SMARTCAT CUSTOMER AGREEMENT
Current version. Last updated on October 09, 2024.
RECITALS
A. Smartcat is the owner and provider of an online platform, located at https://www.smartcat.com (the “Platform”), for translation and translation project management services; and
B. Client is a translation agency or an end-customer interested in the Services as defined below.
For the purposes of this Agreement Smartcat means Smartcat Platform Inc., a legal entity registered under the laws of the United States of America. If you have executed a separate written agreement with any of Smartcat affiliates, this Customer Agreement does not apply to you.
We reserve the right at all times to remove or modify any part of this Agreement unilaterally. We shall notify you by posting an updated Agreement on the Platform. Your use of the Platform after posting the updated version shall mean your acceptance of the updated Agreement. In case you use a corporate account, only the administrator of that corporate account will be notified. The administrator of the corporate account and not Smartcat is solely responsible for further notification of changes to other members of the corporate account.
Once you complete the mandatory fields of your profile to register as a Customer and accept this Customer Agreement, you represent and warrant to Smartcat that: (i) you are authorized to bind yourself; (ii) you agree to be bound by the Terms of Service, located at www.smartcat.com/terms/ (“TOS”); and (iii) you agree to be considered a Customer.
If you do not agree with this Agreement, you are not eligible to submit Service Tasks on the Platform.
For the purposes of this Agreement, the “Customer” means a User of the Platform which submits a Service Task on the Platform and provides payment for such Service Task.
1. DEFINITIONS
1.1 Services - Translation and Subscription Services.
1.2 Translation Services - translation and related services (editing, post-editing, proofreading, interpreting, etc.) with respect to the Customer Materials (as defined herein) as detailed in one or more Service Tasks (as defined herein). Smartcat in each case will engage the services of Subcontractors (as defined herein) available on Smartcat marketplace to perform the Translation Services.
1.3 Service Task - a service order placed by the Customer through the Customer’s account dashboard on the Platform or otherwise, as mutually agreed for the provision of Translation Services that contains the description of its terms, including the language of the original text, translation language, scope of work, deadline and cost.
1.4 Subscription Services - products and services included in Smartcat subscription plans selected by the Client through the Client’s account dashboard on the Platform or as set forth in the Order Forms hereto.
1.5 Customer Materials - Content uploaded by the Customer to the Platform. Any content uploaded by the Customer to the Platform is herein referred to as the “Customer Materials”.
1.6 Platform Terms of Service. The Customer’s use of the Platform in connection with receipt of the Services shall be governed by this Agreement as well as the TOS. This Agreement and the Order Forms will prevail to the extent of any inconsistency with the TOS.
1.8. Subcontractors - freelancers registered on the Platform to perform the Translation Services under this Agreement and available on Smartcat marketplace bound by confidentiality obligations.
1.9. Smartwords - words that are translated using Smartcat AI features. Smartwords are part of the Subscription Services. A detailed description of Smartwords is located at https://www.smartcat.com/smartwords/.
1.10. Translated Works - the Completed translation of the Customer Materials.
2. SERVICES
2.1. During the term of this Agreement, Smartcat shall provide the Client with the Translation Services as described in each Service Task and the Subscription Services as described in the Order Forms.
2.2. Smartcat hereby grants to the Client a non-exclusive, non-sublicensable, revocable, and non-transferable right to access and use the Services for the Client’s internal business purposes and under the terms and conditions of this Agreement.
2.3 Delivery of Translated Works; Acceptance.
(a) If the Customer opts to utilize Smartcat's Translation Services, the Translated Works shall undergo a review process by the Customer to assess the quality of the Translated Works. Smartcat will submit Translated Works to the Customer for Customer’s review (the “Acceptance Review”). The Customer will complete its Acceptance Review within 15 (fifteen) calendar days unless another period is agreed upon by the Parties (the “Review Period”). Prior to the expiration of the Review Period, the Customer shall provide Smartcat with notice through the Customer’s account dashboard on the Platform of the Customer’s Acceptance of the Translated Works by clicking “done” or “accept” (the “Acceptance”) or of the Translated Works’ failure to meet standard industry practices (the “Rejection”), provided however, that failure by the Customer to deliver any notice in accordance with this par. 2.3(a) during the Review Period, will constitute automatic Acceptance of the Translated Works by the Customer. Acceptance generates an obligation of the Customer to pay for the Translation Services. Failure by Smartcat to deliver Translated Works to Customer within the timeframe identified in the applicable Service Task may constitute cause for a Rejection of such Translated Works by Customer.
