Merchant Data with AIO and its Third- Party Service Providers
Ensuring compliance with all Applicable Law and Rules in connection with its business operations, including lawful sharing of the Merchant Data with AIO and its Third-Party Service Providers;
Ensuring compliance with all Applicable Law and Rules relating to the collection, processing, and storage of Personal Information processed by AIO or its Third Party Service Providers on the Merchant's behalf;
Confirming that its Employees have provided all necessary consents, notices and authorizations permitting the Merchant to disclose their Personal Information to AIO and Third-Party Service Providers; and
Promptly notifying AIO upon becoming aware of any unauthorized access to or activity under its AIO Account and cooperating with AIO to mitigate and prevent any further unauthorized activity;
The Merchant will not, and shall ensure Employees do not, directly or indirectly:
Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services;
Modify, translate, or create derivative works based on the Services;
Copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services;
Use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services;
Remove or obscure any proprietary notices or labels from the Services;
Use or allow any third parties to use, any data related to Services directly or indirectly to create, train, test, develop, enhance, fine-tune, or otherwise improve any Generative AI Model or machine learning models or systems, including but not limited to, ingestion of such data into any artificial intelligence or machine learning models or systems, whether generative or non-generative;
To or allow any third parties to, publicly display, export, scrape, incentivize reviews, or any manipulate any data directly or indirectly related to the Services;
Use the Services for any fraudulent undertaking or in any manner that may damage, disable, overburden, impair, or otherwise interfere with AIO’s provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the AIO Platform or other aspects of the Services);
Violate or breach any operating procedures, requirements, or guidelines regarding the Merchant’s use of the Services that are posted on or through the Services or otherwise provided or made available to the Merchant, including, without limitation, any action or inaction taken contrary to the requirements of PCI-DSS;
Alter, distribute, license, resell, transfer, assign, rent, lease, timeshare, or otherwise commercially exploit the Services to any third-party or provide it as a service bureau;
Conduct any penetration or vulnerability testing on the Services or AIO’s network;
Copy any features, functions, text, or graphics of the Services, including, without limitation, the structure, sequence, or organization of the user interface of Services;
Perform or attempt to perform any actions that would interfere with the proper working of the Services, or prevent access to or use of the Services;
Use the Services in contravention of the Intellectual Property Rights of AIO or any other third party;
Circumvent or deactivate any security mechanisms of the Services, or attempt to investigate, scrutinize, or exploit any vulnerabilities within the system;
Use the Services to disseminate viruses or other malicious software, or to transmit excessive amounts of data that may adversely impact the functionality of the Services.
Publicly display, export, bulk download, scrape, or otherwise extract data directly or indirectly related to the Services to any non-password protected or publicly accessible platform; or,
Use data directly or indirectly related to the Services for direct marketing, telemarketing, benchmarking, competitive analysis, or any public reporting or aggregated metric.
Exclusivity. The Merchant shall use the Services only for the management and operation of its own internal business, and not for any business, services, or offerings of any third parties. Without limiting the generality of the foregoing, the Merchant will not act as a payment intermediary or aggregator on behalf of any third party. This means that the Merchant should not use the Services to handle, process, or transmit funds for any third party. The Merchant shall not use the Services to process cash advances or cash-back transactions.
The Merchant represents, warrants, and covenants that:
Any sales transaction initiated or submitted by the Merchant will (i) represent a bona fide sale of goods or services by the Merchant to an End User; (ii) accurately describe the goods or services sold and delivered by the Merchant to an End User; (iii) not represent a sale to any principal, partner, proprietor, or owner of the Merchant’s entity except in the ordinary course of business and (iv) comply with the Applicable Law and Rules;
The Merchant will fulfill all of its obligations to each End User for whom the Merchant submits a transaction and will resolve any consumer dispute or complaint directly with the End User;
The Merchant and its Employees shall not retain or store any cardholder data or payment-related data prohibited under Applicable Law and Rules or Agreement, or engage in the unauthorized use, transfer, or disclosure of the same;
The Merchant Data, End User Data, and Payroll Services Data shared with AIO, or its Third-Party Service Providers, was collected, stored, and transferred (i) in compliance with Applicable Laws or Rules and (ii) without infringing, misappropriating, or breaching any contractual, proprietary, confidentiality, or other rights owed to any third party;
Unless directly obtained by AIO, all required notices have been timely provided, and all necessary consents have been duly obtained to permit AIO to send communications to End Users on the Merchant’s behalf in accordance with Applicable Law and Rules;
The Merchant's use of the Services will comply with, and be in accordance with, (i) the Agreement and (ii) Applicable Law and Rules;
The Merchant has in place appropriate policies as well as technical, organizational, and administrative security controls to safeguard Personal Information as well as other data associated with the Services and Merchant’s obligations under the Agreement;
Except as otherwise permitted by AIO in writing, the payment processing portion of the Services will only be used in the United States of America, and the Merchant will not export or otherwise makeavailable the payment processing portion of the Services directly or indirectly, outside of the United States of America;
Services may be subject to export restrictions imposed by the Applicable Law and Rules; and
The Merchant will be solely responsible for its own compliance with the Applicable Law and Rules.
Scope. Through the Workforce Management Platform, the Merchant may manage clock-ins and clock- outs, shift scheduling, meal and rest breaks, paid time off, and other similar matters in connection with Employees.
AIO’s Role. The Merchant understands and agrees that AIO does not act in a fiduciary capacity by providing or making any service available through the Workforce Management Platform. The Merchant further acknowledges and agrees that any service provided or made available through the Workforce Management Platform is (i) on an as-is basis; (ii) does not guarantee compliance with Applicable Law and Rules; (iii) may not include functionality necessary to meet the Merchant’s or the Merchant’s business’ specific needs; and (iv) any information provided therein is for informational and educational purposes only and should not be construed as legal, tax, financial, accounting, or professional advice.
Shift Workers Terms of Service. The Merchant acknowledges and agrees that if it uses Workforce Management Platform as part of the Services, it's Employees must each separately agree to be bound by the Shift Workers Terms of Service. The Merchant will be responsible for each of its Employees’ compliance with the Shift Workers Terms of Use.
Merchant Data Authorization. By providing or sharing the Merchant Data on or through the Workforce Management Platform, the Merchant authorizes AIO to make such Merchant Data available to the Merchant’s Employees in accordance with the account or profile settings selected by the Merchant and this Agreement.
Merchant Responsibility. The Merchant acknowledges and agrees that the Merchant is solely responsible for: (i) informing its Employees of any relevant policies, practices, or settings that may impact their employment with the Merchant; (ii) obtaining all rights, permissions, and consents necessary for the lawful collection, use, disclosure, transfer, and processing of any Merchant Data pertaining to Employee; (iii) ensuring that the transfer and processing of Merchant Data pertaining to Employees under this Agreement complies with Applicable Law and Rules; (iv) addressing and resolving any dispute between the Merchant and its Employees; (v) its interactions with the Employees; and, (vi) complying with Applicable Law and Rules including federal, state, and local wage and hour laws related to employee classification, minimum wage laws, wage deduction laws, meal period and rest break premiums, regular rate of pay calculations, overtime calculations and payments, paid sick leave accrual, itemization and issuance of pay statements, and laws pertaining to the timing of pay, including final pay.
Applicability. AIO uses Third-Party Service Providers to provide Payroll Processing Services. The Merchant’s use of Payroll Processing Services will be subject to (i) payroll processing agreementbetween AIO and Third-Party Service Provider; (ii) terms of use and privacy policy of Third-Party Service Provider applicable to Employees; (iii) Shift Workers Terms and Privacy Policy; and (iv) this Agreement. To the extent of any conflict between this Agreement and the Payroll Provider Agreements solely as they relate to Payroll Processing Services, the Payroll Provider Agreements shall control.
Third-Party Service Provider’s Additional Terms. If the Payroll Processing Services is provided by Check Technologies, Inc. (“Check”) and the Merchant connects its bank accounts with Check, it must also agree to (i) Check’s use of the financial services company, Plaid Inc. (“Plaid”) to connect the applicable bank account to Check; and (ii) allow Plaid to process The Merchant and Employee data in accordance with Plaid’s privacy policy.
Registration and onboarding. The Merchant must register for Payroll Processing Services through the AIO Account. AIO, through its Third-Party Service Providers, may use a variety of processes to validate the Merchants' business identity, perform a credit analysis, and otherwise qualify the Merchant to be a subscriber of Payroll Processing Services. For registration of a Payroll Account, the Merchant shall comply with the following:
Information for Payroll Services. The Merchant shall provide Payroll Services Data and such other information as reasonably requested by AIO or its Third-Party Service Providers in connection with the registration for and provision of Payroll Processing Services.
Authorization to verify. Subject to Applicable Law and Rules, the Merchant authorizes AIO and its Third-Party Service Providers to collect, verify, retain, and record Payroll Services Data for compliance, due diligence, fraud prevention, and regulatory purposes.
Our Discretion. AIO and its Third-Party Service Providers reserve the right, in their sole discretion, to approve, decline, suspend, or terminate the Merchant’s access to Payroll Processing Services.
Compliance updates. The Merchant agrees to execute additional documents, accept updated terms, and provide additional information as reasonably required due to changes in Applicable Law and Rules or Third-Party Service Providers' terms and conditions. AIO may suspend or terminate Payroll Processing Services if required information is not provided, or inquiries or requests remain unanswered, for more than thirty (30) calendar days, or earlier if required by Applicable Law and Rules.
Consent. The Merchant hereby authorizes AIO to disclose to its Third-Party Service Providers, Payroll Services Data in connection with the Agreement, and further authorizes Third-Party Services Providers to share Payroll Services Data with relevant bank(s). The Merchant hereby acknowledges and agrees that AIO shall have visibility over the Payroll Information.
License for Payroll Services Data. By providing Payroll Services Data, the Merchant hereby grants AIO and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid, transferable, sublicensable, license to copy, display, upload, perform, distribute, publish, store, modify, translate, create derivative works from, and otherwise use its Payroll Services Data to provide the Payroll Services and interoperability with the offerings of Third-Party Service Providers, including, without limitation, as set forth in the Agreement.
Bank Account. The Merchant acknowledges and agrees that for the provision of Payroll Processing Services, the Merchant must connect its company or designated bank account withAIO or Third-Party Service Providers. The Merchant authorizes AIO, through its Third-Party Service Providers, to debit and/or credit its company or designated bank account, from time-to- time as necessary, to process entries in the amounts and on the days required for AIO, through its Third-Party Service Providers, to provide Payroll Processing Services on behalf of the Merchant. These authorizations will remain in full force and effect until the Merchant provides AIO with written notice of termination of any such authorizations in such time and such manner as to afford AIO, its Third-Party Service Providers, and the bank a reasonable opportunity to act upon such notice.
Merchant acknowledgements. The Merchant acknowledges and understands that (i) any actions taken under its AIO Account in connection with Payroll Processing Services will be deemed to be authorized by the Merchant; and (ii) Payroll User Data collected, transmitted, or processed by AIO, may not always be correct, accurate, timely, or error free, and the Merchant must review and verify Payroll User Data before approving or running payroll.
Merchant Responsibilities. The Merchant shall be solely responsible for:
All actions taken under its AIO Account in connection with Payroll Processing Services;
Maintaining sufficient funds in its designated bank account to cover all wages, tax remittances, disbursements, fees, and other amounts due under this Agreement;
Verifying the accuracy, completeness, and validity of all Payroll User Data before running Employee payroll, and for ensuring compliance with Applicable Law and Rules.
Obtaining all rights, permissions, and consents necessary for the lawful collection, use, disclosure, and processing of Payroll Services Data and sharing it with AIO and Third-Party Service Providers in accordance with Applicable Law and Rules;
Ensuring, reviewing, and verifying that Payroll Services Data is accurate, complete, and updated;
Paying any expenses, losses, fines, penalties, or damages to its Employees, tax authorities, regulators, government bodies, courts, or other payees that arise out of or relate to any errors or omissions in the Payroll Services Data or that arise out of or relate to the Merchant's insufficient funds;
Informing Employees of any relevant policies and practices or any settings the Merchant selects that may impact Payroll Processing Services;
Addressing and resolving any complaints, disputes, or inquiries from Employees, tax authorities, regulators, government bodies, courts, or other payees;
All tax returns, tax deposits, and payments are filed and made on a timely basis in accordance with Applicable Law and Rules; and
Complying with Applicable Law and Rules including employee classification (e.g. employee vs independent contractor), minimum wage laws, wage deduction laws, meal period and rest break premiums, regular rate of pay calculations, overtime calculations and payments, paid sick leave accrual, itemization and issuance of pay statements, and laws pertaining to the timing of pay (including final pay).
Merchant Representations and Warranties. The Merchant represents and warrants that all information provided pursuant to this Section 6, including, without limitation any Payroll Services Data, shall (i) be accurate, complete, and up to date at the time provided; (ii) be promptly updated to reflect any changes; (iii) comply with Applicable Law and Rules; (iv) if applicable, comply with NACHA Operating Rules; and (v) not be in violation of any third-party rights or contracts.
Compliance with Applicable Law and Rules. In providing Payroll Processing Services, neither AIO nor its Third-Party Service Providers act as fiduciaries for the Merchant, and the Merchant acknowledges the following:
The Merchant will not construe any information provided directly or indirectly through its use of the Payroll Processing Services to be professional, legal, tax, or accounting advice;
Payroll Processing Services may not include all functions necessary to operate the Merchant’s business or comply with all Applicable Law and Rules, including but not limited to, federal, state, and local payroll reporting obligations;
AIO and its Third-Party Service Providers act only as intermediaries between the Merchant and Employees specifically and solely with respect to the delivery of payroll funds owed.
Disclaimer and Limitation.
The Merchant acknowledges and agrees that Payroll Processing Services and Payroll User Data collected by AIO may not at all times be complete, accurate, timely, uninterrupted, or error-free. To the maximum extent permitted by Applicable Law, AIO and its Third-Party Service Providers shall not be responsible or liable for any claims, losses, damages, penalties, interest, costs, or expenses arising out of or relating to: (i) the use of or reliance upon Payroll Processing Services; (ii) any inaccuracies, delays, omissions, or errors in Payroll Services Data or Payroll User Data, whether provided by the Merchant, Employees, or collected by AIO; or (iii) any changes to, transmission of, or requests to modify Payroll Services Data or Payroll User Data. AIO and its Third-Party Service Providers may, but shall have no obligation to, attempt to correct identified errors and make no representation, warranty, or guarantee regarding the timing, availability, or completeness of any correction. The Merchant shall remain solely responsible for verifying all Payroll Services Data and Payroll User Data prior to payroll submission and for any resulting payroll, tax, or payment obligations, including any associated interest, penalties, or governmental assessments.
THE PAYROLL PROCESSING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND THE WARRANTY OF NON-INFRINGEMENT. AIO DOES NOT WARRANT THAT USE OF THE PAYROLLL PROCESSING SERVICES WILL BE UNINTERRUPTED OR THAT THE OPERATION AND OUTPUT OF THE PAYROLL SERVICES WILL BE ERROR FREE OR COMPLETE.
Applications. To access Services through AIO’s Applications, the Merchant must have a mobile device that is compatible with AIO’s Applications. AIO does not warrant that AIO’s Applications will be compatible with the Merchant’s mobile device. The Merchant may use mobile data in connection with AIO’s Applications and may incur additional charges from its service provider for these services. The Merchant agrees that it is solely responsible for any such charges.
Application Upgrades. The Merchant acknowledges that AIO may from time-to-time issue upgraded versions of AIO’s Applications and may automatically and electronically upgrade the version of AIO’s Applications that it is using on the mobile device. The Merchant consents to such automatic upgrading on its mobile device and agrees that the Agreement will apply to all such upgraded versions of AIO's Applications. Any third-party code that may be incorporated in the AIO’s Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
Applications provided from App Store by Apple. The following applies to any AIO Application the Merchant acquires from the App Store (the “App Store-Sourced Software”). Merchant acknowledges and agrees that this Agreement is solely between the Merchant and AIO, not Apple Inc. (the "Apple"), and that Apple has no responsibility for the App Store-Sourced Software or content thereof. The Merchant's use of the App Store-Sourced Software must comply with the App Store Terms of Service. The Merchant acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store- Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, the Merchant may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to AIO as provider of the software. The Merchant acknowledges that Apple is not responsible for addressing any claims of the Merchant or any third-party relating to the App Store-Sourced Software or its possession and/or use of the App Store-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely bythe this Agreement and any law applicable to AIO as provider of the software. The Merchant acknowledges that, in the event of any third-party claim that the App Store-Sourced Software or possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, AIO, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. The Merchant and AIO acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as it relates to the Merchant's license of the App Store-Sourced Software, and that, upon its acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as it relates to the Merchant's license of the App Store-Sourced Software against the Merchant as a third-party beneficiary thereof.
Applications provided from Google Play Store. The following applies to AIO's Applications the Merchant acquires from the Google Play Store (“Google-Sourced Software”): (i) Merchant acknowledges that this Agreement is between the Merchant and AIO only, and not with Google, Inc. (“Google”); (ii) the Merchant's use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where he tMerchant obtained the Google-Sourced Software (iv) AIO, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to the Merchant with respect to Google-Sourced Software; and (vi) the Merchant acknowledge and agrees that Google is a third-party beneficiary to this Agreement as it relates to AIO’s Google- Sourced Software.
Maintenance of Services. AIO may perform maintenance on the Services from time-to-time, which may result in service interruptions, delays, errors, or bugs. AIO will not be liable for any such interruptions, delays, errors, bugs, or any resulting consequences. AIO may contact the Merchant to assist it with the Services and obtain information needed to identify and fix the said interruptions, delays, errors, or bugs.
Hardware. The Merchant may access the Services only through devices identified by AIO as compatible with and capable of accessing or supporting the Services. The Services may not function with every device and may only be used on such approved Hardware. AIO may alter which devices are approved as compatible with the Services in its discretion from time-to-time, provided that AIO will give Merchant reasonable notice unless such change is pursuant to (i) Applicable Law and Rules; (ii) a government body, regulator, or court, or (iii) Third-Party Service Provider.
Third-Party Dependencies. The Merchant acknowledges that the Services depend on third- party networks, internet connectivity, telecommunications services, and external infrastructure not controlled by AIO. AIO shall have no responsibility or liability for failures, delays, or performance issues caused by such third-party services or Merchant’s equipment or connectivity.
Third-Party Services and links. The Service may contain links to third-party materials and options to use the products or services of Third-Party Service Providers that are not owned or controlled by AIO.
Disclaimer. AIO does not endorse or assume any responsibility for any such Third-Party Service Provider’s sites, information, materials, products, or services. If the Merchant accesses a third- party website or service from the Service, or shares its Merchant Data on or through any Third- Party Service Provider’s website or service, the Merchant does so at its own risk and understands that this Agreement does not apply to the Merchant’s use of such websites and services. The Merchant expressly relieves AIO from all liability for loss or damage of any sort arising from its use of any products and services of Third-Party Service Providers, including their website, service, or content. The Merchant may be required by the Third-Party Service Provider to accept its terms and conditions applicable to the use of the third-party content, website, information, materials, or services.
Access Changes. AIO reserves the right at any time to modify or discontinue, temporarily or permanently, the Merchant access to third-party links, Third-Party Services, and third-party information (or any part thereof) with or without notice at its sole discretion.
No Warranty. UNLESS OTHERWISE EXPRESSED IN THE AGREEMENT, AIO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED OR ADVERTISED BY A THIRD-PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND, AIO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION(S) BETWEEN YOU AND THE THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
The Merchant will comply with the following requirements in connection with its use of the Services:
With respect to each End User who requests the delivery of transaction receipts via text message or email, such End User must individually enter his or her End User Data in the appropriate space displayed on the applicable device; the Merchant and/or Employees are not permitted to add or modify any End User Data (including but not limited to phone number and email address) on behalf of an End User unless requested by the End User;
Any communications provided to End Users as part of the Services (e.g. marketing, enrolment in a loyalty program) who desire to receive marketing material, enroll in a loyalty program, or otherwise receive communications from the Merchant as part of the Services, must have provided their contact information as part of the Services and have consented to these communications as required by Applicable Law and Rules. The Merchant and/or Employees are not permitted to add or modify an End User's consent indication on his or her behalf unless specifically requested by the End User;
The Merchant shall not send any communications, including transactional or commercial messages, to End Users in violation of Applicable Law and Rules. The Merchant agrees to send any communications, including transactional or commercial messages, to End Users in a manner consistent with the purposes for which the End User has provided consent or has provided their information; and
To the extent required by Applicable Law and Rules, if the Merchant amends or terminates its loyalty program, it will provide reasonable notice of such change or termination of its loyalty program to End Users.
