Terms and Conditions

Terms and Conditions of Service

1. Applicability

These Terms & Conditions apply to service agreements concluded between TALENTPOOL SOLUTIONS cc, Roeland Square Unit 28, Roeland Street, Cape Town, 8001, South Africa, (hereinafter “the Provider”) and clients (hereinafter “the Client”) regarding the utilisation of the Provider’s product MSS Cape Town - The Language Agency.

The Provider’s services are rendered under these Terms & Conditions, unless agreed otherwise in a separate contract. The Client’s general terms and conditions do not apply. They have no bearing on this agreement, even if we have not objected to them explicitly. Neither do they become a part of this contract in individual cases, even if we have not objected to them explicitly. The Provider reserves the right to make changes to the requested delivery or service in accordance with the latest technical standard, provided that the service and quality remain unaffected.

The Provider has the right to make use of third parties in order to meet his/her contractual obligations. Exercising this right does not create a contractual relationship between such a third party and the Client.

2. Conclusion of Agreements

The Provider’s offers on the internet are a non-binding invitation to the Client to order the Provider’s services. However, the offering of services by MSS Cape Town - The Language Agency on the internet does not constitute an offer in the legal sense.

By ordering via internet, e-mail, telephone, letter or fax, the Client makes a binding offer to enter into an agreement. The services of MSS Cape Town - The Language Agency can be ordered through the internet 24/7 each and every day of the year.

The Provider is entitled to accept such an offer within a period of three calendar days, starting on the day on which the offer is received. Should the Client not respond within this period, the offer shall be deemed to be rejected. Assignments shall be confirmed by the Provider by e-mail, fax or telephone. An assignment shall only be regarded as having been accepted after confirmation has been received from the Provider. Uploading into the provider area does not automatically imply confirmation of an order.

By confirming an assignment, a legally binding service agreement is created between the Provider and the Client. The agreement ends when the term of the contract expires or, at the latest, when the assignment has been completed by the Provider.

The Client is entitled to enquire about the progress of his/her  assignment at any time, via e-mail or telephone.

The time limit for completion of the assignment shall be stipulated according to [type of agreement] between the Provider and the Client. The time limit only becomes valid after the Provider has confirmed the order.

Upon request, MSS Cape Town - The Language Agency will compile a tailor-made quote, which shall be valid for 30 days. Such a quote is free of charge and without obligation for the client.

Any offers made by the Provider, including the quotation of prices, are subject to confirmation and are non-binding. We reserve the right to errors and to make changes to price and product. As soon as a new offer has been made, any previous offers become invalid.

If the Client is an individual user and the order is placed via the form on the MSS Cape Town - The Language Agency website, acceptance of these Terms & Conditions is required for each order. If the order is made by different means, the Client needs to confirm, in a suitable manner, that he/she has taken note of these Terms & Conditions and accepts them. If the Client is a company, all contractual relations are based on the currently valid Terms & Conditions, even if no explicit reference is made to them in specific cases. The Provider shall, however, notify registered clients of any change to the Terms & Conditions.

3. Content and Execution of Agreements

The content of an agreement is generally defined by the information provided when the order is submitted.

Where the type and/or volume of the service rendered deviates from the information provided upon submission of the order, the actual type and/or volume shall be deemed as having been agreed upon. If the volume given by the Client, or his/her classification of the order (especially with regard to the level of difficulty of a text or the quality of a recording of speech or a dictation), proves to be incorrect when the text or recording is received, the amount of the invoice may be adjusted according to the price parameters detailed in the currently valid price list.

MSS Cape Town - The Language Agency offers different time limits to suit the Client’s individual needs. Such time limits reflect the regular office hours of MSS Cape Town - The Language Agency, i.e. Monday to Thursday from 09:00 to 17:00 and Fridays from 09:00 to 16:00 (except on public holidays). Outside these times, individual arrangements can be made with a general agreement on office hours. Other products are subject to the individual processing time agreed upon.

The Client can commission any number of assignments from MSS Cape Town - The Language Agency. The Provider gives a 95% guarantee that the deadlines given will be adhered to.

MSS Cape Town - The Language Agency guarantees that the monthly average for the timely completion of assignments is at least 95 percent of all assignments. If it so happens that a deadline is not met, the express surcharge shall be credited to the Client’s account.

The time limit shall be extended in the event of unforeseen obstacles beyond the control of MSS Cape Town - The Language Agency, insofar as it can be proven that these obstacles and measures have a significant impact on the delivery time. MSS Cape Town - The Language Agency shall notify the Client without delay at the start and end of such obstructions.

