TERMS AND CONDITIONS
The following Terms and Conditions (the “Terms”) constitute a legally binding agreement between you (“Client”) and Venga Corporation (“Venga”), a Nevada corporation, regarding human-based translation services (“Services”) rendered or to be rendered by Venga.
By accepting a Proposal for Services, Client agrees to be bound by these Terms if no prior specific agreement between Venga and Client is in place.
FOR VALUABLE CONSIDERATION, Venga and Client (each a “Party” and, together, the “Parties”) agree as follows:
1) Engagement Process.
a) Client’s Requests for Services.
i) Client may, from to time, submit to Venga a written request for Venga’s Services (each a “Request”).
ii) Each Request shall specify the type and scope of Services requested by Client.
iii) Each Request shall be accompanied by any electronic or other files that Client intends to be the subject of the Request (the “Source Materials”).
iv) Venga may request additional or clarifying information or additional Source Materials with regard to any Request.
b) Venga’s Responses to Requests. As soon as reasonably practical after receipt of a Request and any additional or clarifying information or Source Materials requested by Venga, Venga may either:
i) decline the Request; or
ii) prepare and submit to Client a written proposal (each a “Proposal”) for the Services covered by Client’s Request. Each Proposal shall include (1) a description of the Services, (2) the pricing and timing for the applicable Services, (3) a description of deliverable to be produced by Venga (the “Deliverable”) and (4) such other information and terms as Venga deems appropriate. Each Proposal shall be deemed to incorporate these Terms in their entirety.
The pricing set forth in Venga’s Proposal shall be an estimate for the Services requested and shall be deemed to be quoted by Venga on a without prejudice basis based on the information provided and shall be subject to these Terms and fees for Services as Venga may direct.
Venga reserves the right, in its sole and absolute discretion, to refuse to translate any Source Materials that is/are of an offensive nature, defamatory, obscene, in breach of any statutory or regulatory obligation, or is otherwise considered inappropriate by Venga.
c) Client’s Response to Proposals. Within five (5) days after receipt of Venga’s Proposal, Client shall either:
i) decline the Proposal; or
ii) submit to Client a written acceptance of Venga’s Proposal in which case the Proposal shall be deemed to be an “Accepted Proposal”.
d) Binding Agreement. Each Accepted Proposal, along with these Terms, shall be a legally binding contract between Client and Venga for the Services described in the Accepted Proposal.
2) Venga’s Charges. Unless specified to the contrary in an Accepted Proposal, Venga’s charges for Services are based on word-count, language(s) and the specific Service requested. The word-count, as determined by Venga, is final and non-negotiable. The word-count is clearly visible throughout the quoting process. Any changes to this word count will be communicated to Client for approval.
3) Selection of Services.
a) It is the responsibility of Client to select the appropriate Service for the translation of Client’s Source Materials. Venga will not accept any responsibility if the Service selected by Client does not meet Client’s requirements.
b) Client can request a translation by submitting Source Materials to the Venga. Any such request may be accepted or declined by Venga in its discretion.
c) The pricing set forth in any Accepted Proposal shall be an estimate for the Services requested and shall be deemed to be quoted by Venga on a without prejudice basis based on the information provided and shall be subject to these Terms and fees for Services as Venga may direct.
4) Source Materials.
a) Venga will not be liable to correct any errors or omissions that were inherent in the original Source Materials and which may or may not affect the quality of the Deliverable.
b) Source Materials will be virus checked upon receipt by Venga.
5) Venga’s Representations. Venga represents and warrants to Client as follows:
a) Competent, qualified personnel will perform the Services with reasonable skill and care.
b) Files provided by Client to Venga or by Venga to Client will go through reasonable virus scanning and will be free of any known viruses at the time of transmission.
c) Venga’s Services will be in conformance with industry standards.
d) The Work Product delivered by Venga to Client will be a true and complete translation of the Source Materials and will be a true representation of the Source Materials in all material respects including technical equivalencies and style; provided, however, that Client acknowledges that (i) translation Services are subjective, (ii) the Source Materials may be ambiguous, and (iii) any such Work Product will reflect ambiguities contained in the Source Materials.
e) The Services will be performed within the timelines agreed between the Parties in the applicable Approved Proposal.
f) The Work Product will be delivered to Client in the format stipulated in the Accepted Proposal and shall comply with all applicable specifications in such Accepted Proposal.
6) Client’s Acceptance of Deliverables. Client has ten (10) calendar days from receipt of the final Deliverable to inform Venga in writing of any errors or omissions contained in the translated work. Venga will make the necessary corrections free of charge and within a reasonable timeframe for:
a) clearly incorrect translation of words or information,
b) omissions of words or information,
c) typographical errors,
d) failure to create the Deliverable or Deliverables according to these Terms and the applicable Accepted Proposal, and
e) grammatical errors not in the Source Materials.
If Client fails to notify Venga in writing within such ten-day period, Client shall be deemed to have accepted the Deliverable.
7) Invoicing and Payment.
a) Venga will submit to Client an invoice for each project upon completion of the Services performed.
b) Client shall compensate Venga for the Services provided under each Accepted Proposal.
8) Modifications. Client may request modifications to the Deliverable for any Accepted Proposal after the Source Materials are submitted to Venga and/or after Venga delivers the applicable Deliverable to Client; provided, however, that Venga’s performance of any such modifications shall be subject to an additional fee and a revised delivery date each of which shall be communicated by Venga to Client and approved jointly by the Parties. Venga shall be entitled to require that Client pay any such additional fee prior to making any such modifications.
9) Cancellation. Should Client cancel the Services under any Accepted Proposal, Venga shall be entitled to payment of that part of the project total fees which is proportionate to the part of the Services completed as of the date Venga receives written notice of cancellation from Client, as well as any costs caused by cancellation which shall be provided in writing or email form. Should the cancellation be communicated after normal business hours of 09:00am to 05:00pm PDT/PST Monday through Friday, cancellation shall take effect the following business day.
10) Client’s Representations. Client represents and warrants to Venga as follows:
a) Client owns or is the licensee of the Source Materials and all components thereof, and the translation of the Source Materials and publication, distribution, sales or other use of the Deliverable shall not infringe upon any copyright, trademark or patent, or other right of any third party.
b) The Source Materials submitted to Venga will be of good quality and free of errors or spelling mistakes.
c) Client shall not use any device, software or routine to interfere with the proper working of Venga’s website or which may have a contaminating or detrimental effect on Venga’s website.
a) Venga makes no representations or warranties of any kind, except as set forth above. WITHOUT LIMITING THE FOREGOING, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “‘AS AVAILABLE”’ BASIS AND WITHOUT ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
b) Venga shall not be liable to client or any other person or entity for any incidental, special or consequential damages or loss of any nature whatsoever, nor for any claim against Client by any other person or entity, arising from or relating to services rendered by Venga, regardless of the nature of the claim or the form of the cause of action, whether in contract or in tort, or otherwise, and even if Venga has been advised of the possibility of such damages by anything contained in related requests, proposals and/or other documentation. Venga shall not be responsible for any loss or damage to, nor the return of, any Source Materials. The maximum liability to Client by Venga shall in all cases be limited to the fees payable under the relevant accepted proposal.
12) Default and Termination.
a) Default by Client. In the event that Client breaches these Terms or any Accepted Proposal, then Venga shall have the right to terminate these Terms and any or all Accepted Proposals immediately, whereupon Client shall pay the full service fee provided hereunder or under the terminated Accepted Proposals for the Services completed and for all work in progress.
b) Default by Venga. In the event that Venga breaches these Terms or any Accepted Proposal and Venga fails to remedy such breach within fifteen (15) days after written notice of breach from Client, then Client shall have the right to terminate this Terms and any or all Accepted Proposals, whereupon Venga shall return to Client all Source Materials and data supplied by Client together with all Deliverables that exist as of the date of termination.
13) Ownership of Source Materials and Deliverables. All right, title and interest in and to the Source Materials and, except as hereunder provided, the Deliverables, and any and all patent rights, copyright, know-how, and trade secrets therein are and remain the sole and exclusive property of Client; provided, however, that, notwithstanding the foregoing to the contrary, Client acknowledges and agrees that:
a) Venga is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all:
i) methodology, information, software, and databases used in translating the Source Materials, and
ii) inventions, methodology, innovations, know-how, and databases developed by Venga in the course of translating the Source Materials, including any and all patent rights, copyrights, know-how, and trade secrets therein.
b) All Deliverables shall remain the property of Venga until Venga shall have been paid in full for such Deliverables.
14) Confidentiality. The nature of the Services performed and any information transmitted to Venga by Client shall be confidential. Venga shall not, without the prior consent of Client, divulge or otherwise disclose such information to any person other than authorized employees or authorized subcontractors of Venga whose job performance requires access to such information. The provisions of this Section shall not apply to the extent Venga is required by law to divulge such information or to the extent such information is or becomes a matter of public knowledge other than by disclosure by Venga.
15) Client Indemnity. Client shall indemnify, defend, and hold harmless Venga, its shareholders, directors, officers, employees, representatives, agents, successors and assigns from and against any and all losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of or incidental to any suit, claim or demand based on (a) the performance of these Terms and any Accepted Proposal by either Party, (b) Client’s breach of the covenants, representations and warranties made by Client herein, (c) the manufacture, advertisement, promotion, sale or distribution of any goods or services by Client, (d) any taxes and duties, levies, tariffs, or like fees that may be imposed by any government or collective authority upon manufacture, advertisement, promotion, use, import, licensing or distribution of goods or services by Client, or (e) any claim that any element of any Deliverable infringes any copyright, trademark, patent, or other proprietary right.