Intellectual property rights. As between AIO and the Merchant, AIO retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Services, including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features and functionality thereto.
Feedback. The Merchants may voluntarily submit Feedback at any time. The Merchant hereby irrevocably assigns and transfers to AIO all rights, title, and interest, including all Intellectual Property Rights, in and to the Feedback and acknowledges that AIO is free to use, disclose, reproduce, and otherwise exploit Feedback in its sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by AIO.
Merchant Data and license. The Merchant Data is owned by Merchant. The Merchant hereby grants to AIO a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit the Merchant Data solely in connection with the Services including the development of potential offerings or other future products and services under consideration by AIO (whether developed independently by AIO or through a third party). The Merchant acknowledges and agrees that, in the course of providing the Services, both AIO and the Merchant will collect, store and use End User Data. To the extent the Merchant's use of the End User Data is outside the scope described in the Agreement, the Merchant shall be solely responsible for putting in place any additional controls (e.g. notice, consent) and governance in relation to such use. Each Party’s use of End User Data shall be in compliance with the Applicable Law and Rules.
Accuracy of Merchant Data. The Merchant is solely responsible for (i) the accuracy, quality, content, and legality, including compliance with all Applicable Law and Rules, of Merchant Data; (ii) how Merchant Data is acquired; and (iii) any transfer and use of Merchant Data outside of the Services by Merchant or any third party authorized by the Merchant. The Merchant represents, warrants, and covenants that it has all consents and rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by AIO in relation to the Services. The Merchant will not provide, upload, or store any data or materials containing any such information in violation of this section. The Merchant acknowledges that AIO is entitled to fully rely on all Merchant Data and AIO does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the Merchant Data. The Merchant further acknowledges that AIO and its Third-Party Service Providers bear no responsibility and shall not have any liability for errors, omissions, or any other losses incurred that result from inaccurate, incomplete, or untimely Merchant Data.
Anonymized and aggregated data. Notwithstanding anything to the contrary in this Agreement, AIO may create anonymized or aggregated data from Merchant Data, End User Data and/or Personal Information that does not identify the Merchant, any End User, or any Employees, or any other identifiable individual. Such aggregated or de-identified data may include data analysis across AIO, its Merchants, End Users, and partners and may be used for any lawful purposes, including but not limited to, using, disclosing, compiling, distributing, and publishing anonymous statistical or analytical data regarding the performance, provision, and operation of the Services, the development of new products or services or otherwise. Upon creation, as between AIO and Merchant, AIO shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation towards Merchant or restriction of any kind.
License for Merchant Marks. The Merchant hereby grants AIO a non-exclusive, royalty-free right and license to use and display Merchant’s Marks on AIO’s Sites, AIO’s Applications, marketing collateral, and other public disclosures, or to otherwise identify the Merchant as a customer of AIO. AIO obtains no right in the Merchant Marks except for the limited right described in this sub-section, and the Merchant retains all rights, title, and interest in and to the Merchant Marks. All use of the Merchant Marks by AIO will inure to the Merchant.
Compliances. The Merchant agrees and acknowledges that any use or display by the Merchant of a trademark or other mark owned by a third-party shall be with the consent of such third- party and in compliance with Applicable Law and Rules. The Merchant agrees and acknowledges that it has obtained all necessary permissions and licenses for any registered trademarks and other similar content provided to AIO to be used in connection with the Services.
AIO's Rights. AIO reserves the right, but is not obligated, to reject and/or remove any Merchant Data that AIO believes, in its sole discretion, violates the Agreement or is otherwise objectionable. The Merchant is responsible for maintaining an appropriate alternate backup of all Merchant Data.
Copyright Disclaimer. The Merchant understands that publishing Merchant Data on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
Fees. The Merchant will pay Fees in accordance with the Order Form in addition to any other applicable charges or deductions. All Fees are non-cancellable and non-refundable unless otherwise stated in the Agreement. Fees shall be payable in U.S. Dollars or in such other currencyas agreed to in writing by the parties. Unless otherwise agreed in an Order Form, AIO will bill monthly in advance. Unpaid Fee shall be subject to a late payment charge of 1.5% per month on the outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Services. At its discretion, AIO may increase the pricing stated on any Order Form for any Renewal Term upon providing the Merchant with at least ninety (90) calendar days’ notice (which may be sent by email) prior to the end of the then-current Term.
Invoices. All amounts invoiced hereunder are due and payable as specified in the applicable Order Form. If AIO inadvertently did not provide the Merchant with an invoice, the invoice provided by AIO reflected incorrect amounts owed by the Merchant, or the Merchant did not otherwise receive an invoice from AIO, the Merchant shall still be responsible for paying any Fees and/or other amounts due based on Services provided. Such unpaid invoices, finance charges, and expenses may be deducted from the deposit of any Net Sales Proceeds under section 12(e). If the Merchant believes that AIO has billed the Merchant incorrectly, the Merchant should contact AIO no later than ten (10) calendar days of the date invoice, in order to receive an adjustment or credit, otherwise, the dispute shall be deemed waived.
Suspension for Non-Payment. Without limitation, AIO reserves the right to suspend the Services in whole or in part if any Fees have not been paid within thirty (30) calendar days after their invoice date until such Fees are paid by the Merchant. During a suspension period during the Term, AIO shall continue to use commercially reasonable efforts to help maintain End User continuity.
Set-off. In addition to any rights of set-off or recoupment available under Applicable Law and Rules, AIO may, at any time and without prior notice, set off, deduct, withhold, or recoup any amounts payable to the Merchant (including Net Sales Proceeds) against any amounts owed or liabilities incurred by the Merchant to AIO under this Agreement, whether such amounts are liquidated or unliquidated, due or becoming due.
Payment Adjustments. If the Merchant fails to provide goods or services to End User in accordance with this Agreement with respect to any transaction, AIO may, in its discretion: (i) withhold or refuse to remit the applicable Net Sales Proceeds; and/or (ii) process or fund a refund, reversal, or chargeback to the applicable End User and debit or recover such amounts from the Merchant’s designated bank account. AIO may adjust, withhold, deduct, or recover from Net Sales Proceeds otherwise payable to the Merchant to account for chargebacks, refunds, reversals, pricing or calculation errors, fraudulent or unauthorized activity by the Merchant or its Employees, or any other amounts owed by the Merchant under this Agreement. Such adjustments may relate to transactions from any prior period. AIO’s rights under this Section are cumulative and in addition to any other rights or remedies available under this Agreement or Applicable Law and Rules.
Taxes. Other than federal and state income taxes imposed on AIO, the Merchant will bear, and invoices are subject to, all taxes, duties, and other governmental charges relating to the Services. AIO may charge taxes, as required by Applicable Law and Rules, which the Merchant agrees to pay unless the Merchant provides AIO with valid exemption documentation satisfying applicable legal requirements of the relevant tax authority. Tax exemption will only apply from and after the date the Merchant provides exemption documentation satisfactory to AIO. Taxes shall not be deducted from the payments to AIO, except as required by law. In such cases, the Merchant shall increase the amount payable as necessary so that, after making all required deductions andwithholdings, AIO receives and retains (free from any tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
Merchants Compliances. The Merchant is responsible for determining and fulfilling its obligations under Applicable Law and Rules to report, collect, and remit any applicable taxes, duties, or other governmental fees on the sale of its products and services, payments received, or any other transactions arising from or out of its use of the Services. AIO makes no representation or warranty that the Services will enable the Merchant to meet the tax requirements applicable to the Merchant in a specific jurisdiction.
Tax Compliance and Reporting. AIO may be required under Applicable Law and Rules, including applicable tax laws, to report information relating to the Merchant’s use of the Services to tax authorities. The Merchant shall promptly provide any information or reasonable assistance requested by AIO to enable compliance with such reporting obligations and shall cooperate in good faith with any tax authority inquiry, audit, or examination relating to transactions processed under this Agreement. The Merchant acknowledges that AIO may take actions required by Applicable Law and Rules, including backup withholding or similar reporting measures, where applicable.
Mode of Payment. The Merchant shall provide and maintain a valid payment method acceptable to AIO for the payment of Fees and receipt of funds under the Services, which may include a bank account and/or payment card. The Merchant authorizes AIO to store and use such payment information as necessary to process payments, charges, credits, and adjustments in accordance with this Agreement. Merchant represents that any payment method provided is owned or authorized by the Merchant and used for its business purposes. This authorization shall remain in effect until the Merchant updates or revokes it in writing through AIO’s designated processes. Revocation shall not affect any authorized use of payment information occurring prior to such revocation.
ACH Authorization. ACH payment information is required upon execution of the Order Form, and the Merchant hereby consents to having its ACH account charged automatically for any and all Fees and amounts due hereunder.
Payment Processing Services. AIO uses Third Party Service Provider to provide Payment Processing Services. The processing of payments relating to the Merchant’s use of the Services will be subject to terms and conditions of payment processing agreements available at Adyen legal terms and conditions, as amended from time-to-time, including any terms and conditions, and privacy policies, applicable to End Users (collectively known as “Payment Processing Services Agreement”).
Merchant Responsibilities. The Merchant agrees to be bound by the Payment Processing Services Agreement, which may be modified by the Third-Party Service Providers from time-to- time as set forth therein. As a condition of AIO enabling Payment Processing Services, the Merchant agrees to provide AIO with timely, accurate, updated, and complete information about the Merchant, its business, and specific transactions, as requested by AIO, in connection with Payment Processing Services, and to share such information with Third-Party Service Providers.
Initial Term. This Agreement shall commence on the effective date set forth in the applicable Order Form (the “Effective Date”) and, unless otherwise specified in the Order Form, shall continue for an initial term of one (1) year (the “Term”).
Renewal Term. On the expiry of the Initial Term, this Agreement shall automatically renew for successive renewal terms of equal duration to the Initial Term (each, a “Renewal Term”), unless either party provides written notice of non-renewal in accordance with this Agreement.
Unless provided otherwise in the Order Form, this Agreement may be terminated in the following scenarios:
Material Breach. Either party may terminate this Agreement, or any Order Form effective upon written notice to the other party, if the other party materially breaches the Agreement (or the Order Form) and such breach is incapable of cure, or if such breach capable of cure, the breaching party does not cure such breach within thirty (30) calendar days of receiving notice of it.
Insolvency. Either party may terminate the Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Illegality. AIO may terminate the Agreement or any part of it immediately upon written notice to the Merchant without a cure period if the Merchant, Employee, or any authorized user, in AIO’s sole discretion has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services involved in this Agreement.
Termination by AIO. AIO may (i) suspend AIO Account; (ii) Merchant access to Services or any portion of it; or (iii) terminate the Agreement upon written notice to the Merchant without a cure period in the event any of the following occur:
The Merchant fails to make any payment due within thirty (30) calendar days of the invoice date;
The Merchant provides any inaccurate, untrue, or incomplete information or fails to comply with AIO Account registration requirements, as determined by AIO in AIO’s sole discretion;
AIO determines that the Merchant is incurring excessive refunds or chargebacks;
The Merchant violates sections 1, 2, 3, 4, 6, 19 or 22;
Any agreement between AIO and a Third-Party Service Provider pursuant to which AIO is authorized to provide access to any Third-Party Service terminates or expires;
AIO determines in its discretion that any change to, clarification, or interpretation by a regulatory authority or payment network of, or enactment of any Applicable Law and Rules, would render any portion of the Services illegal, otherwise, have a material adverse effectupon the Services or a party, or pose a unreasonable risk to AIO or AIO is directed to terminate this Agreement or the Services by a regulatory authority, Third-Party Service Provider, or a payment network; or,
AIO may terminate the Agreement for any reason upon ninety (90) calendar days’ prior written notice to the Merchant. As determined in its sole discretion, AIO, or on the direction of AIO’s Third-Party Service Provider or payment networks, AIO may terminate the Agreement immediately and without notice for any suspected issues that could potentially cause a violation of the Agreement, the payment network rules, any Applicable Law or Rules, or pose a potential security threat, data breach, fraud or other criminal activity, or result in damage to the payment network(s).
Termination of this Agreement will automatically terminate all active Orders Forms, but termination of a single Order Form will not result in termination of this Agreement or any other Order Forms. Upon the termination of this Agreement, or an Order Form, all rights and licenses granted by AIO to the Merchant under this Agreement or the applicable Order Form will terminate. Either party’s termination of the Agreement is without prejudice to any other remedies it may have at law or in equity and does not relieve either party of liability for breaches occurring prior to the effective date of termination. For clarity, expiration or termination of this Agreement shall not excuse the Merchant's payment obligations under this Agreement and Order Forms that accrued before such expiration or termination.
Merchant Data. Upon any termination or expiration of this Agreement or any Order Form, upon written request of the Merchant, AIO will make all commercially reasonable efforts to make Merchant Data held by AIO available for electronic retrieval for thirty (30) calendar days. Thereafter, unless provided otherwise, AIO may delete such Merchant Data in accordance with Applicable Law and Rules.
Fee. If the Merchant terminates for AIO’s material breach, the Merchant shall pay a pro rata portion of Fees through the effective date of termination. If terminated for any other reason, AIO shall have no obligation to refund prepaid Fees, and the Merchant shall, within ten (10) calendar days, pay all accrued and outstanding Fees.
Merchant obligations. Termination shall not relieve the Merchant of its obligation to pay any Fees, chargebacks, refunds, reversals, processing charges, payroll-related amounts owed to Employees, or any other amounts incurred prior to or arising from transactions submitted before termination. AIO may exercise its rights of set-off or recovery with respect to such amounts.
Upon any such termination or expiration, all sections of this Agreement which by their nature should survive termination or expiration will survive, including without limitation, the following sections: section 25 (Definitions), section 2 (Responsibilities of Merchant), section 3 (Restrictions), section 11 (Intellectual Property and Data Ownership), section 12 (Billings and Payments), section 19 (Representations; Disclaimer of Warranties), section 20 (Limitation of Liability), section 22 (Confidentiality), and section 24 (General).
Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement and that the execution, delivery, and performance of this Agreement by the executing party does not violate the Applicable Law and Rules or the terms of any other agreement to which it is a party or by which it is otherwise bound.
The Merchant represents, warrants and covenants to AIO that (i) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (ii) the name identified by the Merchant when the Merchant registered is its legal name or business name under which it sells goods and/or services; and (iii) the taxpayer identification number identified by the Merchant is its legal taxpayer identification number.
AIO does not warrant that the Services, which may permit the Merchant to process payments or use the Services on a compatible third-party device, will be compatible with all third-party devices or carriers. The Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with its third-party device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and the Merchant is solely liable for the payment of all such carrier fees. All third-party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by such manufacturer who is solely responsible for service and support for its Hardware product. For service, support, or warranty assistance, the Merchant will contact the manufacturer directly.
THE SERVICES, HARDWARE, AND ANY THIRD-PARTY SERVICES ARE PROVIDED ON “AS IS,” “AS AVAILABLE,” WITHOUT GUARANTEES WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIO AND ITS THIRD-PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF THE MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, SYSTEM INTEGRATION, OR THAT THE SERVICES, HARDWARE, OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. AIO DOES NOT WARRANT THAT THE SERVICES, HARDWARE, OR THIRD-PARTY SERVICES WILL MEET THE MERCHANT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OPERATE WITHOUT INTERRUPTION OR ERROR, BE SECURE OR FREE FROM VULNERABILITIES, OR THAT ANY DEFECTS WILL BE CORRECTED. THE MERCHANT ACKNOWLEDGES THAT THE SERVICES, HARDWARE, AND THIRD-PARTY SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, DATA LOSS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, AND THIRD-PARTY NETWORKS. AIO SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES ARISING FROM SUCH RISKS, INCLUDING UNAUTHORIZED ACCESS, LOSS OF DATA, SECURITY BREACHES BY THIRD PARTIES, OR FAILURES OF THIRD-PARTY INFRASTRUCTURE.
Exclusion. IN NO EVENT WILL AIO BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF AIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
Damages Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, AIO’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY THE MERCHANT TO AIO IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM OR $2000, WHICHEVER IS LOWER.
No Professional Advice. Merchants acknowledge that any materials, information, documentation, or resources made available through the Services are not intended to provide and should not be construed as providing any legal, professional, financial, accounting, or tax advice or guidance, and do not guarantee the Merchant, Employee, and End Users’ compliance with Applicable Law and Rules. The Merchant will not make available to Employees, End Users or potential End Users any marketing collateral or other materials that are inconsistent with the foregoing or any related AIO disclaimers or notices, and will not represent to any Employees, End User or potential End User that the Services, Third-Party Services, or any other AIO products or services include or provide any legal, professional, financial, accounting, or tax advice or guidance or guarantee or are capable of guaranteeing legal and regulatory compliance.
Basis of the Bargain. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by AIO to the Merchant and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 20 (Limitations of Liability) will apply notwithstanding the failure of the essential purpose of any limited remedy in this Agreement.
Insurance. During the Term, each party shall maintain, at its own expense, appropriate insurance coverage applicable to such party’s performance of its obligations hereunder, including commercial general liability (with limits of at least $1,000,000 per claim and $2,000,000 in aggregate), worker’s compensation (with a limit of at least $1,000,000 per claim), cyber liability (with limits of at least $2,000,000 per claim and in aggregate), and professional liability. Each party shall provide the other party with at least thirty (30) calendar days’ prior written notice of any proposed cancellation or expiration, in whole or in part, of any of the foregoing coverages.
Merchant’s Indemnity. The Merchant will indemnify, defend and hold harmless AIO and its directors, officers, employees, affiliates, contractors, agents, and subsidiaries from and against any and all losses, damages, liabilities, fines, fees, costs, expenses or other amounts whatsoever including all reasonable legal and accounting fees and expenses and all reasonable collection costs (including such amounts imposed or assessed by the payment networks/scheme owners or regulatory authorities) arising from any proceedings, claims, investigations or demands brought by any third party (including payment networks/scheme owners or regulatory authorities) resulting from or arising out of (i) Merchant or Employee's use of the Services, Hardware, or Third-Parties Services; (ii) AIO’s processing activities on behalf of Merchant, (iii) Merchant or Employees’ breach or non-performance of any provision of this Agreement; (iv) any tax assessment; (v) any claims against AIO in relation to use of Merchant Data or intellectual property (vi) Payment Processing Services, or (viii) Payroll Processing Services.
Defense. At AIO’s option and request, the Merchant will defend AIO from any actual or threatened third-party claim, proceeding, or suit arising out of or based on any Merchant Data, any breach of the Applicable Law, or the Merchant’s use of the Services (each, a “Claim”). Notwithstanding the previous sentence, the Merchant will not enter into any settlement thatinvolves an admission of guilt or liability of AIO without AIO’s prior written consent. AIO may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
ADA Indemnification. AIO makes no representation or warranty that the Services comply with the Americans with Disabilities Act (“ADA”) or any other federal, state, or local accessibility laws, regulations, or standards, including without limitation the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG). The Merchant acknowledges and agrees that it is solely responsible for ensuring that its websites, applications, digital content, and use of the Services comply with all applicable accessibility requirements. AIO may, from time-to-time, provide information, guidance, or best-practice recommendations relating to accessibility standards but such information shall be provided for general informational purposes only and does not constitute legal advice, a warranty of compliance, or a guarantee that implementation of such guidance will satisfy any legal requirement. The Merchant shall be solely responsible for assessing and implementing any modifications necessary to ensure compliance with accessibility laws and regulations, and AIO shall have no liability arising from or relating to accessibility compliance or alleged non-compliance.
IP Infringement Mitigation. If any of the Services or AIO Materials are, or in AIO's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Merchant's, Employee or any authorized user's use of the Services or AIO materials is enjoined or threatened to be enjoined, AIO may, at its option and sole cost and expense: (1) obtain the right for the Merchant to continue to use the Services and AIO materials materially as contemplated by this Agreement; or (2) modify or replace the Services and AIO materials, in whole or in part, to seek to make the Services and AIO materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and AIO materials, as applicable, under this Agreement; or (3) in the event either of the preceding are infeasible or not commercially practicable, AIO may, in its sole discretion, terminate this Agreement upon written notice to the Merchant and refund to the Merchant any prepaid amounts for unused Services.
