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RATES ARE CONFIDENTIAL AND MUST NOT BE SHARED WITH ANY OUTSIDE PARTIES
By: ___________________ By: _____________________
Title: Authorized Signatory Title:
This Agreement is made and entered into as of the Effective Date between the Clientand [“Engineer.ai Corp”hereinafter referred to as “Builder.ai” or “Company”, having its principal place of business at [6300 Arizona Circle, Los Angeles, CA,90045 USA.] OR [“Engineer.ai Global Limited” hereinafter referred to as “Builder.ai” or “Company”, having its registered office address at 15 West ferry Circus, Canary Wharf, London, E14 4HD, England.] OR [“Engineer.ai India Private Limited”/“SD Squared India Services Private Limited” hereinafter referred to as “Builder.ai” or“Company”, having its registered office address at Ground Floor, Building No77B, Shaheed Ripon Katyal Marg, Sector 18, Gurugram, Haryana 122015, India.]
Effective Date and Client Details are as specified in the Key Terms section of this Agreement.
Where a product is indicated as selected in Services Offerings, the appropriate Appendix is deemed incorporated into this Agreement along with the General Terms and Conditions. In the event of any conflict between the General Terms and Conditions and any Appendix deemed incorporated then the terms of the Appendix shall have precedence.
INJUNCTIVE RELIEF : Company’s obligations under this Agreement are of a unique character that gives them particular value; Company’s breach of any of these obligations may cause a type of damage to Client for which money damages are insufficient, and Client is entitled to injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages if appropriate), without the need to post a bond.
NOTICES : Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile or email transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other address as either party may provide in writing.
GOVERNING LAW : The laws of [ the United States of America and the State of California] (or) [India] or [England and Wales ] govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles. Each of the parties irrevocably consents to the exclusive personal jurisdiction of [ the federal and state courts located in California ], or [ the courts of India with the jurisdiction as Delhi], or [ the courts of England and Wales] as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of [ the federal or state courts located in California ,] or [ the courts in Delhi, India], or [the courts of England and Wales ]; such personal jurisdiction will be non-exclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction. If a proceeding is commenced to resolve any dispute that arises between the parties with respect to the matters covered by this Agreement, the prevailing party in that proceeding is entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs, in addition to any other relief to which that prevailing party may be entitled.
SEVERABILITY: If a court of law holds any provision of this Agreement to be illegal, invalid or unenforceable (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected. WAIVER | MODIFICATION: If either party waives any term, provision or breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by that party. No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent breach by the party. This Agreement may be modified only by mutual written agreement of authorized representatives of the parties.
ENTIRE AGREEMENT: This Agreement constitutes th final and exclusive agreement between the parties relating to this subject matter and supersedes all agreements, whether prior or contemporaneous, written or oral, concerning such subject matter.
TRADEMARK USAGE: Each party (the “G ranting Party ”) grants to the other party a limited, non-transferable, non-exclusive, non-sub-licensable, worldwide, royalty-free right and license during the Term to use and reproduce the Granting Party’s Trademarks to market and promote their Services.
OWNERSHIP: The Builder.ai technology and all Intellectual Property Rights in it, including but not limited to patents, technical designs, copyrights, trademarks, specialist processes, trade secrets and other legal interests recognized or protected as intellectual property, are the exclusive property of Company. Client assigns to Company any suggestions, ideas, enhancement requests, feedback or recommendations provided by Client related to the Builder.ai Technology during the course of this Agreement. Except for the license expressly granted to Client in this Agreement, no express or implied license or right of any kind is granted to Client regarding the Builder.ai Intellectual Property Rights or any part of them, including any right to obtain possession of any source code, data or other technical material relating to the Builder.ai Technology. All rights not expressly granted to Client in this Agreement are reserved to Company.
LOCAL LAW: Client acknowledges its responsibility to ensure that its use of the Services is permitted under the laws of its jurisdiction (s) and the jurisdictions in which the Services are used and agrees to indemnify and hold Company harmless if Client’s use of the Services is in violation of applicable local law.
FEES: If applicable, Client shall pay the fees as specified in the Services, Fees and Discounts section of this Agreement.
PAYMENT TIMING: Client shall pay the amounts due pursuant to Company’s invoices within thirty (30) days of Client’s receipt of each such invoice except where the relevant Appendix details a different Payment or Credit Period. Any invoice-related dispute with respect to which Client does not notify Company in writing within fourteen (14) days of Client’s receipt of the applicable invoice shall be deemed waived.
