The following terms have the meanings set forth below:
"Agreement" means the Master Services Agreement between the parties and includes any subsequent amendments and addenda which are entered into by the parties.
"Affiliate" means, with respect to either party, any person, firm, corporation, partnership (including, without limitation, any general partnership, limited partnership, or limited liability partnership), limited liability company, or other entity that, at any given time, directly or indirectly Controls, is Controlled by, or is under common Control with such party.
"Business Day" means any day other than any Saturday, Sunday, or U.S. federal holiday.
"Change Order" is defined in Section 2.3(a).
"Confidential Information” means, with respect to each party, certain information not generally known to the public, regardless of whether such information is specifically identified as confidential and whether or not such information is received prior to the Effective Date, including but not limited to, intellectual property, technical data, documentation, works of authorship, specifications, computer software, source and object code, flow charts, databases, inventions, improvements, research, knowhow, show-how, designs, processes, procedures, formulae, drawings, diagrams, photographs or other graphic depictions, plans, specifications, prototypes and models and any other tangible manifestation of the foregoing, whether or not patentable or copyrightable, operation manuals or other instructions, trade secrets of the parties, financial, pricing or marketing information, business plans, records, Customer Materials, Company Materials, Company software, third-party software used or provided by the Company, Customer software, information that the disclosing party specifies as confidential and provides to the receiving party, the terms of the Agreement and the Statement of Work, and any other information that a reasonable business person would deem confidential. Confidential Information shall also include any notes, reports, and other documents based upon or derived from the Confidential Information. Confidential Information excludes information that is:
(1) in the public domain prior to the Effective Date or prior to the receiving party’s receipt of such information from the disclosing party, an affiliate thereof or a third party under confidentiality obligations thereto, whichever is earlier, or which subsequently came into the public domain through no act or omission of the disclosing party or others who were under confidentiality obligations to the disclosing party or an affiliate thereof; (a) rightfully received by either party from a third party, such party being free of confidentiality obligations; (b) already in the receiving party’s possession and lawfully received from sources other than the disclosing party or an affiliate thereof, prior to the Effective Date or prior to the receiving party’s receipt of such information, whichever is earlier; (c) independently developed by the receiving party prior to the Effective Date or prior to the receiving party’s receipt of such information; or (d) approved in writing for release or disclosure without restriction by the disclosing party.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any given person or entity, whether through ownership of voting securities (including, but not limited to, the direct or indirect ownership, at any given time, of fifty percent (50%) or more of the outstanding securities that have voting rights, or partnership or limited liability company interests, in the applicable entity), by contract, or otherwise.
“Company” is defined in the introductory paragraph.
“Company Party” and “Company Parties” are defined in Section 7.1.
“Company Materials” means all Developer Tools, systems, materials, documentation, manuals, guidelines, literary works or works of authorship, business or other processes, methodologies, tools, programs, patents, designs, drawings, charts, graphs, machine readable text and files, trademarks and service marks (whether or not registered), copyrights, database rights, inventions, drawings, performances, computer programs, program tools, software, applications, computer code (in object code and source code form), utilities, know-how, show-how, screen layouts, confidential information, business names, or other items licensed or owned by the Company and used by the Company to provide the Services, including Company software.
“Customer Originals” is defined in Section 2.4(b).
"Customer Third-Party Resources” is defined in Section 5.1(b).
“Customer Translation Memory” is defined in Section 5.5(c).
“Deliverables” means a product, Service, or other item to be delivered to Customer in accordance with a Statement of Work.
“Developer Tools” is defined in Section 5.5(d).
“Effective Date” is defined in the introductory paragraph.
“Force Majeure Event” is defined in Section 9.1.
“Improvements” is defined in Section 5.1(d).
“Notice” is defined in Section 9.8.
“Personnel” is defined in Section 5.1(a).
“Protected Data” is defined in Section 5.1(e).
“Required Consent” is defined in Section 5.1(b).
“Service” or “Services” means any services, resources, or Deliverable to be provided by the Company to Customer in accordance with a Statement of Work referencing the Agreement and entered into by the Company and Customer.
“Service Commencement Date” means the date that Services shall be commenced by the Company as stated on the applicable Statement of Work.
