CUSTOMER TERMS AND CONDITIONS

YOKI FOOD DELIVERY

YoKi App Daily Yolk menu screen
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A TYPICAL THIRD-PARTY APP

Typical delivery apps pass your order to restaurants run by other parties. The information they collect from you can be sold to other parties including restaurants and advertisers.

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A RESTAURANT

Carry out and delivery comprise about 6% of restaurant revenues (National Restaurant Association). That makes your delivery an afterthought. They use whatever packaging that restaurant finds for every food they produce.

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AN OUTSOURCING COMPANY

Typical apps use independently contracted drivers to hopefully find you. They are not employees and are not from your area. They are sent to restaurants they’ve never been to before. Then they drive around unfamiliar neighborhoods hoping to find your address.

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THE TYPICAL DELIVERY EXPERIENCE

Your delivery is sent to one of thousands of restaurants while your information is shared. A random driver finds the restaurant and picks up food sitting in improper packaging. They then struggle to find a location they have never been and 30% admit to stealing a bite of food from your order, yuck.

PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A CUSTOMER UTILIZING THIS SOFTWARE APPLICATION, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.

These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to access to the ordering, purchase and receipt of prepared food items and certain convenience items (collectively, the “Products”) and corresponding preparation and delivery services (collectively, the “Services”) by those persons (each, a “Customer”, and collectively, the “Customers”) ordering Products and Services through the YoKi software application (the “App”), which in turn is operated and maintained through the Internet website yokidelivery.com and related websites and landing pages (collectively, the “Site(s)”), as provided by the App and Site(s)’ proprietor, Your Kitchen Restaurants, LLC, an Arizona limited liability company (“YoKi”). By clicking “I accept” and also by placing an order at or through the App, by paying for and receiving any Products and Services, and by utilizing the App and Site(s) in connection therewith, Customer, freely, voluntarily and with full authority and capacity to do so, agrees to be bound by and accepts these Terms. If you (as a Customer) do not agree to be bound by all of these Terms, please do not order any Products or Services or use or utilize the App or Site(s) in connection therewith. YoKi reserves the right to cancel your Customer Account, and to discontinue making the App and Site(s) and all features thereat available to you, as Customer, should you, as Customer, violate any of these Terms.

1. Scope of Services.

a. Basic Description of Services. Generally, the Products consist of certain food items prepared in kitchens operated by or for YoKi, as well as certain convenience items, each as listed for purchase at and through the App and/or Site(s). Services include such preparation, packaging and delivery of such food items and convenience items. YoKi hereby agrees to provide to Customer the Products and Services as described in each purchase order generated through the App (each, an “Order”, and collectively, the “Orders”), as provided through the App by Customer to YoKi and accepted by YoKi in connection with these Terms. Each Order, solely upon YoKi’s acceptance and confirmation of such Order at and through the App and Site(s), automatically shall be incorporated herein and integrated herewith by this reference without the need for any amendment of these Terms. In the event of any conflict or inconsistency between these Terms and the terms of any Order, these Terms shall govern and take precedence.

b. Priority of Terms. In the event of any conflict or inconsistency between these Terms and any other materials at or through the App or any of the Site(s), these Terms shall govern and take precedence.

c. Subcontractors and Sub-Consultants. YoKi shall have full control over the means and methods of performance and provision of the Products and Services. In connection therewith, YoKi shall have the right, but not the obligation, in its sole discretion, to enter into written subcontract agreements and sub-consulting agreements, including without limitation in connection with preparation of food items and delivery of Products to Customers, with persons or entities of YoKi’s choice (collectively, the “YoKi Subs”, and each an “YoKi Sub”), any of which may or may not be affiliated or commonly controlled with YoKi. Upon request by Customer, YoKi shall within a reasonable time inform and update Customer as to which of the Products and Services are performed by YoKi Subs, as well as the identity of the corresponding YoKi Subs.

d. Services Non-Exclusive. Customer acknowledges and agrees that these Terms are non-exclusive and that YoKi may perform similar or non-similar work or services and provide similar or non-similar products for or on behalf of other parties.

2. Terms Subject to Change.

a. General Terms Subject to Change. These Terms may change without prior notice at any time, in YoKi’s sole discretion, including, but not limited to, the protocols for use of the App and Site(s), access to the Products and Services at and through the App and Site(s), pricing of the Products and Services, availability of the Products and Services, availability of the App and Site(s), materials made available at or through the App and Site(s) in connection with or in relation to the Products and Services, including without limitation features of Products and Services. YoKi reserves the right, its sole discretion, to discontinue the App and Site(s), or any of them (including Products and Services available thereat), and/or modify the contents and functionality of the App and Site(s). Customer agrees YoKi will not be liable to Customer for any such discontinuance or modification of the App and Site(s), or any of them (including features of Products and Services), provided that once an Order is made, processed, confirmed and paid for, YoKi shall provide the Products and Services that are the subject of such Order under the terms set forth in such Order, and YoKi shall continue to make the App, Site(s), Products and Services available as provided in such Order and as otherwise provided in these Terms. YoKi may update the App and Site(s) from time to time in YoKi’s sole and absolute discretion, and any Order shall be subject to such updating.

b. Price and Payment Terms Subject to Change. YoKi reserves the right, in its sole discretion, to change the price(s) of the Products and Services, and each of them, at any time, such price(s) being subject to change each time Customer accesses the order page for Products and Services at and through the App. In addition, all payment terms are similarly subject to change by YoKi. Unless and until Customer places an Order at and through the App for Products and Services through a corresponding Customer Account (as defined under Section 3(c)(i), below) and such Order is accepted and confirmed as provided under Section 4(a), below, Customer shall have no expectations as to price or payment terms based on previous access to and receipt of information at and through the App and Site(s).

