Terms and Conditions of Service
Terms and Conditions of Service
Please review this Agreement carefully.
I - INTERPRETATION
1) ‘Terms and Conditions' means these standard terms and conditions as set out below.
2) The clause headings are for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions.
3) References to 'documents', 'records', 'books' and 'data' shall include information contained in computer programs, disks, records or any other machine readable form or records kept other than in a legible form, but capable of being produced into a legible form.
4) The word ‘including' shall be understood to mean 'including without limitation' and the word 'includes' shall be understood to mean 'includes without limitation'.
5) Words of a technical nature shall be construed in accordance with general trade usage in the computer industry in the US.
6) In the event of any conflict between any part of a Agreement, the documents constituting the agreement between the parties shall have priority in the following order:
a) Service level agreement (if any) entered into between the parties.
b) These Terms and Conditions
7) ‘Confidential Information' means information (in any form) which is confidential either to you or to us and which either you disclose to us or we disclose to you in connection with the Services. Confidential information for purposes of this paragraph shall not include the following:
a) Information which is or becomes available to the general public, provided the disclosure of such information did not result from a breach by us of clause XIV below.
b) Terminological glossary entries compiled by us in the course of our performance of the Services under this Agreement; provided, however, that you and we may agree in writing that, upon payment by you to us of an agreed-upon fee, such terminological glossary entries shall be your property and shall be covered by the confidentiality provisions of clause XIV.
8) 'Intellectual Property Rights' means any rights in or to any patent, copyright, database right, registered design, design right, utility model, trade mark, brand name, service mark, trade name, business name, chip topography right, know how or Confidential Information, Translation Memory and any other rights in respect of any other industrial or intellectual property, whether capable of being registered or not and including all rights to apply for any such rights.
9) 'Order' means an order for the Services provided by you from time to time.
10) 'Original Works' means the documents, files, materials and works provided by you for the purposes of carrying out the Services.
11) 'Services' means translation services performed by us for you.
12) 'Translated Works' means the documents, files, materials and works translated and produced from the Original Works in accordance with your instructions and provided to you by us.
13) 'We, us, our,' means Optilingua U.S., Inc., doing business as Alphatrad North America, its affiliates, employees, and agents.
14) 'You, your' means the company, firm, body or person to whom we are supplying the Services and / or the Work Products.
15) ‘Work Products’ means all the products and/or Services supplied by us.
16) ‘Agreement’ means the Agreement between the customer and us, and consisting of the purchase order from the customer and these Terms and conditions.
II - GENERAL
1) Quotations are not binding on us and an Agreement will only come into being when we issue a written confirmation of your Order, or when we deliver the Translated Works to you.
2) The Agreement will be subject to these Terms and Conditions. All Terms and Conditions appearing or referred to in the Order, or otherwise stipulated by you, shall have no effect. No terms or conditions endorsed on, delivered with or contained in your Order, confirmation of order, specification or other document shall form part of the Agreement simply as a result of such document being referred to in the Agreement.) Any variation of the Agreement must be confirmed in writing by us.
3) Subject to any variation under condition II.8 the Agreement shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any Order, confirmation of order, specification or other document).
4) Our written quotations are given on the basis that the terms quoted will remain open for the placing of orders for 15 days from the date of the quotation.
5) Quotations are given on the basis of your description of the source material, the purpose of the translation and any other instructions. Such quotations may be amended at any time if, in our opinion, the description of the source materials is materially inadequate or inaccurate.
6) Information provided in our brochures, catalogues or other published material is a general description only and does not form part of the Agreement.
7) These Terms and Conditions apply to all Services provided to you unless otherwise agreed between the parties in a signed writing.
8) These conditions apply to all Agreements and any variation to these conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director of Alphatrad. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in these conditions. Nothing in these Terms and Conditions shall exclude or limit our liability for fraudulent misrepresentation
9) We will carry out the Services pursuant to this Agreement as an independent contractor, and not as your employee.
III - OUR RESPONSIBILITY AND LIABILITY
1) The Services shall be carried out using reasonable skill and care in accordance with the standards of the industry.
2) We shall use all reasonable skill and care in selecting translators, interpreters and other personnel used to produce the Translated Works and perform the Services.
3) No terms, conditions or warranties, whether express or implied, about the merchantability, quality or fitness for particular purpose of the Services or the Translated Works shall be incorporated unless expressly set out in the Agreement.
