Master Services Agreement
This Master Services Agreement (“MSA”) is entered into by and between Gulf Services Group d/b/a Industry Arabic, a District of Columbia limited liability company (hereafter “Industry Arabic”), and Client, (individually referred to as a “Party” and collectively “Parties”). In exchange for the mutual promises contained herein, and for good and valuable consideration the sufficiency and receipt of which is hereby acknowledged, the Parties agree to be legally bound as follows:
Master Service Agreement
This MSA and the accompanying statement of the worksheet (hereinafter “SoW”), collectively referred to as the “MSA,” will define Industry Arabic and the Client’s obligations to each other with respect to Industry Arabic’s performance of translation-related services (collectively “Services”) for and/or on behalf of Client. Each SoW submitted by Industry Arabic to the Client shall be governed by this MSA and incorporated herein by reference. The execution of any SoW by Client is construed as an acceptance of all rates, prices, terms, and conditions under which the Services will be performed and acceptance of all the terms of this MSA. Modifications to this MSA or any attached SoW will not be binding unless acknowledged and agreed to in writing. In the event any term, provision, or condition of this MSA conflicts with any term, provision, or condition of any SoW, the terms of the SoW will control.
Client will provide all cooperation, text, data, and owned or licensed materials necessary to allow Industry Arabic to perform the Services, including, but not limited to, access to personnel, instructions, formatting, text, video, or audio (hereinafter “Client Materials”). Client agrees to allow Industry Arabic to make changes or alterations to Client Materials solely for the purpose of performing the Services hereunder. Client assumes all liability for all Client Materials it provides for use in or in connection with the Services provided under this MSA.
All Client instructions to Industry Arabic must be in writing and made via email or mail. Client agrees to make itself available at reasonable and customary times and to provide Industry Arabic with timely responses to Industry Arabic’s questions or requests with respect to the Services.
Client hereby grants to Industry Arabic a non-exclusive, limited, worldwide, royalty-free, sub-licensable, and revocable license to display, copy, reproduce, prepare derivative works of, distribute, perform publicly, perform via means of audio transmission, modify, test, transmit, track, and distribute the Client Materials in connection with Industry Arabic’s performance of Services hereunder.
Client agrees that during the term of this MSA, including any subsequent renewal period(s), and for two (2) years after the date of termination of this MSA with Industry Arabic, Client will not induce, solicit, recruit, or encourage any employee, independent contractor, or subcontractor of Industry Arabic to leave the employ of Industry Arabic, which means that Client will not: (i) disclose to any third party the names, backgrounds, or qualifications of any Industry Arabic employees, independent contractors, or subcontractors or otherwise identify them as potential candidates for employment or engagement; or (ii) personally or through any other person or entity approach, recruit, interview, or otherwise solicit Industry Arabic employees to work for or contract with Client or any other employer.
Industry Arabic agrees to provide Services under the terms and conditions of this MSA. The Services to be performed by Industry Arabic will be described in one or more SoW(s). By executing this MSA, Client and Industry Arabic agree that the Services are subject solely to the provisions of this MSA and the applicable SoW. Each SoW will become effective and incorporated herein when this MSA is signed by Client. Industry Arabic will make commercially reasonable efforts to notify Client within fourteen (14) business days of its receipt of this signed MSA if the specified subject matter of the SoW is not available.
In performing Services hereunder, Industry Arabic expressly reserves the right to: (i) in its sole discretion, refuse to provide any Services due to Client’s provision of Client Materials that do not conform to the reasonable requests or requirements of Industry Arabic; and (ii) terminate, refuse, or cancel the use of any Client Materials for any reason including those it believes, in its reasonable discretion, are inappropriate for any reason or violate any ordinance, law, regulation, statute, or treaty. Industry Arabic will notify Client of the rejection or cancellation and shall have no liability to Client for any such rejection or cancellation.
Client understands and agrees that the price quotations contained within the attached SoW are based on specifications provided by Client and agreed to by Industry Arabic on the date of the execution of this MSA. In the event Client changes its specifications during the term of this MSA, Industry Arabic may adjust its pricing accordingly. If Industry Arabic adjusts the prices contained within the SoW in response to a change in Client specifications, it will obtain Client’s written consent or provide Client with ten (10) days prior written notice of said change. Client’s failure to object to any price change prior to its implementation will constitute Client’s acceptance of said change and a mutual modification of this MSA. In the event Client objects to the requested price change, Industry Arabic reserves the right to terminate this MSA without cause or penalty.