“Service Term” means the period of time during which the Services will be provided as set forth in the Statement of Work.
“Service Warranty Level” is defined in Section 3.1
“Statement of Work” is defined in Section 2.1.
“Term” is defined in Section 8.1.
“Working Day” is defined in Section 4.1(b).
2.1 Scope of Relationship; Independent Contractors
- The Company shall provide Services to Customer in accordance with the Statement of Work and subject to the terms and conditions set forth therein and herein. The Company shall provide the Services to Customer using reasonable diligence and care; provided, however, that the Company may, in its sole and absolute discretion, engage third parties to provide any Service, including, but not limited to, Services involving languages, fields of expertise, or both, in which the Company does not have sufficient expertise.
- The parties are independent contractors in their performance of their obligations hereunder. The parties acknowledge that the relationship of the parties is contractual and does not establish any agency, fiduciary, or other relationship.
2.2 Statement of Work
- During the Term, the Company will provide to Customer the Services in accordance with the terms and conditions of the Agreement and a statement of work, substantially in the form attached as Exhibit A (the “Statement of Work”), that describes the Services to be provided by the Company to Customer. The Statement of Work describes the initial Services to be provided by The Company to Customer. All additional Services mutually agreed by the parties to be provided the Company to Customer shall be set forth in an additional Statement of Work executed by the parties.
- Each Statement of Work shall be governed by the terms and conditions of the Agreement and must include the following:
- a reference to the agreement, which reference shall be deemed to incorporate all of the provisions of the agreement;
- the Service Commencement Date and, if applicable, the Service Term;
- a description of the Services to be provided by the Company to Customer;
- the amounts or rates payable for the Services; and
- any additional provisions applicable to the Services to be provided under the Statement of Work that are required by the agreement to be addressed or are not otherwise set forth in the agreement.
- No Statement of Work will become effective unless it satisfies the requirements of Section 2.2(b) and it has been executed by an authorized representative of each party.
- Each Statement of Work is hereby incorporated into the agreement by reference and made part of the agreement.
2.3 Amendment of Services
- The Services under any Statement of Work may be amended from time to time by mutual written agreement of the parties in accordance with the terms and conditions set forth on a change order, substantially in the form attached as Exhibit B (a “Change Order”), and executed by an authorized representative of each party and approved by an officer of the Company.
- Notwithstanding Section 2.3(a) or any other provision contained in the agreement or any Statement of Work to the contrary, upon prior written notice to Customer, the Company may amend the Services to be provided by the Company to Customer under any Statement of Work without the written consent of Customer if such changes (1) are necessary to comply with applicable law or safety requirements and (2) do not materially affect the quality of the Services.
- Customer acknowledges that it may incur additional charges under the agreement in the event that it makes changes to the Company Originals after the Company commences Services pursuant to the applicable Statement of Work, changes the requested delivery date for the Services, or otherwise makes or requests changes to the scope of work or other terms for Services which necessitate additional work by the Company.
2.4 Party Responsibilities
- The Company shall provide Services that meet or exceed the applicable Service Warranty Level described in Article 3 and as listed on the applicable Statement of Work; provided, however, that the Company may, in its sole and absolute discretion, engage Affiliates and independent third parties the Company deems suitable to assist with or perform all of or a portion of the Services.
- Customer shall provide the Company, in a timely manner and at no cost to the Company, with all the assistance, information, data and materials specified herein or which the Company deems necessary for the performance of the Services, including without limitation, access to the materials to be provided by Customer that are the subject of the Services (the “Customer Originals”).
- Customer shall advise the Company if any of the Customer Originals contain any material that is subject to export controls and shall identify all applicable restrictions prior to providing such Customer Originals to the Company.
- The Company shall endeavor to deliver all Services as required by an applicable Statement of Work to Customer on or before the delivery date set forth in such Statement of Work.
- If the Company determines for reasons beyond the control of the Company, including delays caused by third parties under contract with the Company, it will be unable to deliver Services in accordance with the applicable Statement of Work:
- the Company shall inform Customer thereof within a reasonable period indicating an anticipated new deadline; and
- subject to Section 8.3, Customer may terminate the agreement entirely or in part.