Each party as Recipient will take reasonable precautions to protect the Disclosing Party’s Confidential Information, and will not use, except as expressly permitted in this Agreement, or divulge to any third party any Confidential Information except to those employees, consultants, contractors, service providers, and representatives of Receiving Party who have a need to know the Confidential Information to enable the Receiving Party to perform its obligations under this Agreement. Receiving Party is responsible and liable for its employees’, consultants’, contractors’, service providers’, and representatives’ compliance with this section as if their actions or inactions were an action or inaction of the Recipient. The foregoing will not apply with respect to any Confidential Information required to be disclosed by Applicable Law and Rules.
Personal Information. The parties acknowledge that the Personal Information of the , Employees, and End Users will be processed as part of the Services. Each party will process Personal Information in accordance with its applicable privacy policy and Applicable Law and Rules.
AIO’s Role. For certain Services, AIO will act as a processor and will process Personal Information on Merchant’s behalf. For example, AIO processes (i) the Personal Information of Employees in connection with Services that relate to the management and administration of Employees on behalf of the Merchant, and (ii) the Personal Information of End Users in connection with certain Services that allow the Merchant to communicate with and provide offerings directly to their End Users, including loyalty, gift card, and marketing products.
Safeguards. Each Party is responsible for implementing and maintaining appropriate technical, organizational, and administrative security controls to safeguard Personal Information as well as other data associated with its respective obligations under this Agreement and the provision of the Services. For the avoidance of doubt, this includes access controls and ensuring that Personal Information or other data collected as part of the Services is not improperly disclosed. In all cases, this obligation shall not limit the Merchant’s obligations regarding the implementation of any security measures required under the Applicable Law and Rules.
Security Incident. If either party (whether directly or through a third party) discovers or becomes aware of a security incident or breach, the discovering party shall promptly notify the other party and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement. This includes complying with all applicable requirements of this Agreement as well as cooperation with the investigation of the security incident or breach. To the extent any security incident or breach is attributable to the acts or omissions of the Merchant, the Merchant shall bear all costs associated with remedying the security incident or breach and complying with its legal obligations under the applicable data protection laws.
Audit. As part of this Agreement, AIO shall, with reasonable notice, have the right to perform an audit of the Merchant’s facilities, systems, and personnel to verify the Merchant’s compliance with this section or Applicable Law and Rules. The Merchant will provide full cooperation to AIO and its representatives in connection with any such audit.
Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three (03) business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this section. All notices to AIO will be sent to: AIO APP Inc. Email: Legal@aioapp.com Address: 6489 Camden Avenue, Suite 101, San Jose, CA 95120
Force Majeure. Neither party shall be in default of its obligations under this Agreement to the extent its performance is delayed or prevented by any act of God, earthquake, flood, natural disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any other similar event beyond such party’s control (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from anyfurther performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.
Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of law principles. Subject to section 24(d), all claims arising under this Agreement will be litigated exclusively in the courts of San Jose, California.
Dispute Resolution. Any dispute, claim, or controversy arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, or in connection with the Merchant’s use of the Services shall be determined through confidential binding arbitration in Santa Clara, California, United States of America. The confidential binding arbitration shall be administered by AAA pursuant to its Commercial Arbitration Rules, and the parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, this Agreement shall not preclude either party from pursuing a court action in the state or federal courts in San Jose, California for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Agreement. In any event, any action or proceeding by the Merchant against AIO relating to any dispute must commence within one (1) year after the cause of action accrues.
Injunctive Relief. Each party recognizes that its breach or threatened breach of section 11 (Intellectual Property and Data Ownership) or section 22 (Confidentiality), may cause the other party irreparable harm and significant injury, the amount of which may be difficult to estimate and ascertain, thus making inadequate any remedy at law or in damages. Therefore, each party agrees that the other party, in addition to any other remedies available, will be entitled to seek injunctive or other equitable relief by any court of competent jurisdiction enjoining any threatened or actual breach of section 11 and section 22 by the other party.
Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by Applicable Law and Rules, the Merchant and AIO agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and AIO agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement, except that AIO may modify this Agreement to comply with, and as a result of, amendments to Applicable Law and Rules.
Non-Solicitation. During the Term and for three years thereafter, the Merchant will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employeeor contractor of AIO to terminate their engagement with AIO. This section 24(h) will apply solely to the extent permitted by Applicable Law and Rules.
Assignment. The Merchant shall not assign its rights or delegate its performance under this Agreement without AIO’s prior written consent, and any attempt to do so is null and void. AIO may assign its rights or delegate its performance under this Agreement without the Merchant’s consent. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Entire Agreement. This Agreement (including any Order Forms, Privacy Policy, Shift Worker Terms and any and all exhibits, documents, and policies attached or referenced herein or therein, whether by URL or otherwise) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
Amendment. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party except AIO may update this Agreement via a general notice to its customer base by providing reasonable notice and having the Merchant check a box agreeing to such updated Agreement. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid or unenforceable, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable, then such provision(s) will be deemed to be restated and construed to reflect the original intentions of the parties in accordance with Applicable Law and Rules with respect to the invalid or unenforceable provision(s), and with all other provisions of this Agreement remaining in full force and effect.
Headings. The headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement.
Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Electronic Signature. Signatures transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSignor a process that otherwise requires typing your name and acknowledging it as an electronic signature, or electronically indicating assent, acknowledgement or acceptance of an agreement, document or other writing, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of a live signature on paper. Any transactions or services resulting from the Merchant’s instructions which AIO receives in the Merchant’s name or under the Merchant’s credentials, including any electronic signature, shall be deemed to have been “a writing” and authenticated by the Merchant “in writing” for purposes of any law in which a writing or written signature is needed or required. All electronic signatures and records maintained by AIO of transactions under the Merchant’s or its authorized users’ credentials shall be deemed to have been “signed” and will further constitute an “original” when printed from records established and maintained by AIO or its agent in the normal course of business. The Merchant agrees not to contest the authorization for, or validity or enforceability of, AIO’s electronic records and documents, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files or records are to be in writing or signed by the party to be bound thereby. Records and “signed” documents, if introduced as evidence on paper in any judicial or other proceedings, will be admissible to the same extent and under the same conditions as other documentary business records.
“AIO’s Applications” means collectively: (i) mobile applications, (ii) mobile software, or (iii) other mobile-based platforms made available by AIO that enable the Merchants, Employees, and End Users to interact with, access, and use the Services.
“AIO Account” means the Merchant's account with AIO accessible through AIO Sites, AIO Applications, or otherwise.
“AIO Platform” means AIO’s proprietary online and offline software system, either installed on Hardware or made available for use for, and download by, the Merchant, that enables Merchants, Employees, and End Users to interact with, access, and use the Services.
