SDL Professional Services

A. Performance of Services

1. SDL will provide the Services as per the specifications contained in the SOW which includes the required specifications for any deliverables (“Deliverables”).
2. Customer agrees to provide a safe and satisfactory work environment for SDL personnel.
3. SDL has the sole right to determine the method, details and means of performing the Services. Customer may require SDL personnel to observe Customer’s safety and security policies if such policies are furnished to SDL in writing in advance.
4. Changes. If either party desires a change to the Statement of Work, then such party shall provide written notice to the other party in accordance with a change order request (“Change”) as set forth in Appendix A (Change Management Process) attached hereto. The other party agrees to consider the proposed Change and the parties agree to negotiate in good faith regarding the proposed Change. All modifications to the Statement of Work, including without limitation, changes to the schedule for Deliverables, the specifications, testing protocols and the fees, must be mutually agreed to and set forth in a written amendment to the Statement of Work.
5. Specifications. In the event that the Deliverable does not conform to specifications or infringes a third party’s right, then the parties shall meet and confer to determine whether they shall amend the specifications or terminate the applicable Services without anything being charged to Customer for the respective Service.

B. Fees

1. Customer shall pay SDL in accordance with the “Fees and Expenses” section of the SOW. Fees will be fixed or on a time and materials basis as specified in the Statement of Work. Total estimated fees and number of days are not guaranteed. SDL shall notify Customer if the fees and/or days shall exceed the estimates.
2. All amounts due to SDL hereunder are net of any and all sales, withholding taxes, value-added or other similar taxes, assessments, charges and levies imposed by applicable law that SDL must pay based on the Services (“Taxes”). Customer agrees to pay or reimburse SDL for all such relevant taxes, except for taxes based on SDL’s income (which shall be the responsibility of SDL). If SDL has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Customer will pay that amount unless Customer can provide SDL with a valid tax exemption certificate authorized by the appropriate taxing authority. Payment of all SDL invoices is due within thirty (30) days of the invoice date. Any amounts not so paid and not disputed by Customer in writing in good faith shall be subject to interest at the lesser of one (1.0%) percent per month or the maximum allowable interest rate by applicable law, which interest shall be immediately due and payable. SDL may increase the fees by five per cent (5%) annually at its discretion subject to giving prior written notice to Customer.
3. Daily rates, where applicable, are based on an 8-hour workday. A minimum of two (2) hours per day will be charged for remote Services or time and material engagements and a minimum of four (4) hours a day for onsite or subscription Services. Services performed during weekends or holidays will be billed at 1.5 times the daily/hourly rate in effect for the SOW.
4. Unless otherwise stated on the SOW, fees do not include travel and any other out-of-pocket expenses. Customer shall promptly reimburse SDL for all actual and reasonable travel and accommodation expenses incurred by SDL in performance of the Services, such expenses having been incurred correctly and substantiated. Upon Customer’s request. SDL will make expense records available for Customer review.

C. Acceptance and Limited Warranties

Customer shall review the Deliverable during the Acceptance Period. If through no fault of Customer, the Deliverable contains any defects or errors which affect the materiality of the Deliverable, Customer will inform SDL in writing within the Acceptance Period that it has not accepted the Deliverable, with the details of such defects or errors. If Customer fails to notify SD with the Acceptance Period Customer shall be deemed to have accepted the Deliverable. In the event that Customer informs SDL within the Acceptance Period that it has not accepted the Deliverable, as Customer’s sole remedy, SDL will at its option and at its own expense: (a) promptly correct any Deliverable; or (b) re-perform the Services related to the affected Deliverable; or if (a) and or (b) are not commercially feasible, Customer shall be entitled to a credit for the fees paid for the affected Deliverable on any Services requested by Customer in any future Statement of Work entered into by the parties under this Agreement. The foregoing shall not apply to any Deliverables or Services related to training, coaching and/or workshops.
SDL warrants that it will perform its duties and responsibilities under this Agreement in a professional and workmanlike manner, in accordance with performance standards generally prevailing in the industry.
Disclaimer.To the maximum extent allowable by law, SDL expressly disclaims all other representations and warranties, whether express, implied or statutory including, without limitation, warranties of merchantability and fitness for use and/or a particular purpose.