3. Use, Operation and Maintenance of App and Site(s).

a. Responsibilities of YoKi. YoKi shall exercise reasonable efforts to maintain the App and Site(s) in reasonable condition and operating order, or with respect to third-party tools and applications to cause the appropriate third party(s) to so maintain. YoKi shall not be responsible for any inaccessibility of Customer due to scheduled maintenance and upgrades of the App or Site(s), or any corresponding Internet or Cloud servers or software. YoKi shall use reasonable efforts to ensure that any period of inaccessibility shall not exceed 48 hours. In the event that the App and/or Site(s) become inaccessible, or their operation deviates materially from that provided in these Terms and any applicable confirmed and accepted Order, and such deviation can be replicated by Customer, then Customer shall give written notification of the inaccessibility or the deviation, and in the case of deviations, sufficient information to permit replication and analysis. Upon receipt of notice from Customer of any inaccessibility or deviation, YoKi shall use reasonable efforts to diagnose the cause of the inaccessibility or deviation. Upon completion of the diagnosis, YoKi shall advise Customer of the cause of the inaccessibility or deviation and shall use efforts that it considers to be reasonable in its sole discretion, without charge, to restore access to and use of the App and Site(s) or avoid the deviation. Notwithstanding the foregoing, YoKi shall have no obligation to resolve any inaccessibility or deviation caused by (i) modification of the App or Site(s) by anyone other than YoKi or a YoKi Sub, (ii) use of the App, Site(s), Products or Services for any purpose other than intended, (iii) misuse or incorrect use of the App or Site(s), or (iv) malfunction of any Customer computer or any telecommunications services or equipment not under the control of YoKi. Subject to the requirements of this Section 3(a), any inaccessibility exceeding such 48-hour period that is caused by any act or omission of YoKi or any circumstances within YoKi’s actual control shall result in a corresponding equitable deduction in the fees paid by Customer. YoKi shall provide Customer reasonable technical support during YoKi’s business hours. YoKi shall implement, or with respect to third-party tools and applications YoKi shall cause the appropriate third party(s) to implement, the data archive procedures resident in the App and Site(s) at regular intervals, and Customer acknowledges that the liability for loss, destruction or damage to any data Customer may store at or through any such App and Site(s) is limited pursuant to these Terms. As between YoKi and Customer, YoKi has the sole right and responsibility to maintain and update the logical and physical organization and structure of the databases and associated files within the App and Site(s). In connection therewith, YoKi, in its sole discretion, shall have authority and access at all times these Terms are in effect to set up, utilize and administer third-party tools and applications for and on behalf of Customer, as well as to make administrative setting changes in all technology platforms and services used and operated by or on behalf of Customer, each as they relate to the Products, Services, App and Site(s).

b. Security. YoKi shall establish and maintain commercially reasonable security measures designed to protect Customer from any security breaches at or through the App and Site(s). However, YoKi shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than YoKi’s gross negligence or intentional misconduct. Specifically, among other things, YoKi shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any features employed by any third party hosting company, it being understood and agreed that Customer may not under any circumstances hold YoKi responsible or liable therefor, and that Customer’s recourse therefor shall be limited to the appropriate third party hosting company or companies.

c. Responsibilities of Customer.

i. Customer shall either create, or be assigned, a unique username and password as directed or approved by YoKi, whereby Customer shall access and use the App and Site(s) through a separate account designated for Customer (each, a “Customer Account”, and collectively the “Customer Account(s)”). Customer shall have the opportunity to change such user name and password from time to time in accordance with YoKi’s security policies and protocols, which YoKi shall make known to Customer with reasonable updates, which policies and protocols are incorporated herein and integrated herewith by this reference, with the understanding that in the event of any conflict or inconsistency between these Terms and any such policies or protocols, these Terms shall govern and take precedence. Customer acknowledges and agrees that Customer shall be responsible for maintaining the confidentiality of Customer’s username and password, and Customer shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the App and Site(s), and access to, integrity of and loss of Customer’s data or of Customer Content defined in Section 3(c)(ii), below. Customer agrees to accept full responsibility for all activities that occur under the corresponding Customer Account, username and/or password. YoKi reserves the right to refuse service, terminate accounts, or remove or edit content, including without limitation Customer Content, in its reasonable discretion. Customer’s username, account and password are nontransferable, except upon written agreement by YoKi, in YoKi’s sole and absolute discretion, and may not under any circumstances be shared except upon such written agreement. Customer agrees to (A) maintain all equipment necessary for Customer’s access to and use of the App Site(s) and Customer Account; (B) maintain the security of Customer’s account identification, username, password, Customer Content and any other confidential information relating to each Customer Account of Customer; and (C) take responsibility for all charges resulting from use of each Customer Account of Customer, including without limitation those pertaining to any unauthorized use prior to Customer notifying YoKi of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting YoKi to change Customer’s username and password.