(b) Smartcat provides a quality guarantee to the Translated Works except for the translation performed by Subcontractors (as defined herein) mentioned in par. 2.4(c) and Subcontractors not suggested by Smartcat for performing a specific Service Task.
(c) The quality guarantee means that subject to par 2.3(b):
1) In the event of a Rejection by the Customer within the Review Period, Smartcat will, at the option of the Customer, either: (i) use reasonable commercial efforts to correct and remedy the failure(s) or deficiency(ies) identified by the Customer (using the same or another Subcontractor in Customer’s discretion), or (ii) negotiate with the Customer in good faith a discount to the fees for the Translation Services related to the Translated Works which were the subject of a Rejection. For a Rejection resulting solely from a delay in delivery, the maximum discount that Smartcat will offer will be capped at 15%.
2) In the event that the Customer accepts the Translated Works but subsequently discovers that the Translated Works fail to meet standard industry practices, Smartcat will, at the option of the Customer, either: (i) use reasonable commercial efforts to correct and remedy the failure(s) or deficiency(ies) identified by the Customer (using the same or another Subcontractor in Customer’s discretion), or (ii) negotiate with the Customer in good faith a discount to the fees for the subsequent Translation Services.
(d) Smartcat’s obligations under par. 2.3(c) comprise Customer’s sole and exclusive remedy and Smartcat’s sole obligation and liability for failure to meet standard industry practices.
2.4 Subcontractors.
(a) Smartcat shall be wholly responsible for payment to the Subcontractors of their fees in connection with performing the Translation Services except for Subcontractors mentioned in par. 2.4(c).
(b) The Customer may request that Smartcat either (i) use, replace or assign additional Subcontractors to a Service Task or (ii) not use or remove specific Subcontractors from a Service Task, and Smartcat will use reasonable commercial efforts to accommodate Customer requests.
(c) The Customer may invite Subcontractors to register on the Platform via an invitation link. Smartcat does not provide any additional services to such Subcontractors (including without limitation listing Subcontractor’s profile on the Platform search) except those services that are required to establish and maintain efficient collaboration and delivery of the results of the Service Task. For the avoidance of doubt, Subcontractors are considered to be invited by the Customer if: (i) such Subcontractor’s account was not viewed on the Platform by the Customer prior to invitation (ii) the Subcontractor’s account on the Platform was registered by the invitation link generated from Customer’s account dashboard with the Platform.
(d) The Customer agrees, during the term of this Agreement and for three (3) years thereafter, not to solicit any Subcontractors (except for Subcontractors invited by the Customer as per par.2.4(c) above) for employment or consulting, directly or indirectly, for the Customer or for any business or organization in which the Customer, or any of the beneficial owners of the Customer, if the Customer is a legal entity, has an ownership interest of any kind. Provided, however, that this provision shall not apply to any Subcontractor who (i) responds to a general mass solicitation of employment or independent contracting not specifically directed towards Subcontractors of Smartcat (including without limitation the use of independent employment agencies and advertisements in publications or via the internet), (ii) is independently referred to the Customer by a recruitment firm retained to make a general solicitation of employment or independent contracting. In no event shall Subcontractors be considered employees of the Customer. The Customer agrees not to use the Platform for assigning Service Tasks or performing Service Tasks with Subcontractors with whom the Customer has an employer-employee relationship.
