Smartcat Customer Agreement

1.1 Translation Services. Smartcat will provide translation and related Services (editing, post-editing, proof reading, interpreting, etc.) with respect to materials provided by Customer (“Customer Materials”) as detailed in one or more service tasks placed by Customer through Customer’s account dashboard on the Platform or otherwise, as mutually agreed (“Service Tasks”).

1.2 Supplementary Services. Smartcat will provide supplementary Services purchased on the Platform selected by Customer.

1.3 Delivery of Translated Works; Acceptance.
(a) Customer accepts and acknowledges that Smartcat relies solely on the use of automation and software quality control tools to perform quality control over translation Services provided to Customer under this Agreement. Customer takes full and final responsibility for its review of the quality of the completed translation of Customer Materials (“Translated Works”) and for acceptance of such Translated Works by Customer pursuant to subsection (b) below.
(b) Smartcat will submit Translated Works to Customer for Customer’s review as to compliance with requirements and specifications identified in the applicable Service Task (“Acceptance Review”). Customer will complete its Acceptance Review within five (5) business days unless another period is agreed upon by the Parties (“Review Period”). Prior to the expiration of the Review Period, Customer shall provide Smartcat with notice through Customer’s account dashboard on the Platform of Customer’s Acceptance of the Translated Works (“Acceptance”) or of the Translated Works’ failure to meet Customer’s acceptance criteria (“Rejection”), provided however, that failure by Customer to deliver any notice in accordance with this section during the Review Period, will constitute automatic Acceptance of the subject Translated Works by Customer. Failure by Smartcat to deliver Translated Works to Customer within the timeframe identified therefore in the applicable Service Task may constitute cause for a Rejection of such Translated Works by Customer.
(c) In the event of a justified Rejection by Customer, Smartcat will, at the option of Customer, either: (i) use reasonable commercial efforts to correct and remedy the failure(s) or deficiency(ies) identified by Customer (using the same or another Supplier (as defined in Section 1.4(a)) in Customer’s discretion), or (ii) negotiate with Customer in good faith a discount to the fees for the Services relating to the Translated Works which were the subject of a Rejection. With respect to a Rejection resulting solely from a delay in delivery, the maximum discount that Smartcat may offer will be capped at 15%.
(d) Smartcat’s obligations under subsection (c) comprise Customer’s sole and exclusive remedy and Smartcat’s sole obligation and liability for a Rejection of Translated Works by Customer for any reason.

1.4 Suppliers.

(a) Smartcat in each case will engage the services of such subcontractors as Smartcat deems necessary to perform the Services required by this Agreement (“Suppliers”).
(b) Smartcat shall be wholly responsible for payment to the Suppliers of their fees in connection with performing the Services. In no event shall Suppliers be considered employees of Customer.
(c) Customer may request that Smartcat either (i) use, replace or assign additional Suppliers to a Service Task or (ii) not use or remove specific Suppliers from a Service Task, and Smartcat will use reasonable commercial efforts to accommodate Customer requests.
(d) Customer may invite Suppliers to register on the Platform via an invitation link. Smartcat does not provide any additional services to such Suppliers (including, but not limited to, listing Supplier’s profile on the Platform search) except those services that are required to establish and maintain efficient collaboration and delivery of the results of the Service Task. The Customer may not invite Suppliers who are the Customer’s employees.
(e) Customer agrees, during the term of this Agreement and for three (3) years thereafter, not to solicit any Suppliers (except for Suppliers invited by the Customer as per par.1.4(d) above) for employment or consulting, directly or indirectly, for Customer or for any business or organization in which Customer, or any of the beneficial owners of Customer, if Customer is a legal entity, has an ownership interest of any kind. For the avoidance of doubt, Suppliers are considered to be invited by Customer if: (i) such Supplier’s account was not viewed on the Platform by Customer prior to invitation (ii) the Supplier’s account on the Platform was registered by the invitation link generated from Customer’s account with the Platform.

