General Terms of
Business
based on those recommended in 1999 by the Institute of Translation and Interpreting (UK) for
commissioned translation work.
In this document: No part of any numbered clause
shall he read separately from any other part. Section headings are
provided for convenience of reading only and shall be ignored for the
purposes of ascertaining meaning.
Definitions
1. Translator shall mean 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, or the
Translator customarily trades as an intermediary.
Translation task shall mean 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,
but not copywriting or adaptation.
Client shall mean the party commissioning a
translation in the normal course of business.
The parties may he natural or legal persons,
including, as examples only, private individuals, associations,
partnerships, economic interest groupings or corporate entities. A
Translator may act as an intermediary. A relationship involving an
intermediary of any nature acting in the normal course of business shall
comprise two (or more) direct and discrete Translator/Client contracts.
Source material shall be understood to mean any
text or medium containing a communication which has to be translated,
and may comprise text, sound or images.
Copyright in Source Material and
Translation Rights
2. The Translator accepts an order from the Client
on the understanding that performance of the translation task will not
infringe any third party rights.
The Client undertakes to keep the Translator
harmless from any claim for infringement of copyright and/or other
intellectual property rights in all cases.
The Client likewise undertakes to keep the
Translator harmless from any legal action including defamation which may
arise as a result of the content of the original source material or its
translation.
Fees: (binding) Quotations and
(non-binding) estimates
3. 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.
No fixed quotation shall be given by the Translator
until he/she has seen or heard all the source material and has received
firm instructions from the Client.
Where VAT is chargeable it will be charged in
addition to the quoted fee if the Translator is VAT
registered.
Any fee quoted, estimated or agreed by the
Translator on the basis of the Client's description of the task may be
subject to amendment by agreement between the parties if, in the
Translator's opinion on having seen or heard the source material, that
description is materially inadequate or inaccurate.
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.
An estimate shall not be considered contractually
binding, but given for guidance or information only.
4. Subject to the second paragraph of clause 3
above, a binding quotation once given after the Translator has seen or
heard all the source material shall remain valid for a period of thirty
days from the date on which it was given, after which time it may be
subject to revision.
5. 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, 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.
6. 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
or poorly audible sound media, and/or
-
terminological research, and/or
- certification,
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.
7. If any changes are made in the
text or the Client's requirements at any time while the 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.
Delivery
8. 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.
The date of delivery shall not be
of the essence unless specifically agreed in writing.
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.
9. Payment in full to the
Translator shall be effected not later than 30 days from the date of
invoice by the method of payment specified.
For long assignments or texts, the
Translator may request an initial payment and periodic partial payments
on terms to be agreed.
10. 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 9.
Interest shall automatically be
applied at the rate of 8 % per annum over base rate (or such rate as is
determined by statute, the latter prevailing) to all overdue sums from
the date on which they first become due until they are paid in
full.
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 task in hand until
the outstanding payment is made or other terms agreed.
This action shall be without
prejudice to any sums due and without any liability whatsoever to the
Client or any third party.
Copyright in
Translations
11. In the absence of a specific
written agreement to the contrary, copyright in the translation remains
the property of the Translator.
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.
Where copyright is assigned or
licensed (formally in writing as required by § 90 of the Copyright,
Designs and Patents Act 1988, 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.
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.
12. Where the Translator retains
the copyright, unless otherwise agreed in writing, any published text of
the translation shall carry the following statement: "© (English or
other) text (Translator's name) (Year date)" as appropriate to the
particular case.
13. Where the Translator assigns
the copyright and the translation is subsequently printed for
distribution, the Client shall acknowledge the Translator's work in the
same weight and style of type as used for acknowledgement of the printer
and/or others involved in production of the finished document, by the
following statement: "(English or other) translation by (Translator's
name)", as appropriate to the particular case.
14. 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.
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. It
shall be the duty of the Client to notify the Translator that such use
will be made of the translation.
15. All translations are subject
to the translator's right of integrity.
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.
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 by the translator in writing.
Confidentiality and
Safe-keeping of the Client’s Documents
16. No documents for translation
shall be deemed to be confidential unless this is expressly stated by
the client.
However 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.
Nevertheless a third party may be
consulted over specific translation terminology queries, provided that
there is no disclosure of confidential material.
17. The Translator shall be
responsible for the safe-keeping of the Client's documents and copies of
the translations, and shall ensure their secure disposal.
18. If requested to do so by the
Client, the Translator shall insure documents in transit from the
Translator at the Client's expense.
Cancellation and
Frustration
19. 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 the
Client shall except in the circumstances described in clause 21 pay the
Translator the full contract sum unless otherwise agreed in
advance.
The work completed shall be made
available to the Client.
20. If a 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.
21. 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.
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 assist the Client as far as reasonably practical to
identify an alternative solution.
Complaints and
Disputes
22. Failure by the Translator to
meet agreed order requirements or 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. This entitlement shall not apply unless the
Translator has been notified in writing of all alleged
defects.
23. Any complaint in connection
with a translation task shall he notified to the Translator by the
Client (or vice-versa) within one month of the date of delivery of the
translation.
If the parties are unable to
agree, the matter may be referred by the more diligent party to the
Arbitration Committee of the Institute of Translation and Interpreting. Such
referral shall be made no later than two months from the date on which
the original complaint was made.
24. If a dispute cannot be
resolved amicably between the parties, or if either party refuses to
accept arbitration, the parties shall be subject to the jurisdiction of
the Courts of the Republic of Ireland.
In any event these terms shall be
construed in accordance with English law.
Responsibility and
Liability
25. The translation task shall be
carried out by the Translator using reasonable skill and care and in
accordance with the provisions and spirit of the Code of Professional
Conduct of the Institute of Translation and
Interpreting.
Time and expense permitting, the
translator shall use his or her best endeavours to do the work to the
best of his or her ability, knowledge and belief, and consulting such
authorities as are reasonably available to him/her at the
time.
A translation shall be fit for its
stated purpose and target readership, and the level of quality
specified.
Unless specified otherwise,
translations shall be deemed to be required to be of "for information"
quality.
The liability of the Translator on
any grounds whatsoever shall be limited to the invoiced value of the
work, except where in connection with any consequences which are
reasonably foreseeable:
-
the potential for such
liability is expressly notified to the Translator in writing, and
-
such liability is restricted
to an agreed limit of cover under the professional indemnity insurance
available to Translators.
Unfair
Competition
26. 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 return 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.
However, this 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.
Applicability and
Integrity
27. These Model Terms shall be
construed jointly with the Code of Professional Conduct of the Institute
of Translation and Interpreting in order to be complete and effective.
They shall also be subject to any
detailed requirements or variants expressly specified in the Order
relating to a particular translation task.
No waiver of
any breach of any condition in this document shall be considered as a
waiver of any subsequent breach of the same or any other
provision.
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