TERMS AND CONDITIONS

1.    Services; Statements of Work.

Lionbridge International Unlimited Company, on behalf of itself and its Affiliates, agrees to provide the services (the “Services”) and the deliverables (the “Deliverables”) as described in the quote or statement of work signed by Lionbridge and Company, which may be transmitted and agreed to by Lionbridge and Company through Lionbridge’s Freeway® online portal (the “Statement of Work” or “SOW”). The SOW, incorporating these Terms and Conditions, shall constitute the entire agreement between Lionbridge and Company with respect to the Services specified in such SOW (“Agreement”). This Agreement shall be amended only by written agreement signed by Lionbridge and Company.

“Company” means the entity for which Lionbridge is performing Services and delivering Deliverables. “Affiliate” means an entity controlled by, controlling or under common control with Company or Lionbridge, as applicable, but only so long as such control exists. The cessation of such control shall not release an Affiliate of its obligation to comply with the terms and conditions of this Agreement for the period of time stated herein.

2.    Pricing, Costs, and Payment.

(a) Except as otherwise provided in the SOW, Lionbridge shall invoice Company on a weekly basis for Services performed, in accordance with the pricing and payment milestones set forth herein. Company shall pay Lionbridge invoices within fourteen (14) days from the date of invoice.

(b) All prices are exclusive of any local, county, state, federal, or country sales, use, excise, personal, property or other similar taxes, or duties, or freight or insurance charges, all of which shall be assumed and paid for or reimbursed by Company.

(c) Company shall pay a late payment charge of 1.5% per month, or the lawful maximum, whichever is lower, on any past due balance. Lionbridge reserves the right to suspend any further performance and delivery until payment of overdue amounts is made in full. Such suspension will not be considered a default of this Agreement. All expenses incurred by Lionbridge in respect of collecting the amounts due from Company shall be for the account of Company.

(d) In the event that Company disputes an item or items on an invoice, Company will notify Lionbridge in writing within fourteen (14) days of receipt of that invoice, setting out its reasons in reasonable detail. As soon as possible, the parties shall discuss the disputed part of the invoice and make every reasonable effort to promptly settle the dispute. If no notice of dispute is received by Lionbridge within fourteen (14) days after receipt of an invoice by Company, the invoice will be deemed accepted, and Company will be obligated to pay the invoice in accordance with its terms. In case of a dispute regarding billing, Company must pay all undisputed charges and items.

(e) Company will reimburse Lionbridge for actual and verifiable out-of-pocket expenses (including travel and travel-related expenses) reasonably incurred by Lionbridge in connection with the performance of Services hereunder.

(f) Lionbridge shall not be responsible for any delay caused by Company or any third party under contract with Company.

3.    Warranty.

(a) Lionbridge warrants for a period of thirty (30) days following performance of any Services or the delivery of any Deliverable, as applicable (the “Warranty Period”) that (i) all Services will be performed in a professional and workmanlike manner, in accordance with industry standards, and substantially in accordance with the specifications set forth herein; and (ii) each Deliverable will conform in all material respects to the specifications set forth herein.

(b) Lionbridge will use all commercially reasonable efforts to re-perform, correct or repair any non-conformance to such warranty standards of any Services or Deliverable of which Company has notified Lionbridge in writing during the applicable Warranty Period, provided that such Service or Deliverable has not been modified or altered by Company or any third party. If Lionbridge is unable to correct or repair any such non-conformance, Lionbridge shall refund any fees paid by Company for such non-conforming Service or Deliverable, provided that Company returns to Lionbridge any Deliverable and work-in-process in its possession, and all copies thereof, to which a refund relates.

(c) EXCEPT AS STATED IN THIS SECTION 3, LIONBRIDGE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, INTENDED USE, MERCHANTABILITY, OR NON-INFRINGEMENT WITH RESPECT TO THIS AGREEMENT OR THE SERVICES OR DELIVERABLES.