TAXES, PAYMENT & PROCEDURES: All amounts payable under this Agreement exclude all applicable sales, goods & services and other taxes. Client will be responsible for payment of all such taxes (other than taxes based on Company’s net income), and any related penalties and interest arising from the non-payment or late payment. Amounts due under this Agreement and not paid by their due date shall incur interest at the rate of 2% per annum above the prevailing interest rates of the governing organization of the country (i.e., Prime Lending Rate in India) from the due date until the date of actual payment, whether before or after judgment. Client shall be responsible for the reasonable collection costs (including without limitation legal fees and collection agency fees) incurred by Company in its efforts to collect such overdue amounts. Company shall be entitled, in its sole discretion, to withhold performance and discontinue provision of the Services until all amounts due are paid in full or to turn Client over for collection to a third party agency.
TERM: Unless terminated earlier as permitted in this Agreement, the initial term of this Agreement shall be for a period commencing on the Initial Term Start Date set forth in the Key Terms and Definitions Section of this Agreement and ending after the Initial Term (the “ Initial Term”) . In addition, this Agreement may be terminated by:
- Either party, immediately upon written notice, in the event that the other party materially breaches this Agreement and such breach is not cured within thirty (30) days of written notice; or
- Either party, immediately upon written notice, if the other party becomes bankrupt, insolvent, fails to pay its debts as they become due, or otherwise ceases to conduct business in the ordinary course.
INDEMNIFICATION: Each party (the “ Indemnifying Party ”) will indemnify and hold the other party and its officers, directors, agents, Affiliates and employees (collectively, the “ Indemnified Party ”) harmless from and against any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable legal fees) against the Indemnified Party (collectively, “C laims ”) arising out of or related to a breach by the Indemnifying Party of its representations and warranties under this Agreement. Client will defend, indemnify, and hold harmless Company, its directors, officers, Affiliates, employees and agents harmless from and against any and all Claims arising out of or related to any of the Client’s Content, Media, Advertisements, Logos or Intellectual Property uploaded to Company’s infrastructure or included in works developed by Company at the behest of Client. The Company will defend, indemnify and hold harmless Client, its directors, officer, affiliates, employees and agents harmless from and against any and all Claims arising out of or related to any of the Company’s Intellectual Property and claims by any third party that such Intellectual Property violates third party rights. The foregoing indemnification obligations are conditioned on the Indemnified Party; (i) giving the Indemnifying Party notice of the relevant claim; (ii) reasonably cooperating with the Indemnifying Party at Indemnifying Party's expense, in the defense of such claim; and (iii) giving the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party shall have the right to participate in the defense at its expense. In the event that the Indemnifying Party fails to defend and/or indemnify the Indemnified Party, the Indemnified Party has the right to defend or settle any claim on its own behalf though counsel of its own choice, and be fully reimbursed by the Indemnifying Party for all costs and expenses of such defense.
DISCLAIMER | LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. COMPANY DOES NOT GUARANTEE ANY OUTPUT OR RESULTS OF ANY OF THE SERVICES AND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY SHALL NOT BE LIABLE FOR ANY MEDIA ON WHICH THE ADS APPEAR, THE CONTENT OF THE ADS, OR ANY INTEGRATED VENDOR SERVICES. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) SUFFERED OR INCURRED IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY EVEN IF COMPANY HAS BEEN OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, NOR FOR: (II) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FROM THE DATE IN WHICH THE CLAIM AROSE. THE PARTIES WAIVE ANY RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP OF PARTIES HEREUNDER. NO CONDITIONS, WARRANTIES OR OTHER TERMS APPLY TO THE SERVICES, THE CODE, THE DOCUMENTATION OR TO ANY OTHER GOODS OR SERVICES SUPPLIED BY COMPANY UNDER THIS AGREEMENT UNLESS EXPRESSLY SET OUT IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, NO IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS APPLY (INCLUDING WITHOUT LIMITATION, ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMANCE WITH DESCRIPTION). COMPANY DOES NOT GUARANTEE ANY OUTPUT OR RESULTS OF ANY OF THE SERVICES OR THE CODE AND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY: (A) FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF EITHER PARTY OR THEIR SERVANTS, AGENTS OR EMPLOYEES; (B) FOR FRAUD OR FRAUDULENT MISREPRESENTATION; (C) FOR PAYMENT OF SUMS PROPERLY DUE AND OWING TO THE OTHER IN THE COURSE OF NORMAL PERFORMANCE OF THIS AGREEMENT; OR (D) FOR ANYTHING WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM (WHETHER IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR OTHERWISE) FOR ANY: (I) LOSS OF PROFIT; (II) LOSS OF ANTICIPATED SAVINGS; (III) LOSS OF BUSINESS OPPORTUNITY; (IV) LOSS OF OR CORRUPTION OF DATA; (V) LOSS OR DAMAGE RESULTING FROM THIRD PARTY CLAIMS; OR (VI) INDIRECT OR CONSEQUENTIAL LOSSES; SUFFERED OR INCURRED BY THE OTHER PARTY (WHETHER OR NOT SUCH LOSSES WERE WITHIN THE CONTEMPLATION OF THE PARTIES AT THE DATE THIS AGREEMENT WAS SIGNED BY THE PARTIES). SUBJECT TO THE TWO SUB-CLAUSES ABOVE, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER ARISING FROM ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO THE GREATER OF: (I) THE AMOUNT PAID OR PAYABLE BY COMPANY TO COMPANY UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT (OR FIRST IN A SERIES OF CONNECTED EVENTS) OCCURRED AND (II) US$ 25,000.
