As used herein and each of the attachments hereto, the following terms shall have the meanings set forth below: (a) "SimulTrans" shall mean SimulTrans, a Limited Liability Company organized under the laws of the State of California, and its officers, directors, partners, trustees, employees, agents, representatives, consultants, translators, interpreters, subsidiaries, domestic and international offices, and other affiliates; (b) "Service" or "Services" shall mean any internationalization, localization, translation, testing, software engineering, desktop publishing, typesetting, consulting, voice-over, interpretation, and related language or technical services or service rendered by SimulTrans; (c) "Service Increment" shall mean a single software data file involved in a project, such as a component of an online help system, user interface, or any other Service deliverable; (d) "Client" shall mean the party requesting, receiving, and/or paying for Services from SimulTrans; and (e) "Agreement" shall mean this Exhibit, and any proposals, estimates, schedules, change orders, rate sheets, fee structures, or Service deliverables submitted or attached hereto by SimulTrans, each of which is incorporated herein by this reference.
2. Payment terms
Unless specified differently in the Fee-Related Notes section of a SimulTrans proposal, Client's payment terms to SimulTrans shall be as follows: 50% of the total fees before SimulTrans begins to provide Services, 25% of any remaining installments due under the Agreement on the date which is halfway through the period specified in the Agreement for the provision of Services to Client, and the final 25% within 30 calendar days of the final delivery date of Services to Client. If Client materially delays SimulTrans' ability to timely deliver Services for any reason, including but not limited to making changes within the source materials or failing to timely complete Client-related reviews, Client shall still pay SimulTrans any remaining installments due under the Agreement within 30 calendar days of the final delivery date specified in the schedule set forth in the Agreement. Accounts past due 30 calendar days or more, as of the date appearing on SimulTrans' invoice, are considered delinquent and shall be assessed a surcharge at the rate of 1.5% per month (18% per annum). In the event of default of payment when due, SimulTrans, in its sole discretion, may elect to suspend all Services, and to withhold delivery of any completed or in‑progress materials 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 taxes or deductions of any kind. Client assumes full responsibility to pay sales and use taxes and all other taxes and charges associated with the Services. Requests for Services, oral or written, which are canceled or postponed for more than three months by Client after SimulTrans is authorized to commence Services shall be subject to a cancellation fee equal to the greater of: (a) 50% of SimulTrans' estimate of the total fee for the Services, or (b) an amount computed as a percentage of the total fee for the Services earned by SimulTrans for Services rendered prior to the time of cancellation plus 10% of the total fee.
3. Fee estimates
Fee estimates and production schedules are based on the assumptions that source material is in final and complete form prior to commencement of Services by SimulTrans, and that Client's delivery of source material to SimulTrans is continuous and uninterrupted. Actual fees, which are presumed to be accepted by Client unless specific provision to the contrary is made in advance by Client, may vary from fee estimates as a result of "Special Circumstances" as defined below, or as a result of any special requirement regarding language, delivery time, purpose of Service, certification request, or Client modification of original specifications.
4. Performance and approval
Any questions or comments concerning any Service delivered or performed by SimulTrans shall be delivered by Client to SimulTrans within 7 calendar days of delivery or performance of the Service by SimulTrans to Client. SimulTrans shall have no obligation to correct any errors, omissions, delays or other problems regarding Services which are not communicated to SimulTrans by Client during the above‑referenced period. SimulTrans' sole obligation in the event of any error, omission, delay, or other problem regarding Services of which SimulTrans is timely notified by Client, shall be to review the Service deliverable within a mutually‑agreeable time period at no additional charge to Client, and to make corrections which SimulTrans deems necessary and which are not the result of changes in the original assignment as specified in the applicable estimate or proposal. All Services shall be deemed approved and accepted by Client at the conclusion of the above‑referenced period, if SimulTrans is not notified by Client of any errors, omissions, delays, or other problems regarding the original or corrected translation within the above‑referenced period.
5. Special circumstances
"Special Circumstances" shall mean projects: (a) whose translation memory, glossaries or prior translations have not been prepared by SimulTrans; (b) whose localized software has not been functionally tested by SimulTrans; (c) whose software during the course of Services is determined to be poorly internationalized; or (d) for which Client has requested Services on an expedited basis as specified in the Agreement. With respect to Services provided under Special Circumstances, SimulTrans shall not be obligated to provide remedial, corrective, or replacement services in the event Client, for any reason, is not satisfied with the Service rendered by SimulTrans. Client shall be obligated to pay in full for Services requested under Special Circumstances, regardless of whether Client requests remedial, corrective, or replacement services in connection therewith. With respect solely to requests for Services performed under Special Circumstances or involving less common languages, SimulTrans may elect to terminate this Agreement for any reason at any time prior to completion of the requested Services, upon notice to Client, without liability to SimulTrans. Termination under this provision shall not be deemed a breach of Agreement.
6. Obligations of client
Client shall timely provide SimulTrans with all reasonable assistance required by SimulTrans to perform Services, including but not limited to Client's providing, prior to and during SimulTrans' performance of Services, SimulTrans with (a) legible and clearly articulated source material; (b) regular and prompt review and advice regarding Service deliverables by a native and highly educated speaker of each target language who is expert in Client's industry; (c) advisory access to a native, highly educated speaker of the source language who understands and can explain the original material to be translated or localized; (d) glossaries and related terminological support materials in the source and target languages, containing terms that appear in the original documents and that reflect Client's preferences regarding corporate, product, and other jargon; (e) written guidelines explaining Client's preferences regarding the style and approach of the translation; (f) advisory access to engineers or other technical staff who understand and can explain the set-up environment, test plans, compiling requirements, functionality, or other technical specification affecting SimulTrans' performance of Services; (g) written guidelines or specifications regarding applicable engineering and quality assurance processes such as software testing, re-sizing, and compiling; (h) adequate time for SimulTrans to modify Service deliverables according to advice provided by native speakers and Client; (i) adequate time for SimulTrans to modify Service deliverables that represent changes to the original specifications of Client; and (j) a progressive and comprehensive quality assurance review and approval cycle relating to Services.
All notices made in reference to this Agreement will be given in the English language and shall be deemed sufficient if: (a) delivered personally; (b) delivered by overnight (24‑hour) courier service; (c) delivered by U.S. mail, registered or certified, return receipt requested, postage prepaid; or (d) transmitted directly between Client and SimulTrans telefax machines and followed up by confirmatory hard copy. Notices shall be deemed received on the date of personal delivery, the date of actual receipt as indicated on the delivery invoice or return receipt (or the date receipt is refused), or the date indicated by SimulTrans telefax transmit/receipt confirmation reports. Notices to SimulTrans shall be addressed to the CEO of SimulTrans, with a copy to the SimulTrans General Manager responsible for Client's Services. Notices sent by U.S. certified mail, return receipt requested will be deemed to have been received on the seventh (7th) business day after the date of its posting.
8. Confidential information
Both parties shall treat as confidential and take all reasonable precautions to prevent the unauthorized disclosure or use of all information belonging to the other party which the non‑owning party gains access to, knowledge or possession of in connection with Services.
9. Force majeure
SimulTrans 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, strike or other labor disturbance, earthquakes, requirement of law or similar cause, courier delay, mechanical failure, or failure of contractors to timely perform or deliver requested Services.
10. Non-solicitation of personnel
Neither Client nor any of its affiliates shall induce or attempt to induce any of SimulTrans' employees, agents, or independent contractors, or other affiliates to discontinue working for or with SimulTrans in order to work for or with Client or any of its affiliates during the term of this Agreement or for a period of two years thereafter without prior written consent of an SimulTrans officer. If Client does employ or otherwise engage a SimulTrans employee, agent, independent contractor or other affiliate, with or without the permission of a SimulTrans' officer, Client agrees to pay SimulTrans a commission equal to 33% of the first year's total compensation (as defined as the affiliate's salary, plus variable compensation such as bonuses), within 30 calendar days of the first day of employment or engagement.
SimulTrans shall use reasonable efforts to exercise the standard of care that is customary in the translation and/or localization industries in performing Services. SimulTrans expressly disclaims all other representations or warranties respecting the services rendered under this Agreement, including, without limitation, expressed or implied warranties of merchantability or fitness for a particular purpose. SimulTrans 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 SimulTrans' gross negligence or willful misconduct. SimulTrans 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. SimulTrans shall not warrant, and Client shall bear the risk of error, omission, delay, failure to perform, or other problem regarding, any Service requested by Client under Special Circumstances. Client and SimulTrans agree that in the event that SimulTrans breaches its obligations under this Agreement in a material way, or that any liability is imposed on SimulTrans arising out of or in connection with this Agreement and/or Services, it would be impractical or extremely difficult to fix actual damages. Client and SimulTrans agree that the aggregate amounts payable by SimulTrans by reason thereof, and the sole remedy provided, shall not exceed the amount previously paid by Client for the Service Increment at issue. In the event that Client wishes SimulTrans to assume greater limited liability, Client may obtain from SimulTrans a higher limit by paying an additional amount to SimulTrans to procure an insurance rider, and a rider shall be attached hereto setting forth such higher limit and additional amount; however, this additional obligation shall in no way be interpreted to hold SimulTrans as an insurer. SimulTrans shall be deemed to be an independent contractor with respect to Client under this Agreement. SimulTrans 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, SimulTrans shall have no obligation to pay for remedial, corrective or replacement Services performed by, or for, Client or any third party.
Client shall defend, protect, indemnify and hold harmless SimulTrans from any and all loss, costs, expense (including attorneys' fees), liability or damages on account of any and all manner of claims, demands, actions and proceedings that may be instituted with respect to the source materials or Services against SimulTrans on any grounds, including, without limitation, claims or suits of defamation, libel, plagiarism, copyright infringement, violation of statutory or common law, violation of patent invention, design, trademark, service mark, privacy or any proprietary or personal right of any person or organization of any country. In order to qualify for defense and indemnification under this Section, SimulTrans must (i) give Client written notice of any such claim; (ii) allow Client to control the defense and all related settlement negotiations; and (iii) fully cooperate with Client in the defense and all related settlement negotiations.
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 14 calendar days of written notice there-of, or upon insolvency, general 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.
Any controversy or claim arising out of or relating to this Agreement, or a breach of this Agreement, shall be settled by arbitration in San Francisco, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. There shall be one arbitrator, who shall apply California law. The arbitrator shall be chosen from a panel of persons knowledgeable in foreign‑language translation or localization. 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.
This Agreement shall be binding upon and inure to the benefit of the successors and legal representatives of the respective parties hereto. Notwithstanding the foregoing, neither party shall assign this Agreement without the prior written consent of the other party, except as provided herein. Client specifically agrees that SimulTrans shall have the right to perform any or all of the services to be provided hereunder through any parent, subsidiary, division, independent contractor, or affiliate of SimulTrans.
No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof.
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.
18. 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 by a writing signed by duly authorized representatives of both parties. The terms and conditions set forth in this Agreement shall be deemed accepted by Client in their entirety and without reservation upon request or authorization by Client for SimulTrans to proceed with 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 Services request submitted by Client to SimulTrans, prior, concurrent or subsequent to this Agreement. In the event of any conflict between the terms of this document and any proposals, estimates, schedules, change orders, rate sheets, fee structures, or Service deliverables submitted or attached hereto by SimulTrans, the terms set forth in this Agreement shall control. All headings are for reference purposes only, and shall not be used to construe or interpret the meaning of any provision. Irrespective of the place of performance, without giving affect to the doctrine of conflict of laws, this Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A.