1. INTERPRETATION
In these Terms and Conditions,
unless the context requires
otherwise:
"Confidential
Information"
means information (in any form) that
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;
"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 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;
"Order"
means an order for the Services
provided by you from time to time;
"Original
Works"
means the documents, files,
materials and works provided by you
for the purposes of carrying out the
Services;
"Services"
means translation services performed
by us for you.
"Terms
and Conditions"
means these standard terms and
conditions as set out below;
"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.
"We, us, our, "
means ASAP Translation Limited
whose registered office is at Unit
2a, Trust Tower, 68 Johnston Road,
Wan Chai, Hong Kong and trading as
ASAP Translation Ltd.
"You, your "
means the company, firm, body or
person to whom we are supplying the
Services and / or the Work Products.
1.1 In these Terms and
Conditions, unless the context
otherwise requires:
1.2 the clause headings are
for convenience of reference only
and shall not affect the
construction or interpretation of
these Terms and Conditions;
1.3 references to "documents",
"records", "books" and "data" shall
include information contained in
computer programs and disks and
records or other machine readable
form or records kept otherwise than
in a legible form but capable of
being produced in a legible form;
1.4 the word "including" shall be
understood to mean "including
without limitation" and the word
"includes" shall be understood to
mean "includes without limitation";
1.5 words of a technical
nature shall be construed in
accordance with general trade usage
in the computer industry in Hong
Kong; and
1.6 in the event of any
conflict between any part of this
Contract, the documents constituting
the agreement between the parties
shall have priority in the following
order:
1.6.1 service level
agreement (if any) entered
into between the parties;
and
1.6.2 these Terms and
Conditions.
2.GENERAL
2.1 Quotations are not
binding on us and a contract
("Contract") will only come into
being when we issue a written
confirmation of your Order or (if
earlier) when we deliver the
Translated Works to you.
2.2 The Contract 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. Any variation
of the Contract must be confirmed in
writing by us.
2.3 Our written quotations are
given on the basis that the terms
quoted will remain open for the
placing of orders for 30 days from
the date of the quotation.
2.4 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.
2.5 Information provided in
our brochures, catalogues or other
published material is general
description only and does not form
part of the Contract.
2.6 These Terms and Conditions
apply to all Services provided to
you unless otherwise agreed between
the parties in writing. .
3.PRICE AND PAYMENT
3.1 Unless otherwise stated, prices
are in sterling and are exclusive of
any 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.
3.2 Price includes transmission to
the address specified in our
quotation or confirmation of order.
3.3 Quotations in a currency other
than sterling 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.
3.4 Payment shall be made within 28
days from the date of invoice. All
payments shall be made without
deduction or set-off.
3.5 Failure to pay any invoice in
accordance with the foregoing terms
or other terms specified in the
Contract 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.
3.51.We reserve the right to charge
interest on overdue accounts, such
interest to be calculated daily on
the amount outstanding at the rate
of 5 per cent above the published
base rate of HSBC.
4.DELIVERY
4.1 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 Contract. Where we
have agreed in writing to a date for
delivery of the Translated Works
then time will be considered of the
essence.
4.2 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 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.
4.3 Posting or dispatch to a
carrier (including post, facsimile,
e-mail) for the purpose of
transmission to you shall, for the
purposes of the Contract, constitute
delivery to you. Risk in the
Translated Works shall pass to you
on dispatch.
5. OUR RESPONSIBILITY AND LIABILITY
5.1 The Services shall be carried
out using reasonable skill and care
in accordance with the standards of
the industry.
5.2 We shall use all reasonable
skill and care in selecting
translators, interpreters and other
personnel used to produce the
Translated Works and perform the
Service.
5.3 No terms, conditions or
warranties, whether express or
implied, about the quality or
fitness for purpose of the Services
or the Translated Works shall be
incorporated unless expressly set
out in this Contract.
5.4 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 Contract, whether
orally or in writing, and you shall
not be entitled to rescind the
Contract on the grounds of any such
misrepresentation.
5.5 We will use reasonable endeavors
to provide the Services to meet the
specific requirements of the
Customer provided that the Customer
notifies us in writing of any
specific requirements and these
requirements are agreed in writing
between the parties prior to
acceptance by us of the relevant
Work Request.
