Master Services Agreement
This Master Services Agreement (“MSA”) is listed here for reference. Prior to engagement with us, clients are sent a copy of this Agreement, which they must sign using our electronic document signing system.
Approval and Acceptance
By signing this Agreement, Client hereby agrees to be bound by all of its terms and conditions, including those in any appendices, and accepts its obligation to make full payment for all services rendered by SpokenHere to Client within fifteen (15) days from the date of receipt of SpokenHere’s invoice(s). Any amount not paid by its due date shall accrue interest at the lesser of (a) 1.5% per month, or (b) the maximum rate of interest allowed by applicable law. If SpokenHere engages a third party collection agency or initiates legal action for payment, Client agrees to be responsible for all costs and fees associated therewith (including reasonable attorneys’ fees). Collection of payment(s) by any third party to Client relating to any deliverable(s) from SpokenHere is a private matter between the Client and the third party and shall not release Client from its obligation hereunder of full and prompt payment to SpokenHere for services rendered.
Description of Services & Projects
SpokenHere agrees to provide Client, at Client’s request, with professional foreign language services under this Agreement, which may include, but not be limited to: translation, desktop publishing (DTP), proofreading, onsite interpreting, remote interpreting (RI), web site and software localization, voiceovers, subtitling, brand name research, cross-cultural marketing, and any other service which SpokenHere may make available as part of its range of product and service offerings after this Agreement goes into effect. All fees and estimated delivery times for any request for services submitted by Client will be included in a separate quote/estimate, which will be formulated at the time of the request and based on information provided by Client at that time. Upon Client’s approval of SpokenHere’s quote for a particular request for services (“Project” or “Work“), a binding contract shall be formed between the parties with respect to such Project, which contract will be governed by this Agreement, and Client agrees to pay all amounts due and payable to SpokenHere in connection therewith as set forth in this Agreement and such quote.
Should the Client request a change in the scope or other change to a Project after SpokenHere has received the Client’s approval of a quote for that Project, SpokenHere reserves the right, at its discretion, to modify the existing quote or provide a new quote and/or change the delivery date to accommodate such changes requested by the Client. If such request results in a modification as described in the previous sentence, SpokenHere will promptly provide a new or modified quote, including any changes in the delivery date, and will not proceed with the Project as modified until Client approves such new or modified quote. Following Client’s approval of such new or modified quote, a binding contract shall be formed between the parties with respect to such Project as modified.
Any cancellation of a Project must be made in writing (email cancellation acceptable). No oral cancellations will be accepted.
TRANSLATION/VOICEOVER PROJECTS: Should Client cancel an approved translation or voiceover Project before the Project has been completed, for any reason, Client will be responsible for paying for all work performed up to the time of the cancellation. A cancellation fee will be assessed to any project cancelled prior to completion. This fee will equal 10% of the amount of all completed work at the time the cancellation notice is received.
ONSITE INTERPRETING PROJECTS: one (1) day assignments — cancellations by Client (for any reason) must be received and acknowledged in writing by SpokenHere at least three (3) full business days (excluding weekends and holidays) prior to the scheduled start date of the assignment/event. In the event of a cancellation by Client with insufficient notice, Client will be responsible for and agrees to pay the full amount of the Project quote.
ONSITE INTERPRETING PROJECTS: Multiple day assignments (two (2) or more days) — cancellations by Client (for any reason) must be received and acknowledged in writing by SpokenHere at least ten (10) full business days (excluding weekends and holidays) prior to the scheduled start date of the assignment/event. In the event of a cancellation by Client with insufficient notice, Client will be responsible for and agrees to pay the full amount of the Project quote.
Client remains responsible for reimbursing (and agrees to reimburse) all expenses reasonably incurred by SpokenHere in connection with the provision of services, including but not limited to airline tickets and other travel costs, lodging, transportation, booking fees, etc. Client is still responsible for all fees associated with a Project quote or scope even if SpokenHere sends an interpreter of the incorrect language to a job site due to insufficient or erroneous information provided by the Client.
Special provision relating to remote interpreting (RI): Client agrees to be fully and solely responsible for all services and charges obtained using its assigned unique Access Code whether or not authorized. Client can obtain a new Access Code at any time upon request. Client shall use interpretation services only for its own internal purposes and shall not resell services obtained under this contract. Client agrees to hold harmless SpokenHere from all claims and actions resulting from the content and illegal usage of interpretation services. SpokenHere interpreters shall not for any reason be used for illegal or improper purposes. Client shall not at any time contract or attempt to contract or hire away any interpreter from SpokenHere.
SpokenHere warrants that the services provided by SpokenHere in connection with such Project were performed in a good and workmanlike manner, in accordance with standard industry practices; provided however, that because language is very subjective, many of our services involve processes which lead to different individuals expressing the same ideas with different words and/or phrases, and there could exist certain personal preferences that reflect company and/or industry-specific terminology, and therefore SpokenHere will not be liable for and provides no warranty with respect to such personal or stylistic differences. While SpokenHere makes every reasonable attempt to use reference materials, glossaries, translation memories, when available, and other resources to craft accurate translations, Client may wish to make changes based on such personal preferences. No discounts will be given for Client changes resulting from these personal and/or stylistic preferences. Additional charges may apply in such cases.
In the event of a breach of the foregoing warranty that is brought to SpokenHere’s attention in writing during the Warranty Period, SpokenHere will, as its sole and exclusive remedy therefor, either re-perform the non-compliant services or refund Client a corresponding portion of the amount actually paid by Client for such non-compliant services.
The parties agree that SpokenHere’s relationship to Client is that of an independent contractor and that nothing contained in the Agreement shall be construed as creating any other type of relationship. SpokenHere may employ such arrangements, as it deems appropriate with respect to the performance of the services. Employees and agents of SpokenHere who provide services hereunder are not employees or agents of Client in any respect. SpokenHere is responsible for the payment of compensation to its employees and agents and for the withholding and remittance of all federal, state or municipal taxes related thereto. Client agrees not to directly or indirectly engage as an independent contractor, hire as an employee, or offer to do any of the foregoing with respect to, any employee or agent of SpokenHere who provided services to Client as an employee or agent of SpokenHere during the previous two (2) year period, and Client agrees not to discuss pricing or any other business related matter between themselves and SpokenHere with SpokenHere’s employees or agents. Nothing herein shall be construed to prohibit general solicitations for employment or engagement by Client through the use of advertisements in newspapers, trade publications, or other solicitations not directed at particular individuals.
Confidential information shall mean any information shared by one party (“Discloser”) to the other party (“Recipient”), including, but not limited to: documentation, data, know-how, trade secrets, pricing, processes, designs, specifications, reports, manuals, correspondence by email, regular mail or otherwise, transcripts of conversations, proposals or other information disclosed in the course of the relationship between Client and SpokenHere or during negotiations prior to the signing of any services agreement, regardless of which party owns the information. Recipient shall exercise reasonable care in protecting any confidential information and shall not disclose said information to any other party without the prior written consent of the Discloser, unless that party needs to have knowledge of such information in order to fulfill any obligations hereunder.
In the event that, in connection with the performance of the services, a party to this Agreement (the “Receiving Party”) comes into possession of any Confidential Information of the other party (the “Disclosing Party”), the Receiving Party will not disclose such information to any third party without the Disclosing Party’s prior written consent, nor use such Confidential Information for the benefit of any party other than the Disclosing Party or for any purpose other than in furtherance of Receiving Party’s obligations hereunder. Notwithstanding the foregoing, the Disclosing Party hereby consents to the Receiving Party disclosing such Confidential Information (a) to Receiving Party’s employees or agents on a “need to know” basis, provided that the Receiving Party shall remain liable for any breach of the provisions of this paragraph by its employees and agents ; (b) as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards or rules, or in connection with litigation or arbitration pertaining hereto; or (c) to the extent such information (i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure in breach hereof, (ii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party that the Receiving Party believes in good faith is not prohibited from disclosing such information to the Receiving Party by obligation to the Disclosing Party, (iii) is known by the Receiving Party prior to its receipt from the Disclosing Party without any obligation of confidentiality with respect thereto, or (iv) is developed by the Receiving Party independently of any disclosures made by the Disclosing Party to the Receiving Party of such information, as evidenced by contemporaneous documentation. In satisfying its obligations under this Section, each Party shall maintain the other Party’s Confidential Information in confidence using at least the same degree of care as it employs use in maintaining in confidence its own Confidential Information, but in no event less than a reasonable degree of care.
For purposes of this Agreement, “Confidential Information” means trade secrets or other proprietary information, including customer and vendor lists, business plans, methods, processes, marketing plans and materials, strategic initiatives, projections, costs, financial information, reimbursements, litigation, contracts, information technology, and all other information or data which a reasonable person would consider to be proprietary and confidential, or is designated as confidential in writing at the time it is disclosed by the Disclosing Party. Without limiting the foregoing, SpokenHere’s pricing for the provision of services shall be considered to be Confidential Information of SpokenHere.
The parties further agree that either of them (the “Non-breaching Party”) would be irreparably damaged by reason of any violation by the other party (the “Breaching Party”) of the provisions of this section, and that any remedy at law for a breach of such provisions would be inadequate. Therefore, the Non-breaching Party shall be entitled to seek and obtain injunctive or other equitable relief (including, but not limited to, a temporary restraining order, a temporary injunction or a permanent injunction) against the Breaching Party, its agents, assigns or successors for a breach or threatened breach of such provisions and without the necessity of proving actual monetary loss and without the necessity of posting bond (or if bond is otherwise required, the Parties agree that $1,000 shall be a reasonable amount of such bond). It is expressly understood between the parties that such injunctive or other equitable relief shall not be the Non-Breaching Party’s exclusive remedy for any breach of this section and the Non-Breaching Party shall be entitled to seek any other relief or remedy which it may have by contract, statute, law or otherwise for any breach hereof.
Nothing in this Agreement shall be construed to transfer title, or any license or other rights, to any intellectual property owned by or licensed to a party prior to the commencement of the Term (as defined below) to the other party. If intellectual property is developed by the parties jointly it shall be owned by the party primarily responsible for its generation; if it is unclear who is primarily responsible for its generation, then it shall be owned jointly by the parties in equal share. Notwithstanding the preceding sentence, (a) translations created under this Agreement, shall become the intellectual property of the Client upon full payment of SpokenHere’s invoice for such translation (and any applicable expenses); (b) any translation memory (“TM”) files created by SpokenHere in the course of providing services hereunder shall be the asset and intellectual property of SpokenHere, and not of Client. SpokenHere’s ownership of TMs created by SpokenHere shall survive termination of business relationship with Client.
The parties agree that SpokenHere has been commissioned by Client to produce, as an independent contractor, a “work made for hire” and that the copyright in the Work shall be owned by Client. To the extent the Work is not a “work made for hire”, SpokenHere hereby irrevocably transfers, assigns, and otherwise conveys all right, title, and interest, including, but not limited to, copyright and all worldwide rights subsumed thereunder, in and to the Work to Client exclusively. SpokenHere will execute any documents in connection with any copyright registration or assignment as Client may reasonably request.
The term of this Agreement shall commence on the Commencement Date (as set forth on the cover page or the calendar date of the last signature to this Agreement, whichever is later) and terminates one year from the Commencement Date. However, this Agreement shall survive as to any Projects in effect but not completed as of the date of termination, until all obligations of the parties with respect to such Project have been satisfied. The entire time that this Agreement is in effect shall be the “Term”. SpokenHere and Client may terminate this Agreement and/or any Project in the event that either Party breaches any provision hereof and fails to cure such breach within ten (10) days following receipt of written notice describing such breach in reasonable detail. Neither party shall by the termination or expiration of this Agreement be relieved of its obligations and liabilities in any way arising out of or related to work performed or services rendered prior to the effective date of such termination.
Any changes to this Agreement must be evidenced in a written amendment to this Agreement signed by both parties.
Neither Party shall assign any rights or obligations under this Agreement without prior written consent of the other Party.
No waiver of any provision of this Agreement shall be effective unless made in writing. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any subsequent breach of the same or any other provision of this Agreement. Failure to enforce any term of the Agreement shall not be deemed a waiver of future enforcement of that or any other term.
Limitation of Liability; Indemnification; Survival
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, (1) EXCEPT FOR BREACHES OF THE “CONFIDENTIALITY” AND/OR “INTELLECTUAL PROPERTY” SECTIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, ANY PROJECT OR THE SERVICES, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
SpokenHere shall indemnify, defend and hold harmless Client, its officers, directors, members, employees and agents from and against any claims (including but not limited to third party infringement claims), demands, suits, costs, liabilities, losses and expenses (including reasonable attorneys’ fees), arising out of or in connection with (i) the services or Project provided hereunder; (ii) the inaccuracy or breach of any of the covenants, representations, obligations and warranties made in this Agreement; and (iii) any action by a third party against NAEYC or its affiliates or representatives relating to the Project[s], supporting data or materials. Each party shall indemnify, defend and hold harmless the other Party, its officers, directors, members, employees and agents from and against any claims, demands, suits, costs, liabilities, losses and expenses (including reasonable attorneys’ fees) arising out of any negligent or intentional acts or omissions of such Party and any of its officers, directors, employees or agents.
The provisions of this this section shall survive termination or expiration of this Agreement. In addition, those sections of this Agreement pertaining to Confidentiality, Intellectual Property, and Warranty shall survive termination or expiration of this Agreement.
If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect.
SpokenHere and Client shall not be liable for default in the performance or discharge of any duty or obligation under this Agreement, when caused by the acts of God, civil or military authorities, public enemy, fire, floods, wind, storm, accidents, riots, civil commotion, terrorist acts or threats, and other contingencies, similar to the foregoing, beyond its reasonable control.
This Agreement and all claims or causes of action arising hereunder shall be governed by and construed in accordance with the laws of the District of Columbia, excluding its conflicts of laws provisions, and in the event of a dispute arising under or in connection with this Agreement, the parties hereby submit to exclusive jurisdiction in the federal or state courts located in the District of Columbia, and agree that venue is proper and convenient in such forum.
This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements (written or oral) between the parties in relation to such subject matter. Each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement.