This Master Agreement ( “Agreement”) is dated and made effective as of the latest date set forth in the signature block below or upon placement of an Order (the “Effective Date”) between VIA, Inc., an Oregon corporation d/b/a viaLanguage located at 700 Southwest Taylor Street #300, Portland, OR 97205 (“VIA”), and the business entity identified in the signature block below or placing such Order (“Client”). VIA and Client hereby agrees as follows:
A. VIA is in the business of providing to its customers (i) translation, localization, learning content creation, consulting and other professional services (“Professional Services”); (ii) access to and use of its suite of online workflow management tools, including content management, e-commerce and other marketing tools and related hosting services (“Platform Services,” and, along with Professional Services, “Services”); and/or (iii) licenses to certain proprietary software products (“Software”).
B. Client wishes to engage VIA, and VIA wishes to accept such engagement, to provide the Services and/or Software set forth in one or more Order(s) (as defined in Section 1 below).
1. Ordering. From time to time the parties may agree, in writing or within a VIA website, to one or more order(s) (i.e., a statement of work, quote, order form, online submission tool, etc.) that expressly references this Agreement (each, an “Order”) pertaining to the provision of Services and/or Software by VIA for the benefit of Client. Each Order shall describe in reasonable detail the applicable Services, including any related deliverables (“Deliverables”) and the estimated timeline, and/or Software to be provided by VIA. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of an Order, the terms and conditions of this Agreement will apply unless the conflicting provision in the Order expressly states that it is to supersede the conflicting provision in this Agreement. Each party must agree in writing to any changes to an Order.
1.1 Professional Services. VIA will perform the Professional Services and deliver the related Deliverables in accordance with this Agreement and the applicable Order, including any requirements set forth therein. Client will provide reasonable assistance to VIA as requested to the extent necessary to permit VIA to perform its obligations hereunder, including, without limitation, the delivery to VIA of any specifications, requirements, content, designs, logos or other materials to be delivered by Client to VIA under the terms of the applicable Order (“Client Materials”). VIA shall not be liable for any delays resulting from circumstances or causes beyond its control, including, without limitation, any failure or delay by Client to perform its obligations set forth in any particular Order. Client acknowledges that VIA utilizes international subcontractors to perform Professional Services (“Subcontractors”). VIA is responsible for each Subcontractor’s compliance with this Agreement.
1.1.1 Translation, Localization. In the event that translation or localization Professional Services are to be provided under an Order, VIA shall use reasonable efforts to deliver the applicable Deliverables in the same file format as the Client Material(s). VIA will seek the closest match practical between the appearance of the original and that of the finished product. Unless specified otherwise in writing, VIA does not guarantee that the format, fonts, typefaces, point sizes, text density, artwork, colors and other elements of the text and the original file will be identical. Translated Deliverables are sometimes shorter or longer than the original, and other technical considerations may result in elements of appearance being different from the original. In the event circumstances impede such service, the Deliverables will be sent in a TXT (ASCII) text format. VIA shall use usual and conventional meanings of words, phrases and concepts when performing translation or localization Professional Services and will otherwise make decisions based on its standard translation or editing procedures. Unless Client provides clear and specific glossaries or specify terminology, VIA will use its best judgment in the selection of terminology in a given field. VIA shall use reasonable efforts to ensure that all translated Deliverables are scanned for viruses using a commercially available virus scanning software program before being delivered to Client. However, VIA strongly recommends that Client perform its own virus-scan on such Deliverables prior to their use, transmission or implementation into Client’s network. Client acknowledges that translation or localization Professional Services reflect the quality of the original Client Material. Where concepts are poorly expressed in the Client Material(s), where the wrong choice of language has been made, where typographical mistakes are present, or where the text is incomplete or factually incorrect, the same inadequacies will appear in the translated Deliverables.
1.1.2 Protected Health Information; Non-Public Financial Information. Client acknowledges that it, not VIA, is in a better position to identify and designate which Client Materials are or include protected health information (“PHI”) and/or non-public financial information (“NPFI”). Therefore, Client’s obligations under this Agreement are conditioned upon Client identifying PHI or NPFI Materials at the time of request for Services.
1.1.3 No Legal Services. Client understands that VIA is not a law firm, does not practice law or provide legal advice and any communications between Client and VIA should not be considered protected under attorney /client privilege or work product doctrine.
