TRANSLATION TERMS & CONDITIONS
These terms and conditions apply to each request for a quote for the provision of translation services and to any subsequent provision of translation services following acceptance by the client of a quote.
1. Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following terms shall have the following meanings:
‘Agreement’ means these standard terms of business.
‘Assignment’ means the period during which the Translator performs services or carries out work for, and on behalf of, the Client or as otherwise agreed between the Client and the Translator, commencing at the time the Translator first starts such work or providing such services and ending upon the cessation by the Translator of all such work and services.
‘Client’ means the party commissioning a Translation in the normal course of business.
‘Translator’ means the party providing a Translation in the normal course of business. The Translator shall normally be the creator of a Translation unless the Client has been explicitly informed that the act of Translation (the Translation Task) will be subcontracted.
‘Translation Task’ means the preparation of a Translation or any other translation-related task such as revising, editing, etc., which calls upon the translation skills of a Translator, not including copywriting or adaptation.
‘Translation’ means the commissioned work, produced by the Translator.
‘Source material’ shall be understood to mean any text or medium containing a communication which is to be translated, and may comprise text, sound or images.
‘Confidential material’ means any sensitive or private information associated with the Client and/or their business.
‘Third Party’ means any party who is not a party to this Agreement
In this Agreement, unless the context otherwise requires:
• words in the singular shall include the plural and vice versa;
• no part of any numbered clause shall be read or understood separately from any other part;
• clause headings are provided for the convenience of reading only and shall be ignored for the purposes of ascertaining meaning;
• a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
• references to a ‘Party’ or the ‘Parties’ means the parties to this Agreement. Such Parties may be natural or legal persons, including, for example, private individuals, associations, partnerships, economic interest groupings or corporate entities; and
• any words following the terms, ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar terms shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding such terms.
2. Copyright in Source Material, and Translation Rights
2.1 The Translator accepts an order from the Client on the understanding that performance of the Translation Task will not infringe any Third-Party rights. Accordingly, the Client warrants to the Translator that:
a) the Client has the full right and authority to enter into this Agreement, having acquired the right and licence to translate and publish the Source Material; and
b) the Source Material does not infringe the copyright or any other right of any person.
3. Fees: (binding) quotations and (non-binding) estimates
3.1 In the absence of any specific agreement, the fee to be charged shall be determined by the Translator on the basis of the Client’s description of the Source Material, the purpose of the Translation and any instructions given by the Client.
3.2 No fixed quotation shall be given by the Translator until she has seen all the Source Material and has received clear and complete instructions in writing from the Client.
3.3 Where VAT is chargeable, it will be charged in addition to the quoted fee, if the Translator is VAT registered.
3.4 Any fee quoted, estimated or agreed by the Translator on the basis of the Client’s description of the Translation Task may be subject to amendment by agreement between the Parties if, in the Translator’s opinion, having seen or heard the Source Material, that the Client’s description of it is materially inadequate or inaccurate.
3.5 Any fee agreed for a Translation, which is found to present latent special difficulties of which neither party could be reasonably aware at the time of offer and acceptance shall be renegotiated, always provided that the circumstances are made known to the other Party as soon as reasonably practical after they become apparent.
3.6 An estimate shall not be considered contractually binding, but is given for guidance or information only.
3.7 Subject to clause 3.2 above, a binding quotation once given, after the Translator has seen or heard all the Source Material, shall remain valid for a period of eight (8) days from the date on which it was provided, after which time it may be subject to revision.
3.8 Costs of delivery of the Translation shall normally be borne by the Translator. Where delivery requested by the Client involves expenditure greater than the cost normally incurred for delivery (for example, for courier and/or recorded or special delivery services), the additional cost shall be chargeable to the Client. If the additional cost is incurred as a result of action or inaction by the Translator, it shall not be borne by the Client, unless otherwise agreed.
3.9 Other supplementary charges, for example those arising from:
• discontinuous text, complicated layout or other forms of layout or presentation requiring additional time or resources, and/or
• poorly legible copy, and/or
• terminological research, and/or
• priority work or work outside normal office hours, in order to meet the Client’s deadline or other requirements, may also be charged. The nature of such charges shall be agreed in advance.
3.10 If any changes are made in the text or the Client’s requirements at any time while the Translation Task is in progress, the Translator’s fee, any applicable supplementary charges and the terms of delivery shall be adjusted in respect of the additional work.
4.1 Any delivery date or dates agreed between the Translator and the Client shall become binding only after the Translator has seen or heard all of the Source Material to be translated and has received complete instructions from the Client.
4.2 The date of delivery shall not be of the essence unless specifically agreed in writing.
4.3 Unless otherwise agreed, the Translator shall dispatch the Translation in such a way that the Client can reasonably expect to receive it not later than the normal close of business at the Client’s premises on the date of delivery.
