Client’s General Terms and Conditions
The following terms and conditions apply to all contractual relationships between Harry Clark Translation (HCT) and any of its clients and constitute the whole agreement between the parties except where agreed otherwise in writing. All other terms and conditions, express or implied by statute or otherwise are excluded to the fullest extent permitted by law.
1. Definitions:
In these terms and conditions:
1.1. “Accepted Quote” means a Quote which the Client accepts in writing to HCT, including by the Client giving written notice to HCT to proceed with the Services or by the Client clicking ‘Proceed’ or ‘Order Now’, or the like on a Quote (provided that the Client is not permitted to make any change to the Quote and if the Client does so the Quote is deemed to be not accepted by the Client);
1.2. “Client” means the client that requests translation services from HCT (or on whose behalf translation services are requested) as subsequently named in the Quote;
1.3. “Confidential Information” means any proprietary information, know-how and data disclosed in confidence by one party to the other party (including in the case of the Client the Source Materials and the Deliverables), but does not include any information which (a) is in the public domain; (b) on receipt by the other party is already known by that party; (c) is at any time after the date of receipt by the other party, received in good faith by that
party from a third party; (d) required by law to be disclosed by the other party;
1.4. “Contract” means a contract comprising an Accepted Quote and these terms and conditions.
1.5. “Credit Account” means an account made available to the Client following completion of a credit account application form (with all requirements satisfied) and validation of the application by HCT’s finance team.
1.6. Approved Credit Limit: On the creation of the Credit Account, HCT specifies a Credit Limit for the Client. No credit invoice can go beyond the Approved Credit Limit.
1.7. “Deliverables” means the final deliverables produced as a result of the Services.
1.8. “Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered.
1.9. “Quote” means a quote issued by HCT to the Client.
1.10. “Services” means the services specified in the Quote.
1.11. “Source Materials” means the document/s submitted by the Client for translation, as identified in the Quote.
1.12. “HCT” means Harry Clark Translation, a company registered in New Zealand.
1.13. “Website” means HCT’s website at www.HarryClarkTranslation.co.nz.
1.14. “Working Day” means any day other than a Saturday, Sunday, or public holiday in New Zealand.
2. Requests for Translation Services
2.1. Each request for translation services is made subject to these terms and conditions.
2.2. No contract exists in respect of any request for translation services or in respect of any Source Materials that may be submitted to HCT, unless and until there is an Accepted Quote. Once there is an Accepted Quote, a ‘Contract’ is formed between the Client and HCT in respect of the Services described in that quote.
2.3. Subject to clause 2.4, HCT will issue a Quote after receiving from a client a request for translation services.
2.4. HCT reserves the right to decline to issue a Quote or to provide any translation services if the Source Materials contain any material which HCT, at its discretion (and without any obligation on HCT to review the Source Materials for appropriateness, legality or otherwise) considers to be offensive, obscene, contrary to any law or otherwise considered by HCT to be inappropriate.
3. Provision of Services
3.1. Provision: Subject to receipt of all applicable amounts due from the Client, HCT will provide the Services as specified in the Accepted Quote and in accordance with HCT’s standard practices and procedures at the time the Quote was issued to the Client.
3.2. Required Information: The Client must provide all information requested by HCT in respect of the Services and ensure that all such information is accurate and complete.
3.3. Quality Level: HCT provides services at different specified quality levels. It is the Client’s responsibility to select the preferred level of service to suit its requirements. HCT will deliver to the selected level of service as specified in the Accepted Quote and has no obligation to check whether that quality level is appropriate for the Client’s needs. The default level of quality, “Professional Translation”, involves one professional translator. The other level,
“Premium Translation”, involves three independent quality layers: Translation, Revision and Proofreading.
3.4. Surprising Source: HCT has no responsibility to complete the translation for the price quoted if the word count and/or nature of the translation, or included languages, vary from what was able to be gained from the Source Materials when first quoted. HCT reserves the right to provide the Client with a corrected quote with the difference owing for completion of the job and amended delivery date if necessary. The Client may opt to instead receive a
refund if the corrected quote is not acceptable, proportionate with the part still to be completed.
3.5. Weekend Delay: Should a client purchase the translation services on a weekend or a holiday, then it may result in a minor delay in the timeframe to complete. HCT will use its best endeavors to ensure this does not happen but will notify the Client as soon as practicably possible on the first Working Day identifying of any delay.
3.6. Faults in Source Material: HCT has no responsibility to review the quality of the Source Materials for typographical or any other errors and has no liability to review the Source Material for or to correct any errors or omissions contained in any Source Materials regardless of the nature of such errors or omissions and regardless of the impact that such errors or omissions may have on the quality of the Deliverables.
3.7. Final Delivery: On completion of the Services and subject to receipt by HCT of all amounts due from the Client, HCT will issue the Deliverables to the Client.