1.5 Delays. In the event of (a) a delay by Customer in delivering Customer Materials or responding to questions relating to Customer Materials, (b) a delay due to Customer’s request for changes to Customer Materials or any other terms of the applicable Service Task, (c) a dispute in good faith between the parties as to whether Translated Works meet the requirements specified in the applicable Service Task, (d) a delay due to any third party’s act, failure to act or delay in performing any obligation whatsoever, other than the act, failure to act or delay by a Supplier, or (e) any other delay incurred as a result of Customer’s actions, the delivery schedule set forth in the Service Task shall be deemed postponed for an equivalent period. No such delay shall relieve or suspend Customer’s obligation to pay Smartcat under Section 2 hereof and, in addition to such payment obligations, Customer shall pay for all reasonable expenses incurred by Smartcat in connection with any such delay. In the event of delay due to the act, failure to act or delay in performing obligations by one or more Suppliers, Customer’s sole recourse shall be to request that such Suppliers shall be replaced and Smartcat’s duties shall be considered met upon so replacing the Suppliers, as applicable.

2.1 Service Fees. Customer agrees to pay the fees for the Services as set forth in one or more Service Tasks or agreed otherwise.

2.1.1. Payment for the Supplementary Services shall be always made in advance or as agreed otherwise in Annexes.

2.1.2. Customer agrees to pay the fees for the Translation Services as set forth in one or more Service Tasks. Payment for the Translation Services could be carried out as in one of the following ways:
(a) Advance payment if agreed with Smartcat. Unused funds could be returned to the Customer upon request or termination of the Agreement.
(b) After acceptance of the Service Task. The Customer is hereby granted the right to agree with Smartcat an installment way of payment for the Translations Services in accordance with conditions that will be offered and accepted by the Customer on the Platform.
(c) On a monthly basis if agreed with Smartcat.

2.2 Additional Fees. Customer agrees to pay Smartcat additional fees, calculated as set forth in the applicable Service Tasks in each of the following cases, or as otherwise agreed between Smartcat and Customer:
(a) Customer makes changes in the Customer Materials after the execution of a Service Task with respect thereto; or
(b) Customer requests changes to Translated Works after delivery thereof to Customer because of Customer’s preferences as to style or vocabulary, and such changes are not required for accuracy; or
(c) Customer requests delivery of Translated Works in a file and text format not agreed upon.

2.3 Payments. All invoiced fees are due immediately upon receipt of the invoice and in no event any later than five (5) calendar days following the invoice date or agreed otherwise.

2.4 By selecting ACH debit or credit card as its preferred payment method and by linking Customer’s bank account or credit card to the online payment service integrated with the Platform, Customer authorizes Smartcat to automatically debit the bank account or credit card provided by Customer for the amounts owed for Supplementary Services during the term thereof.

2.5 All taxes levied on the transactions of Service Fees under this Agreement in accordance with the applicable legislation of Customer’s jurisdiction are not included in the Service fee as well as the transaction costs (e.g. bank fees for the transaction). Such taxes and transaction costs are calculated and paid by the Customer in excess of the Service fee by the Customer. Smartcat is not responsible for any of the Customer’s taxes and transaction costs.

3.1 Term; Renewal.
(a) Unless earlier terminated as set forth below, this Agreement commences on the Effective Date and shall continue for a term of twelve (12) months. Upon expiration of this initial term, this Agreement will automatically renew for additional twelve (12) month terms successively, unless either party gives notice to the other at least thirty (30) calendar days prior to the expiration of any such term of its intention to terminate this Agreement unless specified otherwise in the Annexes.
(b) Client may terminate this Agreement at any time upon 30 calendar days advance written notice to Smartcat unless specified otherwise in the Annexes.
(c) Notwithstanding the foregoing, this Agreement may not be terminated pursuant to this Section 3.1 in the event that there are any Service Tasks that will not have been completed as of the date of such termination.
(d) Smartcat may terminate the Platform TOS (as defined above) on the grounds specified in Section 4 of TOS.

3.2 Effect of Termination.
(a) In the event of termination of this Agreement pursuant to Section 3.1(a) for breach by Smartcat, Client shall only be responsible for the payment to Smartcat of the fees for Services performed and fees in the Annexes through the date of such termination.
(b) In the event of termination of this Agreement pursuant to Section 3.1(a) for breach by Client, including, without limitation, for failure to pay the invoiced fees for Services, Section 5 hereof shall be considered null and void, and Smartcat shall retain the rights to all translations that have not been paid for by Client.
(c) In the event of termination of any Service Task by Client prior to its completion, in the absence of breach by Smartcat, Client will be required to pay for the Services actually provided till the date of termination. In the event of termination of the Supplementary services specified in the Annexes prior to completion in the absence of breach by Smartcat, Client will be required to pay for the commitment period specified in the Annexes.
(d) Notwithstanding anything to the contrary herein, Client will not be entitled to a refund of any fees covering Services that have already been performed by Smartcat as of the termination date of this Agreement, any Service Task or Annex.

3.3 Survival. With the exception of those provisions which by their terms remain in effect only during the term of this Agreement, and subject to Section 3.2 (Effect of Termination), all provisions of this Agreement will survive any termination of this Agreement.

4.1 Restrictions. Smartcat acknowledges that, in order to perform the Services or to provide Supplementary Services, it shall be necessary for Customer to disclose to Smartcat certain Confidential Information (defined below) of Customer. Smartcat agrees that it shall not disclose, transfer, use, copy, or allow access to any such Confidential Information to any third parties, except as authorized by Customer. Customer hereby authorizes Smartcat to provide Confidential Information to Suppliers, translation service providers, marketing services providers and infrastructure and development service providers, including those located in jurisdictions without adequate protection of personal data, on the terms established by Smartcat provided that Smartcat shall implement technical and organizational security measures in respect of processing of such data.

4.2 Definition. Information disclosed by Customer, including, but not limited to, information that relates to existing and future products or services, designs, business plans, business opportunities, finances, research, development, know-how, personnel, personal data or third party confidential information will be considered and referred to collectively in this Agreement as “Confidential Information.” Confidential Information, however, does not include information that (a) is now or subsequently becomes generally available to the public through no fault or breach by Smartcat; (b) Smartcat can demonstrate to have rightfully had in its possession prior to disclosure by Customer; or (c) Smartcat rightfully obtains from a third party who has the right to transfer or disclose it.

4.3 Smartcat Proprietary Information. Customer shall treat as confidential and agrees not to disclose to any third party without the prior written consent of Smartcat, any information learned by Customer within the scope of the Services relationship with Smartcat that would appear to a reasonable person to be confidential or proprietary. Names and rates of Suppliers will be considered confidential information of Smartcat pursuant hereto.

4.4 Personal Data. The Parties shall comply with the terms of Smartcat’s Data Processing Agreement located at https://www.smartcat.com/dpa/ (the “Data Processing Agreement”) and incorporated herein by reference if, and solely to the extent, that the Services require personal data processing by the Parties. Smartcat may modify the terms of Data Processing Agreement unilaterally at any time with or without notice to Customer, provided, however, that such modifications shall become effective and binding on Customer upon the earlier of (a) notice to Customer, or (b) access by Customer of its account on the Platform. Notwithstanding anything in the Agreement to the contrary, if Customer does not accept such modified terms of the Data Processing Agreement, Customer may terminate the Agreement unilaterally for convenience within two (2) weeks following the effective date thereof (as determined in accordance with the preceding sentence.

5.1 Assignment by Smartcat. Subject to payment by Customer of the fees as set forth in Section 2 hereof, Smartcat hereby does and will irrevocably assign to Customer all of Smartcat’s right, title and interest in and to any and all Translated Works.

