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EXHIBIT 10.9
TRANSLATION SERVICES AGREEMENT
THIS TRANSLATION SERVICES AGREEMENT ("AGREEMENT") IS ENTERED INTO AS OF JANUARY
11, 2000 (THE "EFFECTIVE DATE") BY AND BETWEEN E-LINGO CORPORATION, WITH ITS
PRINCIPAL PLACE OF BUSINESS AT 0000 XXXXX XX XXXXXX XXXX, XXX XXXXX, XXXXXXXXXX,
00000 ("E-LINGO") AND XXXXXXXXXX.XXX, A NEVADA CORPORATION, WITH ITS PRINCIPAL
PLACE OF BUSINESS AT 000 XXXXXXX XXX., XXXXXX XX, 00000 (THE "CUSTOMER").
RECITALS
A. e-lingo owns or is duly licensed to use certain technology that
translates digital text on the internet from one language to another language.
B. Customer provides Digital Content to its end users.
C. e-lingo wishes to provide translation services to Customer so as to
enable Customer's end users to translate Digital Content from one language to
another language, and Customer desires to use such services.
AGREEMENT
In consideration of the foregoing and the mutual promises contained
herein, the parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, unless otherwise defined
herein, capitalized terms used in this Agreement shall have the meanings set
forth in Exhibit A attached hereto.
2. SERVICE OBLIGATIONS; SITE INSTALLATION, ETC.
2.1. TRANSLATION SERVICES. Subject to the terms and conditions of this
Agreement, e-lingo shall provide the language translation Services of Digital
Content to the Customer for use in the Site, such Services to be provided
substantially in accordance with the functionality specifications, language
pairs, performance criteria, and limitations set forth on Exhibit B. e-lingo
shall also provide the technical support services substantially in accordance
with the provisions set forth in Exhibit C.
2.2. INTERFACE. Promptly after execution of this Agreement, e-lingo shall
provide the e-lingo Data Protocol and the Interface Construction Tools to
Customer. e-lingo grants to Customer, a non-transferable, nonexclusive license
during the Term to use the e-lingo Data Protocol and the Interface Construction
Tools solely to create and maintain the Interface to the e-lingo Translation
Engine to the Site. Customer, at its own expense, shall create the Interface to
the e-lingo Translation Engine for the Site and shall provide all disk storage,
server capacity and other hardware and software required to run and maintain the
Site and the Interface and to serve the advertisements on the Interface. e-lingo
shall provide reasonable assistance (through telephone, email, the Web or fax)
to Customer during regular business hours regarding development of the Interface
and integration of the same with the e-lingo Translation Engine.
3. MARKETING, PUBLICITY AND ATTRIBUTION.
3.1. ATTRIBUTION. All Web pages containing translated Digital Content shall
conspicuously display an icon to be provided by e-lingo (the "e-lingo Icon")
that indicates that e-lingo's technology is being used. The e-lingo Icon shall
measure at least 88 x 31 pixels and shall provide a link to a page of e-lingo's
choice on e-lingo's Web site located at xxx.x-xxxxx.xxx. The e-lingo Icon shall
be visible "above the fold" (that is, visible when the applicable Web page is
loaded by a browser displaying an active region of 650x320 pixels). In addition,
Customer will use e-lingo's standard disclaimer with respect to the use of the
e-lingo Translation Engine.
3.2. MARKETING OBLIGATIONS. Customer will use reasonable commercial efforts
to promote and market the language translation services provided by e-lingo
hereunder. Customer agrees to be a referenceable customer for press and analyst
inquiries and quotes. Customer agrees to participate in co-marketing efforts to
promote the e-lingo translation services. Details of the co-marketing efforts to
be determined by marketing officers at e-lingo and Customer.
3.3. TRADEMARK LICENSE. e-lingo hereby grants Customer a nontransferable,
nonexclusive license under e-lingo's trademarks during the Term to display the
e-lingo Icon on the Site. Customer hereby grants to e-lingo a nontransferable,
nonexclusive license under Customer's trademarks during the Term to advertise
that Customer is using e-lingo's services. Except a set forth in this Section,
nothing in this Agreement shall grant or shall be deemed to grant to one party
any right, title or interest in or to the other party's trademarks. All use of
Customer trademarks by e-lingo shall inure to the benefit of Customer, and all
use of e-lingo
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trademarks by Customer shall inure to the benefit of e-lingo.
4. REPRESENTATIONS AND WARRANTIES.
4.1. BY E-LINGO. e-lingo represents and warrants that (a) it has full power
and authority to enter into this Agreement and to grant the rights and perform
the translation services set forth herein, and (b) the Intellectual Property
Rights incorporated by the e-lingo Translation Engine does not infringe in any
material respect any copyright, patent, trade secret, or other proprietary right
held by any third party. E-LINGO MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND
NONINFRINGEMENT.
4.2. BY CUSTOMER. As between Customer and e-lingo, Customer acknowledges
that e-lingo owns all right, title and interest in and to the e-lingo Technology
(except for any software licensed by third parties to e-lingo), and that
Customer shall not acquire any right, title, and interest in or to the e-lingo
Technology. Customer shall not modify, adapt, translate, prepare derivative
works from, decompile, reverse engineer, disassemble or otherwise attempt to
derive source code from any e-lingo Technology software or documentation.
Customer will not remove, obscure, or alter e-lingo's copyright notice,
trademarks, or other proprietary rights notices affixed to or contained within
any e-lingo software or documentation.
5. PAYMENTS.
5.1. FEES Customer shall pay to e-lingo the fees described in Exhibit D.
5.2. RECORDS. e-lingo and Customer agree to keep all proper records and
books of account and all proper entries therein relating to the fee calculations
made under Section 5. Such records and books of account shall be maintained for
a one-year period following the year in which any payments pertaining to such
revenue were due. e-lingo and Customer shall have the right to examine each
others records and books of account from time to time but no more than once
every six (6) months to verify statements rendered under Section 5.1. If any
such examination indicates that Customer has underpaid or overpaid e-lingo, or
that e-lingo has underbilled or overbilled Customer for any particular period,
then e-lingo or Customer, as the case may be, shall promptly remit the
difference to the other party.
5.3. TAXES. All amounts to be paid by Customer to e-lingo herein are
exclusive of any federal, state, municipal or other governmental taxes,
including franchise, sales, use, value added, property or similar tax, now or
hereafter imposed on e-lingo (excluding taxes on the net income of e-lingo).
Such charges shall be the responsibility of Customer and may not be passed on to
e-lingo. Customer takes full responsibility for all such taxes, including
penalties, interest and other additions thereon and agrees to indemnify, defend
and hold e-lingo harmless from any claims, causes of action, costs (including
without limitation reasonable attorneys fees), penalties, interest charges and
other liabilities of any nature whatsoever.
6. CONFIDENTIALITY.
6.1. DEFINITION OF CONFIDENTIAL INFORMATION. All information and documents
disclosed or produced by either party in the course of this Agreement which are
disclosed in written form and identified by a marking thereon as proprietary, or
oral information which is defined at the time of disclosure and confirmed in
writing within ten (10) business days of its disclosure, shall be deemed the
"Confidential Information" of the disclosing party.
6.2. TREATMENT OF CONFIDENTIAL INFORMATION. Each party agrees to protect
the other party's Confidential Information in the same manner as such party
protects its own Confidential Information of substantially similar proprietary
value, but in no case less than reasonable care. Each party agrees that it will
use the Confidential Information of the other party only for the purposes of
this Agreement and that, except as required by law, it will not divulge,
transfer, sell, license, lease, or otherwise disclose or release any such
information or documents to third parties, with the exception of (i) its
employees or subcontractors who require access to such for purposes of carrying
out such party's obligation hereunder, (ii) attorneys and accountants for such
party, and (iii) federal or state agencies.
6.3. NO OTHER CONFIDENTIAL INFORMATION. Neither party shall have any
obligation under this Section 6 for information of the other party which the
receiving party can substantiate with documentary evidence that has been or is
(i) developed by the receiving party independently and without the benefit of
information disclosed hereunder by the disclosing party; (ii) lawfully obtained
by the receiving party
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from a third party without restriction and without breach of this Agreement;
(iii) publicly available without breach of this Agreement; (iv) disclosed
without restriction by the disclosing party to a third party; or (v) known to
the receiving party prior to its receipt from the disclosing party.
7. INDEMNIFICATION.
7.1. BY E-LINGO. e-lingo shall, at its expense and Customer's request,
defend any third party claim or action brought against Customer, and Customer's
subsidiaries, affiliates, directors, officers, employees, agents and independent
contractors, which, if true, would constitute a breach of any warranty,
representation or covenant made by e-lingo under this Agreement, and e-lingo
will hold Customer harmless from and against any costs, damages and
out-of-pocket fees reasonably incurred by Customer, including but not limited to
fees of attorneys and other professionals, that are attributable to such claim.
Customer shall: (a) provide e-lingo reasonably prompt notice in writing of any
such claim or action and permit e-lingo, through counsel mutually acceptable to
Customer and e-lingo, to answer and defend such claim or action; and (b) provide
e-lingo information, assistance and authority, at e-lingo's expense, to help
e-lingo to defend such claim or action. e-lingo will not be responsible for any
settlement made by Customer without e-lingo's written permission, which
permission will not be unreasonably withheld.
7.2. BY CUSTOMER. Customer shall, at its expense and e-lingo's request,
defend any third party claim or action brought against e-lingo, and e-lingo
subsidiaries, affiliates, directors, officers, employees, agents and independent
contractors, which, if true, would constitute a breach of any warranty,
representation or covenant made by Customer under this Agreement, and Customer
will hold e-lingo harmless from and against any costs, damages and fees
reasonably incurred by e-lingo, including but not limited to fees of attorneys
and other professionals, that are attributable to such claim. e-lingo shall: (a)
provide Customer reasonably prompt notice in writing of any such claim or action
and permit Customer, through counsel mutually acceptable to e-lingo and
Customer, to answer and defend such claim or action; and (b) provide Customer
information, assistance and authority, at Customer's expense, to help Customer
to defend such claim or action. Customer will not be responsible for any
settlement made by e-lingo without Customer's written permission, which
permission will not be unreasonably withheld.
7.3. REIMBURSEMENT. The indemnifying party shall reimburse the indemnified
party upon demand for any payments made or loss suffered by it at any time after
the date hereof, based upon the judgment of any court of competent jurisdiction
or pursuant to a bona fide compromise or settlement of claims, demands, or
actions, in respect to any damages related to any claim or action under this
Section 7.
7.4. SETTLEMENT. The indemnifying party may not settle any claim or action
under this Section 7 without first obtaining the indemnified party's written
permission, which permission will not be unreasonably withheld.
8. TERM AND TERMINATION.
8.1. TERM. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall continue in force for a period of __1__ year(s)
thereafter, unless earlier terminated as provided herein.
8.2. TERMINATION BY PARTIES. In addition to any other rights and/or
remedies that Customer or e-lingo may have under the circumstances, all of which
are expressly reserved, either party may suspend performance and/or terminate
this Agreement immediately upon written notice at any time if the other party is
in breach of any material warranty, term, condition or covenant of this
Agreement and fails to cure that breach within thirty (30) days after written
notice thereof.
8.3. SURVIVAL. In the event of termination of this Agreement for any
reason, Sections 1, 5, 6, 7, 8, 9 and 10 shall survive termination. Neither
party shall be liable to the other party for damages of any sort resulting
solely from terminating this Agreement in accordance with its terms.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL THE LIABILITY OF E-LINGO AND ITS
LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT
E-LINGO HAS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT. E-LINGO AND
ITS LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA,
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT
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LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND
WHETHER OR NOT IT WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
10. MISCELLANEOUS.
10.1. NOTICE. Any notice required for or permitted by this Agreement shall
be in writing and shall be delivered as follows with notice deemed given as
indicated: (i) by personal delivery when delivered personally, (ii) by overnight
courier upon written verification of receipt, (iii) by telecopy or facsimile
transmission when confirmed by telecopier or facsimile transmission report, or
(iv) by certified or registered mail, return receipt requested, upon
verification of receipt. All notices must be sent to the addresses first
described above or to such other address that the receiving party may have
provided for the purpose of notice in accordance with this Section.
10.2. ASSIGNMENT. Neither party may assign its rights or delegate its
obligations under this Agreement without the other party's prior written
consent, except to the surviving entity in a merger or consolidation in which it
participates or to a purchaser of all or substantially all of its assets.
10.3. GOVERNING LAW. This Agreement will be governed and construed, to the
extent applicable, in accordance with United States law, and otherwise, in
accordance with California law, without regard to conflict of law principles.
Any dispute or claim arising out of or in connection with this Agreement shall
be finally settled by binding arbitration in San Mateo County, California under
the Commercial Rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
10.4. INDEPENDENT CONTRACTORS. The parties are independent contractors.
Neither party shall be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither shall have any right,
power or authority to create any obligation or responsibility on behalf of the
other.
10.5. FORCE MAJEURE. Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations hereunder during any
event of force majeure.
10.6. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be considered an original, but all of
which together will constitute one and the same instrument.
10.7. ENTIRE AGREEMENT. This Agreement, and the Exhibits hereto, constitute
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement supersedes, and the terms of this Agreement govern, any
other prior or collateral agreements with respect to the subject matter hereof.
Any amendments to this Agreement must be in writing and executed by an officer
of the parties.
IN WITNESS WHEREOF, the parties have caused this Translation Services
Agreement to be signed by their duly authorized representatives.
