PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS (INCLUDING SECTIONS 3, 7, 8, 9).
Engineer.ai may, in its sole discretion, amend this Agreement and the other terms of service at any time by posting a revised version on the Site. Engineer.ai will use commercially reasonable efforts to provide you with advance notice of any material change to the terms of the Agreement, such as an increase in the fees. All revised Agreements shall be effective as of the Revised Date.
YOU UNDERSTAND AND AGREE THAT YOUR CONTINUED USE OF THE SITE AS OF THE REVISED DATE CONSTITUTES YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE WARRANTIES, INDEMNITIES AND LIABILITIES HEREUNDER. SHOULD YOU DISAGREE WITH ANY TERM OF A REVISED AGREEMENT, YOU MUST NOT ACCESS OR USE THE SITE. YOU REPRESENT AND WARRANT THAT YOU (INCLUDING ANY ENTITY OR AGENCY YOU ARE ACTING ON BEHALF OF) IS DULY AUTHORISED TO ENTER INTO AND ACCEPT THIS AGREEMENT.
1. Scope of Services Provided.
- Services Provided.
Engineer.ai shall provide to Customer the services listed and described (“Services”) in a statement of work (“Buildcard(s)”) via the Platform (defined below) executed under this Agreement from time to time. Customer acknowledges and agrees that the Services are provided to Customer on a non-exclusive basis and that Engineer.ai may provide same or similar services for, or on behalf of, Engineer.ai’s other customers, provided that Engineer.ai shall observe its confidentiality obligations hereunder with respect to any engagements with other customers. The Services shall be performed as follows:
- Account Registration.
- Engagement of Services.
Following Account Registration, Customer must create a Buildcard on the Platform. A Buildcard becomes binding when Customer completes and submits the Buildcard on the Platform and Engineer.ai accepts the Buildcard. Upon the acceptance of a Buildcard by Engineer.ai and Customer, Engineer.ai will be obligated, subject to receipt of consideration in a timely manner, to provide the Services and deliver the deliverables specified in such Buildcard (“Deliverable(s)”). For the avoidance of doubt, unless otherwise agreed between the Parties, the terms of this Agreement will govern all Buildcards and Services undertaken by Engineer.ai for Customer.
Engineer.ai reserves the right to use one or more subcontractors to perform the Services or render any Deliverables. Engineer.ai shall be responsible for all work performed by any such subcontractors and Customer agrees that they shall not be able to contact any subcontractor directly. Any subcontractor performing any of the Services or rendering any Deliverables on Engineer.ai’s behalf will be bound by confidentiality restrictions no less restrictive than the confidentiality obligations set forth in Exhibit A (Non-Disclosure Terms).
Engineer.ai will identify to the Customer a principal-point-of-contact (“CPE”) for the Services. Engineer.ai will use commercially reasonable efforts to perform the contracted Services in accordance with any agreed schedule of performance. Customer acknowledges, however, that Engineer.ai’s ability to provide contracted Services in accordance with an agreed schedule of performance is dependent on Customer’s provision of necessary access to relevant Customer personnel and Customer’s timely provision of any information, approvals, decisions, or authorizations requested by Engineer.ai that are reasonably necessary for Engineer’ai’s performance of the Services. Engineer.ai only confirms that it will deliver the Deliverable within the max price limit set by the Buildcard; delivery schedule however is on a best case basis due to the aforementioned reasons.
- Change Orders.
From time to time, Customer may request a modification to the Services or any Deliverable by submitting a request through the Platform to amend the Buildcard, describing the desired modifications to Engineer.ai (“Change Order”). Upon the receipt of any Change Order, Engineer.ai will inform Customer of the resulting changes to the price, budget, schedule, and other details of the Services and/or Deliverables, as applicable. For the avoidance of doubt, Engineer.ai may accept, reject, or modify any Change Order in its sole discretion. No Change Order will be effective unless separately agreed to and executed by Engineer.ai through its Platform.
- Testimonials etc.
The Customer hereby agrees that subject to satisfactory performance of Engineer.ai, and in its sole discretion, it shall offer testimonials conveying its satisfaction of Engineer.ai’s performance delivery. Customer also agrees to allow Engineer.ai to use Customer’s name in its marketing brochures and campaigns. The Customer also agrees to give referrals for potential customers, without any obligation and without any warranty towards successful conversion of such referrals into a final customer. Engineer.ai shall pay to the Customer a sum of agreed amounts via a promotional coupon as stated in the Buildcard or separately towards such testimonials, referrals and for giving consent to include its name in marketing brochures and campaigns, all of which is subject to Engineer.ai’s Terms & Conditions.