- If, for reasons caused by Customer, the Company determines it will be unable to deliver Services in accordance with the applicable Statement of Work or it will be otherwise adversely affected thereby, Customer shall reimburse the Company for all losses and damages suffered or incurred by the Company, including, but not limited to, all additional costs or expenses related to providing the Services.
3.1 Service Warranty Level
Each Statement of Work shall list one of the following Service warranty levels (each, a “Service Warranty Level”) applicable to the Services provided in the Statement of Work:
- Full Service Warranty
- The Company warrants that (A) all Services will be performed in a professional and workmanlike manner, in accordance with industry standards, and in accordance with the terms of the agreement and the applicable Statement of Work, and (B) that each Deliverable will conform in all material respects with the specifications set forth in the Statement of Work.
- Within eight (8) days of Customer’s receipt of a Deliverable, Customer may reject in writing such Deliverable for obvious errors; provided, however, that if Customer does not deliver a rejection within the permissible time period, the Deliverable will be deemed approved and accepted in full by Customer.
- Within eight (8) days after Customer’s discovery of a non-obvious error in a Deliverable, Customer may reject in writing such Deliverable; provided, however, that if Customer does not deliver a rejection within the permissible time period, the Deliverable will be deemed approved and accepted in full by Customer
- In any rejection, Customer shall describe in reasonable detail the ways in which the Deliverable fails to conform to the specifications set forth in the Statement of Work. Within a reasonable time period after the Company is in receipt of a rejection, the Company shall revise and resubmit the Deliverable to Customer for approval. This process will continue until (A) Customer accepts the Deliverable or (B) Customer reasonably rejects the Deliverable three (3) times.
- If Customer rejects the Deliverable after three (3) times, (A) Customer may return the rejected Deliverable and the Company shall promptly refund to Customer all fees paid specifically for the rejected Deliverable; and (B) the portion of the Statement of Work related to the rejected Deliverable will automatically terminate.
- Limited Service Warranty
- The Company warrants that (A) all Services will be performed in a professional and workmanlike manner, in accordance with industry standards, and in accordance with the terms of the agreement and the applicable Statement of Work, and (B) that each Deliverable will conform substantially with the specifications set forth in the Statement of Work.<
- Within eight (8) days of Customer’s receipt of a Deliverable, Customer may reject in writing such Deliverable for obvious errors; provided, however, that if Customer does not deliver a rejection within the permissible time period, the Deliverable will be deemed approved and accepted in full by Customer.
- In any rejection, Customer shall describe in reasonable detail the ways in which the Deliverable fails to conform to the specifications set forth in the Statement of Work. Within a reasonable time period after the Company is in receipt of a rejection, the Company, in its sole and absolute discretion, may resubmit the Deliverable to Customer for approval.
- The Company may charge Customer and Customer shall pay all additional fees associated with the applicable Service Warranty Level set forth in the Statement of Work.
3.2 NO FURTHER REPRESENTATIONS OR WARRANTIES
EXCEPT AS OTHERWISE STATED IN THIS ARTICLE 3, IN CONNECTION WITH THE SERVICES, THE COMPANY (1) MAKES NO WARRANTIES WHETHER EXPRESS OR IMPLIED; AND (2) DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN THE EVENT THAT THE COMPANY PROVIDES CUSTOMER WITH DELIVERABLES IN CONJUNCTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DELIVERABLES OR SERVICES PROVIDED BY THIRD PARTIES ENGAGED BY THE COMPANY IN CONNECTION WITH THE SERVICES, THE COMPANY ALSO PROVIDES SUCH DELIVERABLES AS IS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. USE OF ANY INFORMATION OBTAINED VIA THE COMPANY’S SERVICES IS AT CUSTOMER’S OWN RISK. THE COMPANY SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THIRD PARTIES.
- Charges for the Services will be calculated on a daily or hourly basis, or as otherwise set forth in the applicable Statement of Work. Unless otherwise provided in an applicable Statement of Work, hours that have been commenced will be treated as full hours and included at the full hourly rate.
- Working days begin at 8:00 a.m., Eastern Time, and end at 5:00 p.m., Eastern Time (a “Working Day”).
Customer shall reimburse the Company for all expenses reasonably incurred in connection with providing the Services including, but not limited to:
- traveling expenses of any person engaged by the Company to provide the Services (including, but not limited to, accommodation and other living expenses);
- costs of the Services provided by third parties and required by the Company for the performance of the Services; and
- costs of any materials necessary or desirable, in the sole and absolute discretion of the Company, for providing the Services.
4.3 Required Prepayment
Notwithstanding anything contained herein to the contrary, the Company may, in its sole and absolute discretion, require, and Customer shall pay, partial or full prepayment of any fees, costs, and charges to be payable to the Company pursuant to any SOW or Change Order. If the Company requires any such prepayment, the Company shall notify Customer of such requirement no later than the time the Company accepts an applicable SOW or Change Order.
4.4 Payment of Invoices
- All invoices delivered to Customer by the Company are due upon receipt by Customer and become past due fourteen (14) days from the invoice date. Past due amounts under this Article 4 will bear interest at a rate of two percent (2%) per month, which shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
- Customer is responsible for communicating in writing all changes to billing information including, but not limited to, billing address, purchase order number, or attention to information.
4.5 Regulatory and Legal Changes
Customer shall comply with all federal, state, and local statutes and regulations regarding or related to Customer in connection with the Company’s providing of Services to Customer. In the event of any change in applicable law, regulation, decision, rule, or order that materially increases the costs or other terms of delivery of the Services, the Company and Customer shall negotiate regarding the rates to be charged to Customer to reflect such increase in cost, and in the event that the parties are unable to reach agreement with respect to new rates within thirty (30) days after the Company’s delivery of written notice requesting renegotiation, then (1) the Company may pass any such increased costs through to Customer; and (2) Customer may terminate the affected Statement of Work, without termination of its liability hereunder, by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase; provided, however, that no such termination by Customer will relieve Customer of any liability for charges and costs incurred for Services performed prior to the date of termination.
4.6 Disputed Invoices
If Customer reasonably disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice in accordance with the terms and conditions of the agreement or the Statement of Work and submit a written claim to the Company for the disputed amount. All claims must be submitted to the Company within seven (7) days from the invoice date for the Services underlying the disputed amount. Customer waives the right to dispute any charges not disputed within the time frame set forth in this Section 4.6. In the event that the parties do not settle the dispute within thirty (30) days of the written claim submitted to the Company by Customer, either party may seek mediation of such dispute, if acceptable to both parties, or may proceed to litigation, subject to the provisions of Section 9.7.
4.7 Tax Obligations
Customer is responsible for payment of all property, sales, use, gross receipts, excise, access, bypass, franchise, and other local, state and federal taxes, however designated, imposed on or based upon the provision of the Services. The Company shall bill to Customer, and Customer shall pay to the Company, all sales and use taxes applicable to the Services provided hereunder. The Company shall remit such sales and use taxes to applicable taxing authorities and make all tax filings required thereby. All other taxes shall be borne by the party incurring same and not included in any allocation of costs hereunder.
4.8 No Set-Off
Customer shall pay all amounts due under the agreement in full without any set-off, counterclaim, deduction, or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting its other rights or remedies, set off any amount owed to it by Customer against any amount payable by the Company to Customer.
5.1 Customer Materials; Limited License
- Except as set forth below, Customer hereby grants the Company, its employees and contractors, and those of its Affiliates who may be providing Services hereunder (the “Personnel”) a limited, worldwide, non-transferable, and non-exclusive license to use, access, practice, embody, implement, load, execute, store, transmit, display, copy, maintain, modify, enhance, create derivative works, make and have made the Customer Materials and all components thereof, in accordance with the following:
- the Company shall comply with all applicable terms and conditions of any third-party contracts for any Customer Third-Party Resources (as defined below) provided to the Company by Customer;
- the license granted to the Company under this Section 5.1 shall be limited to the Company’s personnel, the Company’s Affiliates, and authorized agents of the Company and used by same for the purpose of providing Services to Customer and for no other purpose; and
- the Company’s license to use the Customer Materials will expire automatically on the termination of the Agreement or expiration of the Term.
- The parties acknowledge that Customer Materials may include, materials or other items licensed or procured by Customer from a third party (“Customer Third-Party Resources”). Customer hereby warrants that it has obtained all required consents from each third-party provider of the Customer Third-Party Resources (each a “Required Consent”).
- Unless expressly stated otherwise in the agreement or a Statement of Work, Customer shall pay and be responsible for all costs, fees, and expenses incurred in connection with any Required Consents.
- Subject to any agreements governing the Customer Third-Party Resources, all right, title, and interest in improvements, modifications, corrections, compilations, derivative works, derivations, or other revisions of the Customer Materials, or components thereof (collectively, “Improvements”), will be retained by Customer. Customer hereby grants to the Company by way of present assignment a limited, non-exclusive, worldwide right to use such Improvements, which license will be further governed by Section 5.1(a). To the extent an Improvement constitutes a Deliverable, Customer shall retain all right, title and interest in such Deliverable as more fully described in Section 5.5(a).
- Unless otherwise provided herein, in no event shall any Customer Material contain any personal data or personally identifiable information that is subject to any applicable data protection or privacy laws and regulations (the “Protected Data”). If the agreement provides that any Customer Material shall contain Protected Data, then Customer herby represents and warrants that: (1) Customer has full right and authority and obtained all consents required from applicable data subjects in accordance with all applicable data protection and privacy laws and regulations in order to transfer the Protected Data to the Company and the Personnel and to enable use of such Protected Data by the Company and the Personnel to perform the Services and (2) it consents to the transfer of such Customer Originals to the Company and the Personnel as provided under the agreement and the license in Section 5.1(a).
5.2 Company Materials
Except as expressly set forth herein, the Company retains all right, title, and interest in the Company Materials. Customer is hereby granted a limited license to use portions of the Company Materials as described in Sections 5.3 through 5.6.
Upon Customer’s complete satisfaction of all its obligations under the agreement, as between the Company and Customer, Customer will own all right, title and interest in and to the Deliverables.
In fulfilling their respective obligations under the agreement, neither party shall modify, alter, or obscure the other party’s trademarks or use the other party’s trademarks in a manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse, or poor light. Each party shall, and shall cause each of its Affiliates to, comply with the other party’s instructions as to the form of use of the other party’s trademarks and will avoid any action that diminishes the value of such trademarks. Either party’s and any of its Affiliates’ unauthorized use of the other’s trademarks is strictly prohibited.
5.5 Works-for-Hire; Work Product
- Customer retains all right, title and interest in the Customer Materials and other Customer property utilized in the provision of the Services. Unless otherwise directed by Customer, the Company shall return Customer Originals within a reasonable period of time following completion of Services hereunder.
- All of the code, documentation, analyses, studies, recommendations, reports, plans, results, data compilations, Customer Translation Memories, and other materials produced by the Company in performing the Services, and all intellectual property therein (collectively, the “Work Product”) shall be owned by Customer and shall be deemed to be works made for hire under the U.S. Copyright law (17 U.S.C. Section 101) as the same may be amended. Notwithstanding the foregoing, Developer Tools shall not constitute Work Product hereunder. To the extent that any Work Product may not, by operation of law, be works made for hire, the Company hereby assigns to Customer the ownership of copyright in the Work Product. The Company agrees to give Customer or its designees all assistance reasonably required to perfect such rights.
- “Customer Translation Memory” means the file containing all of the paired segments, phrases, sentences or words from the Customer Originals with their translations, in the format specified herein.
- “Developer Tools” means any and all technology, software, tools, products, know-how, trade secrets, language resources, machine translation rules, glossaries and dictionaries, processes, and methods that are owned, controlled, developed, modified, or licensed by the Company, and all derivatives thereof, used by the Company in providing services to third parties generally. Customer acknowledges that the Developer Tools may constitute confidential, valuable proprietary information and/or trade secrets of the Company. Customer shall not use, copy, disclose or otherwise make available to any third party any Developer Tools which may come into its possession, knowledge, or control.
5.6 Additional Acts
Each party shall execute, and cause its employees, agents, or subcontractors to execute, any documents or take any other actions as may be reasonably necessary or as requested by the other party to perfect each party’s respective ownership rights as set forth in Sections 5.3 through 5.6.
- Each party acknowledges that it may possess or, in the course of providing or receiving the Services under the agreement and any applicable Statement or Work, be exposed to or acquire, Confidential Information of the other party or its affiliates or their clients or third parties to whom such other party or its Affiliates owe a duty of confidentiality (all of which, for purposes of the agreement, shall be deemed Confidential Information of the other party).
- Each party shall hold, and shall use its best efforts to cause its Affiliates, employees, officers, directors, managers, shareholders, members, agents, representatives, and subcontractors to hold, the other party’s Confidential Information in confidence using the same or greater degree of care it uses with its own comparable Confidential Information (but in no event less than a reasonable degree of care) and shall not copy, reproduce, sell, assign, license, market, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties, or use such information for any purposes whatsoever other than as may be necessary for the performance of the agreement.
6.2 Permitted Disclosures
If either party is requested to disclose all or any part of any Confidential Information under a discovery request, a subpoena, or similar inquiry issued by a court of competent jurisdiction, or by a judicial, administrative, regulatory, or governmental agency or legislative body or committee, the party subject to such request shall, to the extent practicable and subject to applicable laws, give prompt written notice of such request to the other party and shall give such other party the opportunity to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure or otherwise intervene, prevent, delay, or otherwise affect the response to such request, and the party subject to such request to disclose shall reasonably cooperate with the other party in such efforts. The party seeking such confidentiality agreement, protective order, or modification of disclosure shall reimburse the other party for reasonable legal fees and expenses incurred in its effort to comply with this provision.
It is understood and agreed that in the event of a breach of this Article 6, damages may not be an adequate remedy and the non-breaching party shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, without posting of bond or other security or proof of irreparable harm.
Neither party shall have the right to use the other party’s or its Affiliates’ trademarks, service marks, or trade names or to otherwise refer to the other party in any marketing, promotional, or advertising materials or activities. Either party may issue a publication or press release relating to the creation or operation of a business relationship between the Company and Customer, provided that such press release or publication is approved in advance by both parties, which approval shall not be unreasonably withheld or delayed.
6.5 Disclosure of Customer Information.
Notwithstanding anything contained in the agreement to the contrary, the Company reserves the right to provide any customer or potential customer bound by a nondisclosure agreement access to a list of the Company’s customers and a general description of Service purchased by such customers. Customer hereby consents to such disclosure with respect to Customer, including the listing of Customer’s name and Services purchased by Customer and excluding financial terms relating to the purchase.
2.1 NO SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES.
- NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE COMPANY AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES (EACH, A “COMPANY PARTY”; COLLECTIVELY, THE “COMPANY PARTIES”) SHALL NOT BE LIABLE TO CUSTOMER OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, AGENTS, OR REPRESENTATIVES (EACH, A “CUSTOMER PARTY”; COLLECTIVELY, THE “CUSTOMER PARTIES”) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES, OR THE COST OF PURCHASING REPLACEMENT SERVICES) ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT OR ANY STATEMENT OF WORK. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY PARTIES’ LIABILITY WITH RESPECT TO EACH STATEMENT OF WORK SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY IN CONNECTION WITH SUCH STATEMENT OF WORK.
- IN ADDITION, NO COMPANY PARTY SHALL BE LIABLE TO ANY CUSTOMER PARTY FOR ANY DAMAGES, WHATSOEVER, ARISING FROM: (1) ANY DELAY IN THE PERFORMANCE OF THE SERVICES CAUSED BY ANY CUSTOMER PARTY, ANY THIRD-PARTY UNDER CONTRACT WITH THE COMPANY AT THE TIME OF SUCH DELAY, OR ANY FORCE MAJEURE EVENT; (2) INCORRECT OR INCOMPLETE TRANSFER OF ANY SOURCE TEXT PROVIDED BY ANY OF THE CUSTOMER PARTIES TO ANY OF THE COMPANY PARTIES; (3) AMBIGUOUS OR INCORRECT WORDING IN ANY SOURCE TEXT PROVIDED BY ANY OF THE CUSTOMER PARTIES TO ANY OF THE COMPANY PARTIES; (4) DAMAGED, INCOMPLETE, OR LOST TEXTS AND DATA THROUGH ELECTRONIC TRANSFER BY ANY OF THE CUSTOMER PARTIES TO ANY OF THE COMPANY PARTIES; (5) TEXT DEMONSTRATED TO BE UNSUITABLE FOR THE INTENDED USE OR THE PUBLICATION OR ADVERTISEMENT OR WHICH MUST BE REPEATED DUE TO A DEFECTIVE ADAPTATION OR WHICH RESULTS IN DAMAGE TO THE CUSTOMER’S REPUTATION OR IMAGE, UNLESS THE INTENDED USE WAS INDICATED WHEN THE ORDER WAS PLACED; (6) FROM PRINTING A DEFICIENT TRANSLATION WHERE A CUSTOMER PARTY DID NOT INITIALLY INFORM THE COMPANY PARTY THAT THE TRANSLATION WAS INTENDED FOR PRINTING OR DID NOT PROVIDE THE COMPANY PARTY WITH GALLEY PROOFS PRIOR TO GOING TO PRESS OR WAS PRINTED WITHOUT CLEARANCE FROM THE COMPANY; (7) MALWARE, RANSOMWARE, OR OTHER COMPUTER VIRUSES.
7.2 LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE CUMULATIVE AND AGGREGATE LIABILITY OF THE COMPANY PARTIES AND THE CUSTOMER PARTIES FOR ALL CLAIMS AND DAMAGES ARISING UNDER OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF (1) THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT WITH RESPECT TO THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE THEN MOST-RECENT ACTS OR EVENTS GIVING RISE TO ANY SUCH CLAIMS OR (2) $25,000.
Each party shall indemnify and hold harmless the other party and its Affiliates, and any employees, officers, directors, managers, shareholders, members, agents, or representatives of any of the foregoing, from and against any third-party claim or demand, and shall pay all liability, damages, costs, and expenses (including reasonable legal fees and expenses), and fines, fees, and penalties assessed by any governmental or regulatory authority, that are associated with any third-party claim or demand, arising out of or related to:
- the indemnifying party’s breach of any of its representations, warranties, covenants, or obligations under the agreement;
- any gross negligence, fraud, or intentional misconduct on the part of the indemnifying party or its officers, directors, employees, agents, or representatives;
- any actions taken by the indemnified party in accordance with, and in good faith reliance upon, information or instructions provided to the indemnified party by the indemnifying party or its agents or representatives;
- obligations owed by the indemnifying party to any third party, including, but not limited to, any third party employed, engaged, or otherwise retained by the indemnifying party;
- any actual or alleged infringement or misappropriation of any Intellectual Property Rights of any third party by the indemnifying party; or
- any failure of the indemnifying party to comply with applicable law in the performance of its obligations related to the agreement.
The term of the agreement begins on the Effective Date and continues until there are no Statements of Work in force and effect hereunder that have not expired or been terminated in accordance with the agreement or the applicable Statement of Work (the entire period of time that the agreement is in force and effect, the “Term”).
- Notwithstanding any provision contained in the agreement or any Statement of Work to the contrary, a party may terminate the agreement and all Statements of Work then in force and effect hereunder upon thirty (30) days prior written notice to the other party.
- A party may terminate the agreement and all Statements of Work immediately upon written notice to the other party if:
- the other party materially breaches the agreement and fails to cure such breach within fourteen (14) days after receiving written notice reasonably describing the breach from the non-breaching party;
- the other party: (A) voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law; (B) becomes subject to any involuntary proceeding or petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law, which proceeding or petition is not stayed or dismissed within ninety (90) days after commencement or filing; (C) applies for, or consents to, the appointment of a receiver, trustee, custodian, sequestrator, or similar official for such party or for a substantial part of its property or assets; (D) makes a general assignment for the benefit of creditors; (E) takes corporate action for the purpose of effecting any of the foregoing; (F) liquidates, winds up, or ceases its business operations, for any reason;
- any change to, or enactment of, any applicable law or regulation, or published change in the interpretation thereof by any regulatory authority, would have a material adverse effect upon (A) such party’s ability to comply with applicable laws and regulations in continued performance under the agreement, or (B) such party’s ability to perform its obligations under the agreement, provided that, in any such case, the parties, after good faith discussions, fail to mutually agree in writing upon a reasonable solution to the issue within a reasonable amount of time; or
- any regulatory agency having authority over such party directs such party to cease or significantly limit performance of such party under the agreement.
- The Company may terminate the agreement and all Statements of Work immediately, without written notice to Customer, upon a material breach involving failure by Customer to pay amounts due and payable to the Company under the terms of the agreement and not disputed in good faith by Customer in accordance with the terms of the agreement.
- The parties’ rights to terminate the agreement shall be in addition to, and not in lieu of, any other available rights and remedies. Furthermore, the termination or expiration of the agreement shall not (1) relieve either party of any obligations that have accrued as of or before the time of such termination or expiration; or (2) prejudice any claim of either party.
8.3 Effect of Termination or Expiration
- Upon termination or expiration of the agreement for any reason:
- Customer will immediately pay to the Company all outstanding unpaid invoices and interest owed by Customer to the Company and, with respect to Services provided by the Company but for which no invoice has been submitted to Customer, the Company shall promptly submit an invoice, which shall be payable by Customer immediately upon its receipt thereof;
- Customer shall immediately return all Company materials and all Deliverables that have not been fully paid for. Customer hereby acknowledges and agrees that if Customer refuses to return all Company materials and all Deliverables that have not been fully paid for, to do so, Customer hereby grants the Company the right to enter Customer’s premises and take possession of such materials, provided that such entry does not violate local law or result in a breach of the peace;
- the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination will be unaffected, including the right to claim damages in respect of any breach of any Contract which existed at or before the date of termination or expiration.
- This Article 8 will survive the termination or expiration of the agreement and will continue in full force and effect.
9.1 Force Majeure
In no event shall the Company be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss, or malfunctions of utilities, communications or computer (software and hardware) services (each, a “Force Majeure Event”); it being understood that the Company shall use reasonable efforts to resume performance as soon as practicable under the circumstances.
A party may not waive any provision of the agreement, except by a written agreement signed by the party against whom the waiver is sought to be enforced. No waiver by either party of the performance of any provision, condition, or requirement herein shall be deemed to be a waiver of any other provision, condition, or requirement contained herein; nor shall it be deemed to be a waiver of future performance of the same provision, condition, or requirement; nor shall any delay or omission of a party in exercising any right hereunder impair the exercise of any such right or any like right accruing to it thereafter.
The parties may not amend the agreement, except by a written agreement signed by the parties.
If any provision of the agreement is determined to be invalid, illegal, or unenforceable, such determination will not affect the validity or enforceability of the remaining provisions hereof.
9.5 Entire Agreement
The agreement and all applicable Statements of Work and Change Orders constitute and contain the full and final agreement of the parties regarding the matters contained herein, and unless otherwise specified herein, the agreement supersedes and replaces any and all prior agreements or understandings between the parties regarding the matters contained herein.
9.6 Binding Effect; Assignment
- The agreement and the covenants, obligations, undertakings, rights and benefits set forth herein shall be binding upon and inure to the benefit of the parties and their respective successors, legal representatives, and permitted assigns.
- Customer shall not assign its rights or obligations hereunder without the prior written consent of the Company. No such assignment shall release Customer from its obligations hereunder.
- Notwithstanding anything contained in the agreement or any Statement of Work to the contrary, the Company may at any time assign, transfer, mortgage, charge, subcontract, or deal in any other manner with all or any of its rights under the agreement and may subcontract or delegate in any manner any or all of its obligations under the agreement to any third party or agent.
9.7 Governing Law; Venue
The laws of the State of Georgia govern all matters arising out of or relating to the agreement and all the transactions it contemplates, including, but not limited to, its interpretation, construction, performance, and enforcement. Customer and Company agree that any action to enforce the agreement, or respecting its terms, may be brought in any state or federal court located in Atlanta, Georgia, USA, which shall be the sole and exclusive venue for any such disputes or actions.
Last updated 2018, June 01