3.8. Timeliness: HCT will issue the Deliverables to the Client in accordance with HCT’s standard practices and procedures applicable at the time or as otherwise specified in the Quote. HCT will use reasonable endeavors to issue the Deliverables on or before the agreed delivery date / time, or where no specific delivery date/ time is agreed within a reasonable time following receipt of the Accepted Quote, but HCT accepts no liability for any delay
in meeting the applicable timing. This is due to the fact that unexpected factors might emerge causing unexpected delay, such as unexpectedly challenging texts, or hectic time-schedules of translators of different specialization at different time-zones.
3.9. Change Order: For any addition or change to the scope of the agreed project, a new change order must be considered. Any changes or amendments to the Source Material or instructions of the Customer after the agreement has been entered through the Accepted Quote will incur additional cost. The same applies if information provided by the client proved to be incorrect. HCT is not liable for any subsequent changes by the Customer to the final Translation regardless of their nature and whether they are made to the text, layout, or formatting.
3.10. Warranty and Liability: HCT will do its best to ensure that the final translation meets customer’s specific requirements and is error-free. However, all translations can vary linguistically depending on their nature and purpose, the target audience, and the source text. The fact that there is more than one possible translation of the Source Material and that it could be translated differently does not entitle the Customer to refuse payment or reject the final Translation as unsatisfactory. HCT undertakes to fix any potential mistake that might appear in the document within reasonable time.
4. Payment Terms
4.1. The Client will pay all applicable fees as specified in the Quote, which will be due for payment or invoiced in accordance with clause 4.2 or clause 4.3 (as applicable) unless alternative timing for payment being due or invoices being issued is specified in the Accepted Quote.
4.2. In this clause 4.2, ‘1000’ is determined in the currency specified in the Quote (which will be either GBP, USD, NZD, AUD, CAD, SGD, EURO, JOD, or AED). Except where clause 4.3 applies, if the total amount payable is:
a) 1000 or less, the TOTAL amount is due prior to commencement of the Services.
b) greater than 1000:
- 60%, (or more), of the total amount payable is due prior to commencement of the Services; and
- 40%, (or balance), of the total amount payable is due prior to release of the Deliverables (whether in softcopy or hard copy) to the Client; and
c) if HCT expects the duration of the Services to exceed 30 days:
- 40% of the total amount payable is due prior to commencement of the Services.
- 30% of the total amount payable is due halfway through the expected duration of the Services (for example if the Services are expected to take 40 days, the second payment is due on day 20); and
- 30% of the total amount payable is due prior to release of the Deliverables to the Client.
4.3. Where the Client has a Credit Account with HCT, it is important that no credit invoice is issued beyond the Approved Credit Limit. The client should make a progressive payment in advance to stay in line with the Approved Credit Limit to cover for the credit invoices. No credit invoice may be issued in excess of the Approved Credit Limit.
a) if HCT expects the duration of the Services to be less than 30 days, HCT will issue invoices to the Client as follows:
- 50% of the total amount payable for the relevant Deliverables, prior to commencement of the Services.
- 50% of the total amount payable for the relevant Deliverables, prior to release of the Deliverables to the
Client.
b) if HCT expects the duration of the Services to exceed 30 days, HCT will issue invoices to the Client as follows:
- 30% of the total amount payable for the relevant Deliverables, prior to commencement of the Services; and
- 30% of the total amount payable for the relevant Deliverables, halfway through the expected duration of the
Services (for example if the Services are expected to take 40 days, the second invoice will be issued on day 20); and - 40% of the total amount payable for the relevant Deliverables, prior to release of the Deliverables to the Client.
c) if HCT expects the duration of the Services to exceed 60 days, unless otherwise specified in the Quote, HCT will issue monthly invoices to the Client, pro-rating the total amount payable to a per month amount, based on the expected duration of the Services, without exceeding the Approved Credit Limit. All invoices issued to Clients that have a Credit Account are due for payment by the 20th of the month following the month of the invoice, unless otherwise specified.
4.4. All payments must be made in full without deduction or set-off.
4.5. Any applicable tax (VAT or GST), and any other applicable taxes and duties are added to the amount charged.
4.6. If any amount is not paid by the due date:
- HCT may charge a penalty on that amount at 10% per annum calculated from the due date up until the date that payment is received by HCT.
- HCT may suspend provision of Services or may cease to provide the Services or Deliverables and may at its discretion terminate the Contract in accordance with clause 10.2.
4.7. Where the Client is required to pay a deposit (an amount payable prior to commencement of the Services) and the Client pays by credit card, the Client’s credit card will be stored in HCT’s third party online secure payment processing provider. Your card will be charged for the remaining figure (quote minus deposit already paid) on completion of the job and prior to the files being released.