2. Acceptance Procedure for Deliverables.
Upon delivery of each Deliverable hereunder, Customer will have an opportunity to review, evaluate and/or test the Deliverable in accordance with the following procedures to confirm that it satisfies, conforms with, or operates in all material respects in accordance with the acceptance criteria, specifications, or requirements for such Deliverable, as set forth in the applicable Buildcard (collectively, the “Acceptance Criteria”). The Deliverable review and evaluation period shall be five (5) business days for a written Deliverable and fifteen (15) business days for a software Deliverable, or such other period as the Parties may agree to in the applicable Buildcard (each, an “Acceptance Period”). If a Deliverable fails to satisfy the applicable Acceptance Criteria, then Customer shall furnish to Engineer.ai through its Platform, within the Acceptance Period a reasonably detailed report that identifies the specific defects in the Deliverable (a “Defect Report”) and, if applicable, the modifications to the Deliverable that need to be made in order for the Deliverable to satisfy the applicable Acceptance Criteria. Upon receipt of a Defect Report, Engineer.ai will use commercially reasonable efforts to modify the Deliverable to rectify any confirmed defects identified in the Defect Report and re-submit the Deliverable to Customer to review, evaluate, and/or test in accordance with the terms of this Section 2 (Acceptance Procedures for Deliverables). The foregoing procedure will repeat up to ten (10) times for any Deliverable, and if after the tenth (10th) such iteration Customer reasonably determines that the Deliverable still fails to satisfy the applicable Acceptance Criteria, then either Party may immediately terminate the Buildcard for such Deliverable and/or this Agreement upon thirty (30) days’ prior written notice to the other Party and Engineer.ai will refund to Customer a pro-rata amount as determined by the Engineer.ai Platform for the affected part of the Deliverable. Such refund shall constitute Customer’s sole and exclusive remedy for the failure.
3. Fees; Payment.
Customer shall pay fees to Engineer.ai in accordance with the applicable Buildcard (“Fees(s)”). Engineer.ai shall invoice Customer on the basis of costs incurred by it, including the proportionate cost of library of Building Blocks (as defined below) and the intellectual property involved in final delivery of the Buildcard. If specified in the applicable Buildcard, Customer will reimburse Engineer.ai’s documented, out-of-pocket expenses incurred in the performance of the Services no later than fifteen (15) days after Customer’s receipt of Engineer.ai’s invoice (with relevant verifying documentation) for such out-of-pocket expenses.
Customer agrees to pay all amounts due as specified in each Engineer.ai invoice within thirty (30) days of the invoice date unless agreed otherwise in the Buildcard. Customer must notify Engineer.ai in writing of all disputes for each invoice within seven (7) days of the invoice date; otherwise any disputes of such invoice shall be deemed waived by Customer. Amounts due under this Agreement and not paid by the aforementioned due date shall incur interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permissible under applicable law, whichever is lower, from such due date until the date that Engineer.ai actually receives full payment for all such overdue amounts. Customer shall be responsible for the reasonable collection costs (including, without limitation, legal fees and collection agency fees) incurred by Engineer.ai in its efforts to collect such overdue amounts. Engineer.ai shall be entitled, in its sole discretion, to withhold performance and discontinue provision of the Services until all amounts due are paid in full and/or forthwith terminate this Agreement and recover any amounts owing, and/or send Customer’s details, and account information, for collection to a third-party agency.
- Taxes Excluded.
All amounts payable under this Agreement exclude all applicable sales, use and other taxes. Customer will be responsible for filing and payment of all such taxes, other than taxes based on Engineer.ai’s net income. Customer shall bear any compliance costs related to any such taxes owed under this Agreement. Engineer.ai may file tax exemptions for any such taxes, if available, in a manner acceptable to the applicable taxing authorities, and Customer shall not invoice Engineer.ai for any taxes for which Engineer.ai has provided a suitable exemption certificate.
- License revocation for non-payment.
Any licenses granted hereunder is subject to timely payment of the Fees by Customer. If Customer fails to settle any Fee within fourteen (14) days of any due date, Engineer.ai reserves the right to suspend or revoke all licenses.
4. Term and Termination.
The initial term of this Agreement (“Initial Term”) is twenty-four (24) months of the Effective Date or as described in the Buildcard (For the avoidance of doubt, the “Initial Term” specified in the Buildcard supersedes the Initial Term specified in this Agreement in the event of a conflict) and shall automatically renew for successive one (1) year renewal periods following the Initial Term unless terminated in accordance with the terms of this Section 4 (Term and Termination) (each, a “Renewal Period” and, together with the Initial Term, the “Term”)
Either Party may decline to renew the Term for any reason or no reason by so notifying the other Party in writing not less than sixty (60) days before the scheduled commencement of any Renewal Period.
- Termination for cause.
Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement by written notice of termination to the other Party upon the other Party’s: (i) material breach that is not cured within thirty (30) days following such other Party’s receipt of written notice of such breach or (ii) becoming insolvent, bankrupt, or inability (or admission in writing of its inability) to generally pay its debts as they mature, making an assignment for the benefit of its creditors, ceasing to function as a going concern, or ceasing to conduct its operations in the normal course of business. Termination by a Party under this paragraph shall be without prejudice to any other rights or remedies available to the terminating Party.
Any term or condition of this Agreement required for the interpretation or enforcement of this Agreement or necessary for the full observation and performance by each Party of all rights and obligations arising prior to the date of termination shall survive the termination of this Agreement for any reason. For the avoidance of doubt, the terms of this Agreement (including Customer’s obligation to pay all accrued fees) shall continue to apply to any then-outstanding Buildcard not terminated thereby until its completion and fulfillment in due course.
5. Intellectual Property.
Engineer.ai’s Services are software development services provided utilizing artificial intelligence, drawing from Engineer.ai’s library of existing components (“Building Blocks”). Since much or most of the program code comprising software Deliverables produced by Engineer.ai for its customers is comprised of or leverages pre-existing components and other Intellectual Property, Deliverables (which include source code) are provided to Engineer.ai’s customers under license, not owned by them. This license will allow the Customer to make any and all changes to the code.
- Open Source Software.
Engineer.ai Deliverables may incorporate or be developed using software governed by a license agreement that is considered by the Open Source Initiative to be an Open Source License (“Open Source Software”). In such cases, the Deliverable or its accompanying ReadMe file or other documentation will contain the attributions required by the governing Open Source Software license agreement and identify the governing license agreement, which shall govern Customer’s use of the relevant Open Source Software. However, Engineer.ai will give the Customer seven (7) days notice of its intent to create a Deliverable or develop a Deliverable using Open Source Software that is subject to an Open Source Software license agreement that would require Customer to make the source code of the Deliverable available to third parties upon request, if the customer objects, Engineer.ai will not incorporate these into the Buildcard but will reserve the right through its platform to suspend the Buildcard (and Service thereof) until an alternative approach and updated Buildcard is agreed with Customer.
- Deliverable License.
Engineer.ai hereby grants to Customer the following license with respect to each Deliverable: a non-exclusive, perpetual, irrevocable, world-wide, non-transferable (except in connection with a permitted assignment of this Agreement) right and license to use (or have used on its behalf) each Deliverable internally in Customer’s and its affiliate’s business. The license only governs the use of the Building Blocks. The aggregate IPR from the combination of Building Blocks with relevant customizations shall remain the exclusive property of the customer. Save where varied by the terms of Clause 5(d), the source code and any discrete intellectual property rights in any new, bespoke or customized software components, which in the discretion of Engineer.ai can be utilized in their library of components which make up the Building Blocks, shall be exclusively owned by Engineer.ai and licensed to Customer pursuant to the terms of this Clause.
- Customer-owned Deliverable(s).
In a circumstance in which Customer has a business imperative to develop and own the part of or the entire Deliverable, Engineer.ai may agree, in its sole discretion, as an exception to its generally applicable development model to develop a bespoke Deliverable for Customer according to Customer’s specifications (“Custom Feature”) – which Deliverable will be an original work of authorship that does not utilize or incorporate any pre-existing components or program code. In such a case, the applicable Buildcard must state conspicuously and expressly that the Deliverable or part of the Deliverable in question is to be a bespoke Deliverable(s) for Customer comprised entirely of newly written program code. In such a case, the Deliverable or part of the Deliverable will be deemed to be a “work made for hire” for Customer in which Customer will be the copyright owner, upon payment in full. To the extent such a Deliverable or part of a Deliverable does not constitute a work made for hire for Customer under applicable law, Engineer.ai hereby does and will irrevocably assign to Customer all of Engineer.ai’s right of copyright in and to the relevant Deliverable or part of the Deliverable.
- Agreements with Developers.
Engineer.ai is responsible for having or obtaining a written agreement with each entity that provides professionals who contribute to the ‘Builder’ Services on behalf of Engineer.ai that provides Engineer.ai with all necessary rights to fulfill its obligations under this Agreement, including but not limited to the obligations of this Section 5 (Intellectual Property).
- Customer Materials.
All Customer materials or other property provided to Engineer.ai by Customer are and shall remain the sole and exclusive property of Customer, subject to any third party rights, and Customer shall own all of the rights, titles, and interest to the Customer materials or other property provided to Engineer.ai by Customer pursuant to this Agreement, including (but not limited to) any and all patents, copyrights, and trade secrets in connection therewith.
6. Confidentiality; Data Privacy
All activities of the Parties under or in relation to this Agreement are subject to the non-disclosure terms attached as Exhibit A (Non-Disclosure Terms) to this Agreement.
- Data Privacy.
If any of the Services provided by Engineer.ai pursuant to this Agreement will require Engineer.ai to have access to and function as a data processor of personal information that is subject to legal protections under U.S. or non-U.S. privacy laws, such Services shall be subject to and provided in accordance with the Data Processing Agreement attached hereto as Exhibit B (Data Processing Agreement).
7. Representations and Warranties.
- Mutual Representations and Warranties.
- Customer Representations and Warranties.
Customer represents and warrants to Engineer.ai that: (i) it has sufficient rights in and to and has secured all necessary rights, releases and approvals in order to grant the licenses granted by Customer in this Agreement to Engineer.ai, and (ii) it will not use the Engineer.ai Platform or infrastructure to upload any content that violates any applicable laws or regulations or any rights of any third parties, including but not limited to infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right, or that is unlawful, fraudulent, threatening, defamatory, obscene, pornographic, profane or hateful, deceptive, libelous, hate-promoting or discriminatory or that encourages illegal behavior, or that includes or constitutes false advertising, unfair competition, invasion of privacy or publicity rights, or that contains any viruses, worms, Trojan horses, malware, spyware or other contaminants.
- Limited Engineer.ai Warranty for Services and Deliverables.
Engineer.ai warrants, for a period of ninety (90) days commencing when the results of Services are delivered to Customer, that the applicable Services will have been performed in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such Services and that any Deliverables delivered by or on behalf of Engineer.ai will, at the time of their delivery to Customer for acceptance, satisfy, conform with, or operate in all material respects in accordance with their Acceptance Criteria, specifications, or requirements for such Deliverable, as set forth in the applicable Buildcard. If Customer believes there has been a breach of this warranty, it must notify Engineer.ai in writing within the warranty period stating in reasonable detail the nature of the alleged breach. If there has been a breach of this warranty, then Engineer.ai’s sole obligation, and Customer’s exclusive remedy, will be for Engineer.ai to correct or re-perform, at no additional charge, any affected Services or Deliverables to cause them to comply with this warranty. However, if Engineer.ai is unable to correct a breach of this warranty after repeated efforts, Customer will also be entitled to receive an equitable adjustment in Engineer.ai’s charges for the Services or Deliverable in question (up to the total amount of such charges paid under the applicable Buildcard) to reflect any reduction in the value of the Services or Deliverable as a result of the uncorrected breach of warranty.
Engineer.ai warrants that any original works of authorship developed by Engineer.ai personnel under a Buildcard, including their use by Customer in unaltered form, will not, to Engineer.ai's knowledge, infringe any third-party copyrights, patents or trade secrets that exist on the effective date of the Buildcard and that arise or are enforceable under the laws of the United States of America.