CONFIDENTIALITY: The parties acknowledge that, in the course of their dealings hereunder, each may receive(“Recipient”) or otherwise become familiar with information about the other (“Discloser”), including but without limitation information about Discloser’s technology, client order information, financial information,software, product roadmaps, business activities and operations, trade secrets,third party business relationships, and all other information disclosed or made available by Discloser to Recipient that is marked “confidential” or“proprietary” or that should otherwise be reasonably understood to be confidential or proprietary (the “Confidential Information”). Client hereby acknowledges and agrees that the fees and information regarding the operation of the Services constitute Confidential Information of Company. Recipient hereby agrees to take reasonable measures to maintain the confidentiality and secrecy of the Confidential Information of Discloser and to avoid its disclosure. Recipient agrees to limit access to the Confidential Information to those of its authorized employees, advisors,subcontractors, vendors, agents and representatives (collectively, “Representatives”) who have a need to know solely in connection with Recipient’s performance or receipt of the Services contemplated by this Agreement or in connection with Recipient’s enforcement of its rights hereunder, provided that such Representatives are, by reason of written agreement or operation of law, bound by confidentiality restrictions consistent with those contained in this Section with respect to such information. Recipient will not attempt to reverse engineer the design or function of any of the Confidential Information of Discloser. Recipient shall have no obligation with respect to information which (i) was rightfully in possession of or known to Recipient without any obligation of confidentiality prior to receiving it from Discloser; (ii) is or becomes publicly available without breach of this Agreement; (iii) is rightfully obtained by Recipient from a source other than Discloser without any obligation of confidentiality;(iv) is independently developed by Recipient without use of Discloser’s Confidential Information; (iv) is disclosed with Discloser’s approval; or (v)is disclosed by Recipient under a valid order of a court or government agency,provided that Recipient provides prior written notice to Discloser of such obligation and reasonably cooperates with Discloser (at Discloser’s expense) in Discloser’s efforts to convince the court or administrative body to restrict or prevent the disclosure. Either party may disclose information and Media-specific Reports that relate to the performance of the Services with respect to a particular Advertiser’s Ad directly to such Advertiser, via manual or automated means. Client agrees and acknowledges that Company may use and disclose information which it has collected or received in connection with the Services in an aggregated form that is not identifiable to Client or end users in order to provide, enhance, market or improve the Services.
MISCELLANEOUS: This Agreement, including the Appendices, sets forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes all other prior or contemporaneous representations, discussions, agreements and understandings between the parties with respect to the subject matter hereof, whether oral or in writing. No amendment to this Agreement shall be binding on either party unless reduced to writing and signed by both parties.
Company may engage third parties to furnish services in connection with the Services,provided that such third parties have executed appropriate confidentiality agreements with Company. Client’s Affiliate(s) may elect to receive Services under this Agreement and in such case, such Affiliate shall be considered “Client” under this Agreement with respect to its use or receipt of the Services as if such Affiliate had entered into a separate agreement with Company, and such Affiliate shall be responsible for its acts or omissions hereunder.
Client may not assign, delegate or otherwise transfer this Agreement, whether by operation of law or otherwise, without Company’s prior written consent. Any assignment in violation of the foregoing shall be void ab initio. Company may assign,delegate or otherwise transfer this Agreement, whether by operation of law or otherwise, to an Affiliate or in connection with a merger, reorganisation or sale of all or substantially all of its stock or assets or otherwise. Subject to the foregoing, this Agreement shall be binding on permitted successors and assigns.
