In these Terms and Conditions, unless the context requires otherwise '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.
'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.
'Source material' means the documents, files, materials and works provided by you for the purposes of carrying out the Services.
'Services' means adaptation, translation, transcreation, typesetting, voice-over, consultancy services performed by us for you.
'Terms and Conditions' means these standard terms and conditions as set out below.
'We, us, our,' means Mother Tongue Limited, registered in England (2565571) at 85 Strand, London, WC2R 0DW, trading as Mother Tongue, Mother Tongue Writers, Mother Tongue Voices, Mother Tongue Type, Flamewriters or Zonecool.
'You, your' means the company, firm, body or person to whom we are supplying the Services.
In these Terms and Conditions, unless the context otherwise requires:
The clause headings are for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions.
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.
The word 'including' shall be understood to mean 'including without limitation' and the word 'includes' shall be understood to mean 'includes without limitation'.
Words of a technical nature shall be construed in accordance with general trade usage in the computer industry in England.
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:
•Service level agreement (if any) entered into between the parties.
•These Terms and Conditions.
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 Services to you.
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.
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.
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 material is materially inadequate or inaccurate.
Information provided in our website or other published material is general description only and does not form part of the Contract.
These Terms and Conditions apply to all Services provided to you unless otherwise agreed between the parties in writing.
3. Price and Payment
Unless otherwise stated, prices are in sterling 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.
Price includes transmission to the address specified in our quotation or confirmation of order.
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.
Payment shall be made within 30 days from the date of invoice. All payments shall be made without deduction or set-off.
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.
We reserve the right to charge interest on overdue accounts, such interest to be calculated daily on the amount outstanding at the rate of 4 per cent above the published base rate of Barclays Bank plc.
The dates for delivery of 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.
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 or subcontractors, shortage of labour, 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.
Posting or delivery 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 Services provided shall pass to you on delivery.
5. Our Responsibility and Liability
The Services shall be carried out using reasonable skill and care in accordance with the standards of the industry.
We shall use all reasonable skill and care in selecting copywriters, voice-over artists, translators, interpreters and other personnel used to produce the Services.
No terms, conditions or warranties, whether express or implied, about the quality or fitness for purpose of the Services shall be incorporated unless expressly set out in this Contract.
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.
We do not warrant that the Services will meet your specific requirements and, unless otherwise agreed, we do not warrant that the operation of any Service sent to you will be uninterrupted or error free. Furthermore, we do not warrant that or make any representation regarding the use of the Services in terms of their accuracy, correctness, reliability or otherwise.
You acknowledge that any Source Material and Service 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 Source Material and Service.
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 shall be limited as follows:
We shall not be liable for any indirect or consequential loss or damage of any kind, howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
Our entire liability to you under any Contract including but not limited to in respect of the Services not exceed the price payable to us by you under the Contract to which any claim relates.
You must notify us within 30 days of any claim arising out of the provision of the Services ('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 Services.
6. Your Responsibility and Liability
You warrant, represent and undertake that the materials submitted by you shall not contain anything of an obscene, blasphemous or libellous 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 Contract, either directly or indirectly, on your own account or for any other person, firm or company, solicit, employ, endeavour to entice away from us or use the services of a copywriter, voice-over artist, translator or interpreter who has provided the Services to you on our behalf under the Contract ('Copywriter'). 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 Copywriter for the year immediately prior to the date on which you employed or used the services of the Copywriter.
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:
The use or possession by us of any of the Source Material 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 Source Material.
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.
Any breach of warranty given by you in this clause 6.
Any other breach by you of these Terms and Conditions.
In the event you require us to provide the Services on your premises you shall:
•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. Provide such information as may be required by us to carry out the Services and ensure all such information is correct and accurate. Ensure that all necessary safety and security precautions are in place at your premises.
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.
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. Title and ownership
All right, title and interest in and to the Source Materials and, except as hereunder provided, the services, and any and all patent rights, copyright, know-how, and trade secrets therein are and remain the sole and exclusive property of Client. Notwithstanding the above, Client acknowledges that Mother Tongue Ltd is the sole and exclusive owner of all right, title, and interest in and to all
(i) methodology, information, software, and databases used in translating/adapting the source materials, and
(ii) inventions, methodology, innovations, know-how, and databases developed by Mother Tongue Ltd in the course of translating/adapting the source materials, including any and all patent rights, copyrights, know-how, and trade secrets therein.
The services (translated/adapted material) and copyright, know-how and trade secrets therein shall remain the property (but not the risk) of Mother Tongue Ltd until Mother Tongue Ltd shall have been paid in full for such services.
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.
Subject to clause 8.3, neither party may disclose to any other person any of the other party's Confidential Information.
Either party may disclose the Confidential Information of the other:
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 that the owner may take to challenge the validity of such requirement.
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:
•Is informed of the obligations of confidentiality under these Terms and Conditions; and
•Complies with those obligations as if they were bound by them.
•The obligation of confidentiality contained within this clause 8 shall survive termination of the Contract howsoever caused.
9. Data Protection
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.
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.
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 Source Material provided to us and Services completed by us under the Contract shall be made available to you on termination of the Contract.
We shall be entitled to terminate the Contract immediately by written notice to you if:
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,
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 encumbrancer 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.
Any termination of the Contract shall not prejudice any rights or remedies which may have accrued to either party.
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 Institute of Translation and Interpreting.
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.
The cost of such an expert shall be borne equally by the parties, unless such expert otherwise directs.
HMRC has stipulated that all voice-over work carried out by Mother Tongue falls in the following category: “HMRC now accept that if the actor is asked to read a script over a televised documentary rather than acting out a character role then they should sign a non-Equity contract. They would then not be treated as entertainers for the purposes of the 1998 Entertainers Regulations”.
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.
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 Contract.
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.
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.
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.
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 which 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.