Client understands and agrees that any changes or edits to delivered Services must be requested within thirty (30) days of Industry Arabic’s delivery of Services to Client. If Client fails to request any changes or edits to delivered Services within thirty (30) days, Industry Arabic reserves the right to decline any requested changes or edits.
Client understands and agrees that expedited or “rush” projects increase the possibility of errors in the Services because Industry Arabic has less time to review and make edits to the Services prior to delivery. Client agrees that it will not hold Industry Arabic responsible for any errors caused by its request to rush the Services performed by Industry Arabic.
In performing Services hereunder, Industry Arabic may use third-party technology to store or access Client Materials. Industry Arabic is not responsible, nor does it assume any liability, for any failure of any third-party technology, software or service to perform as intended. Client agrees to hold Industry Arabic harmless for any loss of data, errors, omissions, corruption of data, interruption of access, defects, or viruses that arise out of or in relation to Industry Arabic’s use of third-party technology.
Intellectual Property Rights
Ownership of Intellectual Property
Client understands and agrees that, prior to Client’s payment for Services in full, Industry Arabic is the owner of all intellectual property rights created under the terms of this MSA, including but not limited to all Services and creative works (collectively “Intellectual Property Rights”). Upon Client’s payment in full for Services performed by Industry Arabic under the terms of this Agreement, Industry Arabic agrees to assign all Intellectual Property Rights to Client.
Both parties agree that, during the term of this Agreement and thereafter, that they will not make statements, representations, or reviews, or otherwise communicate directly or indirectly, in writing, orally, or otherwise, to take any action which may directly or indirectly disparage the other party or any subsidiary or affiliate or their respective officers, directors, employees, advisors, businesses, or reputations. Notwithstanding the foregoing, nothing in this Agreement will preclude either party from making truthful statements or disclosures that are required by applicable law, regulation, or legal process.
Non-Disclosure, Trade Secrets, and Confidential Information
Both Parties understand and agree that, in Industry Arabic’s performance of Services, they may be exposed to the other Party’s confidential information or trade secrets. For the purposes of this MSA, confidential information will include, without limitation, any of either Party’s confidential, proprietary, or trade secret information that is disclosed pursuant to this MSA or that either Party otherwise learns in the course of Industry Arabic’s relationship with Client such as, but not limited to, business plans or methods, proprietary information, financial information, ideas, customer information or lists, marketing interests or plans, operating processes or procedures, assessment tools or procedures, or analysis tools or procedures (“Confidential Information”). Confidential Information will not include any information which: (i) is or becomes publicly available through no act of either Party; (ii) is rightfully received by a Party from a third party without restrictions; or (iii) is independently developed by a Party. For the purposes of this MSA, trade secrets will include: (a) any and all of a Party’s business processes; (b) technical information concerning a Party’s company salaries, strengths, weaknesses, and skills; (c) information concerning a Party’s finances, including sales information, profits, accounting information, unpublished financial information, and marketing expenditures; (d) information concerning a Party’s customers, including customer lists and customer information; (e) information concerning a Party’s business strategies, including marketing plans, business plans, research projects, and product development; and (f) any other information not generally known to the public which, if disclosed, could reasonably be expected to adversely affect a Party’s business (collectively “Trade Secrets”).
Each Party agrees that it will not use the other Party’s Confidential Information or Trade Secrets in any manner other than to enable Client’s receipt of Services under the terms of this MSA. Each party agrees that it will not use, exploit, sell, copy, distribute, perform publicly, display publicly, reproduce, or prepare derivative works of the Confidential Information or Trade Secrets of the other Party without prior written approval.
Should a Party reveal, threaten to reveal, use, exploit, sell, copy, distribute, perform publicly, display publicly, reproduce, or prepare derivative works of the Confidential Information and/or Trade Secrets of the other Party, the non-disclosing Party will be entitled to an injunction restraining the disclosing Party from disclosing the same, or from rendering any services to any entity to whom said Confidential Information and/or Trade Secrets has been or is threatened to be disclosed. The right to secure an injunction is not exclusive, and the non-disclosing Party may pursue any other remedies it has against the disclosing Party for a breach or threatened breach of this condition, including the recovery of damages from the disclosing Party.
Each Party agrees to act as a trustee of any Confidential Information and Trade Secrets learned pursuant to this MSA. When the parties have completed their relationship pursuant to this MSA, each Party will promptly return all originals and copies of all materials containing any Trade Secrets and/or Confidential Information to the other Party. Each Party will destroy any originals or copies of materials concerning the other Party’s Trade Secrets and/or Confidential Information that cannot be returned to the other Party upon the completion of the relationship between Industry Arabic and Client.