4.8. All invoices will be rendered in, and payable in the local currency, unless agreed otherwise with the Client. Prices are quoted exclusive of VAT/GST, unless stated otherwise. VAT/GST will be added at the appropriate rate to all quoted prices.
4.9. Additional fees will be payable in the case any of the following are required to complete any work:
- Any investigation, inquiry, or research beyond that for a normal routine translation required because of ambiguities in the items to be translated.
- Additional services required because the Client has made changes in the items to be translated after confirmation of the order.
- Changes to a translated or revised text not required for accuracy, but requested by the Client after delivery, because of the Client’s preferences as to style or vocabulary.
4.10. The Client shall reimburse HCT for other necessary expenses, such as:
- Out-of-pocket travel expenses, whenever warranted, at cost basis.
- Necessary travel time as agreed.
- urgent or express document delivery services requested by the Client, long distance telephone expenses to clarify document ambiguity, or verification services contracted to third parties
5. Refund policy
5.1. HCT will provide a refund to the Client in respect of the affected pages translated if:
a) Translation no longer required: The Client terminates a Contract (or partially terminates a Contract) under clause 10.1.
b) Non–Delivery of Translation: the electronic translation is not delivered to the Client after 14 Working Days from the delivery date specified in the Accepted Quote, provided that no refund will be made if the Client has not provided all required information to HCT, as requested by HCT, in a timely manner.
c) Translations not-as-required: the Deliverables as supplied to the Client are significantly different from the deliverables required by the Client as specified in the Accepted Quote (for example, the Deliverables are in the wrong target language); or
d) Translations contain gross errors: the Deliverables contain gross errors, provided that the Client must first, within one week time, request revisions to correct any such errors and identify the errors in the Deliverable. If errors are identified or revisions are requested after the stipulated period, the Client will not be eligible for any refund.
5.2. In the event of any monetary refund, the return payment will be 100% of the amount paid by the Client for the specific affected pages less courier and handling costs, and only if the following actions/conditions have been completed/fulfilled within 10 Working Days of submission of the relevant Deliverable to the Client:
a. The request for a refund is received by HCT, in writing via email sent to accounts@HarryClark.co.nz; phone calls will not be sufficient. The request for a refund must include Job #, date of commissioning, name of company under which the service was commissioned, name of person the invoice was billed to, the e-mail address used at the time of the commissioning of the required service and the manner in which the
service was paid for (e.g. Credit Card, Cash, Remittance).
b. The Client completed the required checklist providing the appropriate background, overview, audience, language tone, reserved words and glossary terms as requested prior to dispatch of the any of the Source Materials by HCT to an HCT translator.
c. Where applicable the Client has reasonably explained why any rectifications proposed by HCT would not
be effective.
d. An undertaking that is endorsed by the Client and submitted to HCT that clearly states that the Client will not use the relevant Deliverables / translations delivered by HCT in part or in whole for personal, business, commercial or any other purposes.
5.3. HCT will endeavor to investigate and where applicable to process refunds within 5 Working Days of receipt of a refund request, but refund requests may take up to 2 weeks to investigate and process. A reply will be sent to the Client after HCT has determined whether a refund is necessary. If HCT determines that the refund request meets the requirements of this clause 5, HCT will notify the Client in writing and advise the payment method that will be used to refund the monies paid.
6. Intellectual Property
6.1. Nothing in this Contract transfers to HCT, ownership of any Intellectual Property in the Source Materials or the Deliverables.
6.2. All Intellectual Property in the processes, methodology and know-how used by HCT in its performance of a Contract are and will remain the property of HCT. Nothing in any Contract transfers to the Client any of HCT’s Intellectual Property.
7. Confidential Information
7.1. The parties recognize and acknowledge the confidential nature of the Confidential Information.
7.2. Neither party may disclose any Confidential Information other than:
a. to its directors, employees, contractors, or subcontractors to the extent necessary in the performance of the Contract.
b. with the express prior written consent of the other party; or
c. to its professional advisers.
8. Client warranties
8.1. The Client represents and warrants to HCT that:
a. it owns or has all necessary rights in the Source Materials to entitle it to submit the Source Materials to HCT and to request the Services and that by doing so the Client is not infringing the Intellectual Property rights of any third party.
b. it will not submit and has not submitted anything to HCT or to the Website and will not use anything in respect of its use of the Website, the Services or otherwise in connection with HCT (whether a device, software or any other thing whether embedded into the Source Materials or otherwise) that will or could interfere with the functioning of HCT’s systems and/or the Website; and
c. it has authority to enter into and perform and the ability to perform its obligations under this Agreement.
8.2. The Client indemnifies HCT against any losses, costs (including legal costs on a solicitor and own client basis), expenses, demands or liability whether direct, indirect, consequential or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim by a third party where the claim arises from any breach of the representations and warranties made by the Client in this clause 8.
