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The purpose of this Agreement is to provide a framework for the delivery of services that meets/exceeds the expectations of the Client and to provide the conditions that shall govern both Contractor and Client relations and the delivery of Services.
1.2 Effective Date
This Agreement has an effective date of (“Effective Date”). This Agreement commences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective Date for successive one-year periods, unless either party gives the other party written notice of its intent not to renew, at least 90 days prior to the expiration of the then-current term.
2. Statement of Work
2.1. Statement of Work Definition
The Client will provide a Statement of Work including their purchase order number. The Contractor will perform Services as described in the Statement of Work (“SOW”). Modifications to an SOW must always be in writing.
2.2. Order Acceptance
The Contractor will send an Order Confirmation to the Client, upon acceptance of the quotation provided. The Contractor shall not send an Order Confirmation to the Client without its prior approval.
If the Contractor discovers discrepancies between the quotation and materials received in connection with the assignment, it will be obliged to inform the Client of this immediately. This may, for example, concern the size and scope of the assignment as well as the source quality and other conditions which may affect the Contractor’s ability to carry out the assignment to a level satisfactory to the Client. Should this situation arise, the Contractor is required to communicate immediately with the Client.
2.3. Change of Scope
Client may, at any time, modify or add to the scope of the Services agreed to between the parties upon written notice to the Contractor specifying the desired modifications or additions to the same degree of specificity as in the original specifications. The Contractor must confirm receipt of this information. If the Contractor should consider that the requested modifications or additions are not substantial, they will be carried out by the Contractor at no additional cost. If the requested modifications are substantial, the Contractor will submit to Client an estimate of the time and cost to effect such modifications or additions (“Quote”) within 24 hours of notification by Client. The parties must agree to the Quote in writing, prior to either party being bound to its terms. The performance of any modified or augmented Services by the Contractor shall be governed by the terms and conditions of this Agreement.
2.4. Project Cancellation
If the Client wishes to cancel a project, the Client must promptly notify the Contractor. The Contractor may invoice the Client solely for the amount of work that has been approved and completed at the time the written cancellation was received. A written cancellation notifying the Contractor should be sent via email and confirmed by phone and email whenever possible.
3.1 Delivery Expectations
Delivery shall take place in the way indicated in the Statement of Work. Delivery is performed at or before the date and time indicated in the Statement of Work.
4. Use and Ownership of Project Related Materials
The Contractor shall not make use of any information disclosed to, produced or accessed by the Contractor in connection with this Agreement for any purpose other than to supply Services.
4.1 Reference Materials
Any Client material (texts, drawings, models, films, pictures, negatives, magnetic media, terminology or other glossaries, etc.) relating to the SOW shall remain the exclusive property of the Client and shall be returned without delay on completion of the order, together with any software (discs and manuals) provided to the Contractor to carry out the work. The Contractor shall also totally erase any such software from its computer(s), and destroy any copy or copies of the same made by way of backup(s) or otherwise. While the materials and software are in its possession, the Contractor will ensure that they are not damaged or lost. The Contractor will bear full responsibility in case of any damage or loss of materials or software.
4.2. Work Product Materials
The Client will be the exclusive owner of the Developments and of all intellectual property rights, should the Developments be detailed in the standing SOW. If the Contractor must absorb the cost of developing terminology, file filters, or processes not included in the SOW in order to satisfy the service requirements, any such developments would remain the property of the Contractor. For the work detailed in the standing SOW, the Contractor hereby assigns to the Client all right, title, and interest throughout the world, including without limitation, all copyright, trade‑marks, trade secrets, patent rights, and any other intellectual property right in and to each Development, effective at the time each is created, whether such time is before or after the date of this Agreement. The Contractor covenants that it will not, either during the term of this Agreement or thereafter, directly or indirectly, contest, or assist any third party to contest, the Client’s ownership of the Developments or of any intellectual property rights related thereto.
5. Fees and Expenses
5.1. Standard Fees
The standard fees to be applied for individual SOWs, as well as a description of what these fees cover, are specified in the SOWs. The cost of the work as specified in the SOW shall not be amended without prior written agreement of both parties. If the fee indicated in the SOW differs from the one indicated in the quotation, the former takes precedence.
5.2. Invoicing Terms
Upon delivery of services, the Contractor will submit an invoice to the Client including the detail of the services provided, the total fees payable, and the breakdown of how these fees have been calculated.
5.3. Payment Terms
The Client will make full and complete payment within thirty calendar days after receipt of the invoice.
If the Client is late in making an undisputed payment under a specific Purchase Order, the Contractor reserves the right to withhold delivery of work in progress under that Purchase Order until all overdue invoices for that Purchase Order have been paid.
6. Warranties and Remedies
6.1. Quality of Service
The Contractor represents and warrants that the Services and any deliverables will meet the quality criteria as described in the individual SOW, which meet or exceed the requirements as detailed in standards ISO17100 and/or CGSB-131.10-2008.
6.2. Ability to Perform Services
The Contractor and its translators/proofreaders/editors and all those involved in the delivery of services have the necessary knowledge, experience and skills to perform the services.
6.3. Third-Party Claims
The Contractor represents that it has no agreement with or obligations to others which would prevent it from performing the Services hereunder or that would require it to obtain the prior consent of any third party in order to perform the Services.
6.4. Services Warranty Period
The client is entitled to submit a complaint within a period of 30 days from receipt of the translated/proofread/localized materials. Should the volume of the translation require more than 30 days to assess, a longer warranty period would be negotiated before the acceptance of the work.
The client should itemize the errors or deficiencies and types of errors as specifically as possible when submitting a complaint. If it is shown that the client is justified in making a complaint, the Contractor will bear financial responsibility for the defect. The Contractor agrees to repair such defect as soon as possible by assigning the same amount of resources as for the initial review. All claims of errors that are caused by inaccuracies, deficiencies, errors or unclear wording in the source material would be excluded.
A translation unit is assumed to be correct if it meets these 3 criteria:
1) It is accurate (the core meaning is preserved).
2) It is compliant (to the style guide, the instructions, and the glossaries provided).
3) It is grammatically correct (according to generally accepted language conventions).
Any stylistic variation of a grammatically correct translation, where the instructions have been duly followed, and the target text conveys the meaning of the source text are thus considered preferential variations.
6.5. Force Majeure
Except in respect of payment liabilities, unforeseeable fire, water damage, strike, lockout, acts of war, earthquake, flood, riot, embargo, sabotage, or governmental acts and other similar force majeure events exempt the Contractor from the obligations set out in these conditions to the extent and for the period of the duration of the obstructing event. Neither Party shall be considered to be in default pursuant to this Agreement if the fulfillment of all or part of its obligations is delayed or prevented due to “force majeure”, provided the affected party gives the other party prompt notice of the reasons for such cause.
6.6. No Malicious Code
All deliverables produced by the Contractor hereunder will be free of any and all time locks, viruses, trojans, worms, spyware, adware, other malware and malicious code, copy protect mechanisms, back doors, or features designed to (I) disable the deliverables or render them incapable of operation (whether after a certain time, after transfer to another machine, or otherwise), (II) permit access unauthorized by the Client to the deliverables or to any Client’s networks, systems, programs, or data, or (iii) enable the Contractor to track the Client’s or users’ use of the deliverables without the Client’s express consent.
7.1. System Access
The Contractor will provide a user name and password to the Client allowing them access to the Contractor’s online portal. The Client alone is responsible for keeping his/her password secret and bears responsibility for all operations performed with the password. The Client agrees to inform the Contractor as soon as possible of any suspected misuse of the password.
7.2. Information and Data Security Measures
The Contractor will manage information and data security with reasonable efforts to restrict unauthorized access. The Contractor will make best endeavors to ensure that its employees and representatives are fully aware of the risks associated with information and data security issues.
7.3. Disaster Recovery
The Contractor will ensure that information and data under its responsibility are properly backed up on a regular basis and also that arrangements are made for recovery processes to be installed to minimize any potential disruption to progress. The Contractor is required to ensure that proper measures are in place to enable continuation of services in the event of unexpected disruptive events. These measures should include implementation and pre-testing of formal disaster recovery and business continuity planning within the Contractor’s business.
7.4. Anti-Virus Software
The Contractor agrees that it shall utilize best-in-class grade anti-virus software to examine each deliverable to be provided by it hereunder and cleanse or otherwise prevent such deliverable from containing any code described in Section 6.6, and otherwise utilize all reasonable security measures to protect the integrity of the deliverables provided hereunder.
8.1. Obligation Not to Use or Disclose
Both parties agree to keep confidential all information concerning the other party’s business or its ideas, products, customers or services that could be considered to be “Confidential Information,” as such term is defined herein, including subsequent to the term of this Agreement. The Contractor shall not use confidential information for any purpose whatsoever other than the performance of the Services for the benefit of the Client, or disclose Confidential Information to any third party other than its employees or subcontractors who have a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.
Prior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of confidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure of Confidential Information.
8.2. Definition of Confidential Information
“Confidential Information” shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, Including, without limitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes, formulas, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and source code and made available to the Contractor for the purpose of facilitating Contractor’s performance of services for the Clients’ benefit, identification names and passwords, documentation, proprietary information belonging to third-party Contractor customers or licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically, or by drawings or inspection of parts or equipment, including but not limited to any Work Product delivered hereunder, and other such information which, by its nature, is normally understood to be confidential.
8.3. Standard of Care
Each party shall exercise at least such care in protection of the Confidential Information of the other as they exercise in the protection of Confidential Information of their own, but in no event shall such party exercise less than reasonable care in doing so. As a condition of accepting any source materials or files from the Client, the Contractor is not permitted to upload or transmit any source files to any external or web-based software tools or services (i.e.: “Google Translate”, etc.) which have End User Licensing Agreements that claim ownership of material or in any way do NOT guarantee the confidentiality of the material.
8.4. Return of Confidential Information
Upon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents, software source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and destroy all copies thereof.
9.Legal compliance & Resolution of Disputes
9.1. Governing Law
This Agreement shall be governed in accordance with the laws of the Province of Québec, district of Longueuil, excluding principles of conflict of laws. Each party agrees and consents that any dispute arising from or in relation to this Agreement shall be governed by, and interpreted and enforced in accordance with, the law of the province of Québec and the laws of Canada applicable in that province, excluding any conflict of laws rule or principle, foreign or domestic, which might refer such interpretation to the laws of another jurisdiction.
9.2. Export Control
Both the Contractor and the Client agree to comply fully with all relevant export laws and regulations of the country or countries where their offices are located.
9.3. Informal Resolution
In the event of dispute, the Parties will initially attempt to resolve any such disputes through informal negotiation and discussion. Formal proceedings should not be commenced until such informal negotiations and discussions are concluded without resolution.
Any dispute, difference or question relating to or arising between the parties concerning the construction, meaning, effect or implementation of this Agreement will be submitted to, and settled by arbitration by a single arbitrator chosen by the Montreal, Q.C regional office of the Canadian Commercial Arbitration Centre in accordance with the Commercial Rules of the Canadian Commercial Arbitration Centre. The arbitrator shall apply Quebec Civil Code. Unless otherwise agreed by the parties, arbitration will take place in Montreal, Quebec, Canada. Any court having jurisdiction over the matter may enter judgment on the award of the arbitrator.
10.1. Termination for Convenience
This Agreement may be terminated at any time by either party, upon receipt of a written notice by the terminating party, 90 days prior to the expiration of the then-current term, provided that Contractor not terminate the Agreement during the performance of an SOW.
10.2. Termination for Cause
If either party fails to perform its obligations under this Agreement, and does not, within 30 days of receiving written notice describing such failure, cure such failure, then this Agreement may be terminated forthwith.
10.3. Payment on Termination
Upon termination of a SOW or this Agreement by the Client, the Contractor shall be paid for any authorized work performed through the date of termination provided that, in no case, the amount paid shall exceed the total amount payable under the particular SOW.
11. General Provisions
11.1. Entire Agreement
This Agreement constitutes the entire agreement between the Parties hereto and supersedes and cancels any prior agreements or communications, whether oral or written, between the Parties hereto relating to the subject matter hereof.
11.2. Changes to the Agreement
Any change made in the provisions of this Agreement and applicable to a specific undertaking, must be in writing and be approved by both parties before the work concerned is begun in order to be effective. SOWs entered into hereunder shall be deemed to incorporate therein the terms of this Agreement. In the event of any conflict between the terms of an SOW and this Agreement, the SOW will control.
The Contractor will maintain, throughout the term and at its own expense, Commercial General Liability insurance, and Errors and Omissions Liability.
11.4. Independent Contractor
The Contractor is an independent contractor and shall not be deemed for any purpose to be an employee of the Client. The Contractor shall not be entitled to participate in any Client employee benefits programs. Client shall not be responsible to the Contractor for any payroll-related taxes related to the performance of the Services.
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