1.1.4 Machine Translation Services. In the event that Machine Translation Services are to be provided under an Order, Client acknowledges and agrees that the translation quality and accuracy will not be of the level provided by translation or localization Professional Services. Machine Translation Services provide a bulk machine translation of Client Materials that gives an approximate translation of the Client Materials without review by Professional Services. Client acknowledges and agrees that it accepts the risks inherent in using Machine Translation Services, including likely general inaccuracy. If Machine Translation Services are to be provided under an Order, Client by submitting such Order has indicated its desire for a rough translation of a large volume of Client Materials, and agrees that if a more accurate transaction is required, Client acknowledges that it will need to engage VIA to provide translation or localization Professional Services.
1.2 Platform Services; Software. If Platform Services and/or Software are to be provided by VIA under an Order, such Platform Services and/or Software shall be provided pursuant to the terms and conditions set forth in an addendum that expressly references this Agreement (“Addendum”), which such terms are incorporated herein by reference.
2. Fees, Expenses and Payment. VIA will invoice Client for Services, Software and any other amounts as specified in the applicable Order or any agreed upon fee schedule attached to this Agreement. VIA will invoice the Client 50% of any service estimate at the project start date and the balance upon delivery. For projects lasting more than eight weeks, VIA will invoice the client 50% of the estimate at the start of the project in addition to monthly progress invoices for the balance. Unless otherwise set forth in the Order, Client will pay all undisputed amounts due under each invoice within thirty (30) days after the date set forth on such invoice. This Agreement shall govern all invoices submitted to Client, and no terms appearing on invoices or like documents provided by either party shall serve to modify or add to the terms of this Agreement. Delinquent amounts will be subject to a late charge of one and one-half percent (1.5%) per month. VIA may cease work and terminate access if any invoice is past due. All amounts payable shall be in the currency of the United States and specifically exclude (and Client is responsible for) any sales, use, excise, import or export, royalty, value-added or similar tax or duty, and any other tax or governmental assessment, whether foreign or domestic, not based on the net income of VIA, including any penalties and interest, imposed on VIA related to or arising out of the performance of its obligations to Client under this Agreement. Client shall reimburse VIA for reasonable business expenses incurred in providing services under this Agreement, provided the expenses have been approved and appropriate expense invoices and receipts have been submitted to Client.
3. Ownership of Work Product; Use. Client shall retain all right, title and interest in and to any Client Materials. Unless otherwise set forth in the applicable Order, except with respect to any Pre-existing Material and Tools (as each such term is defined below), Client shall own all Deliverables provided under an Order and VIA hereby assigns to Client all of its right, title and interest in and to any and all such Deliverables (and all intellectual property and proprietary rights with respect thereto). VIA shall retain all right, title and interest in and to Pre-existing Material and Tools (and all intellectual property and proprietary rights with respect thereto); provided that VIA hereby grants to Client a nonexclusive, royalty free, perpetual license to use any Pre-existing Material and/or Tools made available by VIA under an Order to the extent necessary to use the related Deliverables for Client’s business purposes. For purposes of this Section 3, (i) “Pre-existing Material” means all inventions, processes, know-how, trade secrets, computer technical expertise and software and other intellectual property owned by VIA as of the commencement of any Order or independently developed by VIA other than in connection with an Order and (ii) “Tools” means all general ideas, concepts, proprietary tools, libraries, know-how, techniques and expertise, including, without limitation, any generalized software tools not specifically described in an Order, which are developed or created by VIA in the course of performing the Professional Services hereunder. All rights to access and use any Platform Services and/or Software shall be solely as set forth within the Addendum.
4. Representations and Warranties. VIA represents and warrants that it shall perform all Services under this Agreement (i) in a professional and workmanlike manner, (ii) in accordance with industry standards and any requirements set forth on the applicable Order, (iii) in compliance with all applicable laws and regulations and (iv) with respect to Platform Services and/or Software, in accordance with the Addendum. Client represents and warrants that (a) it has the requisite rights in and to the Client Materials to permit VIA to provide Services with respect thereto, (b) prior to delivering or making available any Client Materials to VIA under this Agreement, Client will obtain all consents, waivers and authorizations necessary to permit VIA to perform the Services with respect to submitted Client Material, including, without limitation any consent, waiver or authorization that may be required for VIA to transmit the Client Materials to countries outside of the United States (including member countries of the European Union) for performance of Services by Subcontractors and subsequent transmission of related Deliverables into the United Stated to be provided to Client. THE EXPRESS WARRANTIES IN THIS SECTION ARE THE EXCLUSIVE WARRANTIES OFFERED BY VIA AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED.
5. Independent Contractor Relationship. At all times, VIA shall be an independent contractor and shall not be considered, and neither VIA nor its employees or subcontractors, if any, shall hold themselves out to be, employees of Client or any of its affiliated or related entities. Neither Client nor any of its affiliated or related entities shall have or exercise any control over the manner and means used by VIA to provide Services under this Agreement.
6. Confidential Information. In connection with the Agreement, each party may have access to proprietary or confidential information of the other (“Confidential Information”). Confidential Information means information either designated as confidential or information that the receiving party reasonable should know is treated by the disclosing party as confidential. Each party shall keep Confidential Information confidential, not use the information except as authorized by the disclosing party, and accord to the information the same safeguards and protections which it accords to its own confidential business information. Confidential Information shall not include information: (i) that is not or becomes generally available to the public through no fault or breach of the receiving party; (ii) that the receiving party can document was already known to it prior to disclosure by the disclosing party; (iii) that is independently developed by the receiving party without use of any of the other party’s Confidential Information; and (iv) that the receiving party rightfully obtains from a third party who has the right to transfer or disclose it. If the receiving party is subpoenaed or ordered by any court or governmental agency to disclose Confidential Information, prior to releasing such information it will provide prompt written notice to the other party so as to allow the party to seek protective order or confidential treatment for such information.
7. Insurance. VIA, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence combined single limit, (b) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment, and (c) Errors and Omissions Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence combined single limit. VIA will provide Client with necessary documentation, including certificates of insurance, evidencing the required coverage, if requested in writing.
8. Term and Termination. 8.1 Term. This Agreement shall commence as of the Effective Date and shall remain in effect until terminated as provided in this Agreement.
8.2 Termination. Either party may terminate this Agreement with or without cause, at any time upon thirty (30) days prior written notice to the other party in the event that no Order is then in effect. Either party also may terminate this Agreement or the applicable Order: (i) upon thirty (30) days’ written notice in the event of a material breach by the other party of this Agreement or such Order (including, without limitation, the failure to pay all amounts owed under this Agreement).
8.3 Effect; Survival. Upon any termination of this Agreement or an Order pursuant to Section 8.2, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required hereunder shall immediately cease; (b) Client will pay VIA for all Services provided prior to the effective date of such termination; and (c) VIA will retain all Client Materials then in it is possession for a period of thirty (30) days to fulfill Client’s reasonable requests for copies of the Client Materials. The rights and obligations contained in Sections 3, 6, 8.3, 9, 10 and 11 will survive any termination or expiration of this Agreement.
9. Indemnification. VIA will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that (a) any Platform Service or Software infringes any copyrights or patents validly existing under the laws of the United States or misappropriates any trade secrets and (b) VIA had prior knowledge that any Deliverable infringed or misappropriated the intellectual property rights of such third party. VIA will have no obligation under this Section 9 or otherwise with respect to any infringement claim based upon (i) any unauthorized use of a Service, Software or Deliverable, (ii) third-party components (including in combination with the Services, Software or Deliverables) not provided by VIA, (iii) any modification of the Services, Software or Deliverables by any person other than VIA or its authorized agents, or (iv) Client Materials. Client will defend at its own expense any action against VIA brought by a third party to the extent that the action is based upon a claim that any Client Material infringes any copyrights or patents validly existing under the laws of the United States or misappropriates any trade secrets. The indemnifying party will pay those costs and damages finally awarded against the indemnified party in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Any indemnification obligation of a party under this Section is conditioned on the indemnified party notifying the indemnifying party promptly in writing of such action, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense.
10. Limitation of Liability. EXCEPT WITH RESPECT TO BREACHES OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6 AND THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER (REGARDLESS OF THE THEORY OF LIABILITY) WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO VIA BY CLIENT UNDER THE SPECIFIC ORDER UNDER WHICH SUCH LIABILITY ARISES.
11. General. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing. Except as otherwise set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. This Agreement will be governed and construed in accordance with the laws of the State of Oregon, excluding its conflict of laws principles. Each party hereby expressly consents to the personal jurisdiction of the state and federal courts located in Multnomah County, Oregon for any lawsuit filed there arising from or related to this Agreement. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by such party. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may only be amended or otherwise modified by mutual agreement of authorized representatives of the parties in writing. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute or enact this Agreement as of the date written below or upon placement of an Order by Client.