1) These terms and conditions (the “Terms”) shall apply to all language, translation, interpretation, multimedia, patent filing, intellectual property and other services (the “Services”) that Morningside, LLC, Morningside, GmbH, or AC Translations Limited (“Morningside”) provides to you (the “Client”) (along with Morningside, the “Parties”). All Services performed by Morningside shall be governed by these Terms unless the Parties have executed a separate Services Agreement for the subject of the Services hereof.
2) Language Services. Morningside shall perform language-related Services in accordance with the standards of care and diligence ordinarily exercised by a skilled translator or interpreter in performing services of a similar nature. Client understands and acknowledges that language translation, interpretation, editing, proofreading, formatting, and other Services may vary depending on differences of nationality and region, in dialect and colloquialisms, and in meaning, nuance and usage that do not translate precisely from one language to another, and Morningside will not be held liable for these variations in word choice. Client also acknowledges that certain terms and terminology particularly used in specialized activities or among specialized groups (i.e., medicine and various scientific specialties) may involve the use of technical terms where meanings, implications, and nuances may vary from locale to locale, and Morningside will not be held liable for these variations either.
3) Acceptance of Translation Services. With respect to translation-related Services, Client shall promptly review the work product associated with any Services when it is received and shall promptly notify Morningside electronically of any claimed nonconformance of such work product to the Services. Morningside shall use commercially reasonable efforts to correct any nonconformance identified by Client. Services shall be deemed accepted by Client and Morningside shall be deemed to have fulfilled all of its obligations with respect to such Services on the tenth 10th business day after the delivery of such applicable work product. Such review by Morningside shall be limited to mistranslations, missing translations, spelling or grammatical errors, nonconformance with style guides, guidelines, and terminology databases or glossaries provided to Morningside by Client or developed by Morningside and approved by Client. Any changes by Client to the meaning of the original text, making preferential changes, contradicting previously approved translations, terminology, or style guides, contradicting generally accepted industry, locale, or use standards, or introduction of grammatical or factual errors shall not be included in such review by Morningside and would be subject to payment of additional Service Fees (as defined below).
Sections 4-6 and 7(b) RELATE EXCLUSIVELY TO PATENT FILING SERVICES:
4) Patent Filing and Validation Services. Morningside provides administrative and coordination services with respect to worldwide patent filings using our global agent network. While Morningside partners with top patent law firms, we are not a law firm, do not directly employ patent attorneys, and do not purport to assume the role of a patent attorney or firm in patent filing and prosecution matters. We establish the relationship between Client and the local representative. All legal services are carried out through Morningside’s network of associates and we therefore will not be liable for any errors, loss of rights which may be caused to Client or to a third party, directly or indirectly, as a result of actions taken by these representatives on Client’s behalf. Morningside further will not be responsible for errors, negligence, malpractice and/or loss of rights which may occur during the prosecution stage, nor shall Morningside be responsible for any information or advice provided by the aforementioned network of associates.
5) Orders. Client agrees and acknowledges that it is Client’s responsibility to: verify the accuracy of all information relating to the patent application prior to placing an order; timely place orders; answer all questions, including those asked by our associates; promptly return all forms, including signed Power of Attorney forms, to either Morningside or our agents; ensure that the contact person within Client’s organization, identified at the time of order by the e-mail address, has the authority to place such orders and to bind Client to the payment of the amount as stated in the invoice; and, accept our Terms.
6) Estimates. While Morningside makes every attempt to correctly and precisely calculate the costs of filing the patent application, we cannot guarantee the accuracy of these numbers or any estimate produced on these numbers. Please note that official fees provided in our quote are only approximated, and will be billed in accordance with the fees set at the time by each local patent office. Before placing an order, Client must verify the accuracy of the inputs and note that our fees are subject to change at any time without prior notice. By using the Services and requesting and receiving a quote, Client agrees that no estimate provided by Morningside constitutes an offer to provide Client with any services and that an actual order for services is not binding until (a) the order is accepted by Morningside in an Order Confirmation, and (b) the client confirms all elements of the Order Confirmation and answers all questions requested by Morningside. A quotation of costs provided by Morningside is applicable only to the relevant case and does not apply in any other instance. The estimates provided are calculated based on the patent application ‘as filed’ together with input provided by Client. Since some elements of the patent application, such as the number of independent claims, claim amendments, the need to file sequence listings, the final word count, etc. are impossible to automatically calculate, some assumptions are applied when producing the estimate. The estimates assume that orders will be placed in good time prior to the statutory deadline and that the applicant is a large entity. Also, estimates do not include renewal fees which may be due at or immediately after filing in some jurisdictions. We will do our best to assist Client in case of late or urgent filings and Client hereby agrees that orders placed too close to the deadline may require additional late fees which are not presented in the estimates. Likewise, if Client’s patent application includes sequence listings, surcharges may apply in some countries.
7) Acceptance of Quotations for Orders and Additional Client Responsibilities.
a. With respect to all Services, it t is Client’s responsibility to confirm all elements of the order and answer all questions requested by Morningside following its receipt of the order and following presentment of a quotation to the Client, and to confirm acceptance of all elements of the quotation. Morningside disclaims any responsibility for any losses arising from the use of any incorrect input provided by Client. Client agrees that payments will be made in the currency noted on our invoice and in accordance with the terms provided. Unless otherwise stated, all quotations shall expire after ninety (90) days of issuance.
b. With respect to patent filing services only, Client agrees to comply with the deadlines specified in our communications and provide us and/or the agents with all the required Power of Attorney forms or other formality documents prior to the deadlines. Late filing of any required documents will result in additional fees charged by the agents for attending to the separate filing of these documents and may cause loss of rights in some jurisdictions. Late instruction and/or authorization to proceed may require us to reissue the invoice and include late fees, cancel Client’s order, or may potentially result in the loss of rights due to the failure of Morningside to be able to timely file/validate an application. Where late fees are necessary they will be clearly noted on the invoice. We reserve the right to further charge Client if our invoice was based on any wrong input provided by Client and/or if changes in official government fees occur between the time an order is placed and the time of providing the respective service. Client acknowledges that its instruction to us to file a patent application on its behalf does not guarantee the eventual success of the patent application. Whether or not the patent application is granted in the chosen countries is a matter for the local patent office and is outside of Morningside’s control and its agents. Morningside disclaims any responsibility for any losses arising from patent applications not being filed and/or validated where the Client did not fully and completely confirm all elements of the quotation and answer all questions requested by Morningside.
c. Client agrees that it shall not export or re-export, directly or indirectly, any information in violation of any governmental regulations that may be applicable, including, without limitation, the Export Administration laws and regulations. The Client shall notify Morningside in writing of information subject to export control and appropriately mark any such information. Client shall indemnify, defend, and hold Morningside and its parents and affiliates harmless for the consequences of any export control violation in which Morningside was not appropriately notified and projects were not clearly identified and marked. No law of conflicts or choice of law shall supersede this provision.
8) Payment. Client agrees to promptly pay Morningside all fees associated directly and indirectly with the Services (the “Service Fees”). Those fees are included in (a) the order confirmation provided by Morningside to the Client, (b) the quotation provided by Morningside to the Client, and/or (c) the invoice(s) issued by Morningside to the Client, each in connection with the Services. In the event of an inconsistency between the pricing or other terms contained in clauses (a), (b) and (c) above, the terms shall be governed first by clause (a), then by clause (b) and finally by clause (c). All fees and expenses are due and payable on or prior to the thirtieth (30th) day from the date of Morningside’s invoice. Payments not timely received shall be subject to a late fee equal to two percent (2%) of the outstanding amount per month. Client shall reimburse Morningside for preapproved travel expenses incurred in connection with the provision of Services, including standard Federal mileage rates and reimbursement of tolls and parking. Stylistic changes may be billed at an hourly rate to be determined. With respect to translation costs only, the final translation cost will be determined by the actual word count and may be more or less than estimated and is also subject to any additional fees referenced in Section 3. With respect to all costs except official fees, final costs will not exceed a quotation or order confirmation by more than 10% (not including any foreign currency fluctuations).
9) Confidential Information.
a. Unless the Parties have executed a separate non-disclosure agreement that pertains to the Services, the Terms contained in this Section 9 shall apply. This Section 9 shall remain valid for a period of three (3) years after the completion of Services by Morningside.
b. Morningside acknowledges that Morningside may, in the course of providing Services pursuant to these Terms, be exposed to or acquire information that is proprietary to Client. Morningside acknowledges that such information is the sole and exclusive property of Client and that the maintenance of the confidentiality thereof is essential to Client’s ability to conduct its business. Morningside agrees to hold all “Confidential Information” (defined below) in confidence and not to use any such Confidential Information or disclose the same to any third parties, except as may be required in connection with the performance of the Services. Morningside further agrees not to copy, reproduce, sell, assign, license, market, transfer, or otherwise dispose of any such Confidential Information, and to safeguard the information against disclosure to others with the same degree of care as exercised by Morningside with its own confidential information.