16) Miscellaneous Provisions.
a) Survival. The following shall survive the termination of these Terms and any Accepted Proposal:
i) the representations and warranties of the Parties in these Terms and any Accepted Proposal;
ii) the indemnity obligations of the Parties in these Terms and any Accepted Proposal;
iii) any provisions of these Terms and any Accepted Proposal which, by their nature, are intended to survive the termination of these Terms and any Accepted Proposal.
b) Trademarks, Etc. Neither these Terms nor any Accepted Proposal constitutes a grant or license to either Party of any right or license to use the other Party’s trademarks, trade names and/or service marks.
c) No Waiver. Failure by a Party to enforce the provisions of these Terms or any Accepted Proposal or such Party’s rights or remedies at any time will not be construed to be a waiver of such Party’s rights under these Terms and any Accepted Proposal.
d) Severability. If any term or other provision of these Terms and any Accepted Proposal is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of these Terms and any Accepted Proposal shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify these Terms and any Accepted Proposal so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
e) Entire Agreement. These Terms and any Accepted Proposal contains the entire agreement of the Parties with respect to the subject matter of these Terms and any Accepted Proposal and supersedes all previous communications, representations, understandings and agreements. No terms, provisions or conditions of any Request or other submission by Client will have any effect on the obligations of the Parties under, or otherwise modify, these Terms and any Accepted Proposal.
f) Amendments. Once incorporated into an Accepted Proposal, these Terms and such Accepted Proposal may not be amended other than by a writing signed by both Parties.
g) Cumulative Remedies. No exercise or enforcement by a Party of any right or remedy under these Terms and any Accepted Proposal will preclude the enforcement by such Party of any other right or remedy under these Terms and any Accepted Proposal to which such Party is entitled under applicable law.
h) Counterparts; Electronic Delivery. These Terms and any Accepted Proposal and amendments thereto may be executed in one or more counterparts, each of which will be deemed to be an original and all of which, when taken together, will be deemed to constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to electronic mail shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
i) Governing Law. These Terms and any Accepted Proposal shall be governed exclusively by the laws of the State of California, without regard to its conflicts of laws rules.
j) Venue and Jurisdiction; Waiver of Jury Trial. Subject to the duty to arbitrate disputes as provided below, the Parties agree that the state and federal courts located in the City and County of San Francisco, California, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms and any Accepted Proposal. To the maximum extent permitted under applicable law, (a) each Party consents to venue in, and the exclusive jurisdiction of, such courts and (b) each Party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms and any Accepted Proposal.
k) Arbitration. Any dispute arising out of or relating to these Terms and any Accepted Proposal shall be settled by binding arbitration in the City and County of San Francisco, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Subject to the next subsection, all costs of the arbitration, including the cost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne equally by the Parties. Notwithstanding the foregoing to the contrary, prior arbitration is not required in connection with any action brought to obtain injunctive relief in connection with any breach or threatened breach of any of the covenants of Client contained in Section 10(c).
l) Attorneys’ Fees. In the case of any arbitration or litigation arising out of or related to these Terms and any Accepted Proposal, the prevailing Party (as determined by the arbitrators or the Court) shall be entitled to recover, in addition to any award or judgment, all costs of such arbitration or litigation, including, without limitation, reasonable attorneys’ fees.
m) Assignments; Successors. Neither Party may assign or otherwise transfer its rights and obligations under these Terms and any Accepted Proposal without the prior written consent of the other Party, except that Venga, without the consent of Client, may subcontract all or any part of the Services to be performed under any Accepted Proposal. Subject to the foregoing, these Terms and any Accepted Proposal shall be binding upon and shall inure to the benefit of the Parties and their successors and assigns.
n) Notices. Any notice required or permitted under the terms of these Terms and any Accepted Proposal or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight courier, in each case to the address of the receiving Party set forth in the applicable Accepted Proposal. Either Party may change such Party’s address for notices by written notice thereof to the other Party given in accordance with the provisions of this subsection.
o) Venga’s Consent. Whenever, under or in connection with these Terms and any Accepted Proposal, the consent or approval of Venga is required, such consent or approval may be granted, denied or conditioned as Venga deems appropriate in its sole and absolute discretion.
p) Sections/Subsections. Unless the context requires otherwise, all references to Sections or Subsections are references to Sections or Subsections of these Terms.
q) Force Majeure. A Party shall not be liable for any delays or failure to perform (other than any payment of amounts due under these Terms and any Accepted Proposal or the provisions of Section 7) as a direct result of causes beyond the control of such Party and not due to the negligence on the part of such Party, including, but not limited to, acts of God (such as fire, storm, earthquake), electrical outages, labor disputes, wars, hostilities, revolutions, riots, civil commotion, national emergency, unavailability of supplies, epidemics, force of nature or explosion or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency. The Party claiming excuse must promptly notify the other Party of the event and its expected duration and use its best efforts to mitigate its effects.
r) No Third Party Beneficiaries. Venga will perform the Services solely for Client, and under no circumstances shall any person or entity other than Client rely upon the Services.
s) Modification. Venga may modify these Terms at any time; provided, however, that any such modification shall not affect any Accepted Proposal unless agreed to by both Parties.