YoKi
Customer Terms & Conditions

4. Compensation.

a. Base Compensation. Customer’s initial download of the App and any updated thereto offered by YoKi shall be free of charge, and there shall be no subscription fees for use of the App. For Products and Services requested by Customer through the App, Customer shall provide to YoKi compensation for the Products Services as defined and referenced in each Order accepted and confirmed by YoKi. Compensation for Products and Services shall include certain overhead and incidental items, including without limitation payment for drivers to deliver the Products to Customer and certain gratuities. Payment as set forth in an Order must be received by YoKi as a condition precedent to YoKi’s acceptance and confirmation of such Order, and YoKi shall not under any circumstances be bound to any Order unless and until such payment is received by YoKi and YoKi then accepts and confirms the corresponding Order. b. Manner of Payment. Customer shall make payment under each Order by a credit card on file at the Customer Account for the total amount invoiced under such Order, except as otherwise approved by YoKi in its sole and absolute discretion and expressly set forth in such Order. If Customer’s credit card is not run successfully, YoKi will not provide any Products or Services set forth in the corresponding Order. In the event Customer’s credit card is run successfully, but any payment made by such credit card is ultimately not honored by the credit card company, and YoKi has provided Products and Services in reliance upon such payment, Customer shall owe to YoKi a late fee in the amount of one percent (1%) of the total amount due and not paid for each day it remains unpaid, which Customer acknowledges is a reasonable estimate of otherwise difficult to calculate damages and administrative costs associated with untimely payment. In the event any payment is not received by YoKi within thirty (30) calendar days after such payment is due, YoKi may but is not obligated to suspend or deactivate temporarily the App and Site(s) as to Customer as a non-exclusive remedy for default under these Terms, such remedy to be in addition to YoKi’s right to terminate the Customer Account(s) and access by Customer to the App, Site(s), Products and Services, and to exercise any other right or remedy at law or in equity. In the event of any suspension or deactivation, Customer must pay to YoKi a reactivation fee of $100.00, together with all amounts due and owing under invoices to date, in order to regain access to the App and Site(s). c. Effect of Payment. Except as provided in these Terms, any payment to YoKi under these Terms shall operate as a release of any claims which Customer may be entitled to make in relation to Products and Services that are covered by such payment.

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5. Independent Contractor.

No relationship of employment is created by these Terms, it being understood that in agreeing to these Terms and providing Products and Services hereunder, YoKi is at all times acting and performing solely as an independent contractor. Neither YoKi nor Customer is authorized to be the agent or legal representative of the other for any purpose whatsoever. Neither YoKi nor Customer shall have the authority or power to make any commitments of any responsibility expressed or implied in the name of the other or to assume or create any obligation or shall be liable for any acts or omissions of the other. All employment, insurance and tax matters and filings shall be handled accordingly.

6. Confidentiality and Intellectual Property.

In connection with these Terms and each of the Orders, and Customer’s access to, and purchase, use and utilization of, the App, Site(s), Products and Services as set forth in these Terms and in each Order, YoKi might provide, and Customer might receive, certain non-public, confidential and proprietary information concerning one or more businesses, projects, endeavors, operations, materials, products and/or services of YoKi (collectively, the “YoKi Proprietary Items”), which YoKi deems to be highly proprietary and valuable.