4.    Company Responsibilities.

(a) Company shall provide Lionbridge, in a timely manner and at no cost to Lionbridge, with all the assistance, information, data and materials specified herein or which Lionbridge reasonably deems necessary for the performance of the Services, including without limitation, access to the materials to be provided by Company which are the subject of the Services (the “Company Originals”). In connection with the provision of the Services, Company grants Lionbridge and any Lionbridge employees and contractors, and those of its Affiliates (collectively, “Personnel”), who may be providing Services hereunder, a worldwide, non-exclusive, non-transferable, royalty-free license during the Term of this Agreement to use and copy the Company Originals solely to provide Services under this Agreement. Company represents and warrants that it has all rights and licenses necessary to grant this license. Unless otherwise directed by Company, Lionbridge shall return all Company Originals within a reasonable period of time following completion of Services hereunder.  In addition, for translation or localization Services, Company shall, on or before the date specified herein, approve in writing the terminology list for translations proposed by Lionbridge.

(b) Company acknowledges that it may incur additional charges under this Agreement in the event that it makes changes to the Company Originals after the date Lionbridge commences Services, changes the requested delivery date for the Services, or otherwise makes or requests changes to the scope of work or other terms for Services which necessitate additional work by Lionbridge. Such changes and change requests shall be submitted to Lionbridge in writing, and this Agreement may be amended as mutually agreed by the parties in writing to reflect such changes.

(c) Unless otherwise provided herein, in no event shall any Company Originals contain any personal data or personally identifiable information that is subject to any applicable data protection or privacy laws and regulations (the “Personal Data”). If this Agreement provides that any Company Originals shall contain Personal Data, then Company represents and warrants that (i) it has full right and authority and obtained all consents required from applicable data subjects in accordance with all applicable data protection and privacy laws and regulations in order to transfer the Personal Data to Lionbridge and its Personnel and to enable use of such Personal Data by Lionbridge to perform the Services, and (ii) it consents to the transfer of such Company Originals to Lionbridge and its Personnel as provided under this Agreement and the license in Section 4(a) and this Section 4(c).

(d) Company shall advise Lionbridge in the event any of the Company Originals contain any material which is subject to export controls, and shall identify all applicable restrictions prior to provision of such Company Originals to Lionbridge.

5.    Ownership; Works for Hire.

Company shall retain all right, title and interest, including all intellectual property rights, in Company Originals. All of the code, documentation, analyses, studies, recommendations, reports, plans, results, data compilations, Company Translation Memories (as defined below), and other materials produced by Lionbridge in performing the Services, and all intellectual property therein (collectively, the “Work Product”) shall vest in and be owned by Company. To the extent that any Work Product may not, by operation of law, be works made for hire, Lionbridge hereby assigns to Company the ownership of copyright in the Work Product. Lionbridge agrees to give Company or its designees all assistance reasonably required to perfect such rights. “Company Translation Memory” is defined as the file containing all of the paired segments, phrases, sentences or words from the Company Originals with their translations, in the format specified herein. Notwithstanding the foregoing, Developer Tools (as hereinafter defined) shall not constitute Work Product hereunder. The term “Developer Tools” means any and all technology, software, tools, products, know-how, trade secrets, language resources, machine translation rules, glossaries and dictionaries, processes, and methods that are owned, controlled, developed, modified, or licensed by Lionbridge, and all derivatives thereof, used by Lionbridge in providing services to third parties generally. Company acknowledges that the Developer Tools may constitute confidential, valuable proprietary information and/or trade secrets of Lionbridge. Company agrees not to use, copy, disclose or otherwise make available to any third party any Developer Tools which may come into its possession, knowledge or control.

6.    Indemnification.

(a) Company Indemnification. Company shall, at its own expense, defend, hold harmless and indemnify Lionbridge and its Affiliates, and their officers, directors, employees and contractors, from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Liabilities”) to the extent such Liabilities arise out of or in connection with any third party claim that the Company Originals or any part thereof, infringes any patent, copyright, trademark, trade secret, moral, or any other intellectual property rights of such third party. Lionbridge shall promptly notify Company in writing of any such claim and allow Company to control the defense and settlement of such claim, provided that Lionbridge may participate in the defense and settlement at its own expense with counsel of its own choosing. Company shall not agree to any settlement of claims against Lionbridge or other indemnified parties without Lionbridge’s prior written consent. Should any Company Original become, or in Company’s opinion be likely to become, the subject of any claim of infringement, Company shall notify Lionbridge and Lionbridge shall promptly discontinue any further work on the Company Original. This paragraph states Company’s sole liability and Lionbridge’s exclusive remedy for intellectual property infringement.