Client agrees that it will not disclose to Industry Arabic, use in Industry Arabic’s business, or cause Industry Arabic to use any information or material that is the trade secret or confidential information of another. Client warrants that its performance of this MSA will not breach any agreement to keep in confidence confidential information acquired by Client prior to its contact with Industry Arabic.
Each Party understands and agrees that its obligation to maintain the other Party’s Confidential Information and Trade Secrets will remain in effect even after the contractual relationship between the Parties ends and will continue for so long as the information remains either Confidential Information or a Trade Secret under applicable law.
Client will make payment to Industry Arabic pursuant to the terms of each applicable SoW. Each SoW will set forth the list of Services provided by Industry Arabic and the payment terms applicable to those Services.
In the event Industry Arabic provides Client with Services based on an hourly or per-word basis, Industry Arabic will send Client notification via email when Client’s current invoice is ready to be viewed. Client agrees to pay all invoices when due. Invoices may be paid by credit card, wire transfer, or by charge against a prepaid deposit. All invoiced fees are non-refundable.
Payment will be deemed late if not received on the due date listed in the applicable invoice. Any late payments will accrue interest equal to the maximum amount allowable under law compounded monthly. Client’s failure to make full and timely payment will constitute a material breach of this MSA. Industry Arabic will be entitled to recover all reasonable costs of collection, including but not limited to attorneys’ fees, expenses, and costs incurred in attempting to collect payment from Client.
Industry Arabic reserves the right to withhold delivery of any Services if payment is not made in full. In the event Client pays by credit card, Client expressly agrees that it will not charge back any payments made by credit card without the prior written consent of Industry Arabic. Client understands and agrees that it will be responsible for paying for any costs or fees incurred by Industry Arabic as a result of any credit card chargebacks initiated by Client.
All compensation made under this MSA will be paid without deductions or withholding. Industry Arabic will report as income to the appropriate governmental agencies all compensation received pursuant to this MSA and will pay to such agencies all taxes, which Industry Arabic is required to pay by law. Client understands and agrees that Industry Arabic will not be responsible for paying any taxes required by law to be paid by Client. To the extent that taxes are assessed against Industry Arabic for the actions or omissions of Client, Client agrees that Client will reimburse Industry Arabic for the payment of those taxes.
Term and Termination
The term of this MSA shall commence on the Effective Date listed below and continue until terminated pursuant to this Section. Termination of this MSA shall not relieve Client from its obligation to pay (i) any fees that have accrued prior to the date of termination; (ii) the pro-rata portion of any fees earned through work, specified in a SoW, for which the performance of Services has already occurred; (iii) the cost of any goods or services purchased by Industry Arabic in the preparation for or the performance of Services; and (iv) the cost of returning Client Materials to Client.
Each Party may terminate this MSA and/or any SoW at any time and without cause.
Either Party may terminate this MSA and/or any SoW hereunder if the other Party is in material breach of this MSA and has not cured such breach within ten (10) calendar days of written notice from the non-breaching Party that specifies the breach.
Industry Arabic may terminate this MSA if, at any time, Client: (i) breaches any term or condition of this MSA or the incorporated SoW; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including but not limited to an involuntary bankruptcy; (iv) violates the rights of third parties, including but not limited to intellectual or other personal or proprietary rights; or (iv) voluntarily files a petition for bankruptcy.
Termination of this MSA hereunder will not limit either Party from pursuing any other remedies available to it, including injunctive relief. Any provision of this MSA that contemplates performance or observance subsequent to termination or expiration of this MSA will survive termination or expiration hereof and will continue in full force and effect.
Representations and Warranties
Client represents and warrants that it is responsible for any liability arising out of or relating to any Client Materials. Client represents and warrants that no part of the Client Materials will: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any term of provision of this MSA; or (iii) violate any law, statute, ordinance or regulation. Client represents and warrants that Client has all necessary titles, licenses, and clearances to use the content contained in its Client Materials. Client warrants and agrees to indemnify, defend, and hold harmless Industry Arabic for any costs, damages, claims, or losses that arise out of Client’s failure to comply with state or federal laws or regulations. Client’s obligation to defend Industry Arabic under the terms of this Agreement will not provide Client with the right or ability to control Industry Arabic’s defense, and Industry Arabic reserves the right to control its defense, including, but not limited to, its choice of counsel and whether to settle or litigate a claim. Client understands and agrees that Industry Arabic provides creative design services and will not be considered an endorser of any advertising or claims that are made by Client.
Each Party represents and warrants that it has the full right, power, legal capacity and authority to enter into, and fully perform, under this MSA and that its performance hereunder will fully comply with all applicable laws, rules, and regulations.
