This Services Agreement (the "Agreement") constitutes a legally binding agreement between you (whether an individual, corporation, or other entity) ("Client") and RWS, where "RWS" means a company commissioned by Client to perform Services (as defined below) and where that company directly or indirectly controls, is controlled by, or is under common control with RWS Holdings plc, a company incorporated under the laws of England & Wales, and having offices at Europe House, Chiltern Hill, Chalfont St. Peter, SL9 9FG, United Kingdom (any affiliate or subsidiary of RWS Holdings plc), where “control” means ownership of more than fifty percent (50%) of the securities or voting power of the subject entity, and in the context of any other business entity, shall mean the right to exercise similar management and control of such entity.
As used herein, "Services" means those services provided or to be provided by RWS as set forth in the applicable Order Form, which may include without limitation, localization, translation, interpretation, linguistic validation or related services, and/or in connection with these, desktop publishing, project management and/or engineering of software files, text. and other computer medium, and/or reading from a prepared script. An "Order Form" means (i) Client’s signature or other indication to RWS of the acceptance of a quotation, statement of work or other ordering document of RWS for Services which specifically references this Agreement; or (ii) a purchase order of Client or other written payment instruction approved by RWS to commence the provision and delivery of Services. The terms and conditions of this Agreement are hereby incorporated by reference into each Order Form. In the event of any conflict or inconsistency between the provisions of this Agreement or any Order Form, the provisions of the Order Form shall control.
1. Performance of Services
Subject to the terms of this Agreement, RWS shall provide to Client and Client agrees to pay for the Services. RWS shall assign to Client all proprietary rights in the deliverables and related materials (“Deliverables”) created by RWS pursuant to the terms of this Agreement, subject to Client’s full payment with respect to such Services and any limitations associated with intellectual property rights of third parties.
2. Client Obligations
Client accepts that it is responsible for verifying that the Services are suitable for its needs. Client shall supply to RWS in a timely manner, all components, files, documents, information, and other materials (“Client Materials”) reasonably necessary to enable RWS to provide the Services. Client confirms that it owns or is legally entitled to possess and use such Client Materials and hereby grants to RWS a non-exclusive, royalty free license, and to allow its employees, contractors, and agents to, use, copy, modify, and create derivative work of the Client Materials solely for purposes of providing the Services. RWS shall not be responsible for any delay or failure to perform Services or provide Deliverables which is caused by Client’s delay or failure to provide Client Material or to fulfill Client’s other obligations under the applicable Order Form. If RWS is so delayed or prevented from full performance for a period of thirty (30) days or more, RWS may, without limiting its other remedies hereunder, invoice Client for all Services performed but not already invoiced. Client’s failure to supply the foregoing when reasonably required by RWS shall relieve RWS of any obligation to perform Services to a previously agreed schedule. Client shall indemnify RWS from and against any liability, losses, damages, costs, and expenses arising from RWS's use or possession of any Client Materials supplied by Client to RWS. Client shall, within ten (10) business days of receipt of any finished Deliverable, notify RWS in writing of any suspected defects or errors. In the absence of such notification, Client shall be deemed to have accepted the Deliverable of the Services. Client shall not withhold acceptance because of any discrepancy which does not significantly compromise the accuracy of any Deliverable.
3. Service Fees
Client agrees to pay to RWS for the Services the fees and expenses set forth on the applicable Order Form in the currency specified therein. All payments due to RWS hereunder are due within thirty (30) days of the date of the applicable invoice. All unpaid amounts due to RWS hereunder shall bear interest at the rate of one and a half percent (1.5%) per month or the highest rate permitted by law, whichever is less, and/or suspend Services until overdue amounts are paid. Client shall be responsible for all taxes levied on transactions under the relevant Order Form, including without limitation, country, federal, state, local sales, use, excise, value-added, withholding or similar taxes (specifically excluding taxes based on RWS’s income) which may be separately stated on the invoice. Except as otherwise expressly provided herein, all Service fees and expenses are non-cancelable and non-refundable and are exclusive of any and all taxes.
If the term of an applicable Order Form exceeds one (1) year, the Service fees for the Services shall be automatically adjusted for inflation annually, being the higher of four percent (4%) or the annual percentage change in the Consumer Price Index (All items) as published by the relevant statistical office based in RWS’s country of registration. Such price changes shall not apply to Order Form already in effect.
4. Services Warranty
Each party represents and warrants to the other that: (a) the approval and/or execution and performance of an Order Form by such party does not, and will not, conflict with or violate any other agreement or binding obligations with third parties, or any applicable laws, rules or regulations. RWS represents and warrants to Client it will perform the Services in accordance with customary industry standards.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 4, RWS, ON BEHALF OF ITSELF, ITS SUPPLIERS, CONTRACTORS AND AGENTS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS AND OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT ALLOWED BY LAW.
5. Term and Termination
This Agreement shall expire when all the obligations of the parties under the relevant Order Form(s) are complete. Either party may terminate this Agreement (i) with immediate effect if the other party breaches any material term of this Agreement and fails to cure such breach within fourteen (14) days from the date of receipt of written notice specifying the breach; or (ii) without cause upon thirty (30) days prior written notice to the other party. Upon such expiration or termination of this Agreement or any Order Form, Client shall pay RWS in full for all early cancellation fees, all Services performed, including any work-in-progress and all reimbursable expenses incurred by RWS up to the effective date of termination, and each party shall return to the other any property or Confidential Information in its possession belonging to the other party. Termination shall not affect any accrued rights and liabilities of either party.
6. Limitations on Liability
In no event shall either party be liable hereunder for any consequential, special, indirect, incidental, punitive or exemplary damages of any kind, or for loss of business revenues or profits, business interruption, or loss of business information, even if a party has been advised of the possibility of such damages.
In not event shall either party’s liability under this Agreement or any Order Form, in contract, tort or otherwise, exceed the lesser of the total amount of Service fees paid/or payable to RWS for Services under the applicable Order Form during the twelve (12) month period prior to the date the cause of action arose, or fifty thousand US dollars ($50,000 USD).
7. Restrictions on Disclosure of Confidential Information
Each party shall (i) maintain in confidence all information disclosed by the other relating to the disclosing party’s business ("Confidential Information"); and (ii) use such information only in connection with this Agreement. This provision shall not apply to information which (i) becomes generally available to the public through no fault of the receiving party; (ii) was independently developed by the receiving party without access to the disclosing party’s Confidential Information; (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not prohibited from transferring the information to the receiving party by any contractual, legal or fiduciary obligation; or (iv) is disclosed by RWS to its subcontractors for use only in connection with this Agreement and under a duty of confidentiality no less onerous than that of the parties hereunder. The parties agree that all confidentiality obligations shall survive for a period of three (3) years from the date of disclosure and that each party shall, upon request, return or delete all documents and electronic media containing the other party’s Confidential Information, including all copies thereof.
Each party acknowledges and agrees that any unauthorized disclosure or other violation, or threatened violation of this Agreement, by a party may cause irreparable damage to the other. Accordingly, without prejudice to the rights and remedies otherwise available to each party, each party shall be entitled to seek an appropriate injunctive relief to prevent any breaches or violations of this Agreement without the posting of any bond or other security.
9. Data Privacy
If Client Materials contains any personal data or any PII or PHI, the Data Processing Agreement (“DPA”) available at the following link https://www.rws.com/legal/privacy/dpa/ shall apply and the DPA will be incorporated herein by reference. The processing details (the duration, the nature, means and purpose of the processing, the types of personal data and categories of data subjects) shall be specified by the Client in the Order Form to this Agreement which is hereby incorporated and forms part of the DPA.
