TERMS AND CONDITIONS OF SERVICE
Section 1 – General
1) These Terms and Conditions shall establish a legally binding Agreement between the Customer and the Service Provider concerning the provision of translation or other language services.
2) These Terms and Conditions shall prevail over any other contractual document previously agreed to.
3) The transmission of messages in electronic form shall be construed as an expression of contractual intention, provided that the ordinary meaning of the message transmitted is indicative of such an intention and the message can be imputed to the stated sender.
4) The Parties shall comply with the obligations and exercise the rights regulated hereunder in good faith.
Section 2 – Acceptance
These Terms and Conditions shall be deemed to have been accepted by the Customer either by express approval or, where no express approval is provided, if it is reasonable to infer acceptance from the Customer’s conduct following receipt hereof. Such approval may be inferred inter alia from: the placement of an order, the dispatch of a document for translation, receipt of a translation or payment for the Services.
Section 3 – Definitions
“Business Day” means any day falling between Monday and Friday inclusive that is not a public holiday in Scotland.
“Customer” means any natural or legal person that commissions the Service Provider to provide the Services.
“Fee” means the consideration due in respect of the Services.
“Outsourcer” means any third party contractor which the Service Provider appoints in order to perform any part of the Services;
“Services” means the translation of documents into English or any other language, the checking of translations into English or any other language completed by third parties, or the proof reading of documents written in English or any other language.
“Service Provider” means ELF Translations Ltd, with registered office at 5A Wester Coates Gardens, Edinburgh EH12 5LT, UK.
“Supporting Material” means any ancillary documentation or other material which may be of assistance when providing the Services.
“Source Text” means the initial version of a text to be translated or proof read.
“Target Text” means the final version of a translated or proof read text.
“Writing” means any form of communication leaving a durable physical or electronic trace which may be identified as originating from a particular source.
Section 4 – Obligations of the Customer
1) The Customer shall pay the Fee at the due date specified in the invoice.
2) The Customer shall provide the Service Provider with Source Text that is in a suitable condition to be processed, which shall ordinarily be in MS word or PDF format.
3) The Customer shall provide the Service Provider with Source Text and any Supporting Material by the agreed deadlines.
4) The Customer shall inform the Service Provider immediately of any changes in circumstances that may have a material impact on the provision of the Services.
Section 5 – Obligations of the Service Provider
1) The Service Provider shall perform the Services according to such standards of care and diligence as are reasonable in the translation industry, taking account of the individual circumstances of each order. In particular, the Customer accepts that work that it carried out on an urgent basis may not meet the same exacting quality standards as work carried out according to normal industry standard timescales.
2) The Service Provider shall complete the Services by the agreed deadlines, including any intermediary deadlines.
3) The Service Provider shall inform the Customer immediately of any difficulty that is liable to have an impact on its ability to perform the Services.
4) The Service Provider shall inform the Customer upon completion of the Services of any minor irregularities that may impinge upon the quality of the Services, including inter alia grammatical or other errors, incomprehensible language or inconsistency within the source text.
5) The Services Provider shall make good any errors in the Services that may be indicated by the Customer within fifteen Business Days after delivery as quickly as possible as a matter of urgency.
Section 6 – Payment
1) The Services shall always be deemed to be provided for payment, unless agreed to in writing in advance. If for any reason no payment is agreed to in advance, the Fee shall be determined at a reasonable level, taking into account all of the circumstances of the order.
2) The Fee shall as a rule be determined in accordance with standard rates to be determined from time to time by mutual agreement between the Customer and the Service Provider. The Service Provider reserves the right to charge a supplement in respect of any Services that may require the Service Provider to work unsociable hours or according to unreasonable deadlines.
3) If the Fee is determined following an estimate, the Service Provider reserves the right to amend the Fee in the event that the text received for translation differs significantly from the text in respect of which an estimate was provided. If supplementary Source Text is provided in respect of an order, the Fee shall be increased on a pro rata basis.
4) Any discounts must be expressly agreed upon in advance.
Section 7 – Late Payment
1) Payment shall be due in accordance with the payment terms specified in the invoice.
2) If any amounts remain outstanding notwithstanding the expiry of the payment deadline, a grace period of fifteen days shall be granted by the Service Provider during which payment may be made without any penalty. Thereafter, the debt shall be deemed to be a qualifying debt pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 and the Service Provider shall be entitled to charge default interest starting from the expiry of the payment deadline until payment in full at the Bank of England base rate, increased by eight percentage points. The Service Provider shall moreover be entitled to charge a fixed sum as compensation pursuant to Section 5A of the Late Payment of Commercial Debts (Interest) Act 1998.
3) The grace period shall commence automatically upon expiry of the invoice, and the debt shall become a qualifying debt pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 automatically upon expiry of the grace period without any requirement for intimation of that fact by the Service Provider to the Customer.