2.5 Delays. In the event of (a) a delay by the Customer in delivering the Customer Materials or responding to questions relating to the Customer Materials, (b) a delay due to the Customer’s request for changes to the Customer Materials or any other terms of the applicable Service Task, (c) a dispute in good faith between the parties as to whether the Translated Works meet the requirements specified in the applicable Service Task, (d) a delay due to any third party’s act, failure to act or delay in performing any obligation whatsoever, other than the act, failure to act or delay by a Subcontractor, or (e) any other delay incurred as a result of Customer’s actions, the delivery schedule set forth in the Service Task shall be deemed postponed for an equivalent period. No such delay shall relieve or suspend Customer’s obligation to pay Smartcat under par. 3 hereof and, in addition to such payment obligations, the Customer shall pay for all reasonable expenses incurred by Smartcat in connection with and as a direct result of any such delay.
3. PAYMENT TERMS
3.1 Service Fees.
3.1.1 Payment for the Subscription Services can be made via the Platform or based on the invoice.
3.1.2 Regardless of payment frequency for the Subscription Services specified in the Order Forms, the Customer will be required to pay for the full Service Period specified in the Order Forms.
3.1.3 Customer agrees to pay the fees for the Translation Services as set forth in one or more Service Tasks. Payment for the Translation Services shall be carried out as in one of the following ways:
(a) For Customers on a "Forever Free" subscription plan: advance payment, unless otherwise agreed with Smartcat.
(b) For Customers on paid subscription plans: (i) advance payment; unused funds within the Service Period will automatically carry over to the subsequent Service Period upon renewal; or (ii) post-payment after acceptance of the Service Task.
3.1.4. If any fees for the Translation Services are not paid when due according to par. 3.3. Smartcat reserves the right to disable the post-payment feature specified in par. 3.1.3. (b) (ii).
3.2 Additional Fees. The Customer agrees to pay Smartcat additional fees, calculated as set forth in the applicable Service Tasks in each of the following cases, or as otherwise agreed between Smartcat and the Customer:
(a) The Customer makes changes in the Customer Materials after the execution of a Service Task with respect thereto; or
(b) The Customer requests changes to the Translated Works after delivery thereof to the Customer because of Customer’s preferences as to style or vocabulary, and such changes are not required for accuracy;
(c) The Customer requests delivery of the Translated Works in a file and text format not agreed upon.
3.3 Payments. All invoiced fees are due within fifteen (15) calendar days following receipt by the Customer of an undisputed invoice. If any payment of fees hereunder are not paid when due, the Customer agrees to pay Smartcat interest at a rate of 1.5% per month of the payment amount then due (“Overdue Charges”).
3.4. Payment Disputes. Smartcat will not exercise its rights under the “Overdue Charges” mentioned in section above if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
3.5 By selecting ACH debit or credit card as its preferred payment method and by linking the Customer’s bank account or credit card to the online payment service integrated with the Platform, the Customer authorizes Smartcat to automatically debit the bank account or credit card provided by the Customer for the amounts owed for the Subscription Services during the term thereof.
3.6 All taxes levied on the transactions of Service Fees under this Agreement in accordance with the applicable legislation of Customer’s jurisdiction are not included in the Service fee as well as the transaction costs (e.g. bank fees for the transaction). Such taxes and transaction costs are calculated and paid by the Customer in excess of the Service fee by the Customer. Smartcat is not responsible for any of the Customer’s taxes and transaction costs.
3.7 Price Changes. Smartcat may change prices for the Services from time to time at its sole discretion. Any price changes for the Subscription Services will be effective upon the commencement of Client’s next renewal of the Subscription term, provided that Smartcat shall provide the Client with reasonable notice of any such fee increase prior to the expiration of the Subscription term or any subsequent renewals of the Subscription term specified in the Order Forms. Smartcat reserves the right to offer additional Smartwords at an extra cost.
4. TERM AND TERMINATION
4.1 Term; Renewal.
(a) This Agreement shall become effective on the Effective date and shall continue in full force until terminated in accordance with the terms and conditions herein.
(b) The Subscription term of the Subscription Services is indicated in the Order Forms or in Customer’s account dashboard on the Platform. Unless otherwise specified in the Order Forms at the end of the Service Period, Customer's Smartcat subscription (including any additional subscriptions added to Customer's account) will automatically renew for additional 12 month periods. Either Party may provide written notice of termination 30 calendar days prior to the renewal date.
(c) Smartcat has the right to unilaterally terminate this Agreement or suspend Client’s access to the Services in the event of a material breach of this Agreement by the Client, including but not limited to violation of par. 3.3., and on the grounds specified in Section 4 of TOS.
4.2 Effect of Termination.
(a) In the event of termination of this Agreement for breach by Smartcat and if Smartcat does not cure such breach within 30 days, the Customer shall only be responsible for payment to Smartcat of the undisputed fees for Translation Services performed and fees for the Subscription Services mentioned in the Order Forms through the date of such termination.
(b) In the event of termination of any Service Task by the Customer prior to its completion, in the absence of breach by Smartcat, the Customer will be required to pay for the Services actually provided till the date of termination.
(c) Notwithstanding anything to the contrary herein, and in the absence of breach by Smartcat, the Customer will not be entitled to a refund of any fees paid to Smartcat.
4.3 Survival. With the exception of those provisions which by their terms remain in effect only during the term of this Agreement, and subject to par 4.2, all provisions of this Agreement that by their nature should survive the termination or expiration of this Agreement will survive any such termination or expiration of this Agreement.
5. CONFIDENTIALITY AND NON-DISCLOSURE
5.1 Restrictions. Smartcat acknowledges that, in order to perform the Services, it shall be necessary for the Customer to disclose to Smartcat certain Confidential Information (defined below) of the Customer. Smartcat agrees that it shall not disclose, transfer, use, copy, or allow access to any such Confidential Information to any third parties, except as authorized by the Customer. The Customer hereby authorizes Smartcat to provide Confidential Information only to those of its employees, agents, and Subcontractors who need to know it for the purposes of performing its obligations under this Agreement provided that Smartcat has similar written confidentiality obligations as in this Agreement with such employees, agents, and Subcontractors. Smartcat shall implement and maintain administrative, physical, technical, and organizational security measures in respect of processing of such data and information.
5.2 Definition. Information disclosed by the Customer, including, but not limited to, information contained in the Customer Materials, information that relates to existing and future products or services, designs, business plans, business opportunities, finances, research, development, know-how, personnel, personal data or third party confidential information, and any information which, by its nature, a reasonable person receiving such information would know or suspect is non-public, confidential, sensitive, or proprietary will be considered and referred to collectively in this Agreement as “Confidential Information”. Confidential Information, however, does not include information that (a) is now or subsequently becomes generally available to the public through no fault or breach by Smartcat; (b) Smartcat can demonstrate to have rightfully had in its possession prior to disclosure by Customer; or (c) Smartcat rightfully obtains from a third party who has the right to transfer or disclose it.
5.3 Return and Destruction. Upon the written request from the Customer and within 30 days from such request, Smartcat shall return or destroy any and all Confidential Information in its possession or control and will not retain any copies of the same (save as required by applicable law, regulations or audit requirements in any jurisdiction or to the extent that such is contained in a computer back-up retained for security purposes only).
5.4 Smartcat Proprietary Information. The Customer shall treat as confidential and agrees not to disclose to any third party without prior written consent of Smartcat, any information learned by the Customer within the scope of the Services relationship with Smartcat that would appear to a reasonable person to be confidential or proprietary.
5.5 Personal Data. Smartcat will comply with applicable laws, rules, and regulations relating to privacy, data protection, data security, and the processing of personal data of the European Union, the United Kingdom, the United States, or any other jurisdiction that governs or otherwise applies to Customer’s data processed under this Agreement. The Parties shall comply with the terms of Data Processing Agreement, located at https://smartcat.com/legal/dpa/ (the "DPA"), to the extent that the Services require personal data processing by the Parties under GDPR.
6. ASSIGNMENT OF TRANSLATED WORKS
6.1 Assignment by Smartcat. Smartcat hereby does and will irrevocably assign to the Customer all of Smartcat’s right, title and interest in and to any and all Translated Works.