4) We shall incur no liability to you for innocent or negligent misrepresentation by virtue of any statement made by or on behalf of us prior to the Agreement, whether orally or in writing, and you shall not be entitled to rescind the Agreement on the grounds of any such misrepresentation.
5) We do not warrant that the Translated Works will meet your specific requirements and, unless otherwise agreed, we do not warrant that the operation of any Translated Works sent to you will be uninterrupted or error free. Furthermore, we do not warrant that or make any representation regarding the use of the Translated Works in terms of their accuracy, correctness, reliability or otherwise.
6) You acknowledge that any Original Works and Translated Works submitted by and to you over the Internet cannot be guaranteed to be free from the risk of interception, even if transmitted in encrypted form, and that we have no liability for the loss, corruption or interception of any Original Works or Translated Works.
7) Nothing in these conditions excludes or limits the liability of us: for death or personal injury caused by our negligence; or for any matter which it would be illegal for us to exclude or attempt to exclude its liability; or for fraud or fraudulent misrepresentation.
8) Subject to clause III.7, our liability to you in respect of the provision of the Services and / or the Translated Works shall be limited as follows:
a) We shall have no liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, for any loss of revenue, loss of actual or anticipated profits (including for loss of profits on contracts), loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or for any indirect or consequential loss or damage were foreseen, foreseeable, known or otherwise).
b) Our entire liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the provision of any Services and the Translated Works shall be limited to the Fees paid or payable by the Client under the Agreement to which any claim relates.
c) You must notify us within 30 days of delivery of the Translated Works of any claim arising out of the provision of the Services and /or the Translated Works, together with full details of such Claim. In any event, we shall not be liable to you if you fail to notify us of any Claim within a reasonable time of delivery of the Translated Works.
d) You must notify us within 30 days of delivery of the Translated Works of any alleged inaccuracies in the Translated Works, at which point our liability will be no more than to rectify any such alleged inaccuracies, that we feel to be justified, to our satisfaction. At no time will such allegations delay payment.
IV - YOUR RESPONSIBILITY AND LIABILITY
1) You warrant, represent and undertake that the materials submitted by you shall not contain anything of an obscene, blasphemous or libelous nature and shall not (directly or indirectly) infringe the Intellectual Property Rights of any third parties. Unless otherwise agreed by us, you (which for the purposes of this clause includes any of your associated companies) shall not, for a period of one year after termination of the Agreement, either directly or indirectly, on your own account or for any other person, firm or company, solicit, employ, endeavor to entice away from us or use the services of a translator or interpreter who has provided the Services and/or Translated Works to you on our behalf under the Agreement. In the event of your breach under this clause, you agree to pay us an amount equal to the aggregate remuneration paid by us to the translator for the year immediately prior to the date on which you employed or used the services of the translator.
2) You agree, upon demand, to indemnify us (which for the purposes of this clause includes our employees, agents and sub-contractors), keep us indemnified, and hold us harmless, from all losses, damages, injury, costs and expenses of whatever nature suffered by us (including reasonable attorneys' fees) to the extent that the same are caused by or related to:
a) The use or possession by us of any of the Original Works or materials provided by you in relation to the provision of the Services, including the breach of any Intellectual Property Rights of any third party in or to any such Original Works or materials;
b) The processing by us of any data (where 'processing' and 'data' have the meaning given in section 1(1) of the Data Protection Act 1998) in the provision of the Services as anticipated by clause XIII below;
c) information, representations, reports, data or product specifications furnished, prepared or approved by you for use by us in the services performed under this Agreement;
d) Any breach of warranty given by you in this clause; and
e) Any other breach by you of these Terms and Conditions.
3) In the event you require us to provide the Services on your premises, or any other premises designated by you, you shall:
a) Assign members of staff with suitable skill and experience to be responsible for our activities. - Provide such access to premises, interpretation systems and other facilities which may be reasonably required by us.
b) Provide such information as may be required by us to carry out the Services and ensure all such information is correct and accurate.
c) Ensure that all necessary safety and security precautions are in place at your premise.
4) We shall be entitled to charge you for any additional costs and expenses which we may incur as a result of any hazardous conditions or material encountered at your premises.
5) We shall not be obliged to continue to perform the Services where we consider, at our sole discretion, this would constitute a breach of warranty given by you in this clause IV, an illegal act or a safety hazard.
V - PRICE AND PAYMENT
1) Unless otherwise stated, prices are in US dollars and are exclusive of value added tax and any other tax or duty. We shall invoice you for all appropriate taxes and expenses for which we are liable to collect. You shall be liable to pay any penalties or interest on such taxes which are payable by us as a result of your delay in paying such taxes.
2) Discounts included on quoted prices are only applicable if invoices are paid within 30 days of receipt.
3) Price includes transmission to the address specified in our quotation or confirmation of Order.
4) Quotations in a currency other than US dollar are based on the rate of exchange at the time of quoting and, unless otherwise stated, the price may be subject to revision up or down if any different rate of exchange is ruling at the date of invoice.
5) Payment shall be made within 30 days from the date of invoice. All payments shall be made without deduction or set-off of bank charges.
6) In the event that payment has not been received then an administration charge of $100.00 will be applied after 60 days and a further 10% of the total invoice after 90 days. You agree to be responsible for our costs in collecting late payments due from you, including reasonable attorneys' fees.
7) Failure to pay any invoice in accordance with the foregoing terms, or other terms specified in the Agreement, shall entitle us to suspend further work both on the same order, and on any other order from you, without prejudice to any other right we may have.
8) We reserve the right to charge interest on overdue accounts, such interest to be calculated daily on the amount outstanding at the rate of 8 percent above the published base rate of the US bank.
VI - DELIVERY
1) The dates for delivery of the Translated Works, or the dates for carrying out the Services, are approximate only and, unless otherwise expressly agreed by us, time is not of the essence for delivery or performance, and no delay shall entitle you to reject any delivery or performance or to repudiate the Agreement.
2) We will not be liable in any circumstances for the consequences of any delay in delivery or performance or failure to deliver or perform if the duration of the delay is not substantial or if the delay or failure is due to late delivery or performance or non-delivery or non-performance by suppliers, shortage of labor, an act of God, fire, inclement or exceptional weather conditions, industrial action, hostilities, governmental order or intervention (whether or not having the force of law) or any other cause whatever beyond our control or of an unexpected or exceptional nature.
3) Posting or delivery to a carrier (including post, facsimile, e-mail) for the purpose of transmission to you shall, for the purposes of the Agreement, constitute delivery to you. Risk in the Translated Works shall pass to you on delivery.
4) We may deliver by installments in such quantities as we may reasonably decide; such installments shall be separate obligations and no breach in respect of one or more of them shall entitle you to cancel any subsequent installments or repudiate this Agreement as a whole.
VII - RETURN CANCELLATION POLICY
We accept refunds only for urgent projects when we fail to deliver them on time. The project is considered urgent only when we charge premium price for it (usually within the range +30%- 100%). Projects that are charged regular prices are not eligible for a refund. We can delay their delivery within a reasonable time.
VIII - SHIPPING COSTS
All shipping costs are included in the quoted price. It usually includes shipping by regular USPS mail. However, if you need it shipped overnight, $40 surcharge may be applied for FedEx and $25 for express USPS mail.
IX - TRANSLATED WORK
1) We shall not be liable for loss of profits, business, Agreements, revenue, damage to your reputation or goodwill, anticipated savings, and or any other indirect or consequential loss or damage whatsoever.
2) Our entire liability to you under any Agreement including but not limited to in respect of the Services and the Translated Works shall not exceed the price payable to us by you under the Agreement to which any claim relates.
3) You must notify us within 30 days of delivery of the Translated Works of any claim arising out of the provision of the Services and /or the Translated Works, together with full details of any claim. In any event, we shall not be liable to you if you fail to notify us of any claim within a reasonable time of delivery of the Translated Works.
4). Changes by others. We shall have no responsibility whatever as to any changes in the translation made by persons other than us.
X – TERMINATION
1) If you subsequently cancel, reduce in scope or frustrate (by an act or omission on your part, or any third party relied upon by you) the Agreement, the full price for the Agreement shall remain payable unless otherwise agreed in advance. Any Original Works provided to us, and Translated Works completed by us, under the Agreement shall be made available to you on termination of the Agreement.