10. Governing Law; Jurisdiction
Except as detailed below, this Agreement will be governed by and construed in accordance with the laws of England and Wales, excluding that body of laws known as conflicts of law. Except as details below, any legal action or proceeding arising under this Agreement will be brought exclusively in the English courts and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
If Client’s principal place of business is with in European Union, this Agreement will be governed by and construed in accordance with the laws of the Netherlands.
If Client’s principal place of business is the United States, then this Agreement will be governed by and construed in accordance with the laws of Commonwealth of Massachusetts.
If Client’s principal place of business is within China, this Agreement will be governed by and construed in accordance with the laws of the People’s Republic of China.
If Client’s principal place of business is Japan, then this Agreement will be governed by and construed in accordance with the laws of Japan.
The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
11.1 Entire Agreement. This Agreement, including any Order Forms or schedules hereto, constitutes the entire and exclusive understanding and agreement between Client and RWS with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings, written or oral, between Client and RWS with respect to the subject matter hereof. Any terms and conditions contained in any Client 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 RWS.
11.2 Severability. If any provision of this Agreement is found invalid, unlawful or unenforceable by any court of competent jurisdiction or other government authority, (i) such provision will be deemed replaced with an enforceable provision which most closely embodies the original intent of the parties, and (ii) the remaining provisions will continue in full force and effect.
11.3 Amendments. Except as expressly agreed to by each party’s authorized representative in the relevant Order Form, this Agreement may not be amended, modified, or supplemented by the parties in any manner, except by a written instrument signed by an authorized representative of RWS and Client.
11.4 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
11.5 Assignment. Client will have no right to assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without RWS’ prior written consent. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
11.6 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile/digital transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the relevant Order Form or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
11.7 Counterparts. The exchange of a fully executed Agreement (in counterparts or otherwise) by digital signature or by other electronic means, such as portable document format (.pdf) file, shall be sufficient to bind the parties to the terms and conditions of this Agreement.
11.8 Third Party Beneficiaries. This Agreement and any Order Form shall be solely between RWS and Client, and no other persons or entities shall have any right to enforce any provisions thereof. Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, 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.
11.9 Relationship to the Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
11.10 Non-Solicitation. During the term of this Agreement, and for period of twelve (12) months after the date of expiry, completion or termination, neither party shall, without the prior written consent of the other party, either indirectly or directly solicit, or seek to solicit, the services of any employee or contractor of the other party involved in providing, carrying out or receiving the Services. If either party breaches the terms of this Section 10.10, the party in breach agrees, by way of liquidated damages and not a penalty, to pay the other, 'the Injured party' a sum equal to six (6) months of the annual salary of the employee concerned. Notwithstanding the foregoing, nothing in this Section 10.10 will be construed to prohibit either party from hiring any person 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 or if in the event both parties mutually agree in writing in advance of any hiring to permit the other party to hire such person, subject to the terms and conditions of the parties written agreement.
11.11 Subcontracting. RWS may utilize its local affiliates and/or freelance/linguistic contractors who have signed an RWS vendor agreement (“Authorized Contractors”) in providing Services to Client under this Agreement. RWS affiliates and Authorized Contractors will be used to meet Client’s specialized language requirements and increases in demand and turn-around time. With the exception of affiliates and Authorized Contractors, RWS may not subcontract the Services without the prior consent of Client. RWS shall remain fully responsible to Client for the performance of such subcontracted Services.
11.12 Force Majeure. Except for payment obligations hereunder, neither party will be responsible for delays or failures of performance under this Agreement or any Order Form due to circumstances beyond its reasonable control, including without limitation, as caused by acts of God, war, epidemic, pandemic, terrorism, civil disturbance, court order, fire, flood, extreme weather conditions, strikes or other labor disturbances (“Force Majeure”). If the Force Majeure event lasts for longer than forty-five days, either of the parties shall be entitled to terminate the Agreement in writing.
11.13 Language. If this Agreement is translated into a language other than English, the English language version shall control. Should Client have any questions concerning the terms of this Agreement, these may be addressed to the RWS Legal Department - firstname.lastname@example.org.
Version 1, 1 March 2022