The Provider renders the services in accordance with the terms of this agreement, the spelling rules applied in the Federal Republic of Germany, and the state of technology. In the case of technical terms, e.g. medical terms, MSS Cape Town - The Language Agency follows the spelling used by the Pschyrembel medical dictionary, for example, or the Roche Lexikon Medizin. If, in the case of audio files, there is a fear of the sense of the wording being changed, MSS Cape Town - The Language Agency will capture the transcription text phonetically. This means that exactly what is audible in the recording will be put into writing.

In the case of transcription tasks in which the recording contains grammatical errors (e.g. by non-native speakers), the Client may, upon assignment transmission, task MSS Cape Town - The Language Agency with optimising the use of grammar. MSS Cape Town - The Language Agency will conduct such optimisation at the Client’s risk and responsibility. In such cases, the Client shall thoroughly check the text transcribed by MSS Cape Town - The Language Agency for possible changes to the sense of the wording.

Poor recording quality requires more time to transcribe and finish a text. The additional costs, contained in the price list on the Provider’s website, shall be charged to the Client’s account.

4. Quality of Language and Dictation

The Client’s duty to cooperate and to give information

Any information and documents which are necessary for language service delivery (in particular, translating and interpreting) shall be submitted by the Client to MSS Cape Town - The Language Agency in good time and of his/her own accord (glossaries, illustrations, drawings, charts, abbreviations, etc.)

Pricing reflects the different categories which MSS Cape Town - The Language Agency applies in terms of the intelligibility of recorded speech. The Client shall provide a test recording of any person with whose comprehensibility MSS Cape Town - The Language Agency is not yet familiar. Such a recording shall be of at least five minutes’ duration and shall be provided no later than one working day before the first assignment is transmitted. Based on such test recordings, MSS Cape Town - The Language Agency will provisionally categorise the level of comprehensibility of new speakers.

5. Prices, payments, due dates, default, liability

Under applicable prices, a minimum flat rate is charged for each assignment.

All prices quoted are valid for Germany only. The relevant prices are those listed on the webpages of the Provider’s MSS Cape Town - The Language Agency product. Any packaging and shipping of documents shall be subject to additional charges.

Unless other arrangements have been made, prices are only valid for the specific assignment quoted for.

The final invoice shall be created after the assignment has been completed. If, due to incomplete or incorrect information or due to the Client’s failure to comply with his/her duty to cooperate, considerably more work was required than expected at the time of signing the agreement (e.g. the volume of work exceeds that stated in the information on which the agreement is based, by more than five percent, or the contractual content of the services is changed significantly), the Provider is entitled to increase the price in accordance with the price parameters, even if a flat rate has been agreed on.

The Provider’s prices are always quoted in Euros (€) and are subject to VAT where the Provider is liable for turnover tax and the Client is not entitled to deduct pre-tax.

The agreed price becomes due as soon as the assignment has been completed and made available to the Client. In case of assignments worth more than EUR 500.00, a deposit of 50 percent of the total amount may be requested when the agreement is signed.

As for methods of payment, the Client may choose between direct debit, bank transfer or PayPal. If a direct debit is reversed, MSS Cape Town - The Language Agency will invoice the Client for the costs incurred. Invoices for services rendered shall be issued after the successful completion of an assignment, but no later than within a month. Invoices shall always be sent by e-mail. MSS Cape Town - The Language Agency will, however, mail an invoice by post at the Client’s request and for his/her own account.

Default interest at 12 percent of the amount owing plus a processing fee of EUR 10.00 will be charged from the due date. If payment in instalments has been agreed upon and the Client defaults on an instalment, the total outstanding amount shall become due immediately.

The Client shall not be entitled to withhold any payments in lieu of claims which have not been confirmed by the Provider in writing or determined without further legal recourse. The Client shall not be allowed to offset any counter-claims.

If delivery is delayed for reasons other than intent or gross negligence, the Provider shall be liable for a maximum of 5 percent of the amount quoted for the assignment. Furthermore, the Provider shall be entitled to request a period of grace of fourteen days. If the extended deadline expires without results, the Client shall have the right to terminate the agreement, while the Provider shall be entitled to request proportional payment for services already rendered. Advance payments shall also be taken into account.

If an assignment that the Provider has confirmed is cancelled by the Client for reasons for which the Provider is not responsible, the Client is liable for any costs incurred thus far. The Client shall not transfer any claims or duties arising from this agreement to third parties.

6. Cancellation

If the Client cancels an assignment without entitlement under the law or according to this agreement, he/she shall be liable for the costs incurred thus far and for any work that may have been done prior to the cancellation. No less than 25 percent of the full price shall, however, become due immediately, in order to cover processing costs and loss of profit. For confirmed bookings of transcription and/or translation services, we charge 50 percent for cancellations up to 5 days and 75 percent for cancellations up to 3 days prior to the booked date. The full amount shall be invoiced when assignments are cancelled less than 3 days prior to the booked date, because we conclude similar agreements with our translators and transcription staff.

Services rendered remain the property of the Provider until they have been paid in full. The Provider has the right to withhold part of the requested services until all outstanding dues have been settled.

7. Delivery

The Provider shall render his/her services according to the spelling rules applicable in Germany, in their appropriate valid form.

The services shall be delivered by electronic means, i.e. by e-mail or as a download link to the Internet client platform, unless delivery by post has been agreed upon. In case of delivery by post or courier, the Provider shall be responsible only for handing the documents to the delivery person. Possible loss of the documents on the way to their destination shall be the sole risk of the Client. Furthermore, the Client shall be liable for the costs of delivery by any means other than long-distance electronic data transmission.

The completed files shall be made available to the Client electronically, i.e. by e-mail, FTP server or via the Provider’s Internet platform. The Provider shall only be liable for the proper dispatch of the data or for making it available on the server. Loss, corruption or distortion of data during transmission or downloading shall be the sole risk of the Client, unless caused by gross negligence or intent on the part of the Provider. The same applies to delivery by fax.

The Provider is entitled to make part-deliveries and render part-services at any time.

The Provider has the right to outsource deliveries and services to third parties, on his/her own behalf and at his/her own cost. If he/she chooses to exercise such a right, this does not create a contractual relationship between such a third party and the Client.

Quoted delivery deadlines and other dates shall become binding only after the Provider has confirmed them as binding in writing. Delivered goods remain the property of the Provider until the Client has settled all dues.

8. Liability, right of withdrawal, right to reclaim

According to BGB, Section 312d, Paragraph 4, Clause 1, the services and related documents are a commodity produced according to a Client’s specifications, which are clearly tailored to such a Client’s personal requirements, and therefore they are unsuited to reclamation. The right of withdrawal and the right to reclaim, in accordance with BGB, Section 312d, Paragraph 4, Clause 1, therefore does not exist.

Warranty claims shall be limited to the correction of shortcomings. In the case of intent and gross neglect on the part of the Provider’s legal representatives or executive employees and in case of culpable violation of essential contractual obligations by such or other staff members, the Provider shall be liable according to legal stipulations. The Provider shall not be liable for the violation of non-essential contractual duties by other members of staff. MSS Cape Town - The Language Agency shall not be liable for mistakes in language services rendered, which are caused by the Client providing incorrect or incomplete information or not providing information in good time, or which are caused by faulty or (partly) illegible source texts.

The Provider shall not be liable for any damages which are uncharacteristic for this type of agreement and therefore unpredictable, i.e. force majeure such as natural disasters or stoppages.

If culpability is a prerequisite for a Client’s claim, the onus therefore lies with the Client.

The Provider shall not be held responsible for the content of the documents created for the Client. Files made available by the Client need to have accurate content and be technically flawless, and they shall be free from third party rights. If this is not the case, the Client shall compensate any damages suffered by MSS Cape Town - The Language Agency as a result of the use of such files. The Client also indemnifies MSS Cape Town - The Language Agency against any third party claims, especially with regard to purported proprietary rights, industrial property rights, copyrights, and any other third party intellectual property rights. In the event of legal action, the Client shall be liable for the costs.

The Client shall notify the Provider of any objections he/she may have without delay, but within no longer than ten (10) days (receipt by MSS Cape Town - The Language Agency), otherwise the delivered assignment is deemed to have been accepted. In that case, the Client shall waive any claims to which he/she might be entitled, regarding possible shortcomings in terms of the service rendered.

If, within the aforementioned time limit of ten days, the Client notifies the Provider of any definite and relevant shortcomings, such shortcomings must be described as accurately as possible and the Provider shall be given the opportunity to make improvements. This also applies to urgent assignments with very short delivery times. If the improvements are verifiably proven to be insufficient, the Client shall be entitled to a discount or redhibition. Other claims, including compensation for damages due to non-fulfilment, are excluded. Liability shall always be limited to the value of the assignment in question.

9. Place of Fulfilment, legal Venue and applicable Law

All business relations are exclusively governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

Only the German and/or English are used, both for concluding and executing agreements and for the Provider’s service obligations.

Domicilium citandi et executandi: The place of fulfilment and legal venue for all deliveries and services is the Regional Court in Cape Town. Furthermore, the Provider has the right to assert his/her claims at the legal venue of the Client. The Client is not entitled to respond to a claim, or offset a claim with a counterclaim, at any court other than the one where the claim was lodged.

10. Salvadorian Clause

Should any stipulation contained in these Terms and Conditions prove invalid or void, the validity of rest of these Terms & Conditions remains otherwise unaffected. An invalid stipulation shall be replaced with an appropriate valid one. The Provider reserves the right to change these Terms and Conditions at any time without stipulation of the reasons. Such changes do not apply to existing orders. By placing an order, the Client accepts the currently valid Terms and Conditions.

 

As at 30 September 2016

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