Disclaimer of Warranties and Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES PROVIDED BY INDUSTRY ARABIC, THEIR USE, AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INDUSTRY ARABIC MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
INDUSTRY ARABIC WILL NOT BE HELD LIABLE FOR ANY PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, INDUSTRY ARABIC’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS CLIENT HAS PAID TO INDUSTRY ARABIC UNDER THE APPLICABLE SoW.
The provisions of this Section are an essential element of the benefit of the bargain reflected in this MSA.
Client assumes full and complete responsibility and liability for the content of all Client Materials. Client warrants that its Client Materials will accurately conform to Client’s descriptions and representations and will comply with all local, state, federal, and international laws. Client takes full legal responsibility for all transactions between Client and its customers, whether or not those transactions are facilitated by Industry Arabic’s Services.
Client understands and agrees that it will indemnify, defend, and hold harmless Industry Arabic, its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) claim by any third party that any Client Materials infringe a third party’s copyright, trademark, patent, trade secret, or other intellectual property rights; (ii) claim by any third party that any Client Materials violate the rights of a third party, are defamatory or obscene or violate any ordinance, law, regulation, or other judicial or administrative action; or (iii) breach by the Client of any representation or warranty set forth in this MSA. A third party means any entity other than the parties to this MSA and their respective directors, officers, employees, and agents.
If any action is or will be brought against Industry Arabic with respect to any allegation for which indemnity may be sought, Client will provide reasonable cooperation to Industry Arabic, at Client’s expense, to defend against or settle any such claim. Client’s obligation to defend Industry Arabic under the terms of this MSA will not provide Client with the ability to control Industry Arabic’s defense, and Industry Arabic reserves the right to control its defense and select its counsel.
Any notice or other communication required or permitted hereunder shall be in writing, shall reference this MSA, and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a nationally recognized express courier, with written confirmation of receipt.
The client may not assign, in whole or in part, any rights, obligations, or duties created by or under this MSA. Industry Arabic may assign its rights, obligations, or duties under this MSA at any time upon written notice to Client, including in a sale or transfer of all or substantially all of Industry Arabic’s assets, in a sale or transfer of Industry Arabic’s accounts, or in a merger of Industry Arabic with another company. Should Industry Arabic assign its rights, obligations, or duties under this MSA, Industry Arabic’s rights, obligations, or duties under this MSA will be binding on, and shall inure to the benefit of, its successor or assign.
If any provision of this MSA is held to be illegal, invalid, or unenforceable, and if the rights or obligations of either Party under this MSA will not be materially and adversely affected, (i) said provision will be fully severable; (ii) this MSA will be construed and enforced as if said provision had never comprised a part of this MSA; (iii) the remaining provisions of this MSA will remain in full force and effect and will not be affected by the severance of any provision; and (iv) there will be added a legal, valid, and enforceable provision as similar in terms to said provision as may be possible in lieu of said provision.
Choice of Laws
This MSA will be governed by and interpreted in accordance with the laws of the District of Columbia. Industry Arabic and Client’s sole and exclusive forum and remedy at law for any disputes arising out of or related to this MSA, including the interpretation thereof, shall be binding arbitration. Arbitration under this MSA will be held in Washington DC and will be conducted by a single arbitrator, who shall be randomly selected from the American Arbitration Association National Roster of Arbitrators. The arbitrator shall decide any and all claims in accordance with the laws and legal principles of the District of Columbia and the American Arbitration Association’s most recently effective commercial arbitration rules and will have the authority to award costs and attorneys’ fees. The losing party will be required to pay the prevailing party’s attorneys’ fees. Industry Arabic and Client agree that the determination or award of any such arbitrator or arbitration proceeding may be entered as a judgment in any court sitting within any location that has jurisdiction over the subject matter of the dispute and is consistent with the New York Convention on Arbitral Awards. Industry Arabic and Client hereby submit to the exclusive personal and subject matter jurisdiction of any such arbitrator or arbitration proceeding.
The waiver by either party of a breach of or a default under any provision of this MSA must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this MSA, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
Relationship of the Parties
Nothing in this MSA shall be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the Parties. Neither party has any authority of any kind to bind the other party. The relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
Except for the payment of monies due hereunder, neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or another network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, Client or Industry Arabic may cancel the remainder of the SoW, excluding payment obligations, without penalty.
Entire MSA; Modification
This MSA, including any SoW(s), exhibit(s), addendum (addenda) or rider(s) attached hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter, and (ii) all past courses of dealing and industry custom. No amendment or modification of any provision of this MSA, exhibit, addendum, or rider shall be effective unless in writing and signed by a duly authorized representative of each Party.