Default Builder Service Contract Terms

Last Updated Date: November 10, 2022

This Appendix 1 (the “Default Builder Service Contract Terms”) applies to any Builder Service Descriptions entered into using the Platform of Huddle Works inc. and its affiliates governed by the Terms of Use located at https://huddle.works/terms (the “TOU”) and sets forth the terms between Customer and Builder identified in such Builder Service Description; provided that the Builder and the Customer have not entered into a separate agreement in lieu of these Default Builder Service Contract Terms (a “Superseding Agreement”). Any capitalized terms not defined herein will have the meaning prescribed to them in the TOU.

In the absence of a Superseding Agreement, the terms and conditions applicable to a Builder Service Description (this “Builder Service Contract”) consist of: (i) these Default Builder Service Contract Terms; (ii) any terms and conditions agreed between the parties (“Agreed Terms”); and (iii) and any applicable Supplemental Terms. In the event of a conflict between the component parts of this Builder Service Contract, the following order of precedence shall apply: (a) Agreed Terms; (b) Supplemental Terms; and (c) these Default Builder Service Contract Terms. This Builder Service Contract is entered into by and between the Builder and the Customer identified in a Builder Service Description and is effective as of the date of the Builder Service Description. Notwithstanding the foregoing, in no event will any terms and conditions of the Builder Service Contract result in payments hereunder being made outside of the Platform or any other restriction or limitation on the rights or remedies of Huddle Works under the TOU, and Builder and Customer agree that any such terms and conditions shall be null and void.

SERVICES AND CHANGES
1. Builder Services. Builder will: (i) perform the Builder Services for up to the total Project Hours during the Project Term as set forth in the applicable Builder Service Description in a professional and workmanlike manner consistent with industry standards; and (ii) deliver any deliverables or work product to be delivered pursuant to a Builder Service Description in accordance with the requirements set forth in the Builder Service Description.
2. Changes to the Builder Services. Builder and Customer, may, upon mutual agreement, modify the Builder Service Description to change the scope or quantity of Builder Services to be provided, including any deliverables or work product to be provided in connection with the Builder Services under the Builder Service Contract, and the Builder Service Fees. No changes to the Builder Service Description will be of any force or effect until mutually agreed between the Builder and the Customer.
PERFORMANCE OF THE SERVICES
1. Performance Standard. Builder will diligently perform the Builder Services set forth in the Builder Service Description in accordance with the applicable Builder Service Description, including any specifications in the Builder Service Description. Builder will complete the Builder Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the Builder Service Description.
2. Customer Policies. Builder will adhere and ensure its Personnel adhere to any policies provided by Customer with respect to the access and use of Customer Facilities, Customer Materials, or Customer Systems while accessing and using the same.
3. Personnel. Builder may use any Personnel to deliver the Builder Services pursuant to a Builder Service Description (as applicable) and may change any Personnel already delivering the Builder Services or subcontract any Builder Services at any time, provided that:
  1. the Builder gives reasonable notice of any changes or subcontractor to the Customer;
  2. the substitute meets any existing security clearance requirements of the Customer (if applicable and where already applied to the Builder);
  3. there is continuity of Builder Services with minimum disruption to the Customer and Builder ensures it conducts any handover between its Personnel in support;
  4. there is no additional cost to the Customer or any other impact on the agreed Builder Service Fees;
  5. The Builder will remain responsible for the execution of and all costs and expense arising in connection with such substitute (including any handover between the Personnel) and shall be responsible for engaging and paying the substitute for any Builder Services performed by the substitute during the Project; and
  6. The Builder will continue to be responsible for requesting payment of Builder Service Fees on behalf of any substitute or subcontractor via the Platform in accordance with the TOU and will remain responsible for any substitute as it is responsible for itself and any of its Personnel.

Before Personnel performs any Builder Services under this Builder Service Contract, such Personnel will have executed an agreement that is, in substance, at least as protective of Customer’s rights, Customer Materials, Customer Facilities, Customer Systems, and Confidential Information as the terms of this Builder Service Contract.

DISPUTES. Huddle Works is not a party to any disputes related to the Builder Services contemplated under this Builder Service Contract. The Customer and Builder shall use all reasonable endeavors to resolve any dispute raised by the Customer with respect to any nonconformance of any deliverables.
CUSTOMER OBLIGATIONS. In connection with Builder’s performance of the Builder Services, Customer will:
1. cooperate in all matters relating to the Builder Services;
2. not request or require Builder to undertake Builder Services which are outside of the Builder Service Description, unless a variation to the Builder Service Description is otherwise agreed with the Builder;
3. provide at no charge, access to Customer’s premises, office accommodation, equipment and other facilities (“Customer Facilities”) as reasonably required by the Builder including any such access as is specified in the Builder Service Description;
4. provide in a timely manner all documents, information, items and materials in any form (whether owned by you or a third party) (“Customer Materials”) that are reasonably requested by Builder in connection with the Builder Services;
5. provide access to any software, VPN, IT systems, and internet connectivity (“Customer Systems”) reasonably required by the Builder in connection with the Builder Services or specified in the Builder Service Description; and
6. ensure that, to the extent Builder is required to utilize Customer Facilities, such Customer Facilities are in good working order and suitable for the purposes for which they are intended to be used.
PAYMENT. Customer agrees to pay the Builder Service Fees agreed upon in the Builder Service Description in accordance with the TOU. The Customer agrees that it will not unreasonably withhold or otherwise delay payment of the Builder Service Fees.
TERM AND TERMINATION
1. Term. This Builder Service Contract will automatically end upon the earlier of: (i) applicable Builder Services having been completed and all deliverables having been delivered in accordance with the Builder Service Description; (ii) any estimated completion date set out in the Builder Service Description; and (iii) Builder Service Fees meeting or exceeding any cap on Builder Service Fees agreed in the Builder Service Description, whichever occurs earlier. If Customer and Builder agree, this Agreement will renew either for one or recurring additional renewal term of the same duration as the Project Term (each a “Builder Service Contract Renewal Term”). Any Builder Service Contract Renewal Term shall take effect immediately upon expiration of the then-current Project Term or Renewal Term. Unless otherwise agreed between the parties, the Builder Services to be performed in any Builder Service Contract Renewal Term will be for the same number of Project Hours as the immediately preceding Project Term or Renewal Term.
2. Termination. This Builder Service Contract may be terminated by either party at any time on giving the other party such period of notice specified in the Builder Service Description, or in the absence of any period of notice, immediate notice of termination, in writing via the Platform. Either Customer or Builder may opt not to renew the Builder Service Contract by sending notice to the other party prior to the commencement of the next Builder Service Contract Renewal Term.
3. Effect of Termination. In the event of any termination of this Builder Service Contract: (i) Customer will be obligated to pay for Builder Services actually rendered prior to termination; (ii) Builder will promptly return, or at Customer’s option destroy, all Confidential Information and Customer Materials in its possession, and cease all use of the Customer Facilities and Customer Systems; (iii) Builder will promptly deliver any deliverables or work product that is then in progress; and (iv) those provisions, which by their nature should survive any expiration or termination of this Builder Service Contract will survive.
INTELLECTUAL PROPERTY RIGHTS
1. Assignment of Inventions. Builder agrees that all right, title, and interest in and to any works of authorship, notes, records, drawings, logos, methods, designs, inventions, improvements, developments, discoveries, information, know-how, or technology conceived, discovered, authored, invented, developed, or reduced to practice by or on behalf of Builder, solely or in collaboration with others in connection with, performing the Builder Services under this Builder Service Contract (collectively, “Inventions”) and all Intellectual Property Rights (as defined below) relating to such Inventions, are the sole property of Customer. Builder hereby irrevocably and unconditionally assigns all right, title, and interest, including all Intellectual Property Rights in and to all Inventions to Customer. Builder agrees to promptly make full written disclosure of and deliver to Customer of all Inventions.
2. Intellectual Property Rights. “Intellectual Property Rights” means all common law and statutory proprietary and intellectual property rights anywhere in the world, including those rights arising under or associated with: (i) patents and patent applications, or any inventions, methods, designs, or discoveries; (ii) trademarks, trade names, service marks, and trade dress, or any symbols, logos or words used to identify a source, including, without limitation all goodwill therein; (iii) confidential information and trade and industrial secrets, know-how or any information that derives independent value from not being known to the general public or readily ascertainable; (iv) copyrights, copyrightable material including works of authorship, literary works, artistic works, software, programming codes, object code, source code, executable code, “moral” rights, and any other rights of authors; (v) domain names, internet resource locators, and other internet properties; (vi) computer database rights, design rights, utility models, record, documents, papers, notes, technical and technological information and data; drawings; flowcharts; methods; ideas; concepts and concept notes; processes; (vii) applications for, registrations of, and divisions, continuations, reissuances, renewals, extensions, restorations and reversions of the foregoing (as applicable); and (viii) all other similar or equivalent intellectual property or proprietary rights anywhere in the world; including the right to edit, copy, modify, adapt, translate, commercialize or otherwise deal with such intellectual property in any manner whatsoever; in any medium, mode, form or format, now existing or discovered in future including but not limited to digital, physical, electronic, cloud computing, analog, etc.
3. Pre-Existing Materials. Builder will not, without Customer’s prior written consent, include with or incorporate in any deliverable or work product delivered to Customer hereunder any pre-existing invention, discovery, works of authorship, software, designs, images, developments, improvements, trade secrets, concepts, materials, or other proprietary information conceived, discovered, authored, invented, developed or reduced to practice by or on behalf of Builder prior to this Builder Service Contract or independent of performing the Builder Services under this Builder Service Contract (“Pre-Existing Materials”) or of any third party, including without limitation any free software or open source software (“Third Party Materials”) without Customer’s prior written approval. Customer is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit Pre-Existing Materials or Third Party Materials incorporated into any deliverable or any work product delivered to Customer hereunder without restriction, including, without limitation, in connection with the use and exploitation of any Invention or deliverable, and to practice any method related thereto.
4. Moral Rights. Any assignment to Customer of Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”) therein or thereto. To the extent that Moral Rights cannot be assigned under applicable law, Builder hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.
5. Maintenance of Records. Builder agrees to keep and maintain adequate, current, accurate, and authentic written records of all Inventions made by Builder (solely or jointly with others) during the term of this Builder Service Contract, and for a period of three (3) years thereafter. The records will be in the form of notes, sketches, drawings, electronic files, reports, or any other format that is customary in the applicable industry and/or otherwise specified by the Customer. Such records are and remain the sole property of the Customer at all times and upon Customer’s request, Builder shall deliver (or cause to be delivered) the same to Customer.
6. Further Assurances. Builder agrees to assist Customer, or its designee, at the Customer’s expense, in every proper way to effect the assignment and conveyance to Customer, its successors, assigns and nominees the sole and exclusive right, title, and interest, including all Intellectual Property Rights in and to all Inventions and to secure and defend Customer’s rights in Inventions in any and all countries, including disclosing to the Customer all pertinent information and data with respect thereto, executing all applications, specifications, registrations, oaths, assignments and all other instruments that the Customer may deem necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and testifying in a suit or other proceeding relating to such Inventions. Builder further agrees that Builder’s obligations under this Section 7.6 shall continue after the termination of this Builder Service Contract.
7. Customer Materials. Any Customer Materials provided by Customer to Builder are to be used solely to perform the Builder Services. As between Customer and Builder, Customer will own all right, title, and interest in Customer Materials as well as any derivatives or improvements of these materials developed or derived by Builder, which shall constitute Customer Materials for purposes of this Builder Service Contract, including all Intellectual Property Rights therein and Builder hereby assigns all rights it may have or obtain in and to any Customer Materials to Customer. Builder will treat the Customer Materials as Confidential Information (as defined in Section 8.1).
CONFIDENTIALITY.
1. Definition. “Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Customer and their business or affairs (including but not limited to data, records, reports, agreements, research and development, manufacturing, marketing strategies and tactics, production or design secrets, specifications, know-how, trade secrets, Inventions and other information concerning the Project) in any form or medium, whether in writing, orally or by any other means, together with any reproductions of such information in any form or medium or any part(s) of such information.
2. Non-Use and Non-Disclosure. Builder will not, and will ensure that its Personnel will not (except in the proper course of the performance of the Builder Services), either during the performance of Builder Services or at any time thereafter (a) use, publish or disclose to any third party (and will use their best endeavors to prevent the publication and disclosure of) any Confidential Information and/or (b) copy any Confidential Information or make any copy, abstract, or summary of any material or documentation of the Customer. This obligation does not apply to any use or disclosure authorized by the Customer or required by law and/or any information which is already, or comes to be, publicly known or generally available other than through Builder’s unauthorized disclosure or that of its Personnel. Builder shall not use any Confidential Information for any purpose other than to exercise its rights and perform Builder’s obligations under or in connection with the Builder Services.
3. Personnel. As applicable, if Builder uses the services of sub-contractors as Personnel to perform part of the Builder Services, Builder shall promptly and diligently ensure that such sub-contractors sign a written undertaking agreeing to abide by conditions of confidentiality similar to those set out in Builder Service Contract and shall deliver evidence of the same upon request by the Customer. You will (and will ensure any Personnel will) enter into any additional confidentiality undertakings that may be required by the Customer considering the nature of the Builder Services for a Project.
4. Personally Identifiable Information. Builder will (and will ensure any Personnel will) comply with applicable law with respect to any personal information or data that Builder may have access to during the provision of the Builder Services and will only process the same upon the instructions of the person authorizing access to and the processing of such personal information or data. Builder will immediately notify the Customer of any personal data breach relating to such personal information which it discovers or becomes aware of during the course of any Builder Services and will provide such assistance, support and co-operation as may be required by the Customer and/or Huddle Works in their investigation of, remedy of, and/or steps to mitigate such personal data breach. Builder will maintain accurate records required under applicable law with respect to the processing of personal information and hereby consents to any inspection and/or audit of such records as reasonably required by the Customer at any time during the Builder Service Contract and for a period of six (6) years thereafter.
5. Publicity. Builder will not, and will not authorize, or assist another to, originate, produce, issue, or release any written publicity, news release, marketing collateral or other publication or public announcement, relating to or in any way connected to this Services Contract and/or the provision of the Builder Services, without the prior written consent of the Customer such consent may be unreasonably withheld.
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES. Each of Builder and Customer represents and warrants that: (i) it has full power and authority to enter into and perform its respective obligations hereunder; (ii) this Builder Service Contract has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against such party in accordance with its terms; (iii) entering into and performing its respective obligations pursuant to this Builder Service Contract will not result in any breach of, or constitute a default under, any other agreement to which it is a party; and (iv) it is not the subject of any material claim, investigation or enquiry by any party, regulator, or government body, whether arising in respect of any breach or alleged breach of any applicable laws.
Representations and Warranties of Builder. Builder represents and warrants to Customer that:
1. Builder and Personnel have the necessary skills, technical ability, and experience to perform the Builder Services
2. Builder and its Personnel have the legal right to work in the jurisdiction in which the Builder Services are to be performed and to carry out the Builder Services under this Builder Service Contract.
3. the Builder Services will be performed in accordance with all applicable laws (whether local, national and international);
4. Builder is not prevented by any other contract or arrangement or any statute from fulfilling its obligations under this Builder Service Contract; and
5. Builder will provide complete, up-to-date, and accurate information reasonably requested by Customer as may be required in order for the Customer to comply with any applicable laws.
MISCELLANEOUS
1. Independent Contractor; Benefits. It is the express intention of the parties that Builder perform the Builder Services as an independent contractor. As neither Builder nor Personnel are Customer’s employees, Customer will not provide Personnel with any benefits or commitments inconsistent with any of the benefits or commitments provided by Builder. Likewise, Customer will not take any action with respect to Personnel inconsistent with any action taken by Builder. In particular and without limiting the foregoing: (i) Customer will not withhold FICA (Social Security) from Builder’s payments; (ii) Customer will not make state or federal unemployment insurance contributions on behalf of Builder or Personnel; (iii) Customer will not withhold state and federal income tax from payment to Builder; (iv) Customer will not make disability insurance contributions on behalf of Builder; (v) Customer will not obtain workers’ compensation insurance on behalf of Builder or Personnel.
2. Bankruptcy. All rights and licenses granted under or pursuant to this Builder Service Contract by Builder to Customer are, and will otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101(56) of the United States Bankruptcy Code. Customer, as a licensee of the rights under this Builder Service Contract, will retain and may fully exercise all of its rights and elections under the Bankruptcy Code. If a bankruptcy proceeding is commenced by or against Builder under the Bankruptcy Code, Customer will be entitled to a complete duplicate of (or complete access to, as appropriate) any licensed intellectual property and all embodiments of the intellectual property, including without limitation all source code. Builder will promptly deliver to Customer the previous items upon Customer’s request. Notwithstanding the foregoing, nothing shall prevent a party from employing an employee of the other party who: (i) responds to a general employment advertisement when such solicitation is not specifically directed at that individual; (ii) is directed to the individual by employment search firms where such employment search firms are not directed to initiate discussions with respect to the prospective employment of that individual; or (iii) contacts the individual on his or her own initiative without any direct or indirect solicitation. Because the breach or anticipated breach of this section by a party may result in immediate and irreparable injury to the other party for which such other party may not have adequate remedy at law such other party shall be entitled to, in addition to all other available remedies, sue in equity to enjoin such breach or anticipated breach of this section, and to seek any and all legal and equitable remedies to which such other party may be entitled.
3. Severability. If any term, condition, or provision in this Builder Service Contract is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Builder Service Contract. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Builder Service Contract, which will continue to be valid and enforceable to the fullest extent permitted by law.
4. Integration. This Builder Service Contract, including the Builder Service Description, and any Supplemental Terms, all of which is hereby incorporated herein by reference, contain the entire agreement of Builder and Customer with respect to the subject matter of this Builder Service Contract and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. This Builder Service Contract may not be amended and no provision of this Builder Service Contract may be waiver, except by a writing signed by both parties.