SDL Professional Services Terms and Conditions

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

A. Performance of Services

1. SDL will provide the Services as per the specifications contained in the ORDER FORM which includes the required specifications for any deliverables (“Deliverables”).
2. Client 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. Client may require SDL personnel to observe Client’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 Order Form, then such Party shall provide written notice to the other Party. 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 Order Form, 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 Order Form.
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 Client for the respective Service.

B. Fees

1. Client shall pay SDL in accordance with the “Fees and Expenses” section of the ORDER FORM. Total estimated fees and number of days are not guaranteed. SDL shall notify Client if the fees and/or days shall exceed the estimates.
2. All amounts due to SDL hereunder are net of any and all taxes (including withholding taxes), assessments, charges and levies of any governmental authority, all of which shall be the sole obligation of Client, except for taxes payable on the income of SDL. SDL shall invoice Client for all fees due under this ORDER FORM. Payment of all SDL invoices is due within thirty (30) days of the invoice date. Any amounts not so paid and not disputed by Client 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.
3. Daily rates, where applicable, are based on an 8-hour workday. Services performed during weekends or holidays will be billed at 1.5 times the daily/hourly rate in effect for the ORDER FORM.
4. Unless otherwise stated on the ORDER FORM, “Fees” do not include travel and any other out-of-pocket expenses. Client 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 Client’s request, SDL will make expense records available for Client review.

C. Limited Warranties

1. SDL warrants that:
a) It is a company duly organized, validly existing and in good standing under the laws of its situs of incorporation, with full power and authority to enter into and perform according to the terms of this Agreement and has the right to grant Client any right and license provided in this Agreement, and that the Services do not infringe any valid patent or any copyrights, trademarks, or other proprietary rights of any third parties;
b) SDL shall perform the Services in professional, workmanlike manner consistent with a standard of care that is customary for the engineering industry;
c) For a period of ninety (90) days after the date that the deliverables are received by the Client (the “Warranty Period”), the Deliverables shall conform to, and perform in substantial accordance with, the Order Form;
d) SDL will use commercially reasonable efforts to ensure that no computer viruses or similar items are coded or introduced into any SDL Deliverables.
2. Breach of Warranty. If SDL fail to perform the Services in accordance with the warranties given, SDL may replace any Services free of charge to the extent necessary to correct the failure or enjoinment thereof. If the foregoing remedy is not available to SDL through its reasonable endeavours then SDL shall terminate this Agreement and refund to Client the applicable fees subject to a reasonable offset to reflect any unavailability to Client prior to the date of such termination.
3. Disclaimer. The provisions of Section C.2. (Breach of Warranty) state Client’s sole remedy for breach of the warranty given herein, and, 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 an Order Form, 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 proprietary macros, tools, utilities, software, techniques, methodology, file mark-up and any procedures developed or used by SDL for the provision of Deliverables to Client or a Order Form. Nothing in this Agreement shall be construed as a waiver or forfeiture of such rights and ownership.
2. Generic Inventions. Client further acknowledges that SDL may undertake projects for clients other than Client, 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 Client’s Confidential Information. Notwithstanding any other provision of this Agreement or any other agreement contemplated hereby, Client 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 Client a non-exclusive, perpetual, non-transferable, royalty free license to use the Generic Inventions for Client’s internal business purposes. Such right of use shall include without restriction the rights for Client its affiliates and subcontractors to reproduce, distribute, adapt translate, modify, alter, copy, decompile, disassemble, duplicate, modify, reverse engineer or otherwise reproduce the source code and object code of any Generic Inventions in any manner whatsoever or any portion thereof in its sole discretion. 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 Client.
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.

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 ORDER FORM and for three (5) 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 Client 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. SDL SHALL NOT BE LIABLE TO THE CLIENT 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, INCURRED BY THE CLIENT OR ANY THIRD PARTY, 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’ aggregate liability to Client for any and all causes whatsoever shall be limited to the amount paid to SDL by Client for the deficient Services that are the subject of Client’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 10 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. If the Agreement is terminated, Client shall pay to SDL all sums, fees and expenses incurred up until the date of termination. Any termination of this Agreement or cancellation of any of the Services described in the ORDER FORM does not affect any accrued rights or 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. Client may not assign, sub license, 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 Client, 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 Client deemed the employer of SDL’ personnel, sub-contractors or agents, even if Client supervises SDL personnel in providing the Services. SDL bears sole responsibility for compensation of its personnel and payment of federal and state 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. Intentionally left blank.
5. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the exclusive venue and jurisdiction shall be in the courts of England. The United Nations Convention for the International Purchase and Sale of Goods is expressly excluded. If any provision of the ORDER FORM conflicts with this Agreement, they shall be read together so as to best effectuate the intent of the parties, but in the event of irresolvable conflict or ambiguity, this Agreement shall control.

J. Definitions

“Agreement” means the Professional Services Terms and Conditions and which are incorporated by reference in the relevant ORDER FORM.
“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.
“ORDER FORM” means a written description of the consultancy services to be performed by SDL that is signed by Client and SDL and expressly refers to this Agreement.
"Services" means the services provided by SDL under an Order Form.