Last updated: May 21, 2024
These On-Demand Technical Professional Terms of Service and all exhibits attached hereto (the "Terms of Service", "ToS", or "Agreement") constitute a legally binding agreement between the entity or company identified in the associated Order Form or Statement of Work ("Client") and Turing Enterprises, Inc. ("Turing"), each a "Party" and together the "Parties". The Terms of Service may be updated by Turing from time to time.
Turing sources skilled computer engineers, programmers, data scientists, developers, and other professionals ("Technical Professionals") from around the globe to perform work on an independent contractor basis. Turing also operates a proprietary artificial intelligence backed platform to match Technical Professionals to the specific needs and demands of Client.
Turing shall use commercially reasonable efforts to source, test, interview, and match Technical Professional to Client to perform the work described ("Assignments") in an applicable ordering document incorporating this ToS by reference (the "Order Form") or SOW, under Client’s directive and instruction (the "Services"). Unless otherwise specified under an Order Form, Turing does not employ, supervise, or control the Technical Professionals. Client may choose to, but is not required to, monitor, supervise, and otherwise oversee the output and work product of the applicable Technical Professional, provided, any such elective Client involvement shall not result in any change in Turing’s responsibility or liability hereunder.
Client shall: (i) make the applicable Technical Professional(s) aware of Client’s standard or expected operating hours, schedules, and other Client-specific aspects of each engagement under an Order Form, for which Client shall be solely and exclusively responsible for overseeing; (ii) make the applicable Technical Professional(s) aware of any of any relevant and necessary information required to perform the Assignment, including but not limited to, Client’s business operations, products or services, policies, processes, and procedures; (iii) use Technical Professionals only for Assignments as described in the Order Form and not change the Assignments without Turing’s express prior written approval; (iv) comply with all applicable laws; and (v) ensure that Client has all necessary rights and licenses to any software, code, information, documentation, or other materials and intellectual property: (a) to enable the Technical Professionals to perform the Assignments; (b) to allow Turing to perform under this Agreement and applicable Order Forms, and (c) that Client furnishes to Technical Professionals or Turing.
Client will pay Turing in accordance with this ToS and/or applicable Order Form and any additional costs or fees that are reasonably incurred by Turing in order to provide the Services as directed or agreed to by Client. All payments will be made electronically via bank wire or ACH transfer, or where mutually agreed upon in advance, via credit card subject to additional fees. Turing will invoice Client for Services at regular intervals as Turing deems appropriate, but no more often than every two weeks, unless otherwise agreed to in an Order Form. Client shall remit full payment, without offset or deduction, to Turing within thirty (10) days of the date of the invoice, unless otherwise stated in the Order Form or agreed to in writing by Turing. Client shall pay interest on any unpaid balances at the compounded rate of one and a half percent (1.5%) per month or the maximum legal rate, whichever is higher. Additionally, Client agrees to pay or reimburse Turing’s costs of collection for unpaid balances (including, without limitation, reasonable attorneys’ fees). Invoices shall be deemed accepted and valid if not disputed within fifteen (15) days of the date of the invoice. Client shall provide Turing with fourteen (14) days’ advance written notice of any Client approved or directed breaks in the Services including, but not limited to, Client holidays or company closures, or Client approved Technical Professional downtime ("Service Break"). Turing must approve any Service Break(s) and Client shall continue to be invoiced for Services unless proper notice and approval of such Service Break is provided. If Client requires Turing to use a particular process or electronic system for the submission, approval, or payment of invoices including, but not limited to, third-party managed services providers ("Billing System"), Client agrees to reimburse Turing for any and all costs or fees charged to Turing in connection with the use of such Billing System.