“AIO’s Site” means AIO’s website located at https://www.aioapp.com, including any subdomains, related webpages, and web-based services hosted under the aioapp.com domain or any successor domain made available by AIO that enable the Merchants, Employees, and End Users to interact with, access, and use the Services.
“Agreement” means and includes, collectively: (i) this Merchant Service Agreement; (ii) Order Form(s); (iii) Terms of Use; (iv) Shift Worker Terms of Use, and (v) Privacy Policy and any other terms and conditions, special terms, addendum, schedule, or attachment to any of the foregoing that is incorporated by reference therein or herein.
“Applicable Law and Rules” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or party’s performance under this Agreement including without limitation, any applicable tax laws and regulations, labor laws, the requirements of the Bank Secrecy Act as amended by the USA Patriot Act (or similar law, rule or regulation), the requirements of the Office of Foreign Assets Control, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the Operating Regulations. For the purposes of this Agreement, Applicable Law and Rules include applicable data protection laws. The Merchant shall refer to the following for applicable PCI-DSS and Payment Network requirements, as may be updated from time-to-time: PCI-DSS: www.pcisecuritystandards.org Visa’s CISP program: https://www.visa.com/cisp Mastercard’s SDP program: https://www.mastercard.com/sdp Discover’s DISC website: http://www.discovernetwork.com/fraudsecurity/disc.html
“Claim” has the meaning defined in section 21 (b)
“Confidential Information” means (i) the terms (but not the fact or existence) of this Agreement, and (ii) all trade secrets and other confidential and/or proprietary information disclosed by the either party (“Disclosing Party”) to the other party (“Receiving Party”) orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to the Receiving Party that contain, or are based on, in whole or in part, any of the information described in this definition. Confidential Information does not include information which the Receiving Party demonstrates: (a) that at the time of disclosure was, or becomes, part of the public domain (through a source other than Receiving Party); (b) that is lawfully obtained from a third party that was not under, and did not impose, an obligation of confidentiality with respect to such information; (c) that is lawfully and independently developed or obtained by, or on behalf of, Receiving Party (as evidenced by written records) without use of, or reference to, Confidential Information; or (d) that was known by Receiving Party prior to disclosure by Disclosing Party (as evidenced by written records).
“Employee” means the Merchant's authorized shift workers, admins, managers, supervisors, employees, volunteers, agents, and contractors who are permitted to access and use the Services on the Merchant's behalf.
“End User” means any natural person who uses the Services to submit an order to a Merchant.
“End User Data” means data and information, which may include Personal Information, collected by AIO via the Services, such as when an End User submits an online order, requests a digital receipt, or create an account with AIO, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) End User purchase history; and (iii) location information.
“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations, or other input about the Services, which may be provided by the End User, Employee, or Merchant to AIO.
“Fees” means any fee agreed as payable by the Merchant in the Order Form or otherwise owed to AIO by the Merchant in connection with Services.
“Generative AI Models” means artificial intelligence systems, including but not limited to large language models (LLMs), generative pre-trained transformers, recurrent neural networks, or other models designed to process, understand, and generate human-like output (e.g., text, instructions, images, audio, or other media) based on patterns learned from structured or unstructured data sets.
"Hardware” means any terminal, tablet, POS, MPOS, kitchen display screen, kiosk, switch, router, card, cable, wall mount, printer, or other item of physical hardware, as made available by AIO, and licensed under an Order Form.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and all other intellectual property rights under the Applicable Law and Rules, including without limitation any applications, registrations, extensions, and renewals related to the above-mentioned.
“Merchant Data” means files, graphics, images, text, emails, data, information or other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from the Merchant or its Employee, in the course of using the Services and/or collected by AIO, including without limitation name, address, contact information, Employee information, products, loyalty program information, logos, promotional information, advertisements, transaction details and other information or material submitted by the Merchant or its Employees to AIO through the Services excluding End User Data. Merchant Data may include Personal Information, whether from the Merchant’s Employees, existing end user information or otherwise.
“Merchant Marks” means the Merchant’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to AIO for use with the Services.
“Net Sales Proceeds” means funds transferred directly or indirectly by AIO to the Merchant resulting from the Merchant sales minus any Fees and other applicable deductions.
“Order Form” means any AIO ordering document, including any online order, specifying the Services subscribed by the Merchant, as mutually agreed between AIO and the Merchant.
“Payment Processing Services” means Third Party Services that enable the Merchants to accept and manage payments for the Merchant’s goods or services. In providing these Payment Processing Services, AIO acts in the capacity of a payment facilitator, not a bank or payment processor.
“Payroll User Data” means data of Employees that is submitted into the AIO Account or collected by AIO in connection with Payroll Processing Services, including wages, roles, time and attendance, location of hours worked, and, if applicable, paid time off information, Employee benefits information, wage garnishment information, and other information specified by AIO from time-to-time.
“Payroll Information” means any information submitted to, transmitted through, collected or required by Third Party Service Provider, that is necessary for provision of the Payroll Processing Services, including Personal Information such as date of birth, address, social security number, bank account information, wages, pay stubs, tax documents or any other information specified by Third Party Service Provider from time-to-time.
“Payroll Processing Services” means Third Party Services that enable the Merchants to process the payroll of Employees.
“Payroll Services Data” means collectively, (i) Payroll Information, (ii) Payroll User Data, and (iii) any other information, data, or documentation provided by or on behalf of the Merchant or requested by AIO or its Third-Party Service Providers in connection with the onboarding, authentication, verification, or provision of Payroll Processing Services, including without limitation information relating to the Merchant’s business operations.
“Personal Information” means any information relating to an identified or identifiable individual or household. Personal Information may include, but is not limited to, a name, address, contact details, unique identifiers, biometric identifiers and information, preferences, history and profile data, IP addresses, and location-based information, but excludes aggregated or anonymized information. Personal Information shall include any information that constitutes “personal information” or “personal data” under the Applicable Data Protection Laws.
“Privacy Policy” means AIO’s privacy policy located at https://www.aioapp.com/privacy-policy .
“Service (s)” means services agreed in Order Form or otherwise provided or made available through (i) AIO’s Site (ii) AIO’s Applications; (ii) AIO Platform; (iii) Work Management Platform; and (iv) integrations supported by Third-Party Service Providers and includes Hardware.
"Shift Workers Terms of Service" means terms available at aioapp.com/shift-worker-terms-of-service.
“Term” has the meaning defined in section 14(a).
“Term of Services” means terms of services located at https://www.aioapp.com/terms-of-use.
“Third Party Services” means a component or part of Services provided, made available, or enabled by a third-party under contract with AIO, including but not limited to, Payment Processing Services and Payroll Processing Services;
“Third-Party Service Provider” means service providers that provide Third-Party Services as located at Third-Party Services Page;
“Workforce Management Platform” means workforce management platform made available by AIO as part of Services.