D. Proprietary Rights

1. Unless otherwise stated in a Statement of Work, nothing in this Agreement constitutes a transfer or sale of SDL’s ownership rights in or to any software. SDL retains and reserves all right, title and interest, including all intellectual property rights, ownership of all Deliverables, and proprietary macros, tools, utilities, software, techniques, methodology, file markup and any procedures developed or used by SDL for the provision of Deliverables to Customer or a Statement of Work. Nothing in this Agreement shall be construed as a waiver or forfeiture of such rights and ownership.
2. Generic Inventions. Customer further acknowledges that SDL may undertake projects for Customers other than Customer, and in doing so, SDL personnel may use general knowledge and experience developed in the course of providing services under this Agreement without reference to any of Customer’s Confidential Information. Notwithstanding any other provision of this Agreement or any other agreement contemplated hereby, Customer agrees that to the extent that Deliverables developed pursuant to this Agreement is of such a nature that it would be subject to reuse, with or without modification, on SDL’s subsequent projects (“Generic Inventions”) such Generic Inventions shall be the property of SDL, and SDL shall grant Customer a non-exclusive, perpetual, non- transferable, royalty free license to use the Generic Inventions for Customer’s internal business purposes. Customer shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer any Generic Invention (except to the extent expressly permitted under applicable law) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, trade secrets or other proprietary information contained in SDL software or any Generic Invention by any means whatsoever, (ii) remove, fail to reproduce, alter or obscure any product identification, copyright or other proprietary notice or (iii) provide, lease, lend, host, sublicense or otherwise distribute or grant any rights in any Generic Invention. SDL shall have the right to develop, use, market, and license any software or data processing material that is similar or related to Generic Inventions developed by SDL for Customer.
3. Extensions. If a Deliverable contains any extensions to the SDL’s proprietary software (i.e., software which is a natural extension of the functionality of such proprietary software) (“Extensions”), such Extensions will not be a “work made for hire” and all right, title, and interest to the Extensions shall be owned by SDL, including all intellectual property rights therein, notwithstanding anything in this Agreement to the contrary.
4. Customer Materials.. Customer retains ownership of all right, title and interest in the Customer Materials, and all intellectual property rights therein. All rights in the Customer Materials not expressly granted to SDL in this Agreement are reserved to Customer or its licensors, and except as expressly granted by Customer under this Agreement, no licenses in the Customer Materials are granted to SDL.

E. Confidentiality

1. Confidential Information shall be treated by the receiving party as confidential and may only be used for the purposes of this Agreement. Each party shall, during the performance of the Services under the SOW and for two (2) years following the conclusion of said Services or for so long as a party has the other party’s Confidential Information in its possession, whichever is longer, protect the other’s Confidential Information from unauthorized disclosure using the degree of care that such party uses to protect its own like information, but no lesser degree of care than is commercially reasonable. Confidential Information may only be disclosed to employees, subcontractors and agents of the receiving party who have a need to know such information for the purposes of this Agreement and who are bound by law or contract not to disclose or use the Confidential Information except as permitted by this Agreement. Each party will use the other party’s Confidential Information only for the purpose of exercising its rights and/or performing its obligations under this Agreement. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party, provided, however, that the receiving party may disclose Confidential Information to the extent required under a court order or by law if the receiving party gives the disclosing party reasonable and sufficient prior notice to enable the disclosing party to seek an order preventing such disclosure. SDL may identify Customer as a SDL customer in public statements and publications. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information.

F. Liability

1. IN NO EVENT SHALL SDL BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS, USE, DATA, REVENUE OR PROFITS OR THE LIKE ARISING FROM THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SDL OR ANY OF ITS PERSONNEL, AGENTS, OR SUBCONTRACTORS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORSEEABLE. SDL SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM PHYSICAL DAMAGE TO PROPERTY OR DEATH OR INJURY EXCEPT TO THE EXTENT ARISING FROM SDL’ GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
2. SDL’s total aggregate liability to Customer under this Agreement for any and all damages or loss, however arising or caused shall be limited to the amount paid to SDL by Customer for the deficient Services that are the subject of Customer’s claim or to the amount of five hundred thousand US Dollar (US$ 500,000), whichever is the lesser. This limitation will apply regardless of the form of action, whether contract or tort, including without limitation negligence.

G. Non-Solicitation

Neither party shall, without the prior written consent of the other party, at any time, solicit, or seek to solicit, the services of any employee or contractor of that other party during the term of the Agreement or for six (6) months after its expiration or termination. Nothing in this Section will be construed to prohibit either party from hiring any employee or contractor of the other party who, without solicitation or recruitment by the hiring party, responds to any advertisement for employment in a newspaper, electronic media or otherwise generally available public media.