5.2 Assignment by Suppliers. Smartcat covenants, represents and warrants that each Supplier who performs Services under this Agreement has or will have a written agreement with Smartcat that provides Smartcat with all necessary rights to fulfill its obligations under this Agreement, including but not limited to the obligations of this Section 5.

6.1 Customer Warranty. Customer warrants that it is the lawful owner of Customer Materials, that such Customer Materials have been lawfully developed or acquired by Customer, and that use of such Customer Materials will not infringe on any third party intellectual property.

6.2 Indemnification. Customer agrees to indemnify and hold Smartcat harmless from any and all losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees) which Smartcat may incur based on Customer Materials.

7.1 General. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMARTCAT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFORMATION, SERVICES, PRODUCTS, AND MATERIALS, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SMARTCAT IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS REGARDLESS OF SOURCE.

7.2 Third-Party Services. All translation Services pursuant to this Agreement will be performed by Suppliers of Smartcat. Smartcat disclaims all liability for any errors, omissions, or ambiguities in the translations provided by Smartcat and Customer’s reliance on any such translation is at Customer’s sole risk. Smartcat shall not be liable for any losses caused by reliance on the accuracy or reliability of translations provided by it to Customer.

8.1 No Indirect Damages. In no event will Smartcat be liable to Customer for consequential, incidental, indirect, punitive or special damages, or loss of profits, data, business or goodwill, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose, or otherwise, and even if advised of the likelihood of such damages. Smartcat shall not bear any responsibility for changes made to any Translated Works following delivery thereof by Smartcat to Customer.

8.2 Limitation Cap. Any and all liabilities of Smartcat resulting from this Agreement are, without exception, limited to and at a maximum equal to the lesser of (a) $10,000 or (b) the total payments made by Customer to Smartcat hereunder within one (1) month immediately preceding any such claim. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.

Customer acknowledges that it is a business practice of Smartcat to record telephone conversations with its customers, including its telephone conversations with Customer, in order to maintain a high level of Services and to minimize miscommunication. Customer hereby expressly gives its consent to such recording by Smartcat and to the use of recordings in the event of any dispute arising out of this Agreement between Smartcat and Customer.

10.1 Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto and supersedes all oral and written agreements and understandings made or entered into by the parties hereto prior to the date hereof. This Agreement may include addendums executed with the Customer separately. Such addendums form an integral part of this Agreement.

10.2 Severability. In the event of any conflict between any provision hereof and any applicable laws to the contrary, the latter shall prevail, but this Agreement shall be deemed modified only to the extent necessary to remove such conflicts and the remaining provisions of this Agreement shall remain in full force and effect.

10.3 Waiver. Any waiver of a failure to perform or a breach shall not operate to waive any subsequent failure to perform or breach.

10.4 Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with and shall be governed by the laws of the State of Massachusetts applicable to agreements entered into and to be wholly performed therein without regard to conflict of law principles that would result in the application of any law other than the law of the State of Massachusetts.

10.5 Arbitration. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the American Arbitration Association (the “AAA”), then by one arbitrator having reasonable experience in commercial transactions of the type provided for in this Agreement and who is chosen by the AAA. The arbitration shall take place in Boston, Massachusetts, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the Massachusetts Code of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings.

10.6 Notices. All notices required or permitted under this Agreement shall be in writing addressed to the respective parties at their addresses set forth in the signature page hereto, unless another address shall have been designated, and shall be delivered by hand or by registered or certified mail, postage prepaid or by electronic mail with confirmation of receipt.

10.7 Force Majeure. Smartcat shall not be liable to Customer for any failure or delay caused by events beyond Smartcat’s control including, without limitation, Customer’s failure to furnish necessary information, sabotage, failure or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, or technical failures.

10.8 Presumption. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against either of the parties.

10.9 Attorneys’ Fees. In the event of any dispute with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and other costs and expenses incurred in resolving such dispute.