DEFINITIONS – As used herein and each of the attachments hereto, the following terms shall have the meanings as set forth below: (a) “INTRANSOL™” shall mean International Translation Solutions™, a JKW International, Inc. Company, a corporation organized under the laws of the state of Minnesota, United States of America, its officers, directors, managers, employees, agents, representatives, consultants, translators, interpreters, divisions, branches, subsidiaries, foreign offices and other affiliates; (b) “Language Services” or “Language Service(s)” shall mean any translation, localization, interpretation, voice-over, coaching, instruction, training, consulting, desktop publishing, typesetting, prepress production, graphic design, creative direction, video or film subtitling or character generation, multicultural or global marketing or any other language-related service provided by intransol; (c) “Client” shall mean the party ordering, requesting, receiving, and/or paying for Language Services from intransol; and (d) “Agreement” shall mean this exhibit and any Estimates, Quotations, Proposals, Change Order Forms, Rate Sheets, or any deliverables attached hereto or submitted by intransol, each of which is incorporated herein by this reference.
PAYMENT TERMS – Unless otherwise stipulated in writing in an INTRANSOL™ Estimate, Quotation or Proposal, Client shall deliver to intransol a deposit equal to Fifty percent (50%) of the estimated or quoted fee prior to commencement of Language Services. The balance of payment shall be made upon completion of the Language Service and before delivery, or in accordance with other payment terms specified in any INTRANSOL™ Estimate, Quotation or Proposal. If Language Services are performed on an incremental basis, payment shall be due upon completion of each increment for that portion of the total sum as applicable to that increment, as invoiced by INTRANSOL™. All past due INTRANSOL™ invoices shall be assessed a finance charge at the rate of .0033% per day beginning on the first day that the invoice is past due, based on the date of invoice and the number of days stipulated in the payment terms on the invoice and in any INTRANSOL™ Estimate, Quotation or Proposal. In the event of default of payment when due, INTRANSOL™, in its sole discretion, may elect to suspend Language Services, and to withhold delivery of any completed or in-process documentation in connection with such service, until payment in full is received. All costs of collection, including attorneys’ fees and court costs, shall be paid by Client. All fees and sums referred to in this Agreement are designated as and payable in U.S. currency free and clear of all duties and deductions of any kind. Client assumes full responsibility to pay sales and use taxes and all other taxes and charges. Requests for Language Services, oral or written, which are canceled by Client after INTRANSOL™ is authorized to commence Language Services, shall be subject to a cancellation fee equal to 50% of the intransol Estimate, Quotation or Proposal of the total fee for the Language Services, or an amount computed as a prorated percentage of the total fee for the Language Services offered by INTRANSOL™ or for Language Services completed or in progress by INTRANSOL™ prior to the time of cancellation, whichever is greater.
ESTIMATES, QUOTES and PROPOSALS – INTRANSOL™ Estimates, Quotations, Proposals and production schedules are based on the assumptions that source material is in final and complete form upon review by INTRANSOL™ in order to provide Client with an Estimate, Quotation or Proposal and that Client will deliver the same unchanged and unaltered source material to INTRANSOL™ for Language Service. Actual fees, which are presumed to be accepted by Client, unless specific provision to the contrary is made in advance in writing by Client, may vary from INTRANSOL™ Estimate, Quotation or Proposal as a result of: any special requirements regarding language, delivery time, purpose of Language Service, certification request, Client modifications to original assignment, changes, revisions, alterations or amendments to source documentation, other specifications or requests for additional services not included in the original INTRANSOL™ Estimate, Quotation or Proposal.
PERFORMANCE and APPROVAL – Any questions or comments concerning any Language Service delivered or performed by INTRANSOL™ shall be delivered by Client to INTRANSOL™ within ten (10) business days of delivery or performance of all Language Service by INTRANSOL™ to Client. INTRANSOL™ shall have no obligation to correct any errors, omissions, delays or other problems regarding Language Services which are not communicated in writing to INTRANSOL™ by Client during the above referenced period. The sole obligation of INTRANSOL™ in the event of any error, omission, delay, or other problem regarding Language Services of which INTRANSOL™ is timely notified by Client, shall be to review the Language Service deliverable within a mutually agreeable time period at no additional charge to Client, and to make corrections which INTRANSOL™ deems necessary and which are not the result of changes in the original assignment as specified in the applicable INTRANSOL™ Estimate, Quotation or Proposal. All Language Services shall be deemed approved and accepted by the Client at the conclusion of the above-referenced time period, if INTRANSOL™ is not notified in writing by Client of any errors, omissions, delays, or other problems regarding the original or corrected translation within the above-reference time period. With respect to interpretation, instruction, voice-over, coaching, consulting or training services, INTRANSOL™ shall have no obligation to address any questions or comments regarding errors, omission, delays, failure to perform or appear, or other problems concerning such services which are not communicated to INTRANSOL™ by Client in writing within Twenty-four (24) hours of the performance of the interpretation, instruction, voice-over, coaching, consulting or training services. The sole obligation of INTRANSOL™ in the event of error, omission, delay, failure to perform or to appear, or other problems regarding interpretation, instruction, voice-over, coaching, consulting or training services of which intransol is timely notified in writing by Client, shall be to provide replacement services without charge for the assignment as specified in the original INTRANSOL™ Estimate, Quotation or Proposal, at a mutually agreeable date. The obligation of INTRANSOL™ to provide replacement services without charge shall be subject to Client’s payment in full for both the initial interpretation, instruction, voice-over, coaching, consulting or training services, and travel, lodging, and related expenses to be approved and accepted at the conclusion of the above-referenced period. Interpretation, instruction, voice-over, coaching, consulting or training services shall be deemed approved and accepted at the conclusion of the above-referenced period if INTRANSOL™ is not notified in writing by Client of any error, omission, delay, failure to perform or appear, or other problem regarding interpretation, instruction, voice-over, coaching, consulting or training or replacement services, within the above-reference period.
CLIENT OBLIGATIONS – Client shall provide INTRANSOL™ with all assistance required by INTRANSOL™ to perform Language Services according to the standard that is customary in the translation, localization, interpretation and multilingual typesetting industry. With respect to translation services of INTRANSOL™, this assistance shall include Client’s providing INTRANSOL™, prior to and during the performance by intransol of translation services, (a) legible and clearly articulated source material, (b) regular and prompt review and advice regarding the translation deliverables of INTRANSOL™ by a native speaker of each target language who is expert in Client’s industry, (c) advisory access to a native speaker of the source language who understand the original documents to be translated, (d) glossaries, lexicons and related support materials in the source and target language, containing terms that appear in the original documents and that reflect the Client’s preference regarding corporate jargon and industry-specific terminology, (e) written guidelines regarding Client’s preferences regarding the style and approach of the translation, and (f) adequate time for INTRANSOL™ to modify translation deliverables according to advice provided by Client and/or native-speaking proofreaders/reviewers contracted by Client. With respect to interpretation, instruction and/or training services of INTRANSOL™, this assistance shall include Client’s providing INTRANSOL™, prior to the performance of service by INTRANSOL™, (i) term glossaries and related support materials in the source and target languages, containing corporate jargon and industry-specific terminology that will likely be used during the interpretation, instruction, voice-over, coaching, consulting or training services engagement, and (ii) advisory access to an employee or representative of Client who understands the intentions and scope of the planned engagement.
CANCELLATIONS FOR INTERPRETING, VOICE TALENT OR LANGUAGE CONSULTATION – Cancellations by client are subject to cancellation fees, based on the following schedule once an INTRANSOL™ Quote or Estimate has been accepted by Client: For a cancellation made with more than ten (10) calendar days prior to a scheduled event, there is an cancellation fee to cover administrative costs of 15% of the total Estimate. For cancellations made with less than ten (10) but more than five (5) calendar days prior to a scheduled event, the cancellation fee (excluding weekends) is 50% of total Estimate. For cancellations made with less than five (5) calendar days prior to a scheduled event, the cancellation fee (excluding weekends) is 100% of the total Estimate. Cancellations must be made in writing and sent by e-mail (see information above). Cancellations made after business hours, on national holidays or on weekends (Saturday or Sunday) will be considered as received at 9:00 AM C.S.T. the next business day. Our normal business hours are from 9:00 AM to 5:00 PM Central Standard Time Monday – Friday.
PAYMENT AND CANCELLATION POLICIES FOR STUDIO TIME OR STUDIO ENGINEER TIME RENTAL – Because we need to reserve studio time and engineering resources, we require pre-payment in full by VISA, MasterCard or PayPal is required at least five (5) business days (Monday – Friday excluding weekends (Saturday and Sunday) and national holidays) prior to studio or studio engineer time. If paying by a check, the check must be received at least eight (8) business days (Monday – Friday excluding weekends (Saturday and Sunday) and national holidays) prior to the event and to have cleared the when deposited at least five (5) business days (Monday – Friday excluding weekends (Saturday and Sunday) and national holidays) prior to the event to reserve equipment, studio time or studio engineer time. If payments are not received when required, the INTRANSOL™ Estimate or Proposal for services will be null and void and INTRANSOL™ will have no obligation to furnish client with rental equipment, studio time or studio engineer time. If applicable, client must also pay in advance at the time of order all shipping & handling costs and any customs, duties or applicable transportation fees. Cancellations made in writing at least six (6) business days (Monday – Friday excluding weekends (Saturday and Sunday) and national holidays) on domestic orders in the lower contiguous 48 states will receive a full refund with the exception of a minimum set-up and project coordination fee of $150 per hour or for the actual time spent coordinating equipment and schedules at $150 per hour, whichever is greater. For orders outside the lower 48 states, the cancellation times are double that of domestic orders. For all cancellations made in writing less than six (6) business days but more than four (4) business days (Monday – Friday excluding weekends (Saturday and Sunday) and national holidays) on domestic orders in the lower contiguous 48 states, or double that for orders outside the lower contiguous 48 states, there will be a maximum 50% refund. For any cancellation made in writing less than four (4) business days (Monday – Friday excluding weekends (Saturday and Sunday) and national holidays) on domestic orders in the lower contiguous 48 states, or double that for orders outside the lower contiguous 48 states, there will be no refund and the deposit will be entirely forfeited. Verbal cancellations over the phone in conversation or as voicemails may not be received and do not constitute a properly delivered cancellation. All cancellations must be in writing with proof of delivery/receipt that is time/date stamped, such as e-mail or fax.
CANCELLATIONS FOR ALL OTHER SERVICES – Cancellations for all other services after project commencement are subject to a minimum cancellation charge of 50% of the total estimated charges as stipulated on any INTRANSOL™ Quote or Estimate plus charges for actual work performed up to the point of cancellation on a pro-rated basis. If work performed is greater than 75% of the entire scope of the project at the time of cancellation, then the full amount of the intransol Quote or Estimate will apply. Cancellations must be made in writing and sent by e-mail (see information above). Cancellations made after business hours, on national holidays or on weekends (Saturday or Sunday) will be considered as received at 9:00 AM C.S.T. the next business day. Our normal business hours are from 9:00 AM to 5:00 PM Central Standard Time Monday – Friday.
SPECIAL CIRCUMSTANCES – Client shall bear the complete liability, responsibility and risk of error, omission, delay, failure to perform, or other problems regarding Language Service requested by Client on a “rush basis”. “Rush basis” shall be defined by Client’s oral or written request, requirement or demand to have Language Services delivered or performed by INTRANSOL™ before the schedule or delivery date as stipulated in the INTRANSOL™ Estimate, Quotation or Proposal for corresponding Language Services or when the terms “Rush” or “Rush Service” is explicitly used in any INTRANSOL™ Estimate, Quotation or Proposal. With respect to such requests, INTRANSOL™ shall not be obligated to provide remedial, corrective, or replacement services in the event Client, for any reason, is not satisfied with the Language Service rendered by INTRANSOL™. Client shall be obligated to pay in full for Language Services requested on a “rush basis”, regardless of whether Client requests remedial, corrective, or replacement services in connection therewith. With respect solely to requests for Language Services performed on a “rush basis” or involving less common languages, INTRANSOL™ may elect to terminate this Agreement for any reason or any time prior to completion of the requested Language Services, upon notice to Client, without liability to INTRANSOL™. Termination under this provision shall not be deemed a breach of Agreement.
NOTICES – All notices made in reference to this Agreement shall be deemed sufficient if: (a) delivered manually, (b) delivered by overnight (24 hour) courier service (c) delivered by direct courier service (1-3 hour) (d) delivered by U.S. mail, registered or certified, return receipt requested, postage prepaid; or (e) transmitted directly between intransol and Client via facsimile machines or electronically via e-mail. Notices shall be deemed received on the date of personal delivery, the date of actual receipt as indicated on the delivery notice or return receipt (or the date receipt is refused), or the date indicated by facsimile transmittal confirmation reports or by e-mail transmittal dates.
CONFIDENTIAL INFORMATION – Both parties shall treat as confidential and take all reasonable precautions to prevent the unauthorized disclosure or use of all material and information proprietary to the other party which the non-owning party gains access to or knowledge or possession of in connection with language services.
FORCE MAJEURE – intransol shall not be liable for delays or failure to perform due to causes beyond its control, including but not limited to, acts of God, acts or omissions of the Client, acts of civil or military authority, strikes or other labor disturbances, requirements of law or similar cause, illness, death or debilitating disease, courier, mail or delivery service delays, mechanical failure or noncompliance or untimeliness of intransol or Client contractors.
NON-SOLICITATION of PERSONNEL – Neither Client nor any of its affiliates shall induce or attempt to induce any INTRANSOL™ employee, agent, independent contractor, representative, other client or other affiliate to discontinue working for or with INTRANSOL™, or to reduce their capacity with INTRANSOL™ in any way, in order to work for or with Client or any of its representatives, agents or affiliates during the term of this Agreement and for a period of five (5) years thereafter without prior written authorized consent from an INTRANSOL™ Executive Officer and without a formal written offer by Client and formal written acceptance of any such Client offer by INTRANSOL™ of retribution to INTRANSOL™, to be determined on a case-by-case basis, based upon factors including, but not limited to, loss of business, loss of good will, replacement costs, training, investment in skills and knowledge and potential disruptions of INTRANSOL™ business activities.
LIMITATION of LIABILITY – INTRANSOL™ shall use its best efforts to exercise the standard of care that is customary in the translation, interpretation and multilingual typesetting industry in performing all Language Services. INTRANSOL™ expressly disclaims all other representations or warranties respecting the services rendered under this Agreement, including, without limitation, expressed or implied warranties of merchantability or hirees for a particular purpose. INTRANSOL™ shall not be liable for any claims, damages or expenses of any kind, whether made or suffered by Client or any third party, unless such claims, damages, or expenses are directly caused by gross negligence or willful misconduct by INTRANSOL™. INTRANSOL™shall in no event be liable to Client or any third party for special, incidental, exemplary, direct, punitive, or consequential damages, expense or loss of any kind, however occasioned, including, without limitation, damages, loss or corrective action due to errors, omissions, delays or failure in performance or delivery. Client and INTRANSOL™ agree that in the event that INTRANSOL™ breaches its obligation under this Agreement in a material way, or that any liability is imposed on INTRANSOL™ arising out of or in connection with this Agreement and/or Language Services, it would be impractical or extremely difficult to fix actual damages. Client and INTRANSOL™ agree that the aggregate amounts payable by INTRANSOL™ by reason thereof, and the sole remedy provided, shall not exceed the amount previously paid by Client for the specific Language Service increment at issue. In the event that Client wishes INTRANSOL™ to assume greater limited liability, Client may obtain from INTRANSOL™ a higher limit by paying an additional amount to INTRANSOL™, and a rider shall be attached hereto setting forth such higher limit and additional amount, but this additional obligation shall in no way be interpreted to hold intransol as an insurer. INTRANSOL™ shall be deemed to be an independent contractor with respect to Client under this Agreement. INTRANSOL™ shall have no contractual or other obligation to any third party arising out of or related to this Agreement. Except as expressly provided to the contrary in this Agreement, INTRANSOL™ shall have no obligation to pay for remedial, corrective or replacement Language Services performed by, or for, Client or any Third Party.
INDEMNITY – Client shall defend, protect, indemnify and hold harmless intransol from any and all loss, costs, expenses (including attorneys’ fees), liability or damages on account of any and all manner or claims, demands, actions and proceedings that may be instituted with respect to the source materials or Language Services against INTRANSOL™ on any grounds, including, without limitation, claims or suits of defamation, libel, plagiarism, copyright infringement, violation of statutory or common law, violation of patent rights, design, trademark, services mark, privacy or any proprietary or personal right of any person or organization of any country.
TERMINATION – Either party may terminate this Agreement by written notice if the other party fails to comply with any of its terms and conditions, which failure is not cured within ten (10) business days of written notice thereof, or upon insolvency, gathered assignment for the benefit of creditors, dissolution or liquidation of either party, at which time all sums due under this Agreement shall become immediately due and payable without refund.
ARBITRATION – Any controversy or claim arising out of or relating to this Agreement, or a breach of this Agreement, shall be settled by arbitration in the city, state, province or country of the local INTRANSOL™ office that has handled Client’s account in accordance with the Commercial Arbitration Rules of the American Arbitration Association and/or with the rules and regulations of the local official arbitration body of the local intransol office that handled Client’s account. There shall be one arbitrator, who shall apply current law. The arbitrator shall be chosen from a panel of persons knowledgeable in foreign language translation, localization multilingual typesetting and the range INTRANSOL™services. The arbitrator shall have the right to consult experts and competent authorities knowledgeable in matters submitted to arbitration, but such consultation shall only be made in the presence of both parties with the full right on their part to cross-examination. The prevailing party (as determined by the arbitrator, or, if appropriate, by a court of competent jurisdiction) shall be reimbursed by the other party for its costs of arbitration, and any other costs of collection or enforcement of this Agreement, including the cost of administrative fees, other fees and expenses.
SUCCESSORS – This Agreement shall be binding upon and insure to the benefit of the successors and legal representatives of the respective parties hereto. Neither party shall assign this Agreement without the written prior consent of the other party, except as provided herein. Client specifically agrees that INTRANSOL™ shall have the right to perform any or all of the services to be provided hereinafter through any parent, subsidiary, division, independent contractor, or affiliate of INTRANSOL™.
WAIVER – No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of any other provision hereof.
SEVERABILITY – The provisions of this agreement shall be severable, and in the event that one or more provisions are found to be null and void or otherwise unenforceable, such provision or provisions shall be severed, and the remaining provisions of this Agreement shall be given full force and effect.
ENTIRE AGREEMENT – This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, negotiations understandings, commitments and practices between the parties regarding the subject matter hereof. No amendments to or modifications of this Agreement shall be made except in writing, signed by duly authorized representatives of both parties. The terms and conditions set forth in this Agreement shall be deemed as accepted by Client in their entirety and without reservation upon request or authorization by Client for INTRANSOL™ to proceed with Language Services. The terms and conditions set forth in this Agreement shall specifically supersede any contrary provision set forth in any service order, purchase order or Language Services request submitted by Client to intransol, prior, concurrent or subsequent to this Agreement. All headings are for reference purposes only, and shall not be used to construe or interpret the meaning of any provision. In the event of any conflict between the terms of this document and any Estimates, Quotations, Proposals, Change Order Forms, and rate sheets attached hereto by INTRANSOL™, the terms set forth in the Agreement shall control, irrespective of the place of performance, without giving affect to the doctrine of conflict of laws, this Agreement shall be governed by and continued in accordance with the laws of the states or countries where intransol has physical offices, and where work for Client was performed.