6.2 Assignment by Subcontractors. Smartcat covenants, represents and warrants that each Subcontractor who performs the Translation Services under this Agreement has or will have a written agreement with Smartcat that provides Smartcat with all necessary rights to fulfill its obligations under this Agreement, including but not limited to the obligations of this Section 6.
7. WARRANTY AND INDEMNIFICATION
7.1 Customer Warranty. The Customer warrants that it is either the lawful owner or that it has all necessary rights to provide the Customer Materials to Smartcat, that such Customer Materials have been lawfully developed or acquired by the Customer, and that such Customer Materials will not infringe on any third party intellectual property. The Customer grants to Smartcat a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
7.2 Smartcat Warranty. Smartcat represents and warrants that (i) it owns or has the lawful license to utilize all intellectual property rights necessary to provide the Platform and Services and to perform its obligations under this Agreement; (ii) the Services will be performed in a timely, professional, and workmanlike manner in accordance with industry standards; and (iii) it shall comply with all applicable laws and shall obtain and maintain, at its own expense, all approvals, permissions, permits, licenses, and other forms of documentation required for Smartcat’s performance under this Agreement.
7.3 Indemnification by the Customer. The Customer agrees to indemnify and hold Smartcat harmless from any and all losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees) which Smartcat may incur based on the Customer Materials.
8. SANCTIONS CLAUSE
8.1 Smartcat has the right to unilaterally refuse to fulfill its obligations under this Agreement and/or terminate this Agreement if:
(a) the Customer, and/or Customer's Users, and/or the ultimate beneficial owner of the Customer are included in the list of sanctions of OFAC of the United States (a list of sanctioned individuals as determined by the Office of Foreign Assets Control of the US Department of the Treasury);
(b) the Customer, and/or the Customer's Users, and/or the ultimate beneficial owner of the Customer, and/or the Customer's goods, services or works are subject to restrictions (sanctions) by US government agencies other than OFAC, compliance with which may be violated by this Agreement;
(c) the Customer, and/or the Customer's Users, and/or the ultimate beneficial owner of the Customer are included in the list of sanctions of the European Union (Consolidated list of persons, groups and entities subject to EU financial sanctions);
(d) the Customer, and/or the Customer's Users, and/or the ultimate beneficial owner of the Customer are included in the list of sanctions of Her Majesty's Treasury of the United Kingdom (a list of individuals, included in the Consolidated list of financial sanctions targets in the UK;
(e) the Customer, and/or the Customer's Users, and/or the ultimate beneficial owner of the Customer are included in the list of sanctions of the UN Security Council (Consolidated United Nations Security Council Sanctions List, which includes individuals and entities subject to UN Security Council sanctions).
8.2 The Customer confirms that at the time of concluding this Agreement, no restrictions (sanctions) are applied to the Customer, and/or the Customer's Users, and/or the ultimate beneficial owner of the Customer, and/or goods, services or works of the Customer.
8.3 If the Customer has not notified Smartcat about the application of restrictions (sanctions) to the Customer before the conclusion of the Agreement, the Customer shall be obliged to compensate all costs and actual losses to Smartcat, caused by unilateral termination of the Agreement by Smartcat and/or by the Smartcat's withdrawal from the Agreement due to the application of restrictions (sanctions) to the Customer, as well as to compensate to Smartcat any penalties imposed on it due to the violation of restrictions (sanctions).
9. DISCLAIMERS
9.1 General. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMARTCAT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFORMATION, SERVICES, PRODUCTS, AND MATERIALS, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SMARTCAT IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS REGARDLESS OF SOURCE.
10. LIMITATION OF LIABILITY
10.1 NO INDIRECT DAMAGES. IN NO EVENT WILL SMARTCAT BE LIABLE TO THE CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, OR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. SMARTCAT SHALL NOT BEAR ANY RESPONSIBILITY FOR CHANGES MADE TO ANY TRANSLATED WORKS FOLLOWING DELIVERY THEREOF BY SMARTCAT TO THE CUSTOMER.
10.2 LIMITATION CAP.
a) ANY AND ALL LIABILITIES OF SMARTCAT RESULTING FROM THE TRANSLATION SERVICES UNDER THIS AGREEMENT ARE, WITHOUT EXCEPTION, LIMITED TO AND AT A MAXIMUM EQUAL TO THE LESSER OF (a) $10,000 OR (b) THE TOTAL PAYMENTS MADE BY THE CUSTOMER TO SMARTCAT HEREUNDER WITHIN ONE (1) MONTH IMMEDIATELY PRECEDING ANY SUCH CLAIM.
b) ANY AND ALL LIABILITIES OF SMARTCAT RESULTING FROM THE SUBSCRIPTION SERVICES UNDER THIS AGREEMENT ARE, WITHOUT EXCEPTION, LIMITED TO AND AT A MAXIMUM EQUAL TO THE GREATER OF (a) $10,000 OR (b) THE TOTAL PAYMENTS MADE BY CUSTOMER TO SMARTCAT FOR THE SUBSCRIPTION SERVICES WITHIN ONE (1) MONTH IMMEDIATELY PRECEDING ANY SUCH CLAIM.
IT IS INTENDED THAT THIS LIMITATION APPLY TO ANY AND ALL LIABILITY OR CAUSE OF ACTION HOWEVER ALLEGED OR ARISING, UNLESS OTHERWISE PROHIBITED BY LAW. THIS LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL SUCH PARTY’S EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. IF JURISDICTION OF THE CUSTOMER HAS PROVISIONS SPECIFIC TO WAIVER OR LIABILITY THAT CONFLICT WITH THE ABOVE THEN SMARTCAT LIABILITY IS LIMITED TO THE SMALLEST EXTENT POSSIBLE BY LAW.
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS LIMITING OR EXCLUDING THE LIABILITY OF EITHER PARTY FOR THE BREACH OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE, FRAUD, DEATH OR PERSONAL INJURY.
11. MISCELLANEOUS
11.1 Entire Agreement. This Agreement together with any schedules, exhibits, annexes, addendums and Service Tasks appended hereto, including the DPA constitutes the entire agreement of the parties hereto and supersedes all oral and written agreements and understandings made or entered into by the parties hereto prior to the date hereof. The process of amendment of the TOS, mentioned in par. 1.6, is described in the TOS.
11.2 Severability. Should any provision of this Agreement be determined to be void, invalid, unenforceable or illegal for whatever reason, such provision(s) shall be null and void; provided, however, that the remaining provisions of this Agreement shall be unaffected thereby and shall continue to be valid and enforceable.
11.3 Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with and shall be governed by the laws of the State of Massachusetts applicable to agreements entered into and to be wholly performed therein without regard to conflict of law principles that would result in the application of any law other than the law of the State of Massachusetts.
11.4 Arbitration. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the American Arbitration Association (the “AAA”), then by one arbitrator having reasonable experience in commercial transactions of the type provided for in this Agreement and who is chosen by the AAA. The arbitration shall take place in Boston, Massachusetts, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the Massachusetts Code of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings.
11.5 Notices. All notices required or permitted under this Agreement shall be in writing addressed to the respective parties at their email addresses unless another address shall have been designated. All notices addressed to the Customer shall be sent to the email set forth at the Customer’s account dashboard. All notices addressed to Smartcat shall be sent to cx@smartcat.ai.
11.6 Force Majeure. Except for payment obligations, neither Smartcat nor the Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, shortages, riots, pandemics, fires, acts of God, war, strikes, terrorism, and governmental action.
11.7 Presumption. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against either of the parties.
11.8 Attorneys’ Fees. In the event of any dispute with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and other costs and expenses incurred in resolving such dispute.
11.9 General. Nothing in this Agreement is intended to create any partnership, relationship of employment, joint venture or constitute Smartcat as the agent of the Customer. A Party may not assign or otherwise transfer this Agreement in whole or in part without the prior written approval of another Party.
Please note that Smartcat does not accept red lines or changes to this Customer Agreement. Changes will only be reviewed for “Enterprise” subscription plans subject to Smartcat’s Master Services Agreement (MSA). Please contact a sales representative to request an editable version of Smartcat’s MSA.