Terms & Conditions Last Updated: 14th May
2023
1. Definitions
1.1 “The Company” refers to Opal Translation Pty Ltd T/As Ethnolink
Language Services (ABN 49 601 462 677).
1.2 “The Client” refers to the individual or company commissioning the
Company’s services.
1.3 “Services” refer to the services provided by the Company, including
but not limited to translation, localization, multicultural research,
strategy and consulting, creative development, voice-overs, subtitling
and other services offered by the client.
1.4 “Source Material” refers to the document, audio file, video file, or
any other form provided by the Client to the Company that needs to be
translated.
1.5 “Target Language” refers to the language into which the Source
Material will be translated.
1.6 “Order” refers to a confirmed request from the Client to the Company
for any service provided, including but not limited to translation of
the Source Material into the Target Language.
1.7 “Business Days” refer to any day excluding Saturday, Sunday, a
public holiday in Victoria, and/or a Commonwealth public holiday.
1.8 “Quality Guarantee” refers to our guarantee to produce translations
that are fit for purpose and free from errors (on eligible packages
only).
1.9 “Agreement” refers to these Terms and Conditions, which constitute
the entire agreement between the Company and the Client.
1.10 “GST” refers to Goods and Services Tax as defined by the A New Tax
System (Goods and Services Tax) Act 1999 (Cth).
1.11 “NAATI” refers to the National Accreditation Authority for
Translators and Interpreters, the national standards and certification
body for translators and interpreters in Australia.
1.12 “AUSIT” refers to the Australian Institute of Interpreters and
Translators, the national association for the translating and
interpreting profession.
1.13 “Dispute” refers to any disagreement, conflict, or controversy
arising out of this Agreement.
1.14 “AUSIT Code of Ethics” refers to the code of ethics and conduct set
out by the Australian Institute of Interpreters and Translators (AUSIT).
1.15 “Feedback” means any comments, suggestions or requests for
revisions provided by the Client regarding the translations delivered by
the Company.
1.16 “Revisions” refers to amendments made to the translations delivered
by the Company based on the Client’s feedback, which aim to correct
errors and ensure accuracy as per the AUSIT Code of Ethics.
1.17 “Translation Edits” means changes requested by the Client that do
not align with the AUSIT Code of Ethics and fall outside the scope of
Revisions. These changes may include stylistic preferences and are
subject to additional fees at the discretion of the Company.
1.18 “Approval” means the Client’s written confirmation of satisfaction
with the delivered translations, or lack of feedback or request for
revisions within 30 days after the delivery of the translations.
1.19 “Service Offerings” refers to the full range of services provided
by the Company, including but not limited to translation, editing, and
proofreading services.
1.20 “Force Majeure” refers to any act, event, or cause that is beyond
the reasonable control of a party, including but not limited to natural
disasters, acts of God, strikes, labour disputes, government actions,
wars, or any other similar cause.
2. Acceptance and Agreement
2.1 These terms and conditions, together with the quotation provided by
the Company (which is deemed to form part of these terms and
conditions), constitute the entire agreement between the Client and the
Company with respect to the subject matter hereof, superseding all prior
discussions, negotiations, agreements, and understandings, whether oral
or written.
2.2 The agreement is formed when the Client accepts the quotation
provided by the Company, only through written confirmation or acceptance
via the Company’s quoting system.
2.3 Any subsequent changes or additions to this agreement, including any
additional terms or conditions, must be agreed upon in writing between
the parties.
2.4 The Client agrees that, in accepting the terms and conditions, they
have not relied on any representation or understanding, whether oral or
written, not expressly set forth in these terms and conditions.
3. Client Responsibilities
3.1 The Client is responsible for providing the Company with the context
of the Source Material, the intended style and tone, and any specific
expectations for the
translation. Failure to provide this information may result in
additional fees for stylistic changes requested by the Client.
3.2 The Client must respond within two business days to any request for
clarification or confirmation, or any inquiry sent by the Company. The
Company will not be held liable for any delay resulting from the
Client’s delayed or lack of response.
3.3 The Client must ensure they hold the necessary rights, licenses, or
permissions for the Source Material provided for translation. Any
violation of copyright laws arising from the Client’s Source Material is
the sole responsibility of the Client.
3.4 The Client is responsible for the accuracy and completeness of the
Source Material provided to the Company. Any errors, ambiguities, or
incomplete sections in the Source Material that affect the translation
process or outcome are the responsibility of the Client.
3.5 If the Client has any specific requirements or constraints (such as
deadline, format of the final translation, target audience, etc.), they
must notify the Company at the time of placing the Order. Additional
fees may apply if the Client requests changes to these requirements
after the Order is placed.
3.6 The Client must inform the Company at the outset if any of the
Source Material or related communication is of a sensitive or
confidential nature.
3.7 The Client is responsible for timely payment of fees as set out in
the agreed quotation or as otherwise communicated by the Company. Delays
in payment may result in delays in service delivery.
4. Delivery and Performance
4.1 Once the Client accepts the Order, the Company will commence
Services. Depending on the terms agreed upon between the Client and the
Company, this may be upon receipt of full payment, an agreed initial
deposit, or no upfront payment (where credit terms are agreed).
4.2 The Client will receive an invoice detailing the Services provided
and the amount due. Unless otherwise stated, all invoices are payable
within 14 calendar days of the invoice date.
4.3 All prices quoted by the Company are exclusive of GST, unless
otherwise stated. GST will be added to the invoice where applicable.
4.4 If the Client fails to make payment within the specified period, the
Company reserves the right to:
a. Suspend or terminate the Services.
b. Charge interest on the overdue amount at the rate of 8% per annum,
accruing daily.
c. Recover from the Client all costs and expenses (including legal
costs) incurred in the collection of the overdue amount.
4.5 The Client may not withhold payment of any invoice or other amount
due to the Company because of any right of set-off or counterclaim that
the Client may have or allege to have for any reason.
4.6 Cancellation Policy: If the Client wishes to cancel an Order, they
must do so in writing. The Company reserves the right to charge an
administration fee not exceeding 50% of the total fee payable if
cancellation occurs before the Services have commenced. If cancellation
occurs after Services have commenced, the total fee is payable, and no
refund will be issued.
4.7 The dates for the delivery of the Services or the dates for carrying
out the Services are approximate only. Unless otherwise expressly agreed
by the Company in writing, time is not of the essence for delivery or
performance, and no delay shall entitle the Client to reject any
delivery or performance or to repudiate the Contract.
5. Governing Law and Jurisdiction
5.1 This Agreement is governed by and shall be construed in accordance
with the laws of the State of Victoria, Australia.
5.2 The Parties irrevocably agree that the courts of the State of
Victoria, Australia, will have exclusive jurisdiction to settle any
dispute or claim that arises out of or in connection with this Agreement
or its subject matter or formation (including non-contractual disputes
or claims).
5.3 The Client agrees not to bring any legal action or proceeding
relating to this Agreement outside the jurisdiction of the courts of the
State of Victoria, Australia.
6. Intellectual Property and Confidentiality
6.1 The intellectual property rights in the materials created for the
project will remain with the Company until full payment is received.
Upon receipt of full payment, all property rights will be transferred
and remain the property of The Client. The Company agrees and
acknowledges that the intellectual property of the Source Material
remains the sole and exclusive property of the Client and no right,
title or interest in the same transfers to the Company.
6.2 The Company agrees to keep all Source Material confidential and will
not disclose it to any third parties without the Client’s prior written
consent. This obligation of confidentiality does not apply to any
information that is in the public domain, was known to the Company
before receipt from the Client, or is lawfully received from a third
party.
6.3 The Client agrees to indemnify and hold the Company harmless from
any claims, costs, damages, losses, or other liabilities arising out of
the Company’s use of the Source Material in accordance with this
Agreement.
6.4 The provisions of this clause 6 shall survive the termination of
this Agreement for any reason.
7. Liability and Indemnity
7.1 The Company will perform the services with reasonable care and
skill. However, the Company does not warrant that the services will be
uninterrupted or delivered within a certain timeframe, especially in
instances where delays are due to circumstances beyond its control,
unless expressly agreed in writing by the parties.
7.2 The maximum liability of the Company to the Client., whether in
contract, tort (including negligence), breach of statutory duty, or
otherwise, arising under or in connection with this agreement, will be
limited to the total fees paid by the Client to the Company under this
agreement.
7.3 The Company shall not be liable for any consequential, indirect,
incidental, special, punitive, or exemplary damages, or any loss of
profits, revenue, data, or data use.
7.4 The Client shall indemnify, defend, and hold harmless the Company,
its directors, officers, employees, and agents from and against all
claims, liabilities, losses, expenses, or demands, including legal fees,
arising out of (i) the Client’s use or misuse of the services, (ii) the
Client’s breach of this agreement, or (iii) any infringement or
violation by the Client of any rights of another party or breach of
applicable law.
7.5 The Company shall not be liable for any delay or failure to perform
its obligations under this agreement if such delay is due to
circumstances beyond its reasonable control, including but not limited
to, acts of God, governmental actions, fires, floods, epidemics,
quarantine restrictions, strikes, or embargoes.
7.6 The provisions of this clause 7 shall survive the termination of
this agreement for any reason.