ii. Customer shall have the sole responsibility to input and maintain portfolio data, customer data and other data as necessary for Customer to utilize the App and Site(s) in order for YoKi to provide the Products and Services to Customer. Customer shall maintain its own proprietary content, including without limitation credit card information and other identifying information requested by YoKi, provided by Customer in connection with Customer’s utilization of the App and Site(s) (collectively, “Customer Content”). YoKi shall exercise reasonable efforts to secure Customer Content, and Customer Content shall be maintained and managed at or through the App and Site(s) in accordance with YoKi’s Privacy Policy, which Privacy Policy is incorporated herein and integrated herewith by this reference. In the event of any conflict or inconsistency between such Privacy Policy and these Terms, such Privacy Policy shall govern and take precedence. Except as otherwise expressly provided in these Terms and YoKi’s Privacy Policy, YoKi shall not secure, maintain, test or alter Customer Content in any way. Except as otherwise expressly provided in these Terms and YoKi’s Privacy Policy, YoKi does not warrant that any Customer Content will be maintained or up to date in any manner, and YoKi shall not have any responsibility or liability for any failure to provide Products or Services to Customer as a result of Customer’s failure to provide, maintain and update Customer Content appropriately and accurately. Specifically, Customer shall remain solely responsible for all errors or problems in Customer Content impacting the App and/or Site(s), and/or the functionality thereof with respect to any Order and/or Products and/or Services. Except as otherwise expressly provided in these Terms and YoKi’s Privacy Policy, YoKi does not warrant that any Customer Content shall be made available after the time period set forth in Section 3(c)(iii), below.

iii. Customer shall maintain a copy of all Customer Content in an accessible way prior to termination of the Customer Account(s) and access by Customer to the App, Site(s), Products and Services. Any Customer Content uploaded to the App and Site(s) shall be for the sole use by Customer and YoKi; provided that YoKi will not share any such Customer Content with any other customer or any third party except as authorized under these Terms (which authorization hereby automatically includes sharing with all YoKi Parties and YoKi Subs, as reasonably necessary to perform the Services under these Terms), or as reasonably necessary to operate and maintain the App and Site(s) as required under these Terms; and provided further that upon termination of the Customer Account(s) and access by Customer to the App, Site(s), Products and Services, Customer shall have no further ability to access or use the App or Site(s), or any data Customer may have stored thereat. YoKi shall retain all Customer Content stored at and through the App and Site(s) for a period of ninety (90) days after termination of the Customer Account(s) and access by Customer to the App, Site(s), Products and Services, and so long as Customer has paid all amounts due to YoKi in accordance with Section 4, below, YoKi shall during such ninety (90) day period work with Customer to transfer such Customer Content, together with any as yet untransferred Customer Content, to other software application(s), site(s), system(s) and platform(s), as requested and designated by Customer. The compensation owed by Customer to YoKi shall be equitably adjusted upward and accordingly increased for YoKi’s services, based on the rates and services set forth in the corresponding Order(s). Upon the expiration of such ninety (90) day period, Customer agrees that YoKi may purge all Customer Content from the App and Site(s); provided that if reasonably necessary to complete the transfer requested and designated by Customer, YoKi and Customer may mutually agree to extend such ninety (90) day period, provided the transfer has commenced and proceeds diligently to completion.

iv. Customer may elect to have certain Customer Content transferred to other software application(s), site(s), system(s) and/or platform(s) without terminating the Customer Account(s) or access by Customer to the App, Site(s), Products and Services, in which event Customer shall so notify YoKi in writing, whereupon YoKi shall work with Customer to transfer such Customer Content to other software application(s), site(s), system(s) and platform(s), as requested and designated by Customer. The compensation owed by Customer to YoKi shall be equitably adjusted upward and accordingly increased for YoKi’s services, based on the rates and services set forth in the Corresponding Order(s). YoKi shall endeavor to complete such transfer within ninety (90) days; provided that if reasonably necessary to complete such transfer, YoKi and Customer may mutually agree to extend such ninety (90) day period, provided the transfer has commenced and proceeds diligently to completion. Upon completion of any such transfer, YoKi shall immediately cease to have any duties or responsibilities with respect to the Customer Content under these Terms, except for those that would otherwise survive termination of the Customer Account(s) and access by Customer to the App, Site(s), Products and Services, even as these Terms otherwise remain in effect.

v. Customer acknowledges that certain aspects, features and functions of the App and Site(s) shall reside in one or more third-party hosting companies’ computing environment(s), which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by the App and Site(s) may render the App and/or Site(s) inaccessible or may impair the performance of the computing environment(s) for Customer and/or YoKi’s other customers. In the event of any such use by Customer, YoKi shall so notify Customer, Customer shall be obligated to put an immediate stop to such use, and Customer shall notify YoKi, in writing, that such use has ceased. In the event of Customer’s failure to put an immediate stop to such use, YoKi reserves the right to suspend or terminate any Customer Account(s) and access by Customer to the App, Site(s), Products and Services. In the meantime, in the event of any damage or delay suffered by Customer that is caused by, arising from or resulting from any acts or omissions of any third-party hosting company, as opposed to YoKi or a YoKi Sub, Customer agrees that YoKi shall not be liable or responsible for such damage or delay, and Customer agrees that its sole recourse in connection with such damage or delay shall be such third-party hosting company and/or said hosting company’s insurers or sureties. YoKi hereby assigns to Customer any and all rights of YoKi as to YoKi’s relationship with such hosting company for such purpose.

vi. YoKi grants to Customer a limited license to access and make personal use of the App and Site(s) solely as needed to order, purchase, receive and utilize the Products and Services set forth in these Terms and the accepted and confirmed Orders incorporated in and integrated with these Terms, and to enforce any rights, duties or obligations under these Terms or any such Order. This license does not include any resale or commercial use of the App or Site(s), or any contents thereof; any collection and use of any materials posted by YoKi at or through the App or Site(s), or any of them, or any listings, descriptions, features, qualifications or related information of YoKi at or through the App or Site(s), or any of them; any derivative use of the App or Site(s) or contents thereof; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, cookies or similar data gathering and extraction tools. Customer shall have the ability to post certain limited content at or through the App and Site(s) upon prompting. Customer may not resell, sublicense, assign or otherwise allow the use of the App or Site(s) by or for the benefit of any other person, entity or group without the express written approval of YoKi, in YoKi’s sole and absolute discretion. The limited license referenced in this Section 3(vi) shall remain in effect solely as long as these Terms remain in effect and YoKi has not terminated Customer’s access to the App and Site(s) and/or to the Customer Account pursuant to these Terms.

vii. Customer shall remain solely responsible for all errors or problems in Customer Content impacting the App, Site(s), Products or Services or the quality, accuracy, completeness, performance or effectiveness thereof, maintaining and providing any necessary operating environments in which Customer utilizes or applies the App or Site(s), errors caused by third party software or hardware or the configuration of such items as they relate to such access, utilization or application, and interruptions in access to the App or Site(s), or other downtime attributable to any internet provider of Customer. 

viii. Once the App is initially downloaded, other than page caching, neither Customer nor any other party is authorized to download or modify the App or Site(s), or any portion thereof; provided that in the event of an update to the App, YoKi may in its sole and absolute discretion authorize Customer to download a more recent version of the App. Unless otherwise authorized in writing by YoKi, neither Customer, nor any other party, is authorized to deep link to any web page contained at the Site(s) (i.e., no links are permitted under any circumstances from third-party websites to any page of the Site(s) other than a Site’s home page). Such links are expressly prohibited. In addition, neither Customer nor any third party may link any Site’s home page in such a manner as to create a reasonable possibility or likelihood of confusion by users of a third party website as to the true ownership or sponsorship of any of the App or Site(s) and/or as to the existence or lack thereof of some affiliation or other relationship between YoKi and the third party and/or its website.

ix. Customer may not post or transmit through the App or Site(s) any content, item or material, or otherwise access or utilize the App or Site(s) in any way, in any manner that violates or infringes in any way upon the rights of others, which is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, which is inconsistent with the non-religious and non-political purposes of the App and Site(s), or which contains advertising or any solicitation with respect to any products or services, each as determined by YoKi in its sole and absolute discretion. Customer is also prohibited from using the App, Site(s), Products or Services in any way that restricts or inhibits any other user or customer of the App, Site(s), Products or Services from using or enjoying the App, Site(s), Products or Services. Also, Customer shall not use any of the App, Site(s), Products or Services for any illegal purpose, including but not limited to, uses in violation of the CAN-SPAM Act of 2003, or in violation of any privacy laws.

x. YoKi may enact, implement and enforce reasonable rules of use as promulgated and amended from-to-time by YoKi in its reasonable discretion regulating the use of the App and Site(s) by Customers, and Customer agrees to be bound by such rules. In the event of any conflict or inconsistency between these Terms and such rules, these Terms shall govern and take precedence. Breach of such rules or this section may result in the offending information being removed by YoKi, or YoKi’s termination of the Customer Account(s) and/or access by Customer to the App, Site(s), Products and Services.

d. Materials Posted by Others.

i. Customer understands and acknowledges that YoKi cannot, does not and will not monitor all material posted or transmitted by customers, users and third party information providers at or through the App and Site(s). Although YoKi has no obligation to review or remove any such content in general, YoKi reserves the right to remove any content posted at or through the App and Site(s) at any time for any reason in its reasonable discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by YoKi in its reasonable discretion after actual notice of such posting and in no event or circumstance shall be construed as giving rise to any duty or obligation to review or remove in the future.

ii. The App and Site(s) contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively, “Site Content”). YoKi does not control the Site Content supplied by parties other than YoKi or any YoKi Subs. Any opinions, advice, statements, services, offers, and/or other information that constitute part of Site Content expressed or made available by third parties and not by YoKi or any YoKi Subs are those of the respective authors or distributors and not of YoKi or any YoKi Sub. In many instances, the Site Content available through the App and Site(s) represents the opinions and judgments of the respective party or user not under contract with YoKi. Unless clearly, expressly and unequivocally indicated elsewhere, YoKi does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, suggestions, statistics or statements posted by parties other than YoKi anywhere at or through the App or Site(s) or elsewhere in connection with the Products and Services. Neither YoKi, nor any YoKi Party nor any YoKi Sub, makes any warranties with respect to any of the data featured or mentioned on, at or through the App or Site(s) with respect to the Products and Services unless provided directly by YoKi or a YoKi Sub as actually authorized by YoKi. Any information or material placed online by parties other than YoKi, including advice and opinions, are the views and responsibility of those who post the materials, and do not necessarily represent the views of YoKi or any YoKi Party. Under no circumstances shall YoKi or any YoKi Party be liable for any loss, damage or harm caused by Customer’s reliance on information obtained through the App or Site(s), unless provided directly by YoKi or by a YoKi Sub with YoKi’s actual authorization. It is the responsibility of Customer to evaluate the information, opinion, advice or other Site Content available at or through the App or Site(s) and not provided directly by YoKi or a YoKi Sub. Customer agrees that YoKi is not responsible, and shall have no liability to Customer, with respect to any information or materials posted by any party other than YoKi or a YoKi Sub with YoKi’s actual authorization, including without limitation defamatory, offensive or illicit material, or material that violates these Terms, and Customer accordingly unconditionally releases YoKi, all YoKi Parties and all YoKi Subs from any and all liabilities and claims related to such information and materials posted by third parties that are not YoKi Subs actually authorized by YoKi.

iii. With the use of the App and Site(s), Customer might have the ability to link to other, non-YoKi Internet or Cloud content and to upload their own non-YoKi provided content, programs and materials at or through the App or Site(s) for use by Customer. Customer shall be solely responsible for obtaining access authorization from any and all content sources Customer chooses to utilize that are not YoKi or a YoKi Sub, and Customer shall indemnify and hold YoKi, all YoKi Parties and all YoKi Subs harmless from any and all costs, expenses, injuries, damages and claims that are attributable to any use of content, programs and materials uploaded or linked to by or through Customer and not directly by YoKi or a YoKi Sub. YoKi has no control over such third-party sites or the content within them. YoKi cannot and does not guarantee, represent or warrant that the content contained in such third-party sites is accurate, legal or inoffensive. YoKi does not endorse the content of any third-party site, nor does YoKi warrant that such third-party sites will not contain viruses or otherwise impact Customer’s computers. YoKi does not assume any responsibility or liability for the actions, product, services, and content of all these and any other third parties. If Customer chooses to link to or use a third-party website, Customer should carefully review such third party’s privacy statement and other terms and conditions of use. By using the App and Site(s) to search for or link to any third-party site, Customer agrees and understands that Customer may not make any claim against YoKi or any of the YoKi Parties for any damages or losses, whatsoever, resulting from Customer’s use of or access to the App and Site(s) to obtain search results or to link to any third-party site.

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.

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.

7. Non-Disparagement. Customer shall not, and Customer shall cause each Customer Party not to, at any time, directly or indirectly through third parties, actively or passively, disparage, question, criticize or otherwise make reference to any of the App, Site(s), Products or Services, or to YoKi or any YoKi Party, or to any actions or failures to act of YoKi or any YoKi Party, or cause others to do so, if the effect of such action(s) reasonably could be anticipated to result in any harm to or adverse impact upon the reputation, business, interests or relations of YoKi or any YoKi Party, or to the morale among the work force of YoKi or any YoKi Party. Nothing in this Section 7 prohibits Customer or any Customer Party from good faith efforts to enforce these Terms.

8. Limited Warranty and Disclaimers.

a. Limited Warranty. YoKi warrants that, during the term of the Agreement, YoKi will use reasonable efforts to operate and maintain the App and Site(s) in good working order to the extent reasonably practicable, and all information provided directly by YoKi or the YoKi Subs through the App or Site(s) will be accurate to the best of YoKi’s knowledge. YoKi further warrants that all Products and Services will be provided and delivered substantially as set forth in each applicable Order, subject to Section 8(b), below. Notwithstanding any other provision of these Terms, the foregoing warranties shall not apply to the following: (i) any errors or problems caused by any breach of any obligations of Customer under these Terms; (ii) any application, modification or use of the App, Site(s), Products or Services in any way other than as expressly provided in these Terms; (iii) any improper use of the App, Site(s), Products or Services; (iv) any use of the App, Site(s), Products or Services except as expressly provided for in these Terms and the accepted and confirmed Orders; (v) any errors or problems in Customer data, including without limitation Customer Content, impacting the App, Site(s), Products or Services or quality, performance or effectiveness thereof, including without limitation any information erroneously input by Customer; (vi) any failure by Customer to maintain and provide any necessary environment in which Customer uses, accesses, applies or utilizes the App, Site(s), Products or Services, including without limitation operating and computing environment for the App and Services, and further including without limitation any storage or subsequent preparation of disposition of the Products by or for Customer once delivered to Customer; (vii) any errors caused by third-party software or hardware (other than that originated by a YoKi Sub, for which YoKi assigns any warranties provided by the YoKi Sub in connection therewith as Customer’s sole and exclusive remedy, and for which Customer’s sole recourse shall be against such YoKi Sub and not in any event or under any circumstance against YoKi) or the configuration of such items as they relate to such access, utilization or application; or (viii) any interruptions in access to the App or Site(s) or other downtime attributable to any Internet provider of Customer.

b. Products Pending Delivery. Customer shall designate on each Order where the Products are to be delivered; provided that YoKi reserves the right, in its reasonable discretion, to refuse delivery to any location that YoKi reasonably considers unsafe or impracticable. In the event of such refusal, YoKi will offer the option for the Customer to select an alternative delivery location or to cancel the Order. With respect to any delivery location specified by Customer and accepted by YoKi, Customer understands, acknowledges and agrees that Customer is fully responsible for all conditions of such delivery location, including without limitation present hazards, other people and pets, and Customer shall indemnify and hold harmless YoKi and the YoKi Parties, and each of them, in relation to such conditions of the delivery location, any acts or omissions of any person at the delivery location other than the applicable YoKi Sub and any presence or acts of any pet or animal at the delivery location, each as set forth in Section 10, below. YoKi shall remain responsible for and assume risk of loss of or damage to the Products solely while the Products are under the direct care, custody and control of YoKi. Customer’s sole recourse for any loss of or damage to the Products, or any of them, while under the care, custody or control of a YoKi Sub, shall be against the applicable YoKi Sub, and YoKi hereby assigns to Customer any claims YoKi may have against such YoKi Sub for such purpose. Immediately upon delivery of Products to Customer and Customer’s acceptance thereof, and at all times thereof, Customer shall be solely responsible and liable for such Products, their condition, their disposition, their storage, their maintenance and their quality, and Customer shall indemnify and hold harmless YoKi and the YoKi Parties, and each of them, for the same as set forth under Section 10, below. 

c. Exclusive Remedy. In the event of any failure by YoKi or by the App or Site(s), to perform, in any material respect, in accordance with the warranties set forth in Section 8(a), above, the only liability of YoKi to Customer, and Customer’s sole and exclusive remedy, shall be to terminate the Customer Account(s) and any pending Orders with seven (7) calendar days prior written notice to YoKi, within which time YoKi may cure such failures to avoid such termination, and if YoKi does not cure such failures within such seven (7) calendar day period, or in the event a cure is not possible or practicable within such seven (7) calendar day period if YoKi does not commence a cure within such period and diligently continue it to completion, Customer may proceed with such termination, at which point Customer shall stop using, utilizing and procuring the App, Site(s), Products and Services, and any related liability shall be as limited under Section 9, below.