The waiver by either party of any breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or violation hereof. The parties shall be deemed to be acting as independent contractors and shall not be deemed to agents, representatives, joint venturers or partners. Neither party is authorized to bind the other to any obligation,affirmation or commitment with respect to any other person or entity.
Neither party shall be liable to the other for any non-performance or delay in the performance of any of its obligations hereunder (excluding payment obligations)due to any cause beyond such party’s reasonable control or due to acts of god,acts of civil or military authorities, terrorist acts, fires, labor disturbances, floods, epidemics, governmental rules or regulations, war, riot,delays in transportation, shortages of raw materials, shortages of services,power outages, or hacker attacks (each, a “Force Majeure Event”). This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument. This Agreement shall be construed as though both parties jointly drafted it. The captions in this Agreement are for convenience only and shall not affect its interpretation.
By using the Cloud One services from Builder.ai, The Client agrees and accepts all the terms and conditions contained in this Appendix in order to access the services from Builder.ai at https://www.builder.ai/builder-cloud (the ‘Site’) and related software and services (Collectively the ‘Builder Cloud Platform’)
a) Builder.ai on the strength of its agreement with Amazon Web Services Inc., hereinafter referred to as AWS/Amazon India Services Private Limited, hereinafter referred to as AWS, providing the online database access & retrieval services (OIDAR) in the name of Amazon Web Services(AWS), assumes the responsibility of billing and collection of payments for the services of AWS received by the client,
b) The client is desirous of receiving the billing from Builder.ai for services being received from AWS, (for which it has signed separate agreement with AWS).
NOW based on the above premises and in consideration of the mutual covenants, terms and conditions contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.
Bill Shifting Process
This Schedule sets out the process of shifting the management of invoicing from AWS to Builder.ai.
A) Process followed for bill shifting in respect of the client who does not have linked accounts to their Master Account is as follows:
i) Client to ensure that there is no default or outstanding sums due to AWS
ii) Builder.ai to request for billing shift in their console
iii) Client will be declined access to AWS for direct bills for AWS usage
iv) Client to get the request through email (firstname.lastname@example.org).
v) Client to accept the request for bill shifting to commence the transfer.
vi) Billing is shifted to Builder.ai for all usage of AWS post acceptance.
B) Process followed for bill shifting for client who does have linked accounts totheir Master Account is as follows:
i) Client to ensure that there is no default or outstanding on AWS.
ii) Client to delink billing of their linked accounts so that each linked account has an active Master Account.
iii) Client to provide details of AWS Master Accounts and associated email identification details to Builder.ai.
iv) Builder.ai to request for billing shift in their console.
v) Client to get the request through email (email@example.com) for all accounts.
vi) Client to accept the request for billing shift to commence the shift.
vii) Billing is shifted to Builder.ai for all usage of AWS post acceptance
Re: Consent to Assignment of AWS Accounts between [ASSIGNOR] and Amazon Web Services, Inc.
In connection with the transfer of AWS accounts by [ASSIGNOR] (“Assignor”) to [ASSIGNEE](“Assignee”), Amazon Web Services, Inc. (“AWS”) hereby consents to the assignment, effective as of [INSERT DATE] (“Effective Date”), by Assignor to Assignee of the AWS Accounts identified in the attached Exhibit A (“Accounts”) created under the AWS Client Agreement, located at http://aws.amazon.com/agreement/, by and between AWS and Assignor (“Assignor AWS Client Agreement”).
All other terms and conditions of the AWS Client Agreement remain in full force and effect, and as of the Effective Date, Assignee hereby agrees to be bound by the terms of the AWS Client Agreement by and between AWS and Assignee (“Assignee AWS Client Agreement”). On and after the Effective Date, the Accounts will be governed by the Assignee AWS Client Agreement and the Authorized AWS Value-Added Reseller Agreement by and between AWS and Assignee with the effective date of [INSERT DATE] (“Reseller Agreement”), so long as the Accounts meet the requirements of “Reseller Accounts” under the Reseller Agreement. Assignee will be responsible for all fees and charges due to AWS under the Accounts, regardless of whether such fees and charges were accrued before or after the Effective Date. Assignee will ensure that, as of the Effective Date, Assignor (as the “Client” of Assignee under the Reseller Agreement) expressly agrees to the AWS Client License Terms pursuant to the Reseller Agreement.
Amazon Web Services, Inc. ▪ 410 Terry Avenue N.▪ Seattle, WA 9810