9. HCT’s Warranties
9.1. HCT warrants that it has authority to enter into and perform and the ability to perform its obligations under this Agreement.
9.2. Except as expressly provided in these Terms, all warranties, terms and conditions (including, without limitation, warranties, and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded by HCT to the extent permitted by law.
10. Termination
10.1. The Client may, without cause, terminate a Contract (or, subject to this clause 10.1, part of a Contract) at any time up until 30 minutes after first payment in respect of that Contract has been received by HCT, by giving written notification to HCT within that 30 minute-time period. The Client may only terminate part of a Contract
where separate pricing is specified in the Accepted Quote for the Services no longer required. Where a
Contract is partially terminated under this clause, the Client must, at the time of giving notice of termination, specify the Services that are no longer required.
10.2. Without limiting any other rights or remedies that HCT may have, HCT may terminate the Contract on written notice to the Client if the Client fails to pay any overdue amount within five days following written notice from HCT requiring payment.
10.3. Without limiting HCT’s rights under clause 10.2, either party may terminate the Contract immediately if the
other party:
a. breaches any of its obligations under the Contract and fails to remedy the breach within 20 days of receiving notice requiring the breach to be remedied; or
b. becomes insolvent or goes into liquidation or has a receiver or statutory manager appointed over its assets or ceases to carry on business or makes any arrangement with its creditors.
10.4. On termination of a Contract:
a. any amounts due to HCT will become immediately due and payable.
b. the provisions of the Contract that are by their nature intended to survive termination will remain in full force.
11. Liability
11.1. Subject to clause 11.2, HCT will be liable for direct loss only (excluding loss of business or profits and excluding all consequential loss) up to a maximum of US$100.
11.2. For ‘Premium’ Services, HCT will be liable for direct loss only (excluding loss of business or profits and excluding all consequential loss) up to a maximum of the amount paid by the Client to HCT for the Services.
11.3. To the extent permitted by law, all implied warranties are excluded.
11.4. HCT shall have no liability to the Client for any loss, damage, cost, expense, or other claim arising from any original documentation or instruction supplied by the Client being incomplete, inaccurate, incorrect, illegible, out of sequence or in the wrong form or arising from their late arrival or non-arrival.
11.5. HCT shall have no responsibility whatsoever for any change made to a translation or revision by any person other than HCT.
11.6. HCT shall have no liability to the Client for delays due to any cause beyond HCT’s reasonable control.
12. Dispute Resolution
12.1. Where any dispute arises between the parties concerning a Contract or the circumstances, representations, or conduct giving rise to the Contract, neither party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 12.
12.2. The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated will have authority to settle or resolve the
dispute.
12.3. If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
12.4. The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator will be selected, and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
13. Consumer Guarantees Act
13.1. If the Client acquires, or holds itself out as acquiring, goods or services from HCT under a Contract for the purposes of a business, and the Consumer Guarantees Act 1993 would apply were it not for this clause 13.1, the Consumer Guarantees Act 1993 will not apply.
14. General
14.1. Entire agreement: Each Contract constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of that Contract.
14.2. Amendments: Except as specifically provided, no amendment to a Contract will be effective unless it is in writing and expressly accepted by both parties.
14.3. Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
14.4. Partial invalidity: If any provision of a Contract or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Contract and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
14.5. Independent contractor: HCT is an independent contractor to the Client and is in all respects independent of the Client. Nothing in any Contract constitutes either party a partner, agent, employee, or joint venturer of the other.
14.6. Suspension: HCT may suspend performance of its obligations under a Contract for so long as it is unable to perform for reasons outside of its control.
14.7. Assignment: The Client must not assign its rights under any Contract without the prior written consent of HCT.
14.8. Severability: If any provision of a Contract is held invalid, unenforceable, or illegal for any reason, the Contract shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
14.9. Precedence: In the event of any conflict or inconsistency as between the Accepted Quote and these terms and conditions, unless specified otherwise in these terms and conditions, these terms and conditions will take precedence.
15. Notices
15.1. Notices under each Contract must be in writing and sent by post or facsimile to the address or facsimile number specified in the Quote (unless otherwise notified on seven days written notice).
15.2. Notices sent by post shall be deemed received 10 days after posting to or from an overseas destination and three days after posting locally within the country and notices sent by facsimile shall be deemed received on transmission so long as the sender has a transmission report specifying the correct number of pages sent, the date and time of transmission and that transmission was successful.
15.3. If you need to contact us, please email us on admin@HarryClark.co.nz and include your name and job reference number.
16. Governing law
16.1. Each Contract is governed by and construed in accordance with New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts. If any provision of these Terms is invalid, or unenforceable in whole or in part, the validity and enforceability of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