a. Scope of Confidentiality Protection. For the purpose of this Section 6, “YoKi Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by YoKi, any member of YoKi, and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative, predecessor, successor or assign of any of them, in any event excluding any Customer or Customer Party defined below (collectively, the “YoKi Parties”, and each a “YoKi Party”), including without limitation that related to prospective development of the YoKi Proprietary Items, or any of them, descriptions, compositions and features of the YoKi Proprietary Items, or any of them, operational, logistical, financial, physical, legal and other practical requirements for the YoKi Proprietary Items, or any of them, expected financial gains to be realized from the YoKi Proprietary Items, or any of them, identities of parties potentially involved with the YoKi Proprietary Items, or any of them, including without limitation actual and prospective vendors, contractors, consultants, distributors, suppliers, and other business partners of YoKi related to the YoKi Proprietary Items, or any of them, prospective impacts of the YoKi Proprietary Items, or any of them, and other information related to the YoKi Proprietary Items, or any of them, or YoKi’s ongoing or prospective involvement with the YoKi Proprietary Items, or any of them, which is not readily available to the public. For the purpose of this Section 6, “YoKi Confidential Information” shall also mean (i) the contents of these Terms, with the understanding that the existence of these Terms and Customer’s general obligation of confidentiality under this Section 6 may and should be disclosed to all third parties who seek or might receive any YoKi Confidential Information, (ii) all terms, conditions and features related to Customer’s access to, or purchase, use or utilization, of the App, Site(s), Products and Services, as applicable, as set forth in these Terms and in any Order, (iii) all YoKi Intellectual Property, as defined in Section 6(b), below, (iv) non-public information related to any and all YoKi Proprietary Items developed, performed or generated by or for the benefit of YoKi or any of the YoKi Parties, and (v) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, contractors, subcontractors, financial condition or procedures of YoKi or any of the YoKi Parties, which is not generally known to the public and that, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary. YoKi Confidential Information shall include any information, whether or not labeled “confidential”, that by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of YoKi or any of the YoKi Parties. Customer shall disclose YoKi Confidential Information and use and utilize the same solely as necessary for the purposes set forth in Section 3(c)(vi), above. YoKi Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).  b. YoKi Intellectual Property. All intellectual property rights in any way related to any YoKi Confidential Information provided by or through YoKi or any of the YoKi Parties to Customer is hereby acknowledged to remain in the exclusive possession of YoKi, the applicable YoKi Party, or the applicable licensor thereof (the “YoKi Licensor”), as appropriate, and any rights to or interests in such Intellectual Property, or any permutation or derivation thereof, or any improvement thereto, are hereby fully disclaimed, waived and renounced by Customer in favor of YoKi, the applicable YoKi Party, or the applicable YoKi Licensor, as appropriate, subject to the limited license provided in Section 3(c)(vi), above. For the purposes of this Section 6(b), “YoKi Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise prepared for the benefit of YoKi and/or any of the YoKi Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”), (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”), (iii) all copyrights and registrations and applications therefor, works of authorship and mask work rights (collectively, “Copyrights”), (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, whether or not displayed, maintained or accessed on, at or through the App or Site(s), including without limitation food lists, convenience item lists, equipment lists, software and hardware information, product lists, vendor lists, contractor lists, subcontractor lists, driver lists, user lists, customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals of YoKi and/or any of the YoKi Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Marks, Copyrights or Patents, (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with YoKi’s websites, including without limitation the Site(s), the App, any other software applications of YoKi, or any websites or software applications of any of the YoKi Parties, or otherwise used in connection with YoKi or any YoKi Proprietary Items, and (vii) all other technology and know-how uniquely in the possession of YoKi and/or any of the YoKi Parties. c. Restrictions Regarding YoKi Intellectual Property. Neither Customer, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, predecessor, successor, assign, legal or financial advisor, contractor or consultant of Customer, in any event excluding YoKi, any applicable YoKi Party or any applicable YoKi Licensor (collectively, the “Customer Parties”, and each a “Customer Party”), may apply for a right in any YoKi Intellectual Property, or use or utilize any YoKi Intellectual Property for any purpose other than that provided under Section 3(c)(vi), above, except upon the express written consent of an actually authorized representative of YoKi in YoKi’s sole and absolute discretion, whether or not any YoKi Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent Customer or any Customer Party may claim any