2) We shall be entitled to terminate the Agreement immediately by written notice to you if:
a) You commit a material breach of the Agreement and, in the case of such a breach which is capable of remedy, you fail to remedy the same within 7 days of receipt of a written notice specifying the breach and requiring it to be remedied.
b) You make any voluntary arrangement with your creditors or (being an individual or firm) become bankrupt or (being a company) become subject to an administrative order or go into liquidation, or an encumbrance takes possession or a receiver is appointed over any of your property or assets, or you cease or threaten to cease business, or an equivalent or analogous event occurs in any other jurisdiction.
c) Any termination of the Agreement shall not prejudice any rights or remedies which may have accrued to either party.
XI – DISPUTE RESOLUTION
1) If any dispute arises between the parties with respect to translation or other similar services provided by us, then such dispute shall, at the request of either party, be referred to a person agreed between the parties or (in default of agreement within 7 days of notice from either party) to a person chosen on the application of either party by the Chairman for the time being of the ATA, American Translators Association.
2) Such a person shall be appointed to act as an expert and not as an arbitrator, and the decision of that person shall be final and binding.
3) The cost of such an expert shall be borne equally by the parties, unless such expert otherwise direct.
XII - INTELLECTUAL PROPERTY
1) All Intellectual Property Rights (including, but not limited to copyright) in the Original Works and the Translated Works shall vest in you (or your licensors) but, for the avoidance of doubt, you hereby grant to us (and our sub-contractors) a license to store and use the Original Works and the Translated Works for the duration of the Agreement and for the purposes of providing the Services to you.
2) We have no obligation to take any steps to protect any copyright, trademark or other right of yours with respect to the Translated Works, except as may be expressly otherwise provided in this Agreement. Notwithstanding the foregoing, we shall have the right to retain file copies of the Original Works and the Translated Works, subject to the provisions of clause XIV below.
XIII – DATA PROTECTION
1) Each party shall ensure that in the performance of its obligations under these Terms and Conditions it will at all times comply with relevant provisions of the Data Protection Act 1998.
2) We acknowledge that if we are required to process any data in the course of providing the Services we shall do so only on your instructions.
XIV – CONFIDENTIALITY
1) Subject to clause IV, and (on our part) save as necessary in order for us to provide the Services neither party may use any of the other party's Confidential Information.
2) Subject to clause IV, neither party may disclose to any other person any of the other party's Confidential Information.
3) Either party may disclose the Confidential Information of the other:
a) When required to do so by law or any regulatory authority, provided that party required to disclose the Confidential Information, where practicable and legitimate to do so:
- Promptly notifies the owner of any such requirement; and Co-operates with the owner regarding the manner, scope or timing of such disclosure or any action the owner may take to challenge the validity of such requirement.
b) To its (or any of its associated company's) personnel, sub-contractor’s personnel or any person whose duties reasonably require such disclosure, on condition that the party making such disclosure ensures that each such person to whom such disclosure is made:
i) Is informed of the obligations of confidentiality under these Terms and Conditions; and
ii) Complies with those obligations as if they were bound by them.
4) The obligation of confidentiality contained within this clause shall survive termination of the Agreement howsoever caused.
XV - MISCELLANEOUS
1) Neither party shall be liable to the other for any delay in, or failure of, performance of its obligations under the Agreement arising from any cause beyond its reasonable control including act of God, government act, war, fire, flood, explosion or civil commotion.
2) We may engage any person, firm or company as our sub-Contractor to perform any or all of our obligations, and we may assign any or all of our rights and obligations under the Agreement.
3) Any notice or other communication to be given under these conditions must be in writing and may be delivered or sent by prepaid first class letter post, facsimile transmission or e-mail. Any notice or document shall be deemed served: if delivered, at the time of delivery; if posted, 48 hours after posting; and if sent by facsimile transmission or e-mail, at the time of transmission.
4) No waiver by us of any breach of the Agreement by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
5) If any provision of these Terms and Conditions is or becomes invalid or unenforceable it will be severed from the rest of the Terms and Conditions so that it is ineffective to the extent that it is invalid or unenforceable and no other provisions of the Terms and Conditions shall be rendered invalid, unenforceable or be otherwise effected.
6) A person who is not party to this agreement shall have no right under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
7) This Agreement and performance hereunder shall be governed by, and construed in accordance with, the laws of the State of North Carolina without giving effects to its conflicts of laws principles.
8) These terms and conditions are subject to change without prior written notice.