c. As used in these Terms, Confidential Information shall include any and all information designated by Client as Confidential. Confidential Information may include, if designated by Client, information relating to (i) the existence of the request for Services, (ii) the substance of any source materials, and (iii) the nature and/or content of the Services. Confidential Information does not include information that is or in the future becomes public knowledge other than through acts or omissions of Morningside in violation of this provision or that which is lawfully obtained by Morningside from sources other than Client or developed by Morningside without reference to any Confidential Information of Client.
d. A disclosure of Confidential Information by Morningside that is (i) in response to a valid order by a court or other governmental body, (ii) otherwise required by law, or (iii) necessary to establish the rights of either party under this Agreement, shall not be considered a breach of these Terms or a waiver of confidentiality for other purposes; provided, however, that Morningside shall provide prior written notice thereof to Client in order to enable Client to seek a protective order or otherwise prevent such disclosure.
10) Intellectual Property.
a. Client represents and warrants that (i) Client owns or has obtained all necessary rights, title and interest, in and to the material to be translated or otherwise worked on by Morningside, including and without limitation all applicable copyrights, trademarks or service marks, or licenses thereunder, with respect to written materials or designs; the rights and titles for film and audio productions; and any necessary patent rights or license thereunder with respect to technical materials, and that (ii) neither the translation, interpreting nor other Service to be performed by Morningside with respect to such materials, or any copying in connection therewith, will infringe or otherwise violate the rights of any third parties. Client shall indemnify and hold Morningside harmless from and against (x) any claims of any person or entity arising in connection with any challenge to Client’s rights to, or use of, the materials, any allegation or infringement or violation of a third party’s rights, or any other circumstances calling into question the accuracy or truth of Client’s representations and warranties above, whether or not such challenge or allegations are ultimately successful in legal proceedings, and (y) any and all costs, expenses, attorney’s fees and disbursements, losses and damages of any kind incurred by Morningside as a consequence of or in connection with such claim, whether or not Morningside was named as a party to any action or proceeding in connection therewith.
b. Subject to the foregoing, Morningside acknowledges that all work product shall belong to Client and that Morningside shall have no rights therein.
c. Morningside understands that Morningside may during Morningside’s business relationship with Client, develop, make, conceive of, learn of, or reduce to practice, either alone or jointly with others, various “Innovations” (defined below). Morningside agrees that if any of the Innovations or any portion thereof are copyrightable or otherwise have proprietary rights, said Innovation or any portion thereof shall be deemed to be a “work made for hire,” as such term is defined in the Copyright Laws of the United States. For purposes of these Terms, Innovations includes translations, works of authorship, audiovisual recordings (including work made for hire), information fixed in any tangible or intangible medium of expression (whether or not protectable under copyright laws) and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret or other laws.
d. Morningside hereby grants, assigns and transfers to Client, Morningside’s entire worldwide right, title and interest in and to all Innovations and in and to all patents, copyrights, trademarks, trade secrets, royalties, and other proprietary rights in or based on the Innovations. Morningside will cooperate and, at Client’s request, will promptly execute documents of assignment, oaths, declarations and other documents, prepared by or on behalf of Client, to effect the foregoing or to perfect or enforce any proprietary rights resulting from or related to this Agreement. Morningside will preserve any such Innovations as part of the Confidential Information.
11) Personal Data Protection. Client and Morningside acknowledge that Morningside may receive personally identifiable information in connection with the provision of the Services. Client represents and warrants that it will obtain and disclose personally identifiable information to Morningside in compliance with Data Protection Laws. Morningside shall comply with the Data Protection Laws applicable to Morningside in its role as a service provider. Morningside is not responsible for complying with Data Protection Laws applicable to Client or Client’s industry. Morningside agrees to not retain, use, or disclose personally identifiable information for any purpose other than the specific purpose of performing the Services, except to detect security incidents, prevent fraud or illegal activity, or as may be permitted under Data Protection Laws in Morningside’s role as a service provider. “Data Protection Laws” means all data protection laws applicable to the processing of personally identifiable information under this Agreement, including local, state, national and/or foreign laws, treaties, and/or regulations.
12) Non-Solicitation. Client hereby understands and acknowledges that Morningside has expended extensive time and resources in finding, hiring, retaining and/or training its employees, independent contractors, consultants, or agents. Accordingly, Client hereby agrees that while these Terms are in effect and for a period of two (2) years thereafter, Client shall not directly or indirectly solicit or hire or attempt to solicit, hire, retain the services of, or engage any employee, consultant, independent contractor, or agent of Morningside.