Section 8 – Cancellation
1) If an order is cancelled after it has been placed by the Customer, the Service Provider reserves the right to claim reasonable damages if it is able to provide evidence that other offers of work were refused on the basis that the order had been placed.
2) If an order is cancelled after the Service Provider has started work on it, the Service Provider reserves the right to claim payment of the Fee pro rata in accordance with the proportion that has been completed, without prejudice to subsection 1.
Section 9 – Terminology
Unless specified otherwise, specialist and technical terms shall be translated in accordance with their ordinary conventional equivalents in British English, or on the basis of a glossary provided by the Customer.
Section 10 – Liability
1) The Service Provider warrants that the quality of the Services shall meet industry standards, taking account of the individual circumstances of each order.
2) The Service Provider shall bear no liability for delays resulting from the failure to provide the Source Text before the agreed deadline, or from the provision of the Source Text in a form that does not enable the Services to be provided according to the warranted standard.
3) If any Services are of inadequate quality, the Customer shall be entitled to require the Service Provider to rectify any faults as quickly as possible at no cost, unless more than fifteen Business Days have passed since the time the Services were completed. Thereafter, any remedial work shall be carried out at the discretion of the Service Provider, in accordance with the principle of good faith.
4) If notwithstanding the performance of any remedial work the Customer remains dissatisfied with the Services, it may reduce the Fee by an amount as is reasonable within the translation industry, provided that objective reasons are given and that such notice is intimated prior to expiry of the invoice relating to the Services. If the Parties fail to agree that the reasons provided constitute valid grounds for reducing the Fee, the Parties shall appoint an independent third party to make that determination, the cost of which shall be divided equally between the parties.
5) Notwithstanding any provisions to the contrary in the terms and conditions of the Customer, the liability of the Service Provider under contract or delict for any damage or losses resulting from or otherwise associated with the Services that is attributable to negligent conduct on its part shall be limited to the gross Fee due in respect of the Service concerned.
6) If notwithstanding the above the Service Provider is found liable under contract or delict for an amount exceeding the gross Fee, the total liability of the Service Provider may not under any circumstances exceed the coverage limit specified under the Service Provider’s professional liability insurance, as renewed from time to time.
7) If the Customer is not the end user of the Services, the Customer undertakes to take out appropriate professional liability insurance in order to ensure that the Service Provider is under all circumstances held harmless against any liability under contract or delict for any loss caused to the end user or any other party on any grounds whatsoever. If notwithstanding the above the Customer fails to take out such insurance, it shall hold the Service Provider harmless against the full amount of any liability claims by any party on any grounds under contract or delict.
Section 11 – Warranties
1) The Customer warrants that it is legally entitled to possess and disclose any Source Text or Supporting Material issued to the Service Provider and that it is the proprietor of, or has obtained, all intellectual property rights thereover, and that the translation of the Source Text does not infringe any intellectual right of any third party.
2) The Customer shall hold harmless the Service Provider against any liability arising under contract or delict as a result of the infringement of any intellectual property rights or any other breach of the warranty provided in accordance with subsection 1.
3) The Customer shall hold harmless the Service Provider against any liability arising due to defamation actions, or the threat thereof, that result from or are related to the Services.
4) The Service Provider assures no warranty in respect of the substantive content of the Services. Any representations made by the Service Provider are for information purposes only, and do not constitute professional legal advice. If the Customer has any doubt as to its legal rights or obligations, it should seek legal advice from a fully qualified professional in the relevant field.
Section 12 – Confidentiality
1) The Service Provider shall be required to take all reasonable precautions in order to ensure that the confidentiality of the Services, the Source Material and the Supporting Material is maintained. The Service Provider shall not disclose the content of the Services, the Source Material and the Supporting Material in full or in part to any third party without the prior consent of the Customer, unless it is unequivocally clear from the circumstances that the Services are intended to be made freely available to the general public free of charge, or unless required to do so by law.
2) If it is reasonable to conclude that the provision, receipt or use of the Services constitutes an illegal act or if the content of the Services describes, discloses or pre-empts any illegal act, the Service Provider shall be released from the duty of confidentiality provided for above insofar as is necessary in order to make an appropriate report to the competent law enforcement, regulatory or judicial authorities. This exception to the duty of non-disclosure shall not under any circumstances entitle the Service Provider to disclose the information freely to third parties other than the competent law enforcement, regulatory or judicial authorities.
3) The Service Provider shall not disclose the identity of any Customer to any third party, unless it is unequivocally clear from the circumstances that the Services are intended to be made freely available to the general public, or unless required to do so by law.
4) If the Customer is an intermediary between the Service Provider and the end user, the Service Provider shall not under any circumstances disclose the identity of the end user without the prior consent of the Customer, unless required to do so by law.
5) The Service Provider shall be deemed to have complied with the duty to take all reasonable precautions in order to ensure confidentiality during transmission of any material, provided that such material is returned through the same medium as it was sent, or that the material was returned through a different medium on the instructions of the Customer. In particular, if the Services, the Source Material and the Supporting Material were provided by email, the Service Provider shall bear no liability for breaches to the security of email messages leaving the account to which they were sent, or the security of the account to which they were sent.