THE EXPRESS REMEDIES SET FORTH IN SECTION 7.C (Limited Engineer.ai Warranty for Services and Deliverables) IS THE EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS BASED ON FAILURE OF ANY SERVICES OR DELIVERABLES, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE. THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.C (Limited Engineer.ai Warranty for Services and Deliverables) AND SECTION 7.D (Non-Infringement) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR ARISING BY OPERATION OF LAW OR OTHERWISE WITH RESPECT TO THE SERVICES AND DELIVERABLES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO ENGINEER.AI AND WHETHER OR NOT THE DELIVERABLES ARE SPECIFICALLY DESIGNED OR PRODUCED BY OR ON BEHALF OF ENGINEER.AI FOR CUSTOMER’S USE OR PURPOSE. ENGINEER.AI DOES NOT GUARANTEE ANY OUTPUT OR RESULTS OF ANY OF THE SERVICES OR DELIVERABLES AND DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE.
8. Limitation of Liability.
- Limitation on Certain Damages.
EXCEPT AS MAY ARISE UNDER EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 9 (INDEMNIFICATION) OR BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN EXHIBIT A (NON-DISCLOSURE TERMS), IN NO EVENT SHAL EITHER PARTY HAVE ANY LIABILITY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS, LOST ANTICIPATED SAVINGS OR LOSS OF BUSINESS OPPORTUNITY OR GOODWILL SUFFERED OR INCURRED IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF OR CORRUPTION OF DATA, OR LOSS OR DAMAGE RESULTING FROM THIRD PARTY CLAIMS, AND ENGINEER.AI’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID TO ENGINEER.AI AND ACTUALLY RECEIVED BY ENGINEER.AI PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE TIME IN WHICH THE CLAIM INITIALLY AROSE.
- Force Majeure.
Except for any obligations to make payment, neither Party shall be liable to the other for any non- performance or delay in the performance of any of its obligations hereunder 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, pandemics, governmental rules or regulations, war, riot, delays in transportation, shortages of raw materials, shortages of services, power outages, or hacker attacks. A Party whose performance is impaired by such a cause shall notify the other Party and use commercially reasonable efforts to work around or overcome the impairment and resume performance hereunder.
- Personal Injury and Property Damage Claims.
If, as a result of one Party's negligence, a claim is asserted against the other Party for bodily injury (including death) or damage to tangible property, the negligent Party will reimburse the other Party for that portion of any claims the other Party pays for which the negligent Party is legally responsible.
- Indemnification by Engineer.ai.
Engineer.ai will defend, indemnify, and hold harmless Customer and its officers, directors, agents, and employees from any, losses, damages, liability, settlements, costs, and expenses, including reasonable attorneys’ fees, arising from, directly or indirectly, any claim, demand, or action by a third party (each, a “Claim”) that, if true, would constitute or be attributable to a breach by Engineer.ai of its representations and warranties given in Section 7.d (Non-Infringement). In such event Engineer.ai may, at its sole option and expense, either obtain the right for Customer to continue using the allegedly infringing item(s) or replace or modify the item(s) to resolve the Claim. If Engineer.ai finds that neither of these alternatives is available to it on commercially reasonable terms, Engineer.ai may require Customer to return the allegedly infringing item(s), in which case Customer will receive a refund of the amounts paid by it for the returned item(s) (i.e the feature(s) affecting the overall Deliverable), less a reasonable adjustment for depreciation of the returned item(s) during the period Customer used it. This paragraph states Engineer.ai's entire obligation to Customer and Customer's exclusive remedy with respect to any alleged breach by Engineer.ai of its representations and warranties given in Section 7.d (Non-Infringement).
- Indemnification by Customer.
Customer acknowledges and agrees that by entering into and performing its obligations under this Agreement, Engineer.ai is not assuming and should not be exposed to the business and operational risks associated with Customer’s business. Therefore, except for claims covered by Section 9.b (Indemnification by Engineer.ai), Customer shall defend, indemnify, and hold harmless Engineer.ai, and its officers, directors, agents, and employees from any, losses, damages, liability, settlements, costs, and expenses, including reasonable attorneys’ fees, arising from, directly or indirectly, any claim, demand, or action by a third party (each, a “Claim”) arising out of or pertaining to Customer’s or any end user’s use of Engineer.ai Deliverables.
- Notice and Process.
The foregoing indemnification obligations are conditioned on the indemnified Party: (i) giving the indemnifying Party prompt 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 the claim, except that the indemnifying Party shall not enter into any settlement that affects the indemnified Party’s rights or interests without the indemnified Party’s prior written approval, which shall not be unreasonably withheld or delayed. The indemnified Party shall have the right to participate in the defense at its expense using legal counsel of its choosing.
During the Term and for 24 months after its expiration or termination, neither Party will, either directly or indirectly, solicit for employment or employ (except as permitted below) by itself (or any of its affiliates) any employee of the other Party (or any of its affiliates) who was involved in the performance of the Party’s obligations under this Agreement unless the hiring Party obtains the written consent of the other Party. The actual damages attributable to a breach of the provisions of this paragraph would be difficult to determine and prove. Accordingly, the Parties agree that if either Party breaches this paragraph, the breaching Party will be liable to the non-breaching Party for liquidated damages in an amount equal to the affected employee’s most recent annualized salary (including bonuses and incentive compensation) prior to the breach, such sum being a reasonable measure of the damages reasonably anticipated by the Parties. The foregoing restriction will not prohibit a general solicitation of employment in the ordinary course of business or prevent either Party from employing any employee who contacts such Party as a result of such a general solicitation or at his or her own initiative without any direct or indirect solicitation by or encouragement from such Party.
Neither Party will be considered to be the drafter of this Agreement. Section headings are included for convenience of reference only and are not to be used to interpret this Agreement. Unless the context requires otherwise, (i) ”including” (and any of its derivative forms) means including but not limited to, (ii) ”may” means has the right, but not the obligation to do something and “may not” means does not have the right to do something, (iii) ”will” and “shall” are expressions of command, not merely expressions of future intent or expectation, (iv) ”written” or “in writing” is used for emphasis in certain circumstances, but that will not derogate from the general application of the notice requirements set forth in this Agreement in those and other circumstances, (v) use of the singular imports the plural and vice versa, and (vi) use of a specific gender imports the other gender(s).
- Independent Engineer.ai.
Engineer.ai’s relationship with Customer is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employer-employee relationship or similar relationship.
All formal notices and other communications under this Agreement will be in writing and sent or delivered to Engineer.ai at c/o PKF Littlejohn, 15 Westferry Circus, London, E14 4HD, United Kingdom and to Customer at the address or email provided by it when registering an account on the Platform either (i) in person or (ii) by registered or certified mail or air freight services that provide proof of delivery, with postage or shipping fees prepaid. Notices given as described in the foregoing will be considered received on the day of actual delivery or, if delivery is not accomplished due to some fault of the addressee, on the day the notice was tendered for delivery. A Party may from time to time change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee in the manner provided above and the date on which it will become effective. The Parties may mutually agree that certain types of routine approvals and notices of a non-legal nature may be given by electronic mail or other informal means. Additionally, notices of a legal nature to Engineer.ai shall also be sent via email to firstname.lastname@example.org.
Customer may not assign, delegate or otherwise transfer this Agreement, whether by operation of law or otherwise, without Engineer.ai’s prior written consent. Any assignment in violation of the foregoing shall be void. Engineer.ai may assign, delegate or otherwise transfer this Agreement, whether by operation of law or otherwise, to a Engineer.ai’s affiliate entity or in connection with a merger 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.
No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by an authorized representative of the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy that Party may have.
- Informal Dispute Resolution.
Before the Parties resort to formal legal proceedings to resolve any dispute pertaining to this Agreement, they agree to schedule a mandatory meeting at a mutually agreeable location, which meeting will be attended by Customer and a senior representative of Engineer.ai. At that meeting, each side will present its side of the dispute and the participants will conduct good faith negotiations in an attempt to resolve the dispute without the necessity of formal proceedings. If the matter is not so resolved, the Parties reserve all applicable rights and remedies under this Agreement or available at law or in equity.
- Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales without regard to any conflicts of laws provisions thereof. The Parties agree that the UN Convention on Contracts for the International Sale of Good is not applicable to this Agreement or the relationship of the Parties under it. The Parties hereby irrevocably consent to the exclusive jurisdiction of England and Wales for the resolution of any dispute arising under or relating to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
- No Third-Party Beneficiaries.
Except in connection with any indemnification obligations hereunder, this Agreement is not intended to, and shall not, benefit any third party, or create any rights to any third-party beneficiaries.
If any provision of this Agreement is held invalid by a court of competent jurisdiction, such provision will be severed from this Agreement, and the remainder of this Agreement will remain in full force and effect.
- Order of Precedence.
The terms of this Agreement shall supersede any conflicting terms in any exhibits, attachments, statements of work, invoices, supplementary terms and conditions (such as Platform terms), or other documents relating to this Agreement, including, but not limited to any Buildcards.
- Entire Agreement; Amendment.
This Agreement constitutes the entire understanding between the Parties and supersedes all prior and contemporaneous discussions and agreements between them with respect to its subject matter. No amendment or modification of this Agreement shall be valid or binding on the Parties unless made in writing and signed on behalf of each Party by its duly authorized representative.
This Agreement and the Exhibits may be executed in separate counterparts, including by facsimile, and by the different Parties on the same or separate counterparts. Any signed copy of this Agreement or the Exhibits made by reliable means (e.g., photocopy, email or facsimile) will be considered an original, and all signed counterparts will constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date set forth above:
EXHIBIT A - Non-Disclosure Terms
All activities of the Parties under or in relation to this Agreement are subject to the following terms:
- CONFIDENTIAL INFORMATION
“Confidential Information” means any non-public, commercially proprietary or sensitive information (or materials) belonging to, concerning, or in the possession or control of a Party or its affiliates (“Discloser”) that is furnished, disclosed or otherwise made available to the other Party (“Recipient”) (or entities or persons acting on the other Party’s behalf) in connection with this Agreement, whether intentionally or unintentionally, and which is either marked or identified in writing as confidential, proprietary, secret, or with another designation sufficient to give notice of its sensitive nature or is of a type that a reasonable person would recognize it to be a trade secret or commercially sensitive.
- PERMITTED DISCLOSURE AND USES
As necessary to accomplish the purposes of this Agreement, Recipient may reproduce and disclose Confidential Information to those of its personnel and professional and legal advisers (collectively, “Representatives”) who have a legitimate need to know the Confidential Information in question for purposes of this Agreement and who are bound to Recipient to protect its confidentiality in a manner substantially equivalent to that required of Recipient hereunder.
- PROTECTION OBLIGATIONS
As between the Parties, Confidential Information will remain the property of Discloser. Recipient will not be deemed by virtue of this Agreement or any access to Discloser’s Confidential Information to have acquired any right, title, or interest in or to the Confidential Information. Recipient agrees: (i) to keep the Confidential Information confidential and secure and protect it from unauthorized disclosure or use by using at least the same level of care Recipient normally uses to protect its own information of a similar character, but in no event less than reasonable care; (ii) to use the Confidential Information solely and exclusively to fulfill its obligations and exercise its rights under this Agreement; (iii) not to engage or permit others to engage in any efforts to reverse engineer, decompile, or otherwise seek to divine or derive any trade secrets from the Confidential Information; and (iv) not to otherwise disclose any Confidential Information to any third party.
- RESPONSE TO UNAUTHORIZED USE OR DISCLOSURE
If any unauthorized disclosure, loss of, or inability to account for any Confidential Information should occur while in the possession or control of Recipient or any of its Representatives, Recipient will promptly so notify Discloser and cooperate with Discloser and take such actions as may be necessary or reasonably requested by Discloser to minimize the violation and any damage resulting from it.
A Party’s obligations under this Exhibit A shall not extend to any particular Discloser information that Recipient can establish: (i) was already known to Recipient without confidentiality restrictions at the time of its disclosure by Discloser; (ii) after its disclosure to Recipient by Discloser was received from a third party who, to Recipient’s knowledge, had a lawful right to disclose such information to Recipient without any obligation to restrict its further use or disclosure; (iii) was independently developed by or for Recipient without use of or reference to any Confidential Information of Discloser; (iv) that Discloser has disclosed to unaffiliated third parties without similar restrictions; or (v) has become publicly known without violation of this Exhibit A by Recipient or its Representatives.
- COMPELLED DISCLOSURE
If Recipient becomes legally compelled to disclose any Confidential Information of Discloser in a manner not otherwise permitted by this Agreement, Recipient will promptly so notify Discloser (unless legally precluded from doing so) in order to afford Discloser an opportunity to seek a protective order or other or otherwise prevent or limit the disclosure. If a protective order or other remedy is not obtained by the date by which Recipient must comply with the disclosure requirement, Recipient may furnish that portion of the Confidential Information that it determines it is legally required to furnish, in which case Recipient will provide Discloser a copy of the Confidential Information Recipient discloses.