(b) Lionbridge Indemnification. Lionbridge shall, at its own expense, defend, hold harmless and indemnify Company and its Affiliates, and their officers, directors, employees and contractors, from and against any and all Liabilities to the extent such Liabilities arise out of or in connection with any third party claim that the Services or Deliverables as performed or provided by Lionbridge hereunder, infringe any patent, copyright, trademark, trade secret, moral or any other intellectual property rights of such third party. Company shall promptly notify Lionbridge in writing of any such claim and allow Lionbridge to control the defense and settlement of such claim, provided that Company may participate in the defense and settlement at its own expense with counsel of its own choosing. Lionbridge shall not agree to any settlement of claims against Company or other indemnified parties without Company’s prior written consent. Should any Deliverable become, or in Lionbridge’s opinion be likely to become, the subject of any claim of infringement, Lionbridge shall, at its option and expense, use commercially reasonable efforts to (i) modify such Deliverable so it is no longer infringing; or (ii) acquire the necessary rights and licenses to allow Company to continue to use the Deliverables. If neither option is available on a commercially reasonable basis, the Company shall, upon Lionbridge’s request, return such infringing Deliverable and any copies thereof to Lionbridge, and Lionbridge shall refund the amounts paid by Company for such infringing Deliverable. Lionbridge shall have no obligation pursuant to this paragraph for claims or Liabilities to the extent same result from Company Originals or any part thereof, Lionbridge’s compliance with the Company’s detailed specifications set out in this Agreement, the combination of Deliverables with other components not created by Lionbridge, or modification of Deliverables by anyone other than Lionbridge or its Personnel. This paragraph states Lionbridge’s sole liability and Company’s exclusive remedy in respect of any intellectual property infringement.

(c) Mutual Indemnification. Each party shall defend, hold harmless and indemnify the other from and against any and all Liabilities in connection with claims for personal injury or death of either party’s or its Affiliates’ employees or contractors, to the extent such Liabilities result from the negligence or intentional misconduct of the indemnifying party, its employees, contractors or invitees, while present on the other party’s premises in connection with this Agreement.

7.    Confidential Information.

For a period of three (3) years from the date of disclosure of the applicable Confidential Information (as defined below), each party shall (i) use the Confidential Information of the other party only for the purposes contemplated under this Agreement; (ii) hold the Confidential Information of the other party in confidence and not disclose it to any third party, except to its and its Affiliates’ employees and contractors who have a need to know such Confidential Information for the purposes of this Agreement and who are bound by written agreements of confidentiality consistent with the provisions of this Section; and (iii) use the same degree of care as it uses to protect its own confidential information of a similar nature, but not less than a reasonable standard of care. The term “Confidential Information” shall mean any information and materials (in any form) disclosed hereunder which are generally treated as confidential by the disclosing party and which, if in tangible form, are marked “Confidential” or with similar designation, or if in non-tangible form, are identified as confidential at the time of disclosure. The obligations of either party under this Section will not apply to information that the receiving party can demonstrate (i) was in its possession at the time of disclosure hereunder and without restriction as to confidentiality, (ii) is or becomes generally available to the public through no breach of this Section by the receiving party, (iii) has been received from a third party without restriction on disclosure, or (iv) is independently developed by the receiving party without use of the Confidential Information of the other party. In addition, the receiving party may disclose Confidential Information as required to comply with applicable law or any judicial or governmental order, provided that the receiving party notifies the disclosing party of such required disclosure and cooperates with the disclosing party in its efforts to seek to limit such disclosure or obtain a protective order or other confidential treatment with respect thereto.

8.    Non-Solicitation.

Each party agrees that during the Term of this Agreement and for one (1) year thereafter (the “Non-Solicitation Period”) it will not directly or indirectly solicit or employ or cause another company to attempt to solicit or employ, any employee or contractor of the other party or its Affiliate who has been involved in this Agreement or the provision or acquisition of services hereunder. Hiring which results from general solicitations which are not in any way targeted to such employees or contractors shall not be deemed a breach of this Section.