Section 13 – Intellectual Property Rights
1) Upon completion of the Services, the Service Provider irrevocably assigns to the Customer the unlimited right to exploit the intellectual property rights vested in the translation. The foregoing shall be without prejudice to the right of the Service Provider to retain a copy of all translated material for archival purposes.
2) The foregoing shall be without prejudice to the right of the Service Provider to use the Services or parts thereof in any future work for consideration for third parties involving the provision of Services of similar or identical content, irrespective as to whether the Services have been processed using translation memory software. This right may be exercised by the Service Provider at its discretion, and shall not give rise to any entitlement of the Customer to any fee or royalty payment.
3) The Service Provider hereby exercises its right under the Copyright, Designs and Patent Act 1988 to be identified as the author of translations completed by it or its officials. If the Services have been provided for the Customer’s own internal or private use and/or relate to documents covered by a duty of confidentiality, this right shall only be exercised with the consent of the Customer. If it may be assumed from the circumstances surrounding the work that the Services are intended to be made available to the general public, the exercise by the Service Provider of its moral rights shall not require the consent of the Customer, even if the Customer is an intermediary between the Service Provider and the end user.
Section 14 – Outsourced work
1) The Service Provider reserves the right to outsource the Services, unless an express commitment has been provided to the Customer that the Services will be completed internally.
2) In accepting to perform services for the Service Provider, the Outsourcer agrees to be bound by these Terms and Conditions. The Outsourcer shall in particular abide by the duty of confidentiality set forth in Section 12. Any negligent or wilful breach by the Outsourcer of the duty of confidentiality shall result in liability to pay liquidated damages to the Service Provider as compensation for the damage to the latter’s goodwill of GBP 500 for each occurrence. Payment of liquidated damages shall be without prejudice to the right of the Service Provider or any other third party to claim compensation against the Outsourcer for any additional damages occasioned by the breach.
3) The Service Provider shall be obliged to remunerate the Outsourcer insofar as the services rendered by the latter are of industry standard quality. If any services are of inadequate quality, the Service Provider shall be entitled to require the Outsourcer to rectify any faults as quickly as possible at no cost. If the services are still objectively deficient notwithstanding such rectification, or if the Outsourcer fails to rectify deficient services, the Service Provider reserves the right to reduce the fee due to the Outsourcer by a reasonable amount, taking account of the nature and seriousness of the deficiency.
4) The Outsourcer shall refrain from soliciting work from the Customer for a period of 2 years after the conclusion of his or her service relationship with the Service Provider. Failure to comply with this requirement shall result in liability to pay liquidated damages to the Service Provider of GBP 500 for each occurrence, without prejudice to entitlement to claim any additional damages occasioned by the breach.
5) The Customer shall refrain from offering work to the Outsourcer for a period of 2 years after the conclusion of its service relationship with the Service Provider. Failure to comply with this requirement shall result in liability to pay liquidated damages to the Service Provider of GBP 500 for each occurrence, without prejudice to entitlement to claim any additional damages occasioned by the breach.
Section 15 – Currency
1) Payment shall be due in the currency stated in the invoice, irrespective of whether that currency is the official currency in the country in which the Customer or Service Provider is based.
2) If the invoice was issued in Euros and the Euro ceases to be legal tender in the country in which the Customer is based, this shall not affect its obligation to make payment in full in Euros.
3) If the invoice was issued in Euros and the Euro ceases to exist as a currency or is no longer legal tender in any country, payment shall be made in the currency of the Federal Republic of Germany in accordance with the official exchange rate between the Euro and that currency. The Service Provider shall also be entitled to demand payment in Sterling according to the Euro-Sterling exchange rate on the date the relevant invoice was issued.
Section 16 – Severability
1) The full or partial invalidity or unenforceability of any of these terms and conditions shall be without prejudice to the validity and enforceability of the remaining terms.
2) In the event that any term hereof is invalid or unenforceable, the parties shall act in good faith in order to reach agreement on a replacement term that is valid and enforceable and which pursues the same economic purpose as the invalid or unenforceable term. The same shall apply mutatis mutandis to any gaps in these terms and conditions.
3) Any gaps or replacement terms that cannot be resolved in accordance with the above shall be determined in accordance with reasonable practice within the translation industry or, if this is not unequivocal, by the Law of Scotland.
Section 16 – Jurisdiction
1) This Agreement shall be governed by the Law of Scotland and the courts of Scotland shall have jurisdiction over any dispute arising out of or in connection with this Agreement.
2) The foregoing shall be without prejudice to the right of the Service Provider to initiate court action at the forum with jurisdiction over the Customer if that forum does not fall under Scottish jurisdiction.
Edinburgh, 31 March 2014