Standard Terms of Business
Version 26 May 2022
1. Definitions and Interpretation of this Agreement
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following expressions shall be given the following meanings:
‘Agreement’ means these standard terms of business.
‘Assignment’ means the period during which services are delivered or work is carried out for or on behalf of the Client or as otherwise agreed between the Client and the Supplier, commencing at the time the Supplier first starts such work and services and ending upon the cessation by the Supplier of all such work and services.
‘Client’ means the Party commissioning language services in the normal course of business.
‘Confidential Material’ means any sensitive or private information with regard to the Client or their business.
‘Intellectual Property Rights’ means copyright and related rights; performers’ rights; moral rights; goodwill and the right to sue for passing-off or unfair competition; rights to use and protect the confidentiality of confidential information (including know-how and trade secrets); and any other intellectual property rights of any person, including such rights or similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
‘Supplier’ means Susan Swann Higgins, who provides language services, such as translation, interpreting and bilingual virtual assistance, as described in the specific quote.
‘Source Material’ means any text or other medium provided by the Client to the Supplier and which contains a communication which has to be translated, and may comprise text, sound and/or images.
‘Third Party’ means any party who is not a party to this Agreement.
1.2 Interpretation
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 separately from any other part.
Clause headings are provided for 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.
Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Copyright in Source Material, and Translation Rights
2.1 The Supplier accepts a translation task from the Client on the understanding that performance of the task will not infringe any Third Party rights. Accordingly the Client warrants to the Supplier that:
1) the Client has full right and authority to enter into this Agreement, having acquired the right and licence to translate and publish the Source Material; and
2) the Source Material does not infringe the copyright or any other right of any person;
2.2 The Client shall indemnify the Supplier against any loss, injury or damage (including legal costs and expenses and compensation paid by the Supplier to compromise or settle any claim) which the Supplier suffers as a consequence of any breach or alleged breach of any of the above warranties or as a consequence of any claim that the Source Material contains anything objectionable, libellous, blasphemous or obscene or which constitutes an infringement of copyright or of any other rights of any Third Party.
3. Fees: (binding) Quotes and (non-binding) Estimates
3.1 In the absence of any specific agreement, the fee to be charged shall be determined by Supplier on the basis of the Client’s description of the language services to be provided, the purpose of the language services and any instructions given by the Client.
3.2 No fixed quote shall be given by the Supplier until she has seen or heard all the Source Material and/or has received clear and complete instructions in writing from the Client.
3.4 Any fee quoted, estimated or agreed by the Supplier on the basis of the Client’s description of the language services may be subject to amendment by agreement between the Parties if, in the Supplier’s opinion on having seen or heard the Source Material, that description 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 given for guidance or information only.
3.7 Subject to clause 3.2 above, a binding quote once given after the Supplier has seen or heard all the Source Material and/or complete instructions shall remain valid for a period of thirty (30) days from the date on which it was given, after which time it may be subject to revision.
3.8 Costs of delivery of any translation shall normally be borne by the Supplier. Where delivery requested by the Client involves expenditure greater than the cost normally incurred for delivery (for example, courier and/or recorded or special 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 Supplier, it shall not be borne by the Client, unless otherwise agreed.
3.9 If travel time and other expenses are not agreed and included in the quote, then reasonable expenses associated with the completion of any interpreting task, for example travel, hotel and subsistence expenses, shall be borne by the Client. If excessive expenses are incurred as a result of action or inaction by the Supplier, these shall not be borne by the Client unless otherwise agreed.
3.10 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.
3.11 If any changes are made in the text or the Client’s requirements at any time during the Assignment, the Supplier’s fee, any applicable supplementary charges and the terms of delivery shall be adjusted in respect of the additional work.
4. Delivery
4.1 Any delivery date or dates agreed between the Supplier and the Client shall become binding only after the Supplier has seen or heard all Source Material to be translated and has received complete instructions in writing 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 Supplier shall dispatch written translations in such a way that the Client can reasonably expect to receive them not later than the normal close of business at the Client’s premises on the date of delivery.
4.4 Any interpreting tasks shall be carried out at the times and dates and specific venues set out in the order confirmation or as otherwise agreed between the Parties.
4.5 If reasonably practical, the Supplier shall be entitled to take reasonable breaks throughout any interpreting task, as agreed in advance between the Parties.
4.6 Where the Client commissions an interpreting task involving simultaneous interpreting, at least two interpreters will be required and adequate equipment must be provided for all interpreters.
4.7 The Supplier reserves the right to substitute herself, provided the Client is reasonably satisfied that any proposed substitute possess the necessary skills and qualifications for the satisfactory completion of the services. The Supplier will remain liable for the services completed by the substitute and will bear any costs.
5. Payment
5.1 The Supplier may request an initial payment of 50% of the total amount of the quote. Payment in full to the Supplier shall be effected no later than seven (7) days from the date of invoice by the method of payment specified.
5.2 For long or ongoing Assignments the Supplier may request an initial payment and periodic partial payments on terms to be agreed.
5.3 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.
5.4 Where tasks are ongoing and delivered in instalments and notice has been given that an interim payment is overdue, the Supplier shall have the right to stop working on the task at hand until the outstanding payment is made or other terms agreed.
5.5 Any payment that is not made before the due date shall bear interest at the rate of three per cent (3%) above the base rate of Barclays Bank from time to time, calculated on a daily basis from the date when such payment fell due until the date of payment.
5.6 This action shall be without prejudice to any sums due and without any liability whatsoever to the Client or any Third Party.
5.7 The Client shall pay the Supplier additional fees at the Overtime Rate(s) (as set out in the quote) if any interpreting task lasts for a longer duration than specified in the original instructions.
6. Copyright and Intellectual Property Rights
6.1 In the absence of a specific written agreement to the contrary, copyright in a translation remains the property of the Supplier.
6.2 The Supplier 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 section 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 Supplier, and the conditions applicable to assignment of copyright and the grant of a licence to publish such translation shall be as specified above.
6.5 Where the Supplier retains the copyright, unless otherwise agreed in writing, any published text of the translation shall carry the following statement: “© English text [Supplier’s name] [Year]” as appropriate to the particular case.
6.6 Where the Supplier assigns the copyright to the translation and the translation is subsequently printed for distribution, the Client shall acknowledge the Supplier’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 Translation by (Supplier’s name)”, as appropriate to the particular case. Similarly, where the Supplier retains any Intellectual Property Rights in the recordings, unless otherwise agreed in writing, every recording shall carry the following statement: “© English Interpreting by [Supplier’s name] [Year]” 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 Supplier 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 Supplier in writing and the agreed fee has been paid in full.
6.9 It shall be the duty of the Client to notify the Supplier that such use will be made of the translation.
6.10 All translations are subject to the Supplier’s right of integrity.
6.11 If a translation, interpreting or recording is in any way amended or altered without the written permission of the Supplier, she shall not be in any way liable for amendments made or their consequences.
6.12 If the Supplier 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 Supplier’s written permission. The right of integrity may be specifically waived in advance by the Supplier in writing.
6.13 Any interpreting shall not be recorded unless stipulated in the order confirmation.
6.14 In the absence of a specific written contract to the contrary and to the extent that it is possible in law, Intellectual Property Rights in any recordings or part thereof will remain the property of the Client.
6.15 It shall be the duty of the Client to notify the Supplier that a recording will be made of the interpreting.
6.16 Where the Supplier retains any Intellectual Property Rights in any recordings, or if any recordings are to be used for legal purposes, no amendment or alteration may be made to the recordings without the Supplier’s written permission. The right of integrity may be specifically waived in advance by the Supplier in writing.
7. Confidentiality and Safe-keeping of the Client’s Documents
7.1 No documents provided by the Client shall be deemed to be confidential unless this is expressly stated by the Client.
7.2 Any agreement between the Parties which imposes confidentiality obligations upon the Supplier shall not apply to information where the Supplier is able to prove:
7.2.1 that it was already in her possession at the date it was received or obtained in connection with this Agreement; or
7.2.2 that it was obtained from some other person who is not in breach of any confidentiality undertakings; or
7.2.3 that it has been independently developed by or for the receiving party; or
7.2.4 that it came into the public domain or is common knowledge otherwise than through the default or negligence of the receiving party; or
7.2.5 that the receiving party is required to disclose it pursuant to any applicable laws or the order of any competent court or other regulatory authority.
7.3 However the Supplier shall at all times exercise due discretion in respect of disclosure to any Third Party of any information contained in the Client’s Source Material or translations or arising from or during any task without the express authorisation of the Client, notwithstanding clause 4.7 above and except in the instance of simultaneous interpreting, where it is expected that the Supplier may work with other interpreters present in order to complete the interpreting task effectively.
7.4 Notwithstanding clause 7.3, the Parties agree that a Third Party may be consulted over specific translation terminology queries in relation to the task.
7.5 The Supplier shall be responsible for the safe-keeping of the Client’s Source Material and copies of translations, and shall, where necessary, ensure their secure disposal.
7.5 If requested to do so by the Client, the Supplier shall insure documents in transit from the Supplier, at the Client’s expense.
8. Cancellation and Frustration
8.1 If a 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 provide as much notice to the Supplier as is reasonable in the circumstances and, except in the circumstances described in clause 8.3, pay the Supplier the full fee unless otherwise agreed in advance.
8.2 The work completed shall be made available to the Client.
8.3 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 Supplier shall have the right to terminate a contract.
8.4 Neither the Supplier 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 Supplier shall notify the Client as soon as is reasonably practical of any circumstances likely to prejudice the Supplier’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.
9. Complaints and Disputes
9.1 Failure by the Supplier to meet agreed order requirements or to deliver a product or service which is fit for its stated purpose shall entitle the Client to:
1) reduce, with the Supplier’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 Supplier. Such entitlement shall only apply after the Supplier 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 Supplier has been notified in writing of all alleged defects.
9.3 Any complaint in connection with a task shall be notified to the Supplier by the Client (or vice-versa) within one month of the date of delivery of the task. If the Parties are unable to resolve the complaint, the matter may be referred by either Party to the Chartered Institute of Arbitrators. Such referral shall be made no later than two months from the date on which the original complaint was made.
9.4 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 exclusive jurisdiction of the Scottish courts. In any event this Agreement shall be construed in accordance with Scots law.
10 Responsibility and Liability
10.1 Tasks shall be carried out by the Supplier 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.
10.2 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.
10.3 Subject to clause 10.2, the liability of the Supplier under or in respect of this Agreement, whether in tort, contract or otherwise, shall be limited to the cost of the task(s) being undertaken when the liability arises.
10.4 Neither Party shall be liable to the other in respect of any consequential or indirect loss whatsoever.
12. Applicability and Integrity
12.1 This Agreement shall come into effect either (1) when the Client makes an initial payment of 50% of the total amount of the quote; or (2) when the Client commences delivery of the Source Material; or (3) when the Supplier provides any services under the Agreement, whichever is the earlier.
12.2 This Agreement should be read in conjunction with the Code of Professional Conduct of the Institute of Translation and Interpreting.
12.3 This Agreement may be subject to any detailed requirements or variants expressly specified in the order relating to a particular task.
12.4 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.