H. Termination

1. Either party may terminate this Agreement (a) by either party with immediate effect if the other party fails to perform any of its material obligations under this Agreement and such failure continues for thirty (30) days after receipt of written notice, or (b) immediately if the other party becomes insolvent, files a voluntary petition in bankruptcy, is declared a bankrupt, has a receiver or trustee appointed to it, or executed an assignment for the benefit of creditors.
2. The Agreement and/or Statement of Work may be terminated without cause by Customer upon thirty (30) days’ prior written notice to SDL. Notwithstanding the foregoing, each SOW will remain in effect for the term specified in the SOW unless terminated earlier in accordance with the terms of this Agreement.
3. Upon termination of the Agreement and/or the applicable Statement of Work for convenience by Customer or for material breach by Customer as per the provisions of this Section H hereunder, all committed expenditures (meaning those committed costs and expenses directly attributable to SDL to ramp up the Services for the Customer) and fees incurred up to and including the date of termination shall fall due and payable, including payment for Services performed and which have not resulted in Deliverables (“Work in Progress”) at the rates given in the Statement of Work, but only to the extent that such Work in Progress represents Services actually performed up to the date of receipt of notice of such termination. If SDL is unable to allocate the consultant(s) that was/were planned to perform the Services under the applicable Statement of Work to another project within fourteen (14) days from SDL’s receipt of notice, Customer shall pay SDL the fees of the Statement of Work regardless of whether Customer instructs SDL not to deliver the scheduled Services. SDL will use commercially reasonable efforts to re-allocate the relevant consultant(s). Termination shall not affect the accrued rights and liabilities of either party.

I. General

1. Neither party is liable to the other for any delay nor failure to perform (except for payment obligations under Section B) due to causes beyond its control and without its fault or negligence. No delay or failure of either party in enforcing any term or condition of this Agreement, and no partial exercise by either party of any right hereunder, is a waiver of any of its rights under this Agreement. The invalidity, illegality or unenforceability of any of the provisions of this Agreement does not affect the validity, legality and enforceability of the remaining provisions of this Agreement.
2. Customer may not assign, sub-license, subcontract or transfer any of its rights or obligations under this Agreement without the prior written consent of SDL, which consent may not be unreasonably withheld or delayed. SDL may sub-contract any of its obligations under this Agreement to qualified external consultants and may assign or transfer its rights and obligations under this Agreement at any time with reasonable notice to Customer, provided the assignee or transferee agrees to assume all of SDL’ obligations.
3. Nothing in this Agreement creates a partnership or agency relationship between the parties or authorizes either to incur any liabilities or obligations on behalf of the other. At no time is Customer deemed the employer of SDL’ personnel, sub-contractors or agents, even if Customer supervises SDL personnel in providing the Services. SDL bears sole responsibility for compensation of its personnel and payment of federal, state or local taxes and unemployment insurance associated with such personnel. SDL shall maintain workers’ compensation coverage sufficient to meet the statutory requirements of every state in which SDL’ personnel are engaged in performing the Services.
4. This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all previous agreements between the parties relating to that subject matter. No representations or statements made by either party, which are not expressly stated in this Agreement, shall be binding on such party. This Agreement may only be amended in a writing signed by duly authorized representatives of each party.
5. Except where expressly provided to the contrary, this Agreement, nothing in this Agreement, express or implied, is intended or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement and shall not be enforceable by any person who is not named at the date of this Agreement as a party to it or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise, and neither party can declare itself a trustee for the benefit of a third party.
6. This Agreement shall be governed by and construed in accordance with the laws of England and the exclusive venue and jurisdiction shall be the English Courts. The United Nations Convention for the International Purchase and Sale of Goods is expressly excluded. If any provision of the SOW conflicts with these terms and conditions, they shall be read together so as to best effectuate the intent of the parties, but in the event of irresolvable conflict or ambiguity, these terms and conditions shall control.
7. Any terms and conditions contained in any purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such purchase order, unless expressly agreed to in writing by SDL.

J. Definitions

“Acceptance Period” means a period of five (5) days from the date that a Deliverable is delivered to Customer.

“Confidential Information” means any information that is given by one party to the other in writing and marked confidential, or that is disclosed orally and designated as confidential at the time of disclosure and summarized in a writing marked confidential that is sent to the receiving party within thirty (30) days of the oral disclosure. Confidential Information does not include information that (a) is known to the receiving party at the time of disclosure, (b) becomes publicly known through no wrongful act of the receiving party, (c) is lawfully obtained by the receiving party from a third party not under any duty of confidentiality, or (d) is independently developed by the receiving party.

“Customer Materials” means any and all software and Customer Confidential Information delivered or otherwise provided by Customer to SDL in connection with SDL’s performance of the Services, whether owned by Customer or a third party.

"Statement of Work" and “SOW” means a written description of the Services to be performed by SDL that is signed by Customer and SDL and expressly refers to this Agreement.

"Services" means the services provided by SDL under a Statement of Work.

These terms and conditions must be read in conjunction with an Order Form executed between the parties