These Language Services Terms and Conditions (the “Ts&Cs”) constitute a legally binding agreement between you (whether an individual, corporation, or other entity) (“Client”) and SDL, where “SDL” means a company commissioned by You to perform Services (as defined below) and where that company is SDL plc (a company incorporated under the laws of England & Wales and having offices at Globe House, Clivemont Road Maidenhead, SL6 7DY, England) or a company owned, owning or under common ownership with SDL plc.
“Services” means, other than where the authorised representatives of Client and SDL have explicitly agreed to separate contractual terms and conditions concerning these, any professional language services including, without limitation, localization and/or translation and/or, in connection with these, desk top publishing, project management and/or engineering of software files, text and other computer medium, and/or reading from a prepared script, where such is commissioned by Client to be performed by SDL. An “Order” means: (i) Client’s signature or other indication to SDL of the acceptance of a quotation of SDL for Services; or (ii) a purchase order of Client or other instruction reasonably understood by the parties to authorize the inception of Services, but excluding any terms and conditions proposed by Client and not expressly accepted by SDL.
By issuing an Order Client agrees to be bound by the terms of these Ts&Cs.
Performance of Services
Subject to the terms of these Ts&Cs, SDL shall provide to Client and Client agrees to pay for the Services. SDL shall assign to Client all proprietary rights in the deliverables and related materials (including any translation memory) created by it pursuant to these Ts&Cs subject to SDL being paid in full for the Services.
Client accepts that it is responsible for verifying that the Services are suitable for its needs. Client shall supply all components, information and materials reasonably necessary to enable SDL to provide the Services. Client confirms that it owns or is legally entitled to possess and use such components, information and materials and hereby grants to SDL a license to use the same for the purposes of providing the Services. Client’s failure to supply the foregoing when reasonably required by SDL shall relieve SDL of any obligation to perform Services to a previously agreed schedule. Client shall indemnify and keep indemnified SDL from and against any liability, losses, damages, costs and expenses arising from SDL’s use or possession of any components or other materials supplied by Client to SDL. Client shall, within ten (10) business days of receipt of any finished deliverable of the Services, notify SDL in writing of any suspected defects or errors. In the absence of such notification Client shall be deemed to have accepted the deliverable of the Services. Client shall not withhold acceptance because of any discrepancy which does not significantly compromise the accuracy of any deliverable.
Client agrees to pay to SDL for the Services the fees and expenses set forth on the applicable Order in the currency specified therein. All payments due to SDL hereunder are due within thirty (30) days of the date of the applicable invoice. All unpaid amounts due to SDL hereunder shall bear interest at the rate of one percent (1%) per month or the highest rate permitted by governing law, whichever is less. All amounts due to SDL hereunder are net of any and all taxes (including withholding taxes), assessments, charges and levies of any governmental authority, all of which shall be the sole obligation of Client, except for taxes payable on the income of SDL.
SDL represents and warrants to Client that: (i) it has the right to perform the Services in accordance with the terms of these Ts&Cs; and (ii) it will perform the Services in accordance with customary industry standards although, such Services being the product of human endeavour, SDL does not represent that they shall be error-free. SDL hereby disclaims all other representations and warranties, whether express or implied, including, without limitation, implied warranties of merchantability and/or fitness for use and/or a particular purpose.
Term and Termination
These Ts&Cs shall expire when the all the obligations of the parties under all Orders are complete, and may be terminated by either party: (i) with immediate effect if the other party fails to perform any of its material obligations under these Ts&Cs and such failure continues for 14 days after written notice; or (ii) upon 30 days written notice. Upon such expiration or termination all fees including fees for work-in-progress shall fall due and each party shall deliver to the other any property belonging to that other party. Termination shall not affect any accrued rights and liabilities of either party.
Limitations on Liability
In no event shall either party be liable under these Ts&Cs under any circumstances for consequential or indirect damages of any nature whatsoever including, without limitation, any lost revenues or profits. Nor shall SDL be liable for any claim that any deliverable of the Services infringes the intellectual property rights of a third party where the infringement arises from materials supplied by Client to SDL. Other than for physical injury or death caused by a party’s negligence, notwithstanding anything in these Ts&Cs to the contrary the parties agree that each party’s aggregate liability under these Ts&Cs shall not exceed, under any circumstances, the amount of fees paid to SDL pursuant to these Ts&Cs during the preceding twelve (12) month period or fifty thousand US dollars ($50,000), whichever is the lesser.
Restrictions on Disclosure of Confidential Information
Each party shall: (i) maintain in confidence all information disclosed by the other relating to the disclosing party’s business (“Confidential Information”); and (ii) use such information only in connection with these Ts&Cs. This provision shall not apply to information which: (i) becomes generally available to the public through no fault of the receiving party; (ii) was independently developed by the receiving party without access to the disclosing party’s Confidential Information; (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not prohibited from transferring the information to the receiving party by any contractual, legal or fiduciary obligation; or (iv) is disclosed by SDL to its subcontractors for use only in connection with these Ts&Cs and under a duty of confidentiality no less onerous than that of the parties hereunder. The parties agree that all confidentiality obligations shall survive for a period of three (3) years from the date of disclosure and that each party shall, upon request, return or delete all documents and electronic media containing the other party’s Confidential Information, including all copies thereof.
Entire Agreement; Severability
These Ts&Cs, together with the relevant Order contain the entire agreement and understanding between the parties relating to the subject matter hereof, and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to such subject matter. In the event of any conflict between an Order and these Ts&Cs then these Ts&Cs shall prevail. No variation of the provisions of these Ts&Cs will be valid unless confirmed in writing by the authorised signatories of both parties. If any provision of these Ts&Cs is declared invalid or illegal for any reason, then the remaining provisions of these Ts&Cs shall remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein. No failure on the part of either party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any future exercise thereof or the exercise of any other right or remedy.
Each party acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of these Ts&Cs by the other party and that any such breach would cause such party irreparable harm. Accordingly, each party agrees that in such event, the other party, in addition to any other remedies at law or in equity it may have, is entitled, without the requirement of posting any security, to equitable relief, including injunctive relief and specific performance.
Neither party hereto shall be liable for any breach of its obligations hereunder resulting from force majeure which, for the purposes of these Ts&Cs, means any cause beyond the reasonable control of the party in question. The foregoing shall not apply in respect of any obligation of Client to make payment hereunder. Each party shall give notice to the other upon becoming aware of an event of force majeure, such notice to contain details of the circumstances giving rise to such event. If a default due to an event of force majeure shall continue for more than six weeks then the party not in default shall be entitled to terminate the Order affected by such event.
Governing Law; Jurisdiction
These Ts&Cs shall be governed by and interpreted in accordance with the laws of England & Wales and the parties submit to the exclusive jurisdiction of the English Courts. The parties agree that they will attempt to settle any dispute arising out of these Ts&Cs by negotiation between the parties.
If these Ts&Cs are translated into a language other than English, the English language version shall control.
Should Client have any questions concerning these Ts&Cs these may be addressed to the Vice President Legal and Contracts, SDL plc, Globe House, Clivemont Road Maidenhead, SL6 7DY, England.