rights, direct, derivative or otherwise, related to any YoKi Intellectual Property, other than the limited license provided under Section 3(c)(vi), above, Customer hereby disclaims, and shall cause each Customer Party to disclaim, such rights, and hereby assigns, and shall cause each Customer Party to assign, such rights to YoKi. Customer agrees to execute and to cause each Customer Party to execute, and in the alternative hereby grants to YoKi, and shall cause each Customer Party to grant to YoKi, power of attorney to execute and record in Customer’s stead, and in each Customer Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of YoKi Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all YoKi Intellectual Property by YoKi, the applicable YoKi Party, or the applicable YoKi Licensor, as appropriate. Neither Customer, nor any third party, may market, utilize, reuse or redistribute any YoKi Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of YoKi. With the exception of the limited license under Section 3(c)(vi), above, no license or other right of any kind in any YoKi Intellectual Property is granted or otherwise provided to Customer, to any Customer Party or to any third-party in relation to these Terms or Customer’s use or utilization of the App, Site(s), Products or Services, or any of them. Neither Customer nor any Customer Party may frame or utilize any framing techniques to enclose any YoKi Intellectual Property or YoKi Confidential Information. Neither Customer nor any Customer Party may use any metatags or other hidden text utilizing YoKi Intellectual Property. Any unauthorized use terminates the permission and license granted by YoKi under Section 3(c)(vi), above, whereupon YoKi may but is not obligated to terminate the Customer Account(s) and access by Customer to the App, Site(s), Products and Services. The App and Site(s) contain copyrighted material, trademarks and other proprietary information, which may include text, software, photos, video, graphics, music and sound. YoKi owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Neither Customer nor any Customer Party may modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit (for commercial gain or otherwise), any of the App or Site(s)’ content, in whole or in part. Except as otherwise expressly permitted under copyright law or expressly allowed herein, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of YoKi. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. d. Restrictions Regarding Disclosure of YoKi Confidential Information to Third Parties. Customer shall, and shall cause each Customer Party to, hold YoKi Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each Customer Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available any YoKi Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of YoKi, in YoKi’s sole discretion; and (ii) removing or permitting to be removed from such YoKi Confidential Information any notice indicating the confidential nature of, or YoKi’s proprietary right in and to the YoKi Confidential Information. Customer shall, and shall cause each Customer Party to, exercise at least the same degree of care and protection with respect to YoKi Confidential Information that Customer or such Customer Party, as applicable, would exercise with respect to Customer’s (or such Customer Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. Customer shall, and shall cause each Customer Party to, take all precautions necessary to ensure that the YoKi Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 6. In the event of written consent to disclose YoKi Confidential Information to any other party, including without limitation Customer Parties, Customer shall, and shall cause each Customer Party to, advise that other party of his/her/its obligations with respect to the YoKi Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 6 may be directly enforced by YoKi against him/her/it as a condition to such disclosure. Customer or the Customer Party, as applicable, shall provide an original of such written acknowledgment to YoKi, if so requested by YoKi. In any event, Customer or such Customer Party, as applicable, shall disclose the YoKi Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of YoKi. In addition, Customer or such Customer Party, as applicable, shall ensure that confidentiality notices are included on copies of YoKi Confidential Information so provided and shall account for the return or destruction of the YoKi Confidential Information and all reproductions thereof, if so requested by YoKi. In any event, YoKi consents to disclosure of YoKi Confidential Information by Customer to any Customer Party, or such Customer Party’s employees, contractors, consultants and advisers as necessary for the purposes set forth in Section 3(c)(vi), above, provided such disclosures are subject to the remaining requirements of this Section 6 and of Sections 7 and 14(h), below.  e. Exception for Customer Content. Any proprietary Customer Content that is collected or generated through use or utilization of the App or Site(s), or any of them, shall be deemed confidential information of Customer, which Customer may freely use and disclose as Customer sees fit. Customer shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the Customer Content, and Customer shall have indemnity obligations to YoKi therefor and in relation thereto as provided in Section 10, below. Customer represents and warrants that (i) Customer has the appropriate authority, license or other rights to use all such Customer Content and to provide such Customer Content as contemplated in these Terms; (ii) Customer has and will maintain all rights, consents and approvals required to grant to YoKi the rights to access, use, adapt, display and modify Customer Content in accordance with this Section 6(e) and will upon YoKi’s request provide proof of the same; and (iii) Customer shall not knowingly infringe upon the intellectual or other proprietary rights of any third party. Customer hereby grants to YoKi a nonexclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all Customer Content that is collected or generated through use and utilization of the App or Site(s), or any of them, for any legal purpose, including without limitation for YoKi to provide Products and Services and perform its other obligations under these Terms, to enforce these Terms, to analyze, transfer and use such Customer Content in an aggregated form from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the App, Site(s), Products and Services and YoKi’s other products, services and endeavors, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for YoKi to do so or as may be reasonably necessary or appropriate in connection with the operation, maintenance, repair, updating, development, improvement or other activities of and through the App and Site(s), provision of products, and performance of services, functions and endeavors by YoKi. f. Ownership of YoKi Confidential Information. Subject to the license set forth in Section 3(c)(vi), above, all YoKi Confidential Information, including reproductions thereof, shall be deemed to be and remain the exclusive property of all YoKi (or all YoKi Party or all YoKi Licensor, as appropriate), and no ownership rights of any kind in and to any all YoKi Confidential Information are transferred hereby, hereunder or in connection herewith to Customer, any Customer Party or any third party. Customer acknowledges that Customer does not acquire any such ownership rights by accessing and utilizing copyrighted material or otherwise using the App or Site(s), or any of them. All rights are reserved. g. Other Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any YoKi Confidential Information, which: (i) is or becomes available to the public through no act or omission of Customer, any Customer Party or any other party in violation of the terms and conditions of this Section 6 or any other confidentiality or non-disclosure agreement; (ii) was already known by Customer at the time of the disclosure by YoKi, as evidenced by Customer’s written records existing prior to the date of YoKi’s disclosure; (iii) is lawfully obtained from a person or entity other than YoKi or Customer without any obligation of confidentiality or non-disclosure; (iv) is approved for release by YoKi’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Section 6(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving YoKi reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if Customer first promptly notifies YoKi of the order and permits YoKi to seek an appropriate protective order; or (vii) is developed independently by or for Customer by personnel not having access to any YoKi Confidential Information. h. Reverse Engineering / Independent Development. Notwithstanding any other provision of this Section 6 or these Terms, Customer shall not (and Customer shall not use any third party to), and Customer shall cause each Customer Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any YoKi Confidential Information i. Restrictive Covenant. In consideration of any YoKi Confidential Information, which Customer or any Customer Party will receive or have access to, in connection with the App, Site(s), Products, Services and YoKi Proprietary Items, Customer shall not, and Customer shall cause each Customer Party not to, use or utilize any YoKi Confidential Information to: (i) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of YoKi for the purpose of or with the result of (A) competing with YoKi with respect to the App, Site(s), Products, Services, or any of them, or any similar software applications, products, services or endeavors, (B) altering, modifying, diverting or precluding the development of any YoKi business relationship involving the App, Site(s), Products, Services, or any of them, or any similar software applications, products, services or endeavors, or (C) otherwise interfering with business transacted with YoKi with respect to the App, Site(s), Products, Services, or any of them, or any similar software applications, products, services or endeavors; or (b) directly or indirectly solicit or attempt to solicit, encourage, induce or entice YoKi’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with YoKi with respect to the App, Site(s), Products, Services, or any of them, or any similar software applications, products, services or endeavors. j. Obligation to Notify and Assist. Customer agrees to immediately notify YoKi of any unauthorized use or disclosure of any YoKi Confidential Information related to Customer or any Customer Party’s possession of such YoKi Confidential Information or any other breach of this Section 6 and these Terms, and Customer agrees to cooperate in every reasonable way to help YoKi regain possession of any misused or mis-disclosed YoKi Confidential Information and prevent (or limit to the extent possible) its further unauthorized use or disclosure. k. No Warranty. Except as clearly and expressly provided in this Section 6(k) and in Section 8, below, all YoKi Confidential Information is provided “as-is, where-is”. YoKi makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any YoKi Confidential Information, except to the extent YoKi actually knows of or actually discovers any inaccuracies, errors or omissions in such information, in which event YoKi hereby warrants that it will promptly either correct or complete such information or report comprehensively and fully all inaccuracies, errors and omissions in such information.