13) Cancellation. Client may cancel translation or other Services, except interpretation, at any time and will be responsible for the cost of any Services partially or wholly completed up to the time of cancellation. Morningside will issue an invoice for the cost of any Services partially or wholly completed prior to cancellation. For interpretation assignments only, Client may cancel or postpone the Services up to two (2) business days prior to the assignment, in which case 50% of the total minimum expected fee will be billable. For interpretation assignments only, cancellation or postponement one (1) business day prior to the assignment will result in a required payment by Client of 100% of the total minimum expected fee, plus any incurred expenses. Note that for certain languages, cancellation terms may vary, but will always be spelled out in advance if different than the Terms contained in this Section 13.
14) Remedies. The Parties recognize that violation of covenants and agreements contained in Sections 9, 10, 11 and 12 of these Terms may result in irreparable injury to the other party which would not be fully compensable by way of money damages. Each party acknowledges and agrees that any violation or threat of any violation of such provisions may be appropriately addressed by legal and/or equitable relief, including but not limited to a temporary restraining order or other injunction.
15) Insurance. During the pendency of the Services, Client will maintain insurance customary and reasonable for the business that it conducts and consistent with other similarly situated companies operating in Client’s industry.
16) Limitation on Liability. Morningside makes no warranties of any kind, expressed or implied, including, without limitation any warranties of merchantability, fitness for a particular purpose, or otherwise, except that it will perform the Services in accordance with the standard of care set forth herein. Notwithstanding anything to the contrary, Morningside shall not be liable for any losses, claims, causes of action, expenses, judgments, fines, penalties or damages of any nature or kind, including without limitation special, direct, indirect, incidental or consequential damages, exceeding the fees collected by Morningside for Services rendered related to the specific work product request from Client.
17) Entire Agreement; No Waiver. Subject to Section 1 and 9(a), these Terms (along with the quotation and/or order confirmation associated with the Services) constitute the entire agreement and understanding between the Parties with respect to the subject matters herein, and supersede and replace any prior agreements and understandings, whether oral or written between them with respect to such matters. These Terms may be waived, altered, amended or repealed in whole or in part only upon the written consent of both Parties. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any subsequent breach of the same provision or any other provision. Any specific terms and provisions contained within the quote or order confirmation provided by Morningside and included with these Terms will control with respect to any conflicts between those terms and the Terms set forth herein. Morningside’s provision of Services is expressly limited to, and expressly made conditional on, the Client’s acceptance of these Terms. Morningside objects to any different or additional terms.
18) Successors and Assigns. These Terms shall inure to the benefit of and bind the parties and their respective successors and assigns.
19) Severability. If for any reason any of these Terms shall be determined to be invalid or inoperative, (i) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of the remaining Terms shall not be affected or impaired thereby.
20) Governing Law; Arbitration. These Terms, including any controversy, claim or disputes arising out of or relating to the Services and/or these Terms, shall be governed by the laws of the State of New York without respect to its conflicts of law principles. Any controversy or claim arising out of or relating to the Services and/or these Terms, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution (ICDR) in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The Parties shall endeavor to agree to an arbitrator within 30 days after commencement of the arbitration. Should they fail to reach agreement on an arbitrator or agreement on an extension of the 30 day time period, the arbitrator shall be appointed as provided in the ICDR’s International Arbitration Rules. The place of arbitration shall be New York City, New York, United States, and any hearings held outside the United States shall occur in London, United Kingdom. The language of the arbitration shall be English. The Parties acknowledge that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall apply to the enforcement of any arbitration award. The foregoing agreement to arbitrate shall be specifically enforceable under applicable law in any court, for purposes of which the parties hereby irrevocably submit to the exclusive jurisdiction of any state or federal court in New York City, New York, United States with respect to any such action or proceeding. However, notwithstanding the above, the Parties agree that any claim for emergency injunctive relief (i.e., temporary restraining orders or preliminary injunctions) shall be decided by a court of competent jurisdiction without any requirement that the issue be submitted to arbitration. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY SUCH ACTION.The non-prevailing party in any arbitration or action governed by this Section 20 shall reimburse the prevailing Party for the costs and fees (including reasonable attorneys’ fees) associated with any such arbitration or action.
21) Notices. All notices, requests, demands, instructions or other communications required or permitted to be given pursuant to these Terms shall be in writing and shall be effective upon delivery via electronic mail addressed to [email protected] (if to Morningside) or the email address reflected on the quotation or order confirmation associated with the Services (if to Client). In order for a notice sent by electronic mail to be effective, the receiving party must acknowledge actual receipt.