Terms of Use

These Terms of Use were last updated on 10/15/2024.

These Terms of Use ("Terms") of Didge NX Inc. (the “Vendor”), together with the Vendor’s public Privacy Policy and Data Processing Agreement, govern access to and use of the Didge Services and related Documentation.

By signing a Statement of Work (the “SOW”) that references these Terms of Use, Data Processing Agreement, and Privacy Policy (collectively the “Agreement”), you (“Customer”) agree to be bound by this Agreement. If this Agreement creates an offer, acceptance of that offer is expressly limited to this Agreement.

If you are entering into this Agreement on behalf of an organization, you confirm that you are an employee, contractor, or agent of that organization, and that you are authorized to bind them to the Agreement. By signing the SOW, you represent and warrant that you have such authority. The rights granted under this Agreement are expressly conditioned upon acceptance by such authorized personnel.

The Vendor reserves the right to modify the public Terms of Use, Privacy Policy, Data Processing Agreement, and our Cookie Policy from time to time. Unless otherwise specified by the Vendor, changes will become effective for the Customer upon the execution of a new SOW after the modified terms take effect.

Vendor and Customer may be referred to collectively herein as the “Parties” or individually as a “Party.”

1.     Definitions.

(a)   “Documentation” means Vendor's user manuals, handbooks, extract file specifications and installation guides relating to the Services identified by a specific Statement of Work, provided in writing by Vendor to Customer.

(b)   “Hardware” means any autonomous mobile robots, charging stations, cell network gateways, and other equipment utilized by the Vendor during the provision of the Services on a particular construction site.

(c)   “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(d)   “Project-by-project basis" means that Services are restricted to the specific construction project that they were assigned to in the corresponding Statement of Work (SOW), to specific users associated with that project, and to specific access methods (such as through the website) as specified in the SOW, and cannot be transferred to other projects, or users, or access methods, without prior adjustment of the SOW by the Parties.

(e)  “Services” for each assignment pursuant to this Agreement means: (1) subscription access to the Software; and (2) photography, videography, and other data capture services that Vendor shall provide by means of the Hardware.

(f)    “Services and Platform” – same as the “Services”.

(g)   “Software” means the Vendor's proprietary artificial intelligence-powered construction management platform that: (i) provides information and insights throughout the course of a construction project, (ii) is hosted in the cloud, and (iii) accessed through the Website at didge.nexterarobotics.com (or any other website notified to the Customer by the Vendor from time to time).

(h)   “SOW” means the statement of work setting forth terms and conditions that are specific to each assignment of the Services to Customer’s construction projects.  Such SOW shall include, at a minimum, the following information, if applicable: (1) a description of the Services that Vendor will provide, Hardware that Vendor will deploy on Customer’s construction project in order to provide said Services; (2) the period of performance; (3) Vendor’s Fees; (4) a project implementation plan, including a timetable; and (5) project milestones and payment schedules.

(i)    "Updates" means any updates, bug fixes, patches, or other error corrections to the Software that are free of charge.

2.     Software Subscription and Use Restrictions.

(a)  Software Subscription. Vendor hereby provides Customer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable right during the Term to: (i) access and use the Software solely for Customer's business purposes on a project-by-project basis; and (ii) use and make copies of the Documentation in connection with use of the Software.

(b)  Use Restrictions. Except as is reasonably necessary to make any use of the Software as permitted by this Agreement, Customer, outside of its subsidiaries, affiliates, and parent company, shall not, and shall not permit others to (i) use any portion of the Services, Software, derived data or analytics for any purposes beyond the scope of the subscription provided in this Agreement; (ii) copy, modify,  reverse engineer, incorporate or use in any other works, or create derivative works of any portion of the Services, Software, derived data or analytics, in whole or in part; (iii) rent, lease, lend, sell, assign, distribute, publish, transfer, or otherwise make available any portion of the Services, Software, derived data or analytics to third parties, or to use any of the foregoing for the benefit of any third party, without Vendor’s express written permission; or (iv) remove any proprietary notices from any portion of the Services, Software, derived data or analytics.

3.     Delivery of Services

(a)   The Vendor shall deliver the Services, at its own expense and risk, to the Customer on the date(s) and at the location(s) identified in the SOWs. Delivery of Software subscription access means access provided to certain users associated with a specific construction project identified in the SOWs.

(b)   The Vendor shall provide all applicable Software access credentials upon delivery.

(c)   None of the Services provided under this Agreement can under any circumstances be considered 'work made for hire'.

4.     Software Support; Updates.

(a)   Support. Vendor shall provide Customer with the support services for the Term of this Agreement.

(b)  Updates. During the Term, Vendor shall provide Customer, at no additional charge and as soon as available, all Updates, each of which constitutes Software and is subject to the terms and conditions of this Agreement.

5.     Hardware Maintenance.

(a)   Vendor at its sole expense shall provide all services required to minimize downtime of the Hardware and will maintain, service, and keep each piece of Hardware in operable condition suitable for the commercial use originally intended and free of broken, damaged, or missing parts.

(b)   Vendor shall perform the Services (i) in accordance with the terms and subject to the conditions set forth in this Agreement; (ii) using personnel of required skill, experience, licenses, and qualifications; (iii) in a timely, workmanlike, and professional manner; and (iv) in accordance with the highest professional standards

6.     Fees and Payment.  

(a)   Fees. Vendor shall invoice Customer for all fees ("Fees") in accordance with the invoicing schedule and requirements set forth in the applicable SOW. Customer shall pay all undisputed invoices within thirty (30) days after Customer's receipt of a proper invoice. Customer shall make all payments hereunder in US dollars.

(b)   Payment Disputes. Customer may withhold from payment of any and all Fees that Customer disputes in good faith, pending resolution of such dispute if, after notice to Vendor, Vendor fails promptly to cure any disputes, defaults or breaches arising under this Agreement.

7.     Intellectual Property Ownership.

(a)   Ownership of Customer Data and Customer Confidential Information. Customer may, but is not required to, provide Customer Data and Customer Confidential Information to Vendor in connection with this Agreement. As between Customer and Vendor, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data and Customer Confidential Information, including all intellectual property rights relating thereto. For the avoidance of doubt, Vendor shall obtain no ownership interest in any Customer Data or Customer Confidential Information that Customer provides to Vendor pursuant to this Agreement.

(b)   Limited License to Use Customer Data. During the Term of this Agreement, and subject to the terms and conditions of this Agreement, Customer hereby grants Vendor a limited, royalty-free, fully-paid up, non-exclusive, non-transferable, and non-sublicensable license to Process the Customer Data and Customer Confidential Information to the extent necessary to provide the Services.

(c)   Ownership of any results, deliverables, or products arising from these Services, including but not limited to photos and videos captured by the Vendor on construction sites, shall be governed by applicable copyright laws. Any results, deliverables, or products arising from these Services shall remain strictly confidential, and shall be only available to the Customer.

(d)   Customer acknowledges that, as between Customer and Vendor, Vendor owns all right, title, and interest, including all Intellectual Property Rights, in and to the Software and Documentation.

8.       Vendor Responsibilities and Warranties.

(a)   Vendor warrants that: (i) the Software is and will remain available at all times, and will offer access to the data and insights in perpetuity; and (ii) at the time of delivery the Software does not contain any virus or other malicious code. Vendor further warrants that Customer's use of the Software pursuant to this assignment will not infringe upon the proprietary rights of any third party and that Vendor shall indemnify, defend, and hold Customer and its clients harmless from and against any losses, claims, damages or expenses incurred by Customer and its clients as a result Vendor’s breach of the foregoing warranty. 

(b)   Vendor warrants that all the Hardware, Software, and Services related thereto that are subject to this Agreement have been and will be acquired, purchased, sold, delivered, and furnished in strict compliance with all applicable laws and regulations.

9.     Limitations of Liability.  

(a)  In no event will either Party be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, regardless of whether either party was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.

10.  Insurance.  

(a)  At all times during the Term of the applicable SOW Service Provider shall procure and maintain, at its sole cost and expense, all insurance coverage required by applicable Law.

11.  Term and Termination.

(a)   Term: Unless terminated earlier according to this section 11, this Agreement shall be in effect until all signed SOWs expire.

(b)   Termination. In addition to any other express termination rights set forth in this Agreement or any SOW issued hereunder:

(i)         Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (1) is incapable of cure; or (2) being capable of cure, remains uncured 30 (thirty) days after the non-breaching Party provides the breaching Party with written notice of such breach; and/or

(ii)       Either Party may terminate this Agreement, effective immediately upon occurrence and without further notice, if the other Party: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law.

(c)   Survival. Any and all provisions of this Agreement regarding warranties, indemnification, confidentiality, and Intellectual Property Rights survive any termination or expiration of this Agreement. No other provisions of this Agreement or any SOW issued hereunder survive the expiration or earlier termination of this Agreement.

12.  Miscellaneous.

(a)   Compliance with Law.

(i)    Vendor shall comply with any and all applicable laws, regulations, government orders or similar legal requirements in connection with performance of their obligations pursuant to this Agreement.

(ii)       In the event that Vendor or anyone acting on Vendor’s behalf seeks to enter any Customer construction project site in the performance this Agreement, Vendor agrees to adhere to the federal Occupational Safety and Health Act, state and local safety regulations, and the Customer’s safety and health program on construction sites so as to avoid injury or damage to persons or property, and to be directly responsible for damage to persons and property resulting from failure to do so.

(b)   Governing Law; Submission to Jurisdiction. This Agreement and any and all SOWs issued hereunder are governed by and construed in accordance with the laws of the State of Delaware, without regard to its choice of law rules. Venue for any legal suit, action, arbitration or proceeding arising out of or related to this Agreement shall be exclusively in a federal or state court of competent jurisdiction sitting in Boston, Massachusetts or such other venue as the Parties may mutually agree.

(c)   Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.

13.  Supersession.

(a)  If a Master Services Agreement ("MSA") is signed between the Customer and the Vendor, the MSA terms supersede this Agreement, including the public Terms of Use, Privacy Policy, Data Processing Agreement, and Cookie Policy, to the extent of any conflict.