5.6 You acknowledge that any
Original Works and Translated Works
submitted 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.
5.7 Save in respect of death or
personal injury resulting from our
negligence and subject to clause
5.8, our liability to you in respect
of the provision of the Services and
/ or the Translated Works shall be
limited as follows:
5.7.1 we shall not be liable for
loss of profits, business,
contracts, revenue, damage to
your reputation or goodwill,
anticipated savings, and or any
other indirect or consequential
loss or damage whatsoever;
5.7.2 our entire liability to
you under any Contract 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
Contract to which any claim
relates.
5.8 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 ("Claim"),
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.
YOUR RESPONSIBILITY AND LIABILITY
6.1 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.
6.2 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 Contract, 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 Contract
("Translator").
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.
6.3 You agree, upon demand, to
indemnify us (which for the purposes
of this clause includes our
employees, agents and
sub-contractors), and keep us
indemnified, from all losses,
damages, injury, costs and expenses
of whatever nature suffered by us to
the extent that the same are caused
by or related to:
6.3.1 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;
6.3.2 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 9 below;
6.3.3 any breach of warranty
given by you in this clause 6;
or
6.3.4 any other breach by you of
these Terms and Conditions.
6.4 In the event you require us to
provide the Services on your
premises you shall:
6.4.1 assign members of staff
with suitable skill and
experience to be responsible for
our activities;
6.4.2 provide such access to
premises, interpretation systems
and other facilities which may
be reasonably required by us;
6.4.3 provide such information
as may be required by us to
carry out the Services and
ensure all such information is
correct and accurate;
6.4.4 ensure that all necessary
safety and security precautions
are in place at your premises.
6.5 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.
6.6 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 6, an illegal act or a
safety hazard.
7.INTELLECTUAL PROPERTY
7.1 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
Contract and for the purposes of
providing the Services to you.
8. CONFIDENTIALITY
8.1 Subject to clause 8.3, 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.
8.2 Subject to clause 8.3, neither
party may disclose to any other
person any of the other party's
Confidential Information.
8.3 Either party may disclose the
Confidential Information of the
other:
8.3.1 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:
8.3.1.1 promptly notifies the
owner of any such requirement;
and
8.3.1.2 co-operates with the
owner regarding the manner,
scope or timing of such
disclosure or any action that
the owner may take to challenge
the validity of such
requirement;
and
8.3.2 to its (or any of its
associated company's) personnel,
sub-contractors' 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:
8.3.2.1 is informed of the
obligations of confidentiality
under these Terms and
Conditions; and
8.3.2.2 complies with those
obligations as if they were
bound by them.
8.4 The obligation of
confidentiality contained within
this clause 8 shall survive
termination of the Contract
howsoever caused.
9.DATA
PROTECTION
9.1 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.
9.2 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.
10. TERMINATION
10.1 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
Contract, the full price for the
Contract shall remain payable unless
otherwise agreed in advance. Any
Original Works provided to us and
Translated Works completed by us
under the Contract shall be made
available to you on termination of
the Contract.
10.2 We shall be entitled to
terminate the Contract immediately
by written notice to you if:
10.2.1 you commit a material
breach of the Contract 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; and
10.2.2 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 goes
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.
10.3 Any termination of the Contract
shall not prejudice any rights or
remedies that may have accrued to
either party.
11.MISCELLANEOUS
11.1 Neither party shall be liable
to the other for any delay in, or
failure of, performance of its
obligations under the Contract
arising from any cause beyond its
reasonable control including act of
God, government act, war, fire,
flood, explosion or civil commotion.
11.2 We may engage any person, firm
or company as our subcontractor to
perform any or all of our
obligations and we may assign any or
all of our rights and obligations
under the Contract.
11.3 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.
11.4 No waiver by us of any breach
of the Contract by you shall be
considered as a waiver of any
subsequent breach of the same or any
other provision.
11.5 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.
11.6 A person who is not party to
this agreement shall have no right
under the Contracts (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 that exists or is
available otherwise than pursuant to
that Act.
The Contract (and any proceedings
whereby one party might be entitled
to join the other as a third party)
shall be governed by and construed
in all respects in accordance with
English law and the parties hereby
submit to the non-exclusive
jurisdiction of the English courts.
