Terms of Service

Hellometer (Company) will provide video playback and Total Time to Service “TTS” monitoring in restaurant locations operated by the Customer, as described in this Statement of Work (the “Service(s)”).

Hellometer will deliver video playback and TTS monitoring and reporting for each registered location’s Dining room and/or drive-thru. The TTS data will identify the average time between a guest’s entry into the lobby and drive-thru areas and the guest’s receipt of order and report the average service speeds for each location by day segment (generally defined as breakfast, lunch, afternoon, dinner, evening, and late night).

Hellometer will deliver both live and recorded video surveillance footage to Customer which can be downloaded directly by Customer at any time and will be stored by Hellometer for 1 month (30 days) from the date of recording.

Service Fees:

Service fees will be paid in advance on the 1st of each month, using our third-party payment platform, commencing 30 days after the date that continuous monitoring is first made available to Customer OR 45 days after delivery of hardware, whichever comes first and subject to the terms of Section 4 herein.

Service Term:

30 days, commencing 30 days after the date that continuous monitoring is first made available to Customer and automatically renewing for subsequent 30 day periods.

Statement of Work:

Hellometer will work with Customer to deploy TTS monitoring for Customer restaurant locations on the following terms:

• TTS monitoring as stated in the Agreement Terms.
• Security surveillance recording and playback, with playback services for the last 30 days of recordings.
• Hellometer to provide all hardware needed to run Hellometer’s TTS monitoring service (for each drive-thru and/or store location as applicable) ;and ship to each location (or a shipping location designated by Customer). Hellometer will retain ownership of said equipment.
• Additional security cameras can be purchased as needed at manufacturers’ cost.
• Both parties reserve the right to terminate the relationship with written notice at any point up to 5 days prior to the start of a new service term. If the termination right is exercised by the Customer, written notice must be sent to hello@hellometer.io from the customer's provided email address.

Intended Schedule:

The Parties to this agreement envision the following proposed schedule for implementation of each step (provided that neither party will be in breach of this agreement as long as each step is implemented within a reasonable period):

• Hardware installation: approximately 1-2 weeks after equipment is shipped.
• Calibration period and metrics are made available from all locations: approximately 3 weeks after installation.

Responsibilities of Customer:

• Customer to install, at their own expense, the equipment (cameras and wiring) necessary to run Hellometer in each location.
• Camera installations to be placed in accordance with Hellometer’s requirements. Installation will be scheduled so that Hellometer personnel can assist and be available (remotely) to ensure the system is working properly before the installers leave.
• Recommended 15 Mbit/s for both upload and download speeds.
• Minimum 5 Mbit/s for both upload and download speeds.
• Minimum upload allotment of 100GB/month.
• Customer will provide a project point of contact and contact email address (if different from the email address used to purchase the service) for Hellometer who is designated to work with and correspond with Hellometer and manage deployment needs that arise.
• Customer to maintain deployed hardware (Camera and GPU computer) throughout contract period and, upon termination of this agreement, will ship and return, at their own expense, equipment sent by Hellometer to the following address:

  Hellometer

  401 Wilshire Blvd

  Floor 12

  Santa Monica, CA 90401

• Customer agrees to pay for any hardware damaged or not returned within 60 days from the date of termination.

Implementation Services:

Customer will self-install. If preferred, Hellometer will contract and coordinate with a local commercial IT provider for camera installation and system setup who will bill Customer directly.

SAAS SERVICES AGREEMENT

This SaaS Services Agreement (“Agreement”) is entered into on this date of execution (the “Effective Date”) between Hellometer, Inc. with a place of business at 2425 Olympic Blvd. Suite 4000-W Santa Monica, CA 90404 (“Company”), and the Customer (“Customer”).

This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. This Agreement shall govern the parties' relationship. If the terms of this Agreement conflict with the terms of any other purchase order or similar form signed by the parties, the terms of this Agreement shall prevail.

TERMS AND CONDITIONS

1. SAAS SERVICES AND SUPPORT

1.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of any registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2. Company shall own all right, title and interest in and to the Customer Data, as well as any data, insights, or intellectual property that is based on or derived from the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, data, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

3.4 Customer hereby represents, warrants, and agrees that Customer has confirmed or, where relevant, will confirm that: (i) all data collected in the course of Company’s provision of the Service is collected in accordance with applicable laws and regulations; (ii) data collection in connection with the Service does not violate any person’s or entity’s proprietary, intellectual property, and personal data privacy rights. In addition, for the avoidance of doubt, Customer agrees that Customer is solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to data provided or collected under this Agreement.

4. PAYMENT OF FEES

4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

4.2. Company may choose to bill through an invoice or by third-party payment-processing service.

If Company bills by invoice, full payment for invoices issued in any given month must be received by Company within the greater of thirty (30) days after the mailing date of the invoice or the date stipulated on the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

4.3. Use of Stripe billing services.

If Company bills by third-party payment-processing service, payments will be made through Stripe. Although you will not need to establish a Stripe account to make a payment, we encourage you to review the Stripe terms of service to understand how your payment is processed. You may use only valid credit cards to pay for Services through Stripe. By submitting your order, you authorize Company to collect payment for the Initial Term and for renewal terms, and to send instructions to the financial institution that issued your card to take payments from your card account in accordance with these Terms of Service. In addition, you represent and warrant that you are authorized to use the designated card and authorize us to charge your order to that card. If the card cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or canceled automatically.

5. TERM AND TERMINATION

5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least five (5) days prior to the start of a new service term.

5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice by email to hello@hellometer.ai from the customer’s provided email address (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.

6. WARRANTY AND DISCLAIMER

6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

However, to the maximum extent permitted by applicable law, neither Company nor any of its employees, partners, managers, officers, or agents (collectively, the “Company Parties”) make any representation or warranties or endorsements of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, and system integration, with respect to the Services or security associated with the transmission of information to Company or via the Service. No advice or information, whether oral or written, obtained by you from Company or through the Service will create any warranty not expressly stated herein.

Without limiting the foregoing, the Company Parties do not warrant that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components.

Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.

7. LIMITATION OF LIABILITY

7.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

You agree, moreover, that, in the event you incur any damages, losses, or injuries that arise out of Company’s acts or omissions, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction or any other right to restrain the development, production, distribution, advertising, exhibition, or exploitation of any website, service, property, product, or other content owned or controlled by Company.

By accessing the Service, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and hereby expressly waive, the benefits of section 1542 of the civil code of California, and any similar law of any state or territory, which provides as follows: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.

8. INDEMNITY

You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you and any physical harm caused by hardware installed as part of the Service; (ii) your violation of any Term, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your willful misconduct; or (iv) any claim by a third party against Company for damages, losses, or injuries that arise from the normal operation of hardware or software provided by Company, including claims arising out of alleged physical harm or data privacy violations. You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Company.

9. DISPUTE RESOLUTION

You agree that any dispute between you and Company arising out of or relating to this Agreement, the Service, or any other Company products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

9.1 Governing Law

This Agreement and the resolution of any Disputes shall be governed by and construed in accordance with the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the “Arbitration” provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California, is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

9.2 Informal Dispute Resolution

We want to address your concerns without needing a formal legal case. Before you file a legal claim against Company, you agree to first contact us by e-mail and attempt to resolve the dispute with us informally.

9.3 Agreement To Arbitrate

Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Company. In the unlikely event that Company has not been able to resolve any Dispute it has with you (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”) after sixty (60) days, you and Company agree that the sole and exclusive forum and remedy for any and all Claims relating in any way to or arising out of this Agreement shall be final and binding arbitration. The Federal Arbitration Act and federal arbitration law apply to this Agreement.

9.4 Arbitration Procedures

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow this Agreement as a court would.

Any Claim between Company and you about or involving your use of the Service that is unable to be informally resolved must be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879, in New York, New York, USA , provided that the foregoing shall not prevent Partnered from seeking injunctive relief in a court of competent jurisdiction. Judgment on the award may be entered in any court of competent jurisdiction.

9.5 Class Action/Jury Trial Waiver

In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Company agree that all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by agreeing to this Agreement, you and Company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.

9.6 Limitation on Claims

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

10. MISCELLANEOUS

10.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions