1. Generally. These general terms and conditions (‘Terms and Conditions’), and any request for services, to the extent confirmed in writing by ZINACLE, INC. (‘ZINACLE’), represent the entire agreement (the ‘Agreement’) made by and between ZINACLE and the person or entity requesting services from ZINACLE (the ‘Client’). These Terms and Conditions may not be supplemented, modified or amended except by written agreement signed by both the Client and ZINACLE. Any terms and conditions of the Client’s purchase order or other forms or communications additional to or varying from those of this Agreement shall not be binding on ZINACLE unless specifically confirmed in writing by ZINACLE.
2. Requests. Each request for services to be provided by ZINACLE (a ‘Request’) must be made in writing by the Client, and must be confirmed in writing by ZINACLE. No Requests, offers or terms and conditions shall be binding on ZINACLE unless and until, and except to the extent they are confirmed in writing by ZINACLE. There shall be no binding contract and no obligation of any kind on ZINACLE until issuance of written confirmation thereof by ZINACLE.
3. Intended Use of Work; Specifications.The Client shall clearly and specifically indicate the purpose and intended use of any work requested from ZINACLE, as well as any other specifications regarding the services to be delivered by ZINACLE, all of which must be agreed to in writing by ZINACLE (the ‘Specifications’). Specifically, and without limitation, the Client shall indicate in the Specifications whether any documents submitted to ZINACLE for translation purposes will be used as or in bids and tenders, any legal actions, including but not limited to court documents, letters rogatory, depositions, etc., contracts of any nature, advertising, printing or publication. The Client shall also make known to ZINACLE any certification requirements upon making the request and all other extraordinary circumstances, i.e. medical technology, service and operation manuals for machinery and industrial/agricultural equipment, tools, government security clearance, etc. It is understood and agreed that the service(s) to be provided by ZINACLE and/or the translations or other work product to be delivered by ZINACLE to the Client or its designees (collectively, the ‘Deliverables’) shall be suitable only for the specific use and purpose disclosed by the Client and set forth in the Specifications, and ZINACLE shall have no obligation to produce a translation suitable for any other use or for any other purpose or in any context not specifically disclosed and described by the Client. The Client understands and acknowledges that no Deliverables can be certified as accurate or suitable with respect to any use or purpose or in any context except that specifically described by the Client. In the absence of any explicit written description of quality criteria for the type of service requested by the Client, ZINACLE undertakes and warrants to deliver Work that meets the generally accepted professional quality criteria for the type of service. In particular, when the service requested is translation, ZINACLE will: (a) Deliver an accurate translation for each of the files in the inventory with each being linguistically and stylistically appropriate for the target market (b) Maintain consistency of terminology throughout (including references to software and other related materials) (c) Follow all client-specific and project-specific instructions (including compliance to glossaries, style guides, previous translations, customer reviewer corrections, etc.) (d) Thoroughly review all of the files so that grammar, spelling (including mandatory use of spell checkers) and punctuation are 100% correct.
4. Fees. All fees for services provided by ZINACLE hereunder are due and payable in full, in United States dollars or Euros, and in the case of work solicited via ZINACLE’s web site, in advance upon solicitation of such work. At the Client’s request, ZINACLE shall provide a written estimate of its fees upon review of the Specifications and any source materials or other documentation provided by the Client. The Client shall pay ZINACLE such deposit as may be requested by ZINACLE in writing, prior to commencement of the assignment. The Client understands and agrees that any change in the Specifications after the acceptance of an estimate by ZINACLE may result in delays in the provision of the Deliverables and/or additional fees. ZINACLE reserves the right to adjust pricing and/or delivery estimates upon receipt and evaluation of the final source materials to be translated. Unless otherwise agreed in writing by ZINACLE, the Client is liable to ZINACLE for payment in full of ZINACLE’s invoice for the Deliverables, whether or not such invoice amount exceeds the amount quoted by ZINACLE in its written estimate, provided that any variance is not inconsistent with the estimate or quote and is explained in ZINACLE’s invoice.
5. Reimbursable Expenses; Delivery and Shipping. In addition to the quoted amount to be paid to ZINACLE as compensation for its work, the Client shall reimburse ZINACLE for its reasonable out-of-pocket expenses and disbursements (‘Disbursements’) incurred in connection with performance of the work for the Client, including without limitation, delivery and shipping costs for third party service providers such as Federal Express, TNT, UPS, US Postal Service, other courier services or express delivery services, and any insurance fees deemed necessary or appropriate by ZINACLE. All such Disbursements shall be invoiced by ZINACLE to the Client at cost plus handling charges at ZINACLE’s normal rates (if applicable). ZINACLE shall incur no liability for lateness, negligence, or direct or indirect damages due to delays or failure to deliver by such third party service providers.
6. Payment Terms. Payment in full shall be due and payable, in the case of work solicited via ZINACLE’s web site, in advance upon solicitation of such work. Any invoice outstanding and unpaid for more than 30 days shall be considered delