Terms of Service for Simbe Services

Version Date: 2024-11-10

PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”). ALL CAPITALIZED TERMS NOT DEFINED HEREIN HAVE THE MEANING GIVEN IN THE ORDER FORM (“ORDER FORM”; COLLECTIVELY WITH THESE TERMS OF SERVICE, THE “AGREEMENT”) THAT REFERS TO THESE TERMS OF SERVICE OR TO WHICH THESE TERMS OF SERVICE ARE ATTACHED.

WHEN CUSTOMER EXECUTES THE ORDER FORM: (A) CUSTOMER ACKNOWLEDGES IT HAS READ AND UNDERSTAND THESE TERMS OF SERVICE; AND (B) CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.

1.1 Access to Simbe Services. Simbe shall (a) deliver to, and deploy, manage, operate and maintain the Tally Robots at the Stores, (b) make related technical and other documentation available to Customer (“Documentation”), (c) make available to Customer an instance of Simbe Cloud and Tally Digital Data (defined below), and (d) perform Deployment Services and provide technical support and maintenance pursuant to the Appendix 1 attached hereto (collectively, the “Simbe Services”). Simbe shall use commercially reasonable efforts to maintain the security and integrity of the Simbe Services and Customer Data (defined below) in its possession and control. Customer shall use the Simbe Services solely for internal business purposes. Solely in connection therewith, Simbe grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use Simbe Cloud, the Tally Digital Data and related Documentation. “Tally Digital Data” means all data, information, analyses, reports, renderings and other content, including, without limitation, photographs and/or videos of products, quantitative and qualitative assessments of products as displayed for sale in Stores and conditions of such displays, product tags and related pricing, that are either (a) captured and collected by a Tally Robot or (b) processed and/or generated from the Simbe Services. Tally Digital Data may include, without limitation, the following: Products carried in Store, out-of-stock notifications, back-on-shelf notifications, Product pricing, promotional pricing, promotional tag presence, Product location in Store and Product facings.

1.2 Restrictions on Use. Customer shall not, and shall not permit any third-party to: (a) use a Tally Robot in any Store other than the Store designated in the Order Form; (b) license, sublicense, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make available to a third-party the Simbe Services or any Tally Digital Data; (c) alter, modify or create derivative works of the Simbe Services; (d) frame or mirror any content of the Simbe Services; (e) reverse engineer, decompile, disassemble, or seek to obtain the source code of the Simbe Services for any purpose, (f) access the Simbe Services to build a product or service, or copy any ideas, features, functions or graphics of the Simbe Services; (g) send to or store in the Simbe Services any infringing, inappropriate, unlawful or tortious material or malicious code; (h) interfere with or disrupt the integrity or performance of the Simbe Services or data contained therein, including (but not limited to) preventing, prohibiting, or interfering with, the collection or integrity of the Tally Digital Data; (i) attempt to gain unauthorized access to the Simbe Services or its systems or networks; (j) remove or obscure any proprietary or other notices in or on any Simbe Services (including on any Documentation); or (k) publicly disseminate information regarding the performance of Simbe Services (e.g., benchmarking results).

1.3 Customer Responsibilities. Customer shall: (a) prevent unauthorized or unlawful access to, or use of, the Simbe Services or Tally Digital Data; (b) maintain the security and integrity of each Tally Robot while in its Stores and use commercially reasonable efforts to prevent any damage, destruction or theft thereof; (c) maintain industry standard commercial general liability insurance (that includes personal injury and property damage) for the Store in which a Tally Robot operates, which coverage covers any damage, destruction or theft of the Tally Robot; (d) use the Simbe Services in compliance with the Agreement and all applicable laws; (e) perform its obligations in the SOW; and (f) at its cost and expense, obtain all necessary licenses or other rights for Simbe personnel’s access to each Store to perform the Simbe Services.

2.1 Ownership. Simbe and its licensors retain all right, title and interest, including all related intellectual property rights, in and to the Simbe Services, Documentation, the Tally Digital Data, its Confidential Information, and all derivative works, improvements or modifications thereto by whomever made. No rights are granted to Customer hereunder other than as expressly set forth herein. No rights or licenses are granted to Customer to access, use or operate any Tally Robot.

2.2 Customer Data. Customer retains all right, title and interest in and to all data and information submitted or uploaded by Customer to the Simbe Services (“Customer Data”). Customer hereby grants to Simbe a non-exclusive, worldwide, unrestricted and irrevocable right and license to use, copy, store, transmit, modify, create derivative works of, and display Customer Data solely to provide the Simbe Services. For clarity, Customer Data does not include Tally Digital Data.

2.3 Feedback. If Customer provides Simbe any suggestions, ideas, improvements or feedback with respect to the Simbe Services (“Feedback”), Customer hereby grants Simbe a non-exclusive, perpetual, irrevocable, sub-licensable, transferable, royalty-free, fully paid-up worldwide right and license to use and commercially exploit such Feedback as Simbe deems fit.

3.1 Fees and Invoicing. Customer shall pay all fees in the Order Form within thirty (30) days of Customer’s receipt of an invoice. Except as otherwise provided in the Agreement, all fees must be paid in U.S. Dollars, are based on products and services purchased and not actual usage or performance, and are non-cancellable and non-refundable. Late payments are subject to interest accruing at a rate of the lower of 1.5% per month or the highest rate permitted by law, plus costs of collection.

3.2 Taxes. Fees do not include, and Customer is solely responsible for all local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the income of Simbe. Such taxes or levies shall not be considered a part of a deduction from, or an offset against fees.

3.3 Suspension of Services. If Customer’s account is ten (10) days or more overdue or if Simbe in good faith believes that Customer is engaging in unauthorized conduct in its use of the Simbe Services, in addition to any of its other rights or remedies, Simbe reserves the right to suspend Customer’s access to the Simbe Services without liability to Customer until, as applicable, such amounts are paid in full or until Customer stops engaging in such unauthorized conduct.

4.1 Confidential Information. Each Party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of Disclosing Party (“Confidential Information”). Confidential Information does not include information which Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become generally available to the public through no fault of Receiving Party; (c) is rightfully obtained by Receiving Party from a third-party without breach of any confidentiality obligation; or (d) is independently developed by employees of Receiving Party who had no access to Disclosing Party Confidential Information. The Agreement, the Simbe Services, the Tally Digital Data, fees and pricing information and any performance information (e.g., benchmarking results) relating to the Simbe Services are Simbe Confidential Information. The Agreement and Customer Data are Customer Confidential Information.

4.2 Restrictions. Except as expressly authorized herein, Receiving Party will (a) hold in confidence (using reasonable methods of protection) Confidential Information and (b) not use any Confidential Information except in furtherance of the Agreement. Receiving Party may disclose Disclosing Party Confidential Information to its employees, consultants or contractors who have a bona fide need to know such Confidential Information for the purposes of the Agreement; provided, that each such employee, consultant or contractor is subject to terms of confidentiality no less restrictive than those set forth herein.

4.3 Required Disclosures. Receiving Party may disclose Disclosing Party’s Confidential Information if it is required to be disclosed pursuant to a regulation, law or court order; provided that, Receiving Party provides Disclosing Party prior written notice of such required disclosure, reasonably assists Disclosing Party in contesting such required disclosure (at Disclosing Party’s cost and expenses), and, if disclosure is still required thereafter or Disclosing Party authorizes such disclosure, only discloses the minimum extent required to comply with such regulation or order.

4.4 Irreparable Harm. Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by Receiving Party, Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law in any court of competent jurisdiction.

5.1 Warranties. Each Party represents and warrants to the other Party that it has the power and authority to execute, deliver, and perform its obligations under the Agreement.

5.2 Simbe Warranties. Simbe warrants to Customer that the Simbe Services will operate in conformity in all material respects with applicable Documentation and that Deployment Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards. Customer’s sole and exclusive remedy, and Simbe’s sole liability, for a breach of this warranty is for Simbe to correct or re-perform the Simbe Services or Deployment Services in accordance with the Support Terms. The limited warranty in this Section shall not apply until Customer notifies Simbe in writing of a breach hereof. The limited warranty in this Section 5.2 shall not apply if the error or failure in performance was caused by misuse, unauthorized modifications, third-party hardware, software or services, Customer Data or a Force Majeure Event.

5.3 DISCLAIMERS OF WARRANTY. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5, SIMBE PROVIDES THE SIMBE SERVICES AND TALLY DIGITAL DATA ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER SIMBE NOR ITS SUPPLIERS MAKES OTHER WARRANTIES OF ANY KIND AND SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. SIMBE DOES NOT WARRANT THAT THE SIMBE SERVICES OR TALLY DIGITAL DATA ARE ERROR-FREE OR THAT CUSTOMER WILL BE ABLE TO ACCESS OR USE SIMBE SERVICES, TALLY DIGITAL DATA OR DEPLOYMENT SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS.

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY: (A) LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY OR WHETHER OR NOT SUCH PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER PURSUANT TO THE AGREEMENT IN THE TWELVE (12) PERIOD PRIOR TO THE LIABILITY ARISING. THESE LIMITATIONS OF LIABILITY WILL NOT APPLY TO A PARTY’S BREACH OF SECTION 4, CUSTOMER’S BREACH OF ANY PAYMENT OBLIGATIONS OR LICENSE OR USE RESPONSIBILITIES OR RESTRICTIONS, OR A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER.

7.1 Simbe Indemnity. Simbe (“Indemnifying Party”) shall defend, indemnify and hold harmless Customer (“Indemnified Party”) from and against any third-party claims asserted against an Indemnified Party (and all resulting, to the extent payable to unaffiliated third parties, damages, losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees and costs) (“Losses”) arising out of the alleged infringement or misappropriation of a copyright, trade secret, trademark or United States patent by the Simbe Services. If any claim which Simbe is obligated to defend has occurred, or in Simbe’s determination is likely to occur, Simbe may, in its sole discretion and at its option and expense: (a) obtain for Customer the right to use the allegedly infringing item; (b) substitute a non-infringing replacement for such item; or (c) if in Simbe’s opinion neither item (a) nor (b) are reasonably available, terminate the Agreement and refund to Customer the fees pre-paid by Customer for the portion of the Subscription Term for which Simbe Services were not rendered. The foregoing indemnification obligation of Simbe shall not apply if such claim arises out of: (1) use of the Simbe Services in combination with any software, hardware, network or system not supplied by Simbe where the alleged infringement is caused by such combination; (2) any modification or alteration of the Simbe Services (other than by Simbe); (3) Customer’s continued use of the allegedly infringing activity after being informed of a modification that would avoid the alleged infringement; or (4) use of the Simbe Services other than in accordance with the terms and conditions of the Agreement. THIS SECTION 7.1 SETS FORTH SIMBE’S SOLE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

7.2 Customer Indemnity. Customer (“Indemnifying Party”) shall indemnify, defend and hold harmless Simbe (“Indemnified Party”) from and against any third-party claims asserted against an Indemnified Party and all Losses arising from Customer Data or Customer’s use of the Simbe Services.

7.3 Personal Injury and Property Damage. Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party (“Indemnified Party”) from and against any third-party claims asserted against an Indemnified Party and Losses arising from any bodily injury or death to any person, or any property damage to any tangible property, to the extent such injury, death or property damage (a) is, in the case of Simbe, caused by Simbe’s performance of Simbe Services or the malfunction of a Tally Robot or (b) is, in the case of Customer, caused by Customer’s business and operations.

7.4 Procedure. The Indemnifying Party’s indemnification obligation is subject to the Indemnifying Party receiving (a) prompt written notice from the Indemnified Party of such claim (but in any event, notice in sufficient time for the Indemnifying Party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonably necessary cooperation of the Indemnified Party at Indemnifying Party’s expense. Nothing in this Section 7 precludes the Indemnified Party from participating in its own defense and retaining its own counsel at its own expense.

Either Party may terminate the Agreement upon thirty (30) days written notice if the other Party breaches any material provision of the Agreement and does not cure such breach before the end of such cure period. Upon early termination or expiration of the Agreement, (a) Customer’s access to, and use of, the Simbe Services shall immediately cease, (b) Customer shall reasonably cooperate with Simbe for the return of the Tally Robots to Simbe (at Simbe’s cost and expense, unless Simbe terminates the Agreement for Customer breach in which event the return of the Tally Robots will be at Customer’s cost and expense or as otherwise provided in the Order Form) and (c) upon Disclosing Party’s request, the Receiving Party shall destroy or return all Confidential Information in its possession. Within fifteen (15) days of expiration or termination, Simbe shall, unless legally prohibited, delete all Customer Data from its systems or otherwise in its control or possession. Upon any early termination (except for termination for Simbe breach by Customer or as otherwise provided in the Order Form) or expiration of the Agreement, all payment obligations with respect to unpaid fees for Simbe Services or Deployment Services (including those payment obligations arising in the then-current Subscription Term that are not yet paid) are irrevocable and Customer shall promptly pay such amounts to Simbe, and Customer will not be entitled to any refund of any prepaid amounts. This Section 8 and the following Sections shall survive any expiration of termination of the Agreement: Sections 1.2 (Restrictions on Use), 1.3 (Customer Responsibilities), Section 2 (Proprietary Rights), Section 3 (Payment Terms; Invoicing); Section 4 (Confidentiality), Section 5.3 (Disclaimers of Warranty), Section 6 (Limitation of Liability), Section 7 (Indemnification) and Section 11 (Miscellaneous).

During the Subscription Term, Simbe will maintain the following insurance policies and minimum limits, and provide Customer with certificates of coverage upon request: (a) Personnel: Worker’s Compensation Insurance as required by the applicable law and US$ 1,000,000 Employer’s liability coverage; (b) Commercial General Liability Insurance: US$1,000,000 per occurrence and US$2,000,000 in the aggregate; (c) Umbrella Liability Insurance: US$5,000,000 per occurrence in excess of the limits stated above; (d) Automobile Liability Insurance: US$1,000,000 per occurrence (on all hired and non-owned automobiles); and (e) E&O/Cyber Risk Liability Insurance: US$2,000,000 in the aggregate. The insurance above will provide that such insurance is primary coverage. The insurance coverages described in this Section may be obtained through any combination of primary and excess or umbrella liability insurance.

Neither Party may assign the Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder (except that Simbe may delegate to subcontractors, provided that it remains liable for proper performance of the Agreement), in whole or in part, without the other Party’s prior written consent; provided, however, either Party may assign the Agreement, without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under the Agreement in breach of the previous sentence shall be void and of no effect.

11.1 Third Party Products and Services. Customer may choose to obtain products and services that are provided or supported by third parties for use with the Simbe Services. Such third-party products and services are subject to terms of applicable agreement(s) between Customer and such third party, and Simbe assumes no, and disclaims any, responsibility therefor.

11.2 Independent Contractors. The Parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

11.3 Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such Party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Any Party claiming force majeure shall provide the other Party prompt notice and make commercially reasonable efforts to overcome such Force Majeure Event. If such Force Majeure Event prevents the Party from substantially performing its obligations for a period of thirty (30) days, either Party may terminate the Agreement on five (5) days written notice.

11.4 Export Controls. Customer agrees it shall not, and shall cause its representatives to not, export, directly or indirectly, re-export, divert, or transfer in violation of any applicable export laws and regulations, including but not limited to the U.S. Export Administration Regulations, the Simbe Services, the Documentation or Simbe Confidential Information.

11.5 Severability; Modifications or Waivers. If a court deems a provision of the Agreement to be unenforceable, that provision shall be limited to the minimum extent necessary to permit the Agreement to otherwise remains in effect. Any modification of the Agreement is effective and binding only if in writing and signed by both Parties. No waiver is implied from conduct or failure to exercise rights under the Agreement, and no waiver is effective unless in a writing signed by the waiving Party.

11.6 Governing Law; Jurisdiction. The Agreement is governed by the laws of the United States and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Transactions Act are specifically excluded from application to the Agreement. The Parties submit to the exclusive jurisdiction of, and waive any venue jurisdiction or venue objections against, the state and Federal courts in San Francisco County, California.

11.7 Notice. Any notice or communication required or permitted under the Agreement shall be in writing to the Parties at the addresses set forth on the first page of the Agreement or at such other address as may be given in writing by either Party to the other and shall be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

11.8 Entire Agreement. The Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of the Agreement. Purchase orders (and similar documents) issued by Customer are for administrative purposes only (e.g., setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Simbe). The Agreement may be executed electronically and in counterparts which taken together shall form one legal instrument.

Provided that Customer remains current in its payment obligations to Simbe, Simbe will use commercially reasonable efforts to provide technical support relating to the access and operation of the Simbe Services as set forth in the table and response matrix below (including meeting the response times set forth below). To enable such support, Customer must report technical issues in a timely manner by either (a) initiating a helpdesk ticket by emailing support@simberobotics.com or (b) contacting Simbe’s customer success manager assigned to them by phone at the number provided, and, either case, by providing assistance as requested by Simbe to diagnose and resolve such issues.

Support Category: Provision

Case Limit: No Limit

Response Time: See Response Time Matrix

Support Hours: 9:00 am through 5:00 pm (Pacific time); 5 days per week (excluding bank holidays)

Response Time Matrix

• Severity Level P1
  • Definition: Severe Business Impact
  • Examples:
    • Production system down or not accessible
    • Data loss/corruption
    • Repeated service interruptions
    • Severe performance degradation impacting business
  • Response Time: 60 minutes
• Severity Level P2
  • Definition: Significant Loss of Functionality
  • Examples:
    • Critical previously available functionality missing without workarounds, but system is otherwise up
    • Intermittent service interruptions
    • Noticeable but tolerable performance degradation
  • Response Time: 8 hours
• Severity Level P3
  • Definition: Minor Impact
  • Examples:
    • Some functionality not working as expected but there are workarounds available
    • How-to or usage questions
  • Response Time: 1 business day
• Severity Level P4
  • Definition: No Operational Impact
  • Examples:
    • Enhancement requests
    • General questions
  • Response Time: 3 business days