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 attached appendices, and accepts its obligation to make full payment for all services rendered by SpokenHere to Client and accepted by Client in its reasonable discretion within thirty (30) days from the date of receipt of SpokenHere’s undisputed invoice(s). Any undisputed 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).
Description of Services & Projects
SpokenHere agrees to provide Client, at Client’s request, with professional foreign language services under this MSA, which may include, but not be limited to: translation, remote interpreting (RI), desktop publishing (DTP), proofreading, onsite interpreting, website and software localization, voiceovers, subtitling, transcreation, and any other service which SpokenHere may make available as part of its range of product and service offerings after this MSA 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 MSA, and Client agrees to pay all undisputed amounts due and payable to SpokenHere in connection therewith as set forth in this MSA 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 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 other than SpokenHere’s breach, Client will be responsible for paying for all work performed up to the time of the cancellation. For translation Projects, SpokenHere will deliver translations to Client, who will have the opportunity to review the translation as a quality check. SpokenHere shall at its sole cost edit the translations to incorporate any changes requested by Client, at all times complying with Client’s stated deadlines. A translation Project will not be deemed complete until Client has accepted a translation in its reasonable discretion.
ONSITE INTERPRETING PROJECTS: one (1) day assignments — cancellations by Client (for any reason other than SpokenHere’s breach) 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 (other than for SpokenHere’s breach) 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 other than SpokenHere’s breach) 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 (other than for SpokenHere’s breach) 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., but only to the extent the expenses have been approved in advance in writing by Client. 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 erroneous information provided by the Client.
Special provisions relating to remote interpreting (RI): SpokenHere shall provide on demand remote interpreting services to Client via SpokenHere’s ConnectNow™ remote interpretation portal (https://live.spoken-here.com), downloadable mobile app, or Client’s mobile phone or landline. Our ConnectNow™ remote interpreting platform and medical remote interpreters are HIPAA trained, certified, and compliant.
SpokenHere shall invoice Client once per month for remote interpreting activity, and invoices are due upon receipt. All calls are billed for the actual time used once the call is connected. SpokenHere will assess late fees of 1.5% per month on any outstanding balances. Any pre-scheduled remote interpretation appointments canceled with fewer than 12 hours’ notice will be billed for 30 minutes.
Client agrees to be fully and solely responsible for all services and charges obtained using its remote interpreting account. Use and dissemination of Client’s unique access credentials (user login and PIN) among authorized users is the sole responsibility of the Client. SpokenHere does not adjust monthly invoices for charges Client claims were made by “unauthorized” users.
Client shall use interpretation services only for its own internal purposes and shall not resell services obtained under this contract. SpokenHere interpreters shall not for any reason be used for illegal or improper purposes. Client agrees to hold harmless SpokenHere from all claims and actions resulting from the content and illegal usage of interpretation services. Client shall not at any time contract or attempt to contract or hire away any interpreter from SpokenHere.
SpokenHere warrants for a period of 1 year following completion of a Project (the “Warranty Period”) 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, THE SERVICES ARE PROVIDED “AS IS” AND SPOKENHERE DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
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 MSA 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 MSA (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 MSA, “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 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. Translations created under this Agreement, automatically are assigned to and become the intellectual property of the Client upon full payment of SpokenHere’s undisputed 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. Should Client wish to obtain any TM files created by SpokenHere, SpokenHere, at its sole discretion, may make these available to Client for a fee to be determined at the time of the request; and (c) any TM’s created and supplied to SpokenHere by Client shall remain the intellectual property of Client. Notwithstanding anything in this Agreement to the contrary, SpokenHere represents and warrants that Client will own solely and exclusively all intellectual property rights in any deliverables, work product, or results of SpokenHere’s services hereunder, and such deliverables, work product, or results will not infringe the intellectual property rights of any third party. Any assignment of copyrights under this Agreement includes all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights,” any claims to which SpokenHere hereby irrevocably waives. Upon Client’s request, SpokenHere shall require each of its employees and contractors to execute written agreements securing for Client the rights provided for herein prior to such employee or contractor providing any services. Without Client’s prior written approval, SpokenHere shall not use any content or materials provided by Client to SpokenHere except as necessary to perform services hereunder.
The term of this Agreement shall commence on the Commencement Date as set forth on the cover page of the Quote to which it is attached and terminate one calendar year from the Commencement Date unless either party terminates the Agreement in writing prior to that 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.
Client may terminate this Agreement or any project in process, in whole or in part, with or without cause upon 10 days’ prior written notice to SpokenHere. SpokenHere shall cease performing all services as of the effective date of termination; provided, however, if Client exercises its right to terminate, SpokenHere shall, to the extent possible, promptly complete any services as specifically directed by Client in its notice of termination. Client’s sole obligation upon termination shall be to pay SpokenHere any payments due and owing for services requested by Client and performed by SpokenHere in accordance with this Agreement up to the date of termination. SpokenHere shall not be entitled to any prospective profits or damages because of Client’s termination of this Agreement. Both parties shall make all commercially reasonable efforts to minimize the cost attributable to such termination. Upon termination, SpokenHere shall deliver immediately to Client all deliverables, documents and materials containing Confidential Information and all work product, including all copies or excerpts thereof, and all intellectual property rights therein will automatically be transferred to Client.
Any changes to this MSA must be evidenced in a written amendment to this MSA signed by both parties.
Neither Party shall assign any rights or obligations under this MSA without prior written consent of the other Party.
No waiver of any provision of this MSA shall be effective unless made in writing. No waiver of any breach of any provision of the MSA shall constitute a waiver of any subsequent breach of the same or any other provision of this MSA. Failure to enforce any term of the MSA shall not be deemed a waiver of future enforcement of that or any other term.
Limitation of Liability
Notwithstanding any provision to the contrary, (1) except for breaches of the “confidentiality” and/or “intellectual property” sections of this MSA, in no event shall either party be liable for incidental, consequential (including lost profits), special, punitive or exemplary damages in connection with this MSA, 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 MSA; and (iii) any action by a third party against Client 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 MSA. In addition, those sections of this MSA pertaining to Confidentiality, Intellectual Property, and Warranty shall survive termination or expiration of this MSA.
If any provision of this MSA is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this MSA shall continue in full force and effect.
Neither SpokenHere nor Client shall not be liable for default in the performance or discharge of any duty or obligation under this MSA, when caused by the acts of God, civil or military authorities, public enemy, fire, floods, wind, storm, labor disorders, strikes, work stoppages or other labor trouble, accidents, riots, civil commotion, terrorist acts or threats, closing of the public highways, and other contingencies, similar to the foregoing, beyond its reasonable control.
This MSA and all claims or causes of action arising hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflicts of laws provisions.
This MSA 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 MSA 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 MSA.