E-LINGO CORPORATION
By: _________________________________________________
Name: _______________________________________________
Title: ______________________________________________
XxxxxXxxxx.xxx CORPORATION
Name of Customer
By: _________________________________________________
Name: _______________________________________________
Title: ______________________________________________
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EXHIBIT A
DEFINITIONS
The capitalized terms used in the Translation Services Agreement shall
have the following meanings:
1. "Digital Content" means digital text, including text email, text
displayed on a Web pages, and text on Internet search results.
2. "e-lingo Data Protocol" means the written specification on how an
Interface communicates and interacts with the e-lingo Translation Engine.
3. "e-lingo Technology" means the e-lingo Translation Engine and all
other computer software, technology and/or documentation supplied by e-lingo in
connection with this Agreement, including without limitation all source code and
object code therefor and all algorithms, ideas and Intellectual Property Rights
therein.
4. "e-lingo Translation Engine" means the system of computer hardware
and software operated by e-lingo that translates Digital Content from one human
language to another human language.
5. "Intellectual Property Rights" means any and all rights existing
from time to time under patent law, copyright law, semiconductor chip protection
law, moral rights law, trade secret law, trademark law, unfair competition law,
publicity rights law, privacy rights law, and any and all other proprietary
rights, and any and all applications, renewals, extensions and restorations
thereof, now or hereafter in force and effect worldwide.
6. "Interface" means the editorial and graphical content and design of
the Web pages served to end users of the Site, including without limitation all
Digital Content of the Site.
7. "Interface Construction Tools" means all software tools, if any, in
object code form, provided by e-lingo to assist Customer to build the Interface
to the e-lingo Translation Engine, including without limitation e-lingo
application server.
8 "Services" means the translation services of Digital Content from one
human language to another human language provided by e-lingo through the e-lingo
Translation Engine, as more fully described in Exhibit B.
9. "Site" means a Single Web site established and maintained by
Customer through which end-users may access the e-lingo Translation Engine to
translate Digital Content from one language to another language.
The Site's URL address is _____________________.
10. "Term" shall have the meaning set forth in Section 8.1.
11. "Web" means the so-called World Wide Web, containing, inter alia,
pages written in hypertext markup language (HTML) and/or any similar successor
technology.
12. "Web page" means a document on the Web which may be viewed in its
entirety without leaving the applicable distinct URL address.
13. "Web site" means a collection of inter-related Web pages. 13.
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EXHIBIT B
TRANSLATION SERVICES SPECIFICATIONS
e-lingo shall provide translation services using the e-lingo
Translation Engine under the Agreement in conformity with the following
functionality specifications and performance criteria:
1. Language Pairs. e-lingo shall provide machine language translation
of Digital Content for the following language pairs:
(a) Current pairs: Between English and each of the
following:
French, German, Spanish, Italian, Portuguese
(b) Future pairs: all language pairs that are made
commercially available by e-lingo.
The parties understand that the e-lingo translation service is computer
translation and that the translation shall be subject to the limitations
inherent in such translation as further described in e-lingo's standard
disclaimer.
2. Uptime. Uptime reliability of e-lingo language translation services
must be 99.0% over any 30-day rolling period. Uptime is defined as the ability
for a e-lingo to respond to a translation request of Digital Content (meeting
the size limitations provided below) from the Customer within 30 seconds from
receipt of such request. In addition, e-lingo is only responsible for
maintaining uptime of the translation service.
3. Response Time. The average time to return a translation of Digital
Content must be equal to or less than ten seconds, which such time period does
not include the retrieval of such Digital Content. This time is measured
starting from when e-lingo has fully received the requested Digital Content from
the Customer's server, and ending when e-lingo transmits the translated Digital
Content to Customer.
4. Size of Digital Content Requested to be Translated. Web page
translations are limited to 8K of text per translation. Email and text
translations are limited to 2K of text per translation.
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EXHIBIT C
SUPPORT GUIDELINES
1. Definitions.
(a) Hours of Operation. e-lingo will provide Customer with 7 x 24
support as set forth herein.
(b) Problem. Any error, bug, or malfunction of the e-lingo Service
that makes any feature of the e-lingo Translation Engine
perform unpredictably or to otherwise become intermittently
unavailable, or that causes the e-lingo Translation Engine to
have a material degradation in response time performance.
(c) Severe Problem. Any error, bug, or malfunction of the e-lingo
Service that causes the e-lingo Translation Engine to become
inaccessible to Customer and its Site end users, or that
causes any feature of the e-lingo Translation Engine to become
continuously unavailable.
(d) Enhancement Request. A request by Customer to incorporate a
new feature or enhance an existing feature of the e-lingo
Translation Engine.
(e) Fix. A correction, fix, alteration or workaround that solves a
Problem or a Severe Problem.
2. Contact points.
(a) Customer Technical Support Personnel. Customer will designate
no more than three Customer employees as qualified to contact
e-lingo for technical support. Additional support contacts may
be purchased on an annual basis at a rate of $5,000 each.
(b) e-lingo Technical Support Personnel. e-lingo will ensure that
its Technical Support Personnel are adequately trained to
provide technical support to Customer. e-lingo will provide
Customer with a web interface or an email address (the
"Support Address"), as well as an email pager address (the
"Support Pager") for contacting the e-lingo Technical Support
Personnel no later than one week prior to initial availability
of the translation services (the "Launch Date"). e-lingo will
also provide Customer with contact information for executive
escalation personnel no later than one week prior to the
Launch Date. e-lingo may change its designated Technical
Support Personnel and executive escalation personnel at its
discretion with reasonable notice to Customer.
3. Support procedures.
(a) All Problems reported by Customer Technical Support Personnel
to e-lingo must be submitted via web site or email to the
Support Address.
(b) If Customer believes it is reporting a Severe Problem,
Customer will accompany its email request with a page via the
Support Pager.
(c) Upon receiving a report from Customer, e-lingo will determine
whether the request is a Problem, a Severe Problem, or an
Enhancement Request. e-lingo will respond to the request and
use reasonable commercial efforts to provide a Fix as
described in the support table set forth below.
(d) e-lingo will use commercially reasonable efforts to inform
Customer Technical Support Personnel of Fixes.
4. Support levels.
(a) e-lingo will provide the following technical support to
Customer Technical Support Personnel:
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RECEIPT OF EMAIL REQUEST TYPE OF EMAIL TARGET RESPONSE TIME TARGET FIX TIME AND REPORTING
REQUEST FROM EMAIL RECEIPT
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During business hours or Problem Within 6 hours Commercially reasonable best efforts with
other times weekly status reports to Customer
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During the hours Severe Problem Within one hour Commercially reasonable best efforts with
between 6:00 a.m and daily status reports to Customer
9:00 p.m. Pacific time
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During other times Severe Problem Within two hours Commercially reasonable best efforts with
daily status reports to Customer
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During business hours or Enhancement Within three business At e-lingo's discretion
other times Requests days
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(c) In the event e-lingo does not respond to Customer within the
target response time from email receipt set forth above, then
Customer may contact the following e-lingo executive
escalation personnel in order. Customer must allow one hour
for response for each step in the escalation path.
Xxxxx Xxxxx (000) 000-0000 xxxxx@x-xxxxx.xxx
Xxxxxxx Xxxxxx (000) 000-0000 xxxxxxx@x-xxxxx.xxx
Xxxx Xxxx (000) 000-0000 xxxx@x-xxxxx.xxx
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EXHIBIT D
FEES
All fees below are quoted in U.S. Dollars and all payments shall be
made in U.S. Dollars. Customer shall pay all amounts due under this Agreement to
e-lingo at the address indicated at the beginning of this Agreement or such
other location as designated by e-lingo in writing
For this service, XxxxxXxxxx.xxx will:
- Pay e-lingo in accordance with the pricing scale below. XxxxxXxxxx.xxx will
not be charged a setup fee, or a monthly minimum for e-lingo services.
Number of Translations per Month CPM
-------------------------------------------------------------------------------------------------------------
0 - 5K 12.00 CPM
-------------------------------------------------------------------------------------------------------------
5K - 25K 10.00 CPM
-------------------------------------------------------------------------------------------------------------
25K - 50K 9.00 CPM
-------------------------------------------------------------------------------------------------------------
50K - 100K + 8.00 CPM
-------------------------------------------------------------------------------------------------------------
- Payment of fees are due monthly. Payment will be due Net 15 days from
the end of each month.
- Marketing
Agree to be a referenceable customer for press and analyst inquiries,
quotes and press releases.
Agree to implement and launch the Browse and Text Translation Services
within 60 days of signing the contract with e-lingo.
Agree to allow e-lingo to do a customer win announcement regarding
signing a contract with XxxxxXxxxx.xxx.
In exchange e-lingo will:
- Provide Translated Text and Translated Browse (urls or Web pages) Services
to XxxxxXxxxx.xxx. The translations provided will be up to 2K in text size
for text blocks and up to 8K in text size for translated Web pages.
- Provide an invoice to XxxxxXxxxx.xxx monthly that will be based on the
number of translations provided by e-lingo to XxxxxXxxxx.xxx for that
month.
Agree to be a referenceable customer for press and analyst inquiries, quotes and
press releases.
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