d. Disclaimers. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(k) AND SECTIONS 8(a) THROUGH 8(c), ABOVE, YOKI DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE APP, SITE(S), PRODUCTS OR SERVICES, OR ANY OTHER SOFTWARE APPLICATIONS, SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH YOKI. THE LIMITED WARRANTIES SET FORTH HEREIN IN SECTIONS 6(k) AND 8(a), ABOVE, ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY DISCLAIMS AND WAIVES ALL OTHER REPRESENTATIONS AND WARRANTIES OF YOKI AND ALL YOKI SUBS AND YOKI PARTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS OR ANY RIGHTS OF CUSTOMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(k) AND SECTIONS 8(a) THROUGH 8(c), ABOVE, THE APP, SITE(S), PRODUCTS AND SERVICES, AND ALL OTHER SOFTWARE APPLICATIONS, SERVICES, PRODUCTS, PROGRAMS, FEATURES AND DATA PROVIDED BY OR THROUGH YOKI ARE OTHERWISE DONE SO TO CUSTOMER AND THROUGH CUSTOMER STRICTLY ON AN “AS IS, WHERE IS” BASIS. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY WARRANTED BY YOKI IN SECTIONS 6(k) AND 8(a), ABOVE, YOKI AND ITS LICENSORS DO NOT WARRANT THAT THE APP, SITE(S), PRODUCTS OR SERVICES, OR ANY OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE APP OR SITE(S), OR ANY OTHER SOFTWARE APPLICATIONS, SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH YOKI, OR ANY USE OR OPERATION THEREOF: (i) WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER; (ii) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (iii) WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (iv) WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, OR THAT ALL ERRORS THEREIN WILL BE CORRECTED; (v) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (vi) WILL GENERATE DATA OR OTHER RESULTS THAT ARE COMPLETE OR USEFUL FOR CUSTOMER’S PURPOSES. IT IS THE RESPONSIBILITY OF CUSTOMER TO EVALUATE THE COMPLETENESS OR USEFULNESS OF ALL DATA AND MATERIALS GENERATED THROUGH THE USE OF THE APP AND SITE(S) FOR CUSTOMER’S PURPOSES. CUSTOMER AGREES THAT NO INCONSISTENT STATEMENT MADE BY A REPRESENTATIVE OR OTHER EMPLOYEE OR AGENT OF YOKI WITH RESPECT TO A REPRESENTATION, WARRANTY OR OTHER TERM OR CONDITION OF THESE TERMS OR WITH RESPECT TO THE APP, SITE(S), PRODUCTS OR SERVICES, OR ANY OTHER SOFTWARE APPLICATIONS, SERVICES, PRODUCTS, PROGRAMS, FEATURES OR DATA PROVIDED BY OR THROUGH YOKI, SHALL SUPERCEDE THESE TERMS, AND SPECIFICALLY THE DISCLAIMERS PROVIDED IN THIS SECTION 8(d), WHICH SHALL GOVERN AND TAKE PRECEDENCE IN THE EVENT OF ANY CONFLICT, AMBIGUITY OR QUESTION OF INTERPRETATION. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT YOKI EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, CUSTOMER’S SUBSEQUENT USE OR DISPOSITION OF THE PRODUCTS OR CUSTOMER’S COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO CUSTOMER, AND CUSTOMER ASSUMES FULL RESPONSIBILITY AND LIABILITY FOR THE SAME AND SHALL INDEMNIFY AND HOLD HARMLESS YOKI AND THE YOKI PARTIES IN CONNECTION WITH THE SAME AS SET FORTH IN SECTION 10, BELOW.

9. Limitation of Liability.

a. Limitations and Exclusions. IN NO EVENT SHALL YOKI BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR LOST PROFITS, LOST BUSINESS, LOST DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION OR LOSS OF PRODUCTION) FOR ANY CLAIM IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH OR IN ANY MANNER RELATED TO THESE TERMS OR THE SUBJECT MATTER HEREOF, WHETHER BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHERE YOKI’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESS CONDUCT, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OR ANY ACCEPTED AND CONFIRMED ORDERS, IN NO EVENT SHALL YOKI BE RESPONSIBLE OR LIABLE FOR (i) ANY CORRUPTION, DAMAGE, LOSS OR MISTRANSMISSION OF DATA; (ii) THE SECURITY OF DATA DURING TRANSMISSION VIA ANY INTERNAL NETWORKS OR EQUIPMENT OF CUSTOMER OR VIA PUBLIC TELECOMMUNICATIONS MEDIA OR FACILITIES; (iii) HARDWARE, SOFTWARE, OR OTHER ITEMS OWNED BY CUSTOMER OR THAT ARE THE PROPERTY OF A THIRD PARTY THAT IS NOT A YOKI SUB; OR (iv) ANY OTHER MATTERS OR ITEMS FOR WHICH CUSTOMER IS EXPRESSLY MADE RESPONSIBLE, OR FOR WHICH YOKI IS DECLARED NOT TO BE RESPONSIBLE, UNDER THESE TERMS. CUSTOMER IS RESPONSIBLE FOR DETERMINING WHETHER THE APP, SITE(S), PRODUCTS AND SERVICES ARE SUITABLE FOR THE INTENDED USES OF CUSTOMER. CUSTOMER UNDERSTANDS THAT USEAGE OF THE APP AND/OR SITE(S) MAY NOT BE UNINTERRUPTED AND ERROR-FREE. IF CUSTOMER IS A CALIFORNIA RESIDENT, THEN BY ACCEPTING THESE TERMS CUSTOMER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.

b. Maximum Aggregate Liability. EXCEPT WHERE YOKI’S ACTS AND OMISSIONS HAVE CONSTITUTED RECKLESS CONDUCT, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING, THE TOTAL AGGREGATE LIABILITY OF YOKI UNDER OR IN RELATION TO THESE TERMS, AND THE APP, SITE(S), PRODUCTS AND SERVICES, OR ANY OTHER SOFTWARE APPLICATIONS, SERVICES, PRODUCTS, PROGRAMS, FEATURES AND DATA PROVIDED BY OR THROUGH YOKI, OR ANY OTHER MATTER COVERED BY THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO DATE BY CUSTOMER TO YOKI UNDER AND IN RELATION TO THESE TERMS. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 9 SHALL NOT APPLY ONLY TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF YOKI SHALL NOT EXCEED THE STATUTORY LIMIT.

c. Acknowledgment. Customer and YoKi acknowledge that they have reached agreement on base compensation and other charges set forth in these Terms in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in these Terms and that the same form an essential basis of the bargain between the Customer and YoKi. Sections 8 and 9 of these Terms allocate the risks under these Terms between YoKi, on one hand, and Customer, on the other, and are viewed by such parties as an integral part of the business arrangement between them. The pricing and other terms and conditions of these Terms reflect this allocation of risk and the limitations specified herein. Each of Customer and YoKi has a duty to mitigate the damages and losses that would otherwise be recoverable from the other pursuant to these Terms (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or losses.

10. Indemnity. Subject to the limitations set forth in Sections 8 and 9, above, Customer shall, and shall cause each Customer Party to, indemnify, defend, protect and hold YoKi and the YoKi Parties, and each of them, harmless from and against any and all actions, causes of action, demands, liabilities, losses, damages, injuries, costs, or expenses, of whatever kind in nature, including attorney’s fees and reasonable expenses incurred in connection with these Terms and the subject matter hereof, to the extent arising or resulting from, caused by, pertaining to or attributable to: (a) Customer’s breach or violation of any duties, obligations or responsibilities under or in relation to these Terms; (b) the negligence, willful misconduct or otherwise wrongful conduct of Customer or any Customer Party, or any third party for whom Customer is legally responsible in relation to these Terms; (c) any use, disposition and condition of the Products, or any of them, subsequent to delivery of such Products to Customer and acceptance by Customer of such delivery; (d) any condition of the location of delivery of Products to Customer; (e) the acts and omissions of any person or animal present at such location of delivery; and/or (f) any other matter for which Customer has assumed responsibility under these Terms; each except to the extent the damage or liability is caused by YoKi’s breach or violation of any of its duties, obligations or responsibilities under these Terms, or the negligence, willful misconduct or otherwise wrongful conduct of YoKi or any YoKi Sub. Notwithstanding the other provisions in these Terms and the accepted and confirmed Orders, Customer is responsible for ensuring that the Customer Parties, and all of them, comply with the terms, conditions, restrictive covenants and applicable legal requirements related to these Terms, and shall be responsible, jointly and severally, for communication with the Customer Parties, and all of them, in relation thereto. Customer and its signatory under these Terms shall therefore be jointly and severally responsible for indemnification under this Section 10 in the event of any failure to do so. Customer and YoKi agree to notify each other immediately upon the making of any claim or institution of litigation or dispute resolution proceedings giving rise to any obligation of indemnity under these Terms. Notwithstanding the provisions of this Section 10, no claim or litigation which is based in whole or in part upon allegations arising form activities undertaken pursuant to these Terms shall be settled by YoKi or a YoKi Party without the advance written approval of Customer or the applicable Customer Party, which approval shall not unreasonably withheld, conditioned or delayed.

11. Termination. YoKi or Customer may terminate the Customer Account(s) and any pending Orders for cause upon written notice if the other breaches or defaults in any of its material obligations, duties or responsibilities under these Terms or any applicable Order, and such breach is not cured within seven (7) calendar days following receipt of written notice thereof, or in the event such breach cannot reasonably be cured within such time period, such cure is not commenced within such seven (7) calendar day period and diligently continued to completion. In the event any Customer Account(s) and pending Orders are terminated, Customer shall provide payment for all Products and Services provided to Customer as of the date of the termination. Customer’s access codes for the App, Site(s), Products and Services shall be terminated immediately upon termination of the Customer Account(s), and Customer shall thereupon have no further ability to access or use the App or Site(s), or to procure Products or Services (unless a new Customer Account is established and accepted by YoKi). Upon such termination, all Customer data, including the Customer Content, stored within the App and Site(s), shall be preserved for a limited time and transferred as set forth in Section 3(c)(iii), above.

12. Applicable Law. All claims and disputes related to these Terms shall be settled in accordance with the Dispute Resolution provisions set forth in Section 13 of these Terms. Interpretation and performance of these Terms shall be in accordance with and pursuant to the substantive laws of the State of Arizona, without regard to principles of conflicts of laws. 

13. Dispute Resolution. Any dispute, controversy or claim that may arise under or in relation to these Terms, or any interpretation or enforcement of these Terms, or any transactions contemplated hereunder (each, a “Dispute”, and collectively, “Disputes”) shall be submitted to a mediator located in the Phoenix, Arizona metropolitan area prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by the parties, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. The mediation shall conclude when all parties thereto sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any Dispute cannot be settled by the parties informally or through mediation, the Dispute shall be submitted to binding arbitration before a mutually agreeable arbitrator in the Phoenix, Arizona metropolitan area. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in Maricopa County, Arizona. Customer hereby consents to the personal jurisdiction of such courts located in Maricopa County, Arizona, for such purpose. CUSTOMER ALSO HEREBY WAIVES RIGHT TO A JURY TRIAL. Should any arbitration or other legal proceeding concerning any provision of these Terms or the rights and duties of any person or entity in relation hereto be commenced among the parties, or should any party institute any proceeding in a bankruptcy or similar court which has jurisdiction over any party or any or all of such other party’s property, the party or parties prevailing in such arbitration or proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for their attorneys’ fees and court costs in such arbitration or proceeding which fees and costs shall be determined by the arbitrator or court, as the case may be, in such proceeding or in a separate action brought for that purpose.

14. Miscellaneous Provisions.

a. Assignment. None of a party’s rights, obligations or claims under or with respect to these Terms or the Services may be assigned, in whole or in part, by such party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed.

b. Invalid Provisions / Severability. If any provision of these Terms is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable; these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

c. Inconsistency Among Terms. Except as expressly otherwise provided in these Terms, where any provision or term, in whole or in part, of any contract documents related to these Terms conflicts with or is inconsistent with the express provisions of these Terms, then the provisions of these Terms shall control, and the provisions or terms of the related contract documents shall be deemed to be inapplicable and void.

d. Entire Agreement. These Terms, together with all accepted and confirmed Orders and other documents, agreements and undertakings incorporated herein and integrated herewith by reference, represent the entire agreement between YoKi and Customer and modify and supersede any prior agreements executed by YoKi and Customer with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations between Customer and YoKi other than those contained or otherwise referenced (t)herein.

e. Modification. Except as otherwise expressly provided herein, these Terms may not be changed, modified, or amended without the written consent of an actually authorized representative of both YoKi and Customer.

f. No Waiver. Failure on the part of YoKi to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by YoKi of its rights hereunder. Any waiver by YoKi of any default of another party shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit YoKi’s remedies and rights under and pursuant to these Terms.

g. Interpretation; Construction. The headings set forth in these Terms are for

convenience only and shall not be used in interpreting these Terms. They are not to be construed as a part of these Terms, and they in no way define, limit or amplify the provisions of these Terms. These Terms have been drafted by legal counsel representing YoKi, but Customer has had an opportunity to review these Terms and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms.

h. Injunctive Relief. Customer recognizes and agrees that a breach of any of the provisions of Sections 6 and 7 of these Terms will constitute immediate and irreparable harm to YoKi’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event that Customer or any Customer Party attempts or threatens to violate any obligations under such Sections 6 and 7, above, YoKi and each YoKi Party shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches by Customer or such Customer Party, as the case may be, and notwithstanding the provisions of Sections 12 and 13, above, YoKi shall be entitled to seek such relief in any court of competent jurisdiction in Maricopa County, Arizona, without the need to prove damages. Customer hereby consents to the personal jurisdiction of such courts for such purpose and agrees that in the event such relief is granted, Customer shall also pay YoKi’s reasonable attorney’s fees in connection with the same.

i. Force Majeure. YoKi shall not under any circumstances be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder or for failure to give Customer prior notice thereof when such delay or failure is due to the elements, acts of God, government regulation, political instability, acts of war, acts of terrorism, power outages, changes in law, internet disruption or other causes beyond YoKi’s control.

j. Notices. Any notice to be given under these Terms shall be in writing and shall be deemed to have been given when personally served, when mailed by certified or registered mail, or when submitted by verifiable electronic mail, addressed to the Customer’s address and to YoKi’s address as designated on the most recent accepted and confirmed Order or as set forth in connection with the Customer Account, to the attention of those designated therein. The addresses and/or contact points may be changed from time to time by either Customer or YoKi by serving notice as provided in this Section 14(j).

k. Survival. The respective rights and obligations of the parties under Sections 3(c)(iii), 5 through 10 and 12 through 14 of these Terms shall survive the termination of the Customer Account(s) and access by Customer to the App, Site(s), Products and Services.

BY CLICKING AGREEMENT AS PROVIDED AT AND THROUGH THE APP AND/OR SITE(S), CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT CUSTOMER HAS READ THESE TERMS TO COMPLETION, FULLY UNDERSTANDS ALL PROVISIONS HEREIN, UNDERSTANDS THAT CUSTOMER HAS GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS RECEIVED VALUABLE CONSIDERATION IN RELATION TO CUSTOMER’S ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH CUSTOMER UNDERSTANDS TO BE A PREREQUISITE TO CUSTOMER’S ABILITY TO ORDER, PURCHASE, RECEIVE AND PROCURE ANY PRODUCTS AND SERVICES, AND TO USE AND UTILIZE THE APP AND SITE(S). FINALLY, CUSTOMER UNDERSTANDS THAT THESE TERMS, TOGETHER WITH THE PROVISIONS AND CONDITIONS OF EACH CORRESPONDING ORDER AND ANY DOCUMENTS INCORPORATED (T)HEREIN AND INTEGRATED (T)HEREWITH BY REFERENCE, SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL SUCH ACTIVITIES, WITHOUT REGARD TO THE DATE OR TIMING OF ANY SUCH ACCESS, PARTICIPATION, PURCHASE, USE OR UTILIZATION. CUSTOMER CERTIFIES THAT CUSTOMER IS AT LEAST 18 YEARS OF AGE, OR ELSO CUSTOMER HAS THE PERMISSION OF A CUSTODIAL PARENT OR LEGAL GUARDIAN, AND THAT CUSTOMER OR SUCH PARENT OR GUARDIAN, AS THE CASE MAY BE, IS OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THESE TERMS. 

BY CLICKING AGREEMENT AS PROVIDED AT AND THROUGH THE APP AND SITE(S), CUSTOMER HEREBY UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT AT ALL RELEVANT AND APPLICABLE TIMES, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTOMER PROVIDED IN THESE TERMS ARE ACCURATE AND COMPLETE, AND YOKI SHALL HAVE THE RIGHT TO RELY ON THE SAME IN FULL.