4.4 Delivery shall be via e-mail as a document attachment, unless otherwise agreed.
5.1 Payment in full to the Translator shall be effected not later than thirty (30) days from receipt via e-mail attachment of the invoice by bank transfer, Transferwise or Paypal, by prior arrangement with the Translator.
5.2 For a first Assignment or for any other reason subject to the Translator’s discretion, the Translator may request payment in advance.
5.3 For long Assignments or texts, the Translator may request an initial payment and periodic partial payments on terms to be agreed.
5.4 Settlement of any invoice, part-invoice or other payment shall be made by the due date agreed between the parties or in the absence of such agreement within the period stipulated in Clause 5.1.
5.5 Where delivery is in instalments and notice has been given that an interim payment is overdue, the Translator shall have the right to stop work on the Translation Task in hand until the outstanding payment is received or other terms agreed.
5.6 Any payment that is not made before the due date shall bear interest at the rate of eight percent (8%) above the base rate of the Bank of England from time to time calculated on a daily basis from the date when such payment fell due until the date of payment.
5.7 Should the Translator be forced by late or non-payment of invoices by the Client to hire the services of a debt collector to ensure payment, a flat fee of £40 shall be added to the invoice, and all costs of the debt collection shall be met by the Client.
6. Copyright in Translations
6.1 In the absence of a specific written agreement to the contrary, copyright in the Translation remains the property of the Translator.
6.2 The Translator may use and sell or resell any non-confidential Translation or any part or record thereof not covered by copyright, the Official Secrets Act, legal professional privilege or public interest immunity.
6.3 Where copyright is assigned or licensed (formally in writing as required by §90(3) of the Copyright, Designs and Patents Act 1988 (the ‘1988 Act’), to take valid effect in law, or informally without writing but taking valid effect in equity outside the 1988 Act), this shall be effective only on payment of the agreed fee in full.
6.4 Copyright in any completed or residual part of a Translation shall remain the property of the Translator, and the conditions applicable to assignment of copyright and the grant of a licence to publish shall be as specified above in relation to a completed Translation.
6.5 Where the Translator retains the copyright, unless otherwise agreed in writing, any published text of the Translation shall carry the following statement: “© translation from the (German or French) by Helen Shiner (year date)”, as appropriate to the particular case.
6.6 Where the Translator assigns the copyright to the Translation and the Translation is subsequently printed for distribution, the Client shall acknowledge the Translator’s work in the same weight and style of type used for acknowledgement of the printer and/or others involved in production of the finished document, by the following statement: “translation from the (German or French) by Helen Shiner”, as appropriate to the particular case.
6.7 Where a Translation is to be incorporated into a translation memory system or any other corpus, the Translator shall license use of the Translation for this purpose for an agreed fee.
6.8 Such incorporation and use shall only take place after the licence for the purpose has been granted by the Translator in writing and the agreed fee has been paid in full.
6.9 It shall be the duty of the Client to notify the Translator that such use will be made of the Translation.
6.10 All Translations are subject to the Translator’s right of integrity.
6.11 If a Translation is in any way amended or altered without the written permission of the Translator, he/she shall not be in any way liable for amendments made or their consequences.
6.12 If the Translator retains the copyright in a Translation, or if a Translation is to be used for legal purposes, no amendment or alteration may be made to a Translation without the Translator’s written permission. The right of integrity may be specifically waived in advance in writing by the Translator.
7. Confidentiality and Safe-keeping of the Client’s Documents
7.1 As a matter of professional practice, the Translator shall treat the Client’s information as confidential. However, no specific document for Translation shall be deemed to be confidential, unless this is expressly stated in writing by the Client.
7.2 The Translator shall at all times exercise due discretion in respect of disclosure to any Third Party of any information contained in the Client’s original documents or Translations thereof without the express authorisation of the Client.
7.3 Notwithstanding Clause 7.2, the Parties agree that a Third Party may be consulted in respect of specific translation terminology queries in relation to the Source Material.
7.4 The Translator shall be responsible for the safe-keeping of the Client’s Source Material and copies of the Translations, and shall ensure, where necessary, their secure disposal.
7.5 If requested to do so by the Client, the Translator shall insure documents in transit from the Translator’s premises to the Client’s premises, at the Client’s expense.
8. Cancellation and Frustration
8.1 If a Translation Task is commissioned and subsequently cancelled, reduced in scope or frustrated by an act or omission on the part of the Client or any Third Party, except in the circumstances described in clause 8.4, the Client shall pay the Translator the full contract sum, unless otherwise agreed in advance. Any varying arrangement must reflect:
a) the amount of translation work already completed by the Translator and
b) any preliminary research or setting-up work carried out by the Translator and
c) any inconvenience or loss of expectation caused to the Translator as a result of premature cancellation.
The sum agreed upon shall be no less than 50% of the full contract sum.
8.2 The work completed shall be made available to the Client.
8.3 If the Client goes into liquidation (other than voluntary liquidation for the purposes of reconstruction) or has a receiver appointed or becomes insolvent, bankrupt or enters into any arrangement with creditors, the Translator shall have the right to terminate a contract.
8.4 Neither the Translator nor the Client shall be liable to the other or any Third Party for consequences, which are the result of circumstances wholly beyond the control of either Party.
8.5 The Translator shall notify the Client as soon as is reasonably practical of any circumstances likely to prejudice the Translator’s ability to comply with the terms of the Client’s order, and shall assist the Client, as far as reasonably practical, to identify an alternative solution.
9. Complaints and Disputes
9.1 Failure by the Translator to provide a Translation, which is fit for its stated purpose, shall entitle the Client to:
1) reduce, with the Translator’s consent, the fee payable for work done by a sum equal to the reasonable cost necessary to remedy the deficiencies, and/or
2) cancel any further instalments of work being undertaken by the Translator. Such entitlement shall only apply after the Translator has been given one opportunity to bring the work up to the required standard.
9.2 The entitlement referred to in Clause 9.1 shall not apply unless the Translator has been notified in writing of all alleged defects.
9.3 Any complaint in connection with a Translation Task shall be notified to the Translator by the Client (or vice-versa) within one month of the date of delivery of the Translation, and the Translator shall be given sufficient time to remedy such complaints, by agreement between the Parties.
9.4 If the Parties are unable to agree or resolve matters, both or either Party may appoint, with the agreement of the other Party, an experienced, professionally qualified translator or translators to review the alleged defects of the Translation. Such referral shall be made no later than two months from the date on which the original complaint was made. Both Parties shall agree in advance the scope of the material to be reviewed, the costs to be borne by either or both Party, and that no access shall be given to confidential, professional information.
9.5 If a dispute cannot be resolved amicably between the Parties, or if either party refuses to accept the professional opinion of the appointed professionally qualified translator or translators, the Parties shall be subject to the jurisdiction of the Courts of England and Wales. In any event, these terms shall be construed in accordance with English law.
10. Responsibility and Liability
10.1 The Translation Task shall be carried out by the Translator using reasonable professional skill and care.
10.2 Time and expense permitting, the Translator shall use her reasonable professional endeavours to do the work to the best of her ability, knowledge and belief, and consulting such authorities as are reasonably available to her at the time.
10.3 Subject to Clause 10.4, a Translation shall be fit for its stated purpose and target readership, and the level of quality specified.
10.4 Unless otherwise specified, Translations shall be deemed to be intended to be of “for information”-quality only.
10.5 Nothing in this Agreement shall be construed as seeking to restrict a Party’s liability for personal injury or death arising from its own negligence.
10.6 Subject to Clause 10.5, the liability of the Translator under or in respect of this Agreement, whether in tort, contract or otherwise, shall be limited to the invoiced value of the Translation Task being undertaken by the Translator when the liability arises.
10.7 Neither Party shall be liable to the other Party in respect of any consequential or indirect loss whatsoever.
11. Unfair Competition
11.1 Subject to Clause 11.2, where in the course of business the Translator’s Client is an intermediary and introduces the Translator to a Third-Party work-provider, the Translator shall not knowingly, for a period of 6 months from the submission of the last Translation task arising from the introduction, approach the said Third Party for the purpose of soliciting work, nor work for the Third Party in any capacity involving translation, without the Client’s written consent.
11.2 The restrictions in Clause 11.1 shall not apply where:
• the Third-Party work-provider has had previous dealings with the Translator, or
• the Translator acts on the basis of information in the public domain, or
• the approach from the Third Party is independent of the relationship with the intermediary, or
• the approach to the Third Party arises as the result of broad-band advertising, or
• the Third Party is seeking suppliers on the open market, or
• the intermediary only makes isolated use of the Translator’s services.
12. Applicability and Integrity
12.1 This Agreement shall come into effect either
a) when the Client signs the Agreement, or
b) when the Client commences delivery of the Source Material, or
c) when the Translator provides any services under the Agreement, whichever is the earliest.
12.2 This Agreement may be subject to various detailed requirements or variants relating to the Translation Task as expressly specified in writing in the order (or in e-mail exchange between the Parties).
12.3 No waiver of any breach of any condition in this Agreement shall be considered as a waiver of any subsequent breach of the same or any other provision.