5.1 During the Term of this Agreement as incorporated in an Order Form and for twenty-four (24) months thereafter (the "Restricted Period"), Client shall not, directly, or indirectly, solicit or encourage any persons to leave the employment of Turing or any Technical Professional(s) to terminate their contract with Turing. The Restricted Period shall not prohibit any form of general advertising or solicitation that is not directed at a specific person or entity. CLIENT ACKNOWLEDGES AND AGREES THAT ANY BREACH OF THIS SECTION SHALL BE DEEMED TO BE A WILLFUL MATERIAL BREACH OF THIS AGREEMENT AND SHALL ENTITLE TURING TO INJUNCTIVE RELIEF IN ADDITION TO ALL DAMAGES SUFFERED BY TURING IN RELATION TO SUCH BREACH AND TURING’S RESPONSE TO SUCH BREACH, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES AND INVESTIGATION COSTS, LOST COMMERCIAL OPPORTUNITIES, AND INTERNAL COSTS.
5.2 Client shall not impose any restraint on any Technical Professional(s) in any direct agreement with any Technical Professional(s) that would substantially impair or prevent such Technical Professional(s) from engaging with Turing on other projects with other clients of Turing (for example, requiring such Technical Professional(s) to sign any noncompete agreement, or imposing any restriction against working with named companies or companies in particular industries).
6.1 Client acknowledges that Turing has invested substantial time and resources in its Technical Professionals. In the event Client is interested in directly or indirectly hiring, contracting with, or engaging any Technical Professional(s) ("Direct Engagement"), Client shall first notify Turing of Client’s intent of a Direct Engagement and, if agreed to by Turing in writing, Client may proceed with such Direct Engagement notwithstanding Section 5 subject to: (i) a reasonable wind-down period, as determined by Turing in its sole discretion; and (ii) full payment by Client to Turing of a fee of fifty thousand dollars ($50,000) per individual Technical Professional ("Conversion Fee"). Client shall pay such Conversion Fee prior to the Client proceeding with the Direct Engagement.
6.2 The Parties agree the Conversion Fee represents a reasonable estimate of Turing’s time investment and expenses incurred to recruit, test, interview, engage on an independent contractor basis, and match or assign Technical Professionals. The Parties agree that the Conversion Fee is reasonable compensation for Turing’s lost commercial investment and is not a penalty nor a constraint upon the commercial activities or prospective employment of Client or Technical Professionals.
The Parties agree that all work created by Technical Professional(s) under this Agreement as incorporated in applicable Order Forms shall be owned by the Client and shall be considered "work made for hire." Client may provide its own invention assignment and confidentiality agreement directly to the Technical Professional(s) to sign in connection with the performance of any work performed by Technical Professional(s) on behalf of Client. Turing shall reasonably assist Client and Technical Professional(s) in entering into such an agreement in an administrative capacity, but shall not provide any legal advice or legal assistance in any event.
The term of this Agreement shall commence as of the Effective Date of the Order Form and shall continue until this Agreement as incorporated in applicable Order Forms is terminated as set forth herein (the "Term"). This Agreement as incorporated in applicable Order Form(s) may be terminated by either Party for any reason or no reason, upon thirty (30) days’ written notice to the other Party. If a Party becomes bankrupt or insolvent, discontinues operations, fails to make any payments as required by this Agreement or an Order Form, the other Party may suspend or terminate this Agreement or applicable Order Form(s) with immediate effect. If a Party materially breaches any of the terms of this Agreement or an Order Form, the nonbreaching Party shall notify the breaching Party of such breach or violation and the breaching Party shall be allowed ten (10) days to cure any such breach or violation. Should the breaching Party fail to cure within the cure period, or if such breach or violation is not reasonably curable, the nonbreaching Party may immediately terminate this Agreement or applicable Order Form(s). Upon any termination of this Agreement as incorporated in applicable Order Forms as set forth herein, Client shall promptly pay Turing all amounts then due or accrued as of the effective date of such termination.
Each Party may receive information that is proprietary to or confidential to the other Party or its affiliated companies and their clients ("Confidential Information"). Both Parties agree to hold such information in strict confidence and not disclose such information to third parties or to use such information for any purpose whatsoever other than to perform their duties and obligations under this Agreement or as required by law. No knowledge, possession, or use of Client’s Confidential Information will be imputed to Turing as a result of a Technical Professional’s access to such information. Information shall not be deemed confidential if the information:(i) is or becomes available to the public; (ii) is independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party; or (iii) is obtained by the receiving Party from a source other than the disclosing Party, which source is not under any confidentiality obligation. For the avoidance of doubt, Turing’s Confidential Information includes, but is not limited to, the names, contact information, Turing’s screening and selection criteria for Technical Professionals, or rates and particular skills of Technical Professionals in Turing’s network and platform. Upon termination of this Agreement as incorporated into applicable Order Forms, if requested in writing by the disclosing Party, the receiving Party will promptly return all items and copies containing or embodying Confidential information of the disclosing Party. The foregoing confidentiality and nondisclosure obligations shall not prohibit the disclosure of Confidential Information of the disclosing Party, to the minimum extent such disclosure is required by law or by regulation; provided, however, that, in such event, to the extent permitted by applicable law or regulation, the receiving Party shall provide the disclosing Party with prompt advance notice of such disclosure sufficient to provide the disclosing Party with the opportunity if it so desires to seek a protective order or other appropriate remedy to limit or contest such disclosure requirement. The receiving Party shall use reasonable efforts to cooperate with the disclosing Party in its efforts to limit or contest such disclosure requirement.
10.1 Turing shall indemnify, hold harmless, and defend Client and its officers, directors, employees, stockholders, and agents ("Client Indemnified Parties") from and against third-party demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs) related thereto (collectively, "Claim(s)") to the extent attributable to Turing’s (i) willful misconduct or gross negligence; (ii) breach of its representation and warranties under this Agreement or applicable Order Form; or (iii) violation of applicable law.
10.2 Client shall indemnify, hold harmless, and defend Turing and its officers, directors, employees, stockholders, and agents ("Turing Indemnified Parties") from and against and any and all Claims arising from Client’s (i) willful misconduct or gross negligence; (ii) acts, omissions, or breach of this Agreement or applicable Order Form; or (iii) violation of applicable law.
10.3 As a condition of the indemnification obligations herein: (i) the indemnified Party ("Indemnified Party") will promptly notify the indemnifying Party ("Indemnifying Party") of any Claim, provided, however, that the failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (ii) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, such consent not to be unreasonably withheld); and (iii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. The Indemnifying Party will pay: (a) all costs and reasonable legal fees following notice of the Claim; (b) any settlement amounts agreed to be paid by the Indemnifying Party; or (c) any damages awarded against the Indemnified Party in connection with any such Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will neither settle any Claims for which it has an obligation to indemnify herein admitting liability or fault on behalf of the Indemnified Party nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
11.1 TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY (OR THEIR AGENT) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AMOUNT OF ANY AND ALL LIABILITY OF ONE PARTY TO THE OTHER FOR ANY CLAIM(S) ARISING FROM OR RELATING TO THE AGREEMENT, SHALL BE LIMITED TO DIRECT AND PROVABLE DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, THE LESSER OF ONE HUNDRED THOUSAND DOLLARS ($100,000) OR THE AGGREGATE AMOUNT OF FEES PAID TO TURING BY CLIENT UNDER THIS AGREEMENT AND ORDER FORMS DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT OR OCCURRENCE GIVING RISE TO THE APPLICABLE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO ANY OUTSTANDING PAYMENT OBLIGATIONS OF CLIENT.
11.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, TURING SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO (i) THIS AGREEMENT OR THE SERVICES (WHICH ARE PROVIDED ON AN "AS-IS" and "AS-AVAILABLE BASIS") OR (ii) TECHNICAL PROFESSIONAL(S), ANY WORK, WORK OUTPUT OR OTHER RESULTS ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY DIRECT AGREEMENT BETWEEN TECHNICAL PROFESSIONAL(S) AND CLIENT. TURING HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TURING DOES NOT GUARANTEE THE SERVICES OR THE QUALITY OR QUANTITY OF WORK PRODUCT PRODUCED BY TECHNICAL PROFESSIONALS. CLIENT ASSUMES ALL RISK WITH RESPECT TO CLIENT’S TECHNOLOGY, WEBSITES, PRODUCTS AND RELATED MATERIALS, INCLUDING ALL WORK, WORK OUTPUT AND MATERIALS INCORPORATED THEREIN.
12.1 The relationship of the Parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either Party is the agent, employee, or joint venture of the other. Technical Professionals sourced by Turing hereunder shall at all times be independent contractors and shall not be deemed employees of either Party.
12.2 Any dispute, controversy, breach, or claim arising out of or relating to this Agreement or an applicable Order Form, except for disputes related to payments or fees owed to Turing, shall be submitted to and decided by binding arbitration under the Judicial Arbitration and Mediation Services ("JAMS") Comprehensive Arbitration Rules. The arbitration shall be conducted by a sole arbitrator mutually selected by the Parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each Party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. The Parties will jointly bear the expense of any arbitrator. Any arbitration proceedings shall take place at a location mutually agreed upon by the Parties and if the Parties fail to agree upon a location, then location shall be in Santa Clara County, California.
12.3 Sections 4 (Payment Terms, Bill Rates, and Fees), 5 (Non-Circumvention and Damages), 6 (Conversion), 9 (Confidential Information), 10 (Indemnification), 11 (Limitation of Liability; Disclaimer of Warranties), and 12 (Miscellaneous) of this Agreement shall survive termination of this Agreement as incorporated in applicable Order Forms.
12.4 No provision of this Agreement may be modified, amended, or waived unless agreed to in a writing signed by the Parties.
12.5 To the extent any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of such provision shall be interpreted to reasonably effect the intent of the Parties. The Parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid and unenforceable provisions.
12.6 This Agreement and the exhibits attached to it contain the entire understanding between the Parties and supersede all prior agreements and understandings relating to the subject matter of the Agreement. The provisions of this Agreement will inure to the benefit of and be binding on the Parties and their respective representatives, successors, and assigns. Client may not assign its rights under this Agreement, even in the event of a change of control, by operation of law or otherwise, without the prior written consent of Turing. Turing may reasonably assign the entirety of this Agreement and all applicable Order Forms to a parent or wholly owned subsidiary. Any assignment not permitted hereunder shall be null and void.
12.7 The failure of a Party to enforce the provisions of this Agreement will not be a waiver of any provision or the right of such Party thereafter to enforce each and every provision of this Agreement.
12.8 Any and all notices required to be made or given under this Agreement shall be in writing, signed by the Party giving such notice and shall be delivered personally, by facsimile transmission or sent by overnight courier or by email, to the other Party to the appropriate address as shown on the first page of this Agreement or communicated otherwise.
12.9 Client permits Turing to reasonably use, display, or reference its name and/or logo, in accordance with Client’s brand guidelines if provided to Turing, on Turing’s website, marketing materials, or press releases. Client may revoke permission at any time with advanced written notice to Turing.
12.10 This Agreement shall be governed, construed, and interpreted in accordance with the substantive laws of the State of Delaware, without giving effect to principles of conflicts of laws, and shall be brought and resolved exclusively in Santa Clara County, California.
12.11 Neither Party will be responsible for failure or delay in performance of this Agreement if the failure or delay is due to labor disputes, strikes, fire, riot, war, terrorism, acts of God, pandemics, or any other causes beyond the control of the non-performing Party.
12.12 Each Party represents and warrants to the other Party that (i) it has sufficient rights and authority to enter into this Agreement; (ii) it grants the rights and assumes all of its respective rights and obligations set forth herein; and (iii) the person signing on the respective Party’s behalf has the authority to execute and bind the respective Party to this Agreement.
If you have any questions about these Terms, please contact us at legal@turing.com.