8. Dispute Resolution
8.1 Any dispute arising out of or in connection with this Agreement
(Dispute), including disputes regarding its existence, validity, or
termination, shall be resolved in good faith through negotiation,
mediation, or other alternative dispute resolution methods agreed upon
by both parties before resorting to court proceedings, except for
seeking urgent interlocutory or injunctive relief.
8.2 The party claiming that a Dispute has arisen must promptly notify
the other party in writing, providing detailed information about the
Dispute. Both parties shall use their best efforts to resolve the
Dispute through negotiation and discussion, involving the respective
managing directors or their designated representatives, for a period of
14 days after the notice is given.
8.3 If the Dispute is not resolved through negotiation within the
initial 14-day period, the parties shall promptly engage in mediation or
another form of alternative dispute
resolution (ADR) agreed upon by both parties. The costs of the mediation
or ADR process shall be borne by the Client unless otherwise agreed in
writing.
8.4 If the Dispute remains unresolved after attempting negotiation and
ADR, either party may initiate court proceedings in the State of
Victoria, Australia, and both parties submit to the exclusive
jurisdiction of the courts of Victoria, Australia.
8.5 The parties agree that any Dispute resolution process, whether
negotiation, ADR, or court proceedings, shall be conducted
confidentially and without prejudice to the rights and positions of
either party.
8.6 Nothing in this clause shall prevent the Company from seeking urgent
interlocutory or injunctive relief from a court of competent
jurisdiction.
9. Variation and Severability
v
9.1 This Agreement may only be varied by written amendment signed by
both parties.
9.2 If any provision of these Terms and Conditions is held by a court of
competent jurisdiction to be invalid or unenforceable, such provision
shall be modified to the minimum extent necessary to make it valid and
enforceable. If it is not possible to modify the provision, it shall be
severed from these Terms and Conditions, and the remainder of the
Agreement shall continue in full force and effect.
10. Notices
10.1 Any notices, communications, or other documents required or
permitted to be given under this Agreement shall be in writing and
deemed to have been duly served or delivered if:
(a) They are in legible writing in English; (b) They are signed by the
sender or a person authorized by the sender; and (c) They are
hand-delivered, transmitted by facsimile, sent by registered post, or
emailed to the respective representatives of either party.
10.2 For the purposes of this clause:
(a) A notice or communication delivered by hand shall be deemed to
have been received at the time of delivery; (b) A notice or
communication transmitted by facsimile shall be deemed to have been
received upon successful transmission, as evidenced by the sender’s fax
transmission report; (c) A notice or communication sent by registered
post shall be deemed to have been received two business days after the
date of posting; and (d) A notice or communication sent by email shall
be deemed to have been received on the next business day after the date
of sending, provided that no delivery failure notification is received.
10.3 Either party may change its address for service by giving written
notice of the new address to the other party in accordance with this
clause.
11. Assignment
11.1 The Client may not assign its rights or obligations under this
Agreement, in whole or in part, without the prior written consent of the
Company. Any attempted assignment without such consent shall be null and
void.
11.2 The Company may assign, transfer, or subcontract any of its rights,
obligations, or responsibilities under this Agreement to any third party
upon written notice to the Client. The Client acknowledges and agrees
that the Company may assign its rights and obligations under this
Agreement without seeking further consent from the Client.
11.3 Any permitted assignment or transfer of rights or obligations under
this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, permitted assigns, and legal
representatives.
12. Force Majeure
12.1 Neither party shall be held liable for any delay or failure in the
performance of its obligations under this Agreement to the extent that
such delay or failure is caused by an event of force majeure. For the
purposes of this Agreement, force majeure events include acts of nature,
acts of God, fire, flood, earthquake, pandemic, epidemic, war,
terrorism, civil unrest, governmental acts, embargoes, or any other
unforeseeable event beyond the reasonable control of the affected party.
12.2 The party affected by a force majeure event shall promptly notify
the other party in writing, providing details of the event and its
expected impact on the performance of its obligations under this
Agreement. The affected party shall use commercially reasonable efforts
to mitigate the effects of the force majeure event and resume the
performance of its obligations as soon as reasonably practicable.
12.3 During the period of a force majeure event, the obligations of the
affected party that are impacted by the event shall be suspended to the
extent they are affected by the force majeure event. The timeframe for
performance of those obligations shall be extended by a period equal to
the duration of the force majeure event, provided that the affected
party continues to take commercially reasonable steps to perform its
obligations in a timely manner.
12.4 If a force majeure event continues for a period of more than 30
days and substantially affects the ability of either party to perform
its obligations under this Agreement, the Company may, at its sole
discretion, terminate this Agreement by providing written notice to the
Client, without any liability or obligation other than the payment of
fees for services rendered prior to the force majeure event.
12.5 Notwithstanding anything to the contrary in this Agreement, force
majeure events shall not relieve the Client of its obligation to make
payment for services rendered prior to the occurrence of the force
majeure event.
13. Quality Guarantee and Revisions
13.1 The final translation of the Source Material into the Target
Language will be sent to the Client for approval in Word and/or PDF
format.
13.2 The Client is entitled to provide feedback or request revisions
within 30 days of the delivery of the translations. Any feedback or
revisions requested after this period may be subject to additional fees,
to be determined by the Company.
13.3 Feedback or revision requests must align with the AUSIT Code of
Ethics, particularly the principle of “Accuracy”. Requests for changes
that do not comply with the AUSIT Code of Ethics will be considered as
requests for translation edits, and the Company may charge additional
fees at its discretion. In such cases, the Company will provide a quote
to the Client for approval before proceeding.
13.4 The scope of revisions under this clause is limited to amendments
necessary for an error-free translation and does not include changes
based on stylistic preferences.
13.5 The Company upholds a Quality Guarantee for Professional or Premium
translation packages. If the Client is not satisfied with the quality of
the translation, the Company will make necessary amendments, provided
they align with the AUSIT Code of Ethics, particularly upholding the
principle of “Accuracy”.
13.6 In the event of a dispute regarding the quality or accuracy of the
translation, the Dispute resolution mechanism as mentioned in clause 8
will apply.
13.7 The Client’s written confirmation or lack of response within 30
days after the delivery of the translation will be deemed as approval of
the translation. If the Client does not approve the translation in
writing, but also does not provide feedback or request revisions within
this period, additional fees may apply for any subsequent revisions.
13.8 This Quality Guarantee and Revisions clause applies specifically to
translation, editing, and proofreading services provided by the Company.
It does not apply to any other service offerings provided by the
Company.
14. No Waiver
14.1 The failure of either party to insist upon strict performance of
any provision of this Agreement, or the failure to exercise any right or
remedy available under this Agreement, shall not be deemed as a waiver
of such provision, right, or remedy. No waiver of any breach of this
Agreement shall be deemed a waiver of any subsequent breach.
14.2 Any waiver of a provision, right, or remedy under this Agreement
must be in writing and signed by the party granting the waiver. A waiver
of any provision, right, or remedy shall only be effective for the
specific instance and purpose for which it is given and shall not be
deemed as a continuing waiver or a waiver of any other provision, right,
or remedy.
14.3 The rights and remedies of the parties under this Agreement are
cumulative and not exclusive of any rights or remedies provided by law
or in equity.
15. Survival
15.1 Notwithstanding any termination or expiration of this Agreement,
the following provisions shall survive and continue to be binding upon
the parties:
(a) Provisions relating to proprietary rights, including but not
limited to intellectual property rights and ownership of materials
created or developed during the course of the Agreement;
(b) Provisions relating to the payment of fees and any outstanding
amounts owed by either party;
(c) Provisions relating to confidentiality and the protection of
confidential information disclosed during the term of the Agreement;
(d) Provisions relating to disclaimers of warranty and limitation of
liability;
(e) Provisions relating to indemnification and the allocation of
liabilities and responsibilities; and
(f) Any other provisions necessary to enforce the rights and
obligations of the parties after termination or expiration of this
Agreement.
16. Non-Disparagement
16.1 The Client agrees not to make any disparaging or negative remarks,
comments, or statements about the Company, its employees, contractors,
or agents, whether orally, in writing, or through any other form of
communication, including but not limited to social media platforms and
public forums.
16.2 The Client agree that any disputes, concerns, or grievances shall
be addressed in a professional and respectful manner through the dispute
resolution mechanisms outlined in this Agreement.
16.3 Any breach of this clause may result in the Company seeking
injunctive relief or other appropriate legal remedies.
17. Non-Solicitation
17.1 The Client acknowledges that the Company invests significant time,
effort, and resources in recruiting, training, and retaining its
employees, contractors, and agents involved in the provision of the
Services.
17.2 The Client agrees that during the term of this Agreement and for a
period of 12 months after its termination, the Client shall not directly
or indirectly solicit or employ any employees, contractors, or agents of
the Company involved in the provision of the Services without the prior
written consent of the Company.
17.3 In the event of a breach of this clause, the Client shall be liable
to pay the Company a sum equal to 50% of the employee’s or contractor’s
annual remuneration as liquidated damages.
16. Entire Agreement
16.1 This Agreement, including all documents incorporated by reference
and the written quote provided by the Company, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior discussions, understandings, representations,
and agreements, whether oral or written, relating to such subject
matter.
16.2 No modification, amendment, or waiver of any provision of this
Agreement shall be effective unless in writing and signed by both
parties.
16.3 In the event of any conflict or inconsistency between the
provisions of this Agreement and any other document or communication,
including the written quote, the provisions of this Agreement shall
prevail.