- OBLIGATIONS AT TERMINATION
Upon termination of this Agreement and all Project Pages, Recipient will return or destroy all materials that contain or disclose Confidential Information or, at Discloser’s written election, return or destroy them. At Discloser’s request, Recipient will attest in writing that it has fulfilled its obligations under this paragraph.
- DURATION OF PROTECTION OBLIGATIONS
The Receiving Party’s obligations under this Agreement apply to Confidential Information of the Furnishing Party disclosed to the Receiving Party before or after the Effective Date and will continue and survive the expiration or termination of this Agreement as follows:
(a) Recipient’s obligations under Section 7 (OBLIGATIONS AT TERMINATION) will continue in effect until fully performed;
(b) As to any portion of Discloser’s Confidential Information that constitutes a trade secret under applicable law, the obligations will continue for as long as the information continues to constitute a trade secret;
(c) As to any portion of Discloser’s Confidential Information that constitutes personal information, the obligations will continue in perpetuity; and
(d) As to all other Discloser Confidential Information, the obligations will survive for two years after Recipient has returned or destroyed all copies of the Confidential Information in question.
- EQUITABLE REMEDIES / CONSERVATORY MEASURES
Recipient acknowledges that a breach of its protection obligations under this Exhibit A with respect to Discloser’s Confidential Information would irreparably harm Discloser in a way that could not be adequately compensated by money damages. In the event of a breach (or attempted or threatened breach) of such obligations, Discloser may proceed directly to court to seek appropriate equitable remedies or conservatory measures. Recipient agrees that, if a court of competent jurisdiction should find that Recipient has breached (or attempted or threatened to breach) such obligations, without any additional findings of irreparable injury or other conditions to injunctive relief (including a requirement that Discloser post a bond or other security), Recipient will not oppose the entry of an appropriate order compelling its compliance with such obligations and restraining it from any further breaches (or attempted or threatened breaches).
Exhibit B - Data Processing Agreement
This Data Processing Agreement (“Agreement“) forms part of the Master Services Agreement dated [ ] (“Principal Agreement“) between the “Customer” and (2) Engineer.ai Global Limited (“Engineer.ai” or the “Data Processor”), (together as the “Parties”).
(A) The parties have entered into a contract for the provision of software development and/or cloud management services by Engineer.ai. The terms of this Data Processing Agreement will apply in any instances where personal data is processed by Engineer.ai.
(B) The Customer’s business activities may qualify them as a Data Controller and or Data Processor.
(C) For instances where Engineer.ai processes personal data, the Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
- Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.1.2 “Customer Personal Data” means any Personal Data Processed of Customer pursuant to or in connection with the Principal Agreement;
1.1.3 “Contracted Processor” means a Sub-processor;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5 “EEA” means the European Economic Area;
1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
126.96.36.199 a transfer of Customer Personal Data from the Customer to a Contracted Processor; or
188.8.131.52 an onward transfer of Customer Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.9 “Services” means the software development services that Engineer.ai provides.
1.1.10 “Subprocessor” means any person appointed by or on behalf of Enigneer.ai to process Personal Data on behalf of the Customer in connection with the Agreement.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
- Processing of Customer Personal Data
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
2.1.2 not Process Customer Personal Data other than on the relevant Customer’s documented instructions.
2.2 The Customer instructs Processor to process Customer Personal Data where it is required in accordance with the provision of the Services.
- Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 Taking into account the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1 Processor can appoint (and disclose any Customer Personal Data to) a Sub-processor if Sub-processor agrees to be bound by terms substantially similar to those set out in this Data Processing Agreement.
- Data Subject Rights
6.1 Taking into account the nature of the Processing, Processor may assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
- Personal Data Breach
7.1 Processor shall notify Customer without undue delay upon Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Processor shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
- Data Protection Impact Assessment and Prior Consultation
Processor may, on written request, provide reasonable assistance to the Customer with any data protection impact assessments, solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
- Deletion or return of Customer Personal Data
9.1 Subject to this section 9, Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Customer Personal Data.
- Data Transfer
10.1 The Processor may transfer or authorize the transfer of Personal Data to countries outside the EU and/or the European Economic Area (EEA), without the prior written consent of the Customer. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected.
- General Terms
11.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
11.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
- Governing Law and Jurisdiction
12.1 This Agreement is governed by the laws of England and Wales.
12.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of England and Wales.