9.    Term; Termination.

(a) The Term of this Agreement shall commence on the SOW Effective Date and continue until the earlier of (i) any termination date set forth in the SOW, (ii) completion of the Services under the SOW, and (iii) termination by Company upon thirty (30) days’ prior written notice.

(b) Either party may terminate this Agreement immediately if (i) the other party has materially breached this Agreement and fails to remedy such default within thirty (30) days from the date of written notice specifying such default in reasonable detail; or (ii) the other party becomes insolvent or files for bankruptcy, receivership or liquidation.

(c) In the event of expiration or termination of this Agreement for any reason, Company shall be obligated to pay Lionbridge for all Services performed, and expenses incurred, in accordance with this Agreement through the effective date of expiration or termination.

10.    Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND, OR FOR LOST PROFITS, DATA OR BUSINESS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.  EXCEPT FOR PAYMENT OBLIGATIONS HEREUNDER, EACH PARTY’S LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID IN THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CLAIM ARISES FOR SERVICES PURSUANT TO THIS AGREEMENT.

11.    Force Majeure.

Neither party will be liable for any delay or related damages or penalties when such delay is due to causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, war or riots. If such delay occurs and persists for more than thirty (30) days, either party may, upon written notice to the other party, terminate this Agreement subject to payment of amounts for Services performed, and expenses incurred, in accordance with this Agreement through the effective date of termination.

12.    Assignments and Subcontracts.

Neither party shall assign any of its rights or privileges under this Agreement without the prior written consent of the other, except that either party may assign this Agreement to a party acquiring all or substantially all of the assets or securities of such party and who agrees in writing to be bound by the terms of this Agreement.  Notwithstanding the foregoing, Company acknowledges and agrees that Lionbridge’s obligations hereunder may be carried out by its Personnel.

13.    Independent Contractor.

For all purposes under this Agreement, Lionbridge shall be and act as an independent contractor, and under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture or employment between Lionbridge and Company. Lionbridge shall be solely responsible for the conduct and supervision of its Personnel in connection with the performance of its obligations hereunder.

14.    Services on Company Premises.

Lionbridge and its Personnel shall comply with all applicable Company regulations, policies and procedures of which it is notified while on Company’s premises, and Lionbridge agrees to remove from Company’s premises immediately any of its Personnel at Company’s reasonable request.

15.    Notices.

All notices which either party gives to the other party shall be in writing and shall be given by personal service, registered or certified mail, return receipt requested, courier, or nationally recognized carrier which tracks receipt, to the other party at its address set forth in the SOW, or such other address for notices as may be provided by such party in writing. Notices to Lionbridge shall be sent with a copy to the General Counsel. Notices shall be deemed delivered upon receipt.

16.    General Provisions.

This Agreement shall be construed in accordance with the laws of Ireland and the parties submit to the jurisdiction of the Irish courts. No waiver of this Agreement shall be effective unless in writing and signed by the waiving party. All obligations and duties which by their nature survive the expiration or termination of this Agreement shall remain in effect beyond any expiration or termination of this Agreement and shall bind the parties and their legal representatives, heirs and assigns.  Lionbridge may state to third parties that Company is a customer of Lionbridge for so long as this Agreement is in effect, but may not make any statements regarding the Company’s experience with it without Company’s prior written consent. This Agreement is not intended and shall not be deemed to create any rights or obligations for any third parties, including without limitation the right to bring an action based on the breach or alleged breach of any provision of this Agreement by either party. If any court of competent jurisdiction determines that any provision of this Agreement is unenforceable, the remainder will continue in full force and effect and the offending provision shall be enforced to the greatest extent possible to give effect to its intent.  The United Nations Convention on the Sale of Goods is hereby excluded and shall have no application to this Agreement or any deliverables or other goods or materials provided hereunder.

17.    Entire Agreement.

This Agreement constitutes the complete agreement between Lionbridge and Company with respect to its subject matter and supersedes all prior proposals, understandings, agreements and other communications between the parties, whether oral or written. Each party acknowledges that it is not relying on any statement or information made or given, directly or indirectly, orally or in writing, by the other party or its representatives, except as specifically set forth herein.  Additional or conflicting terms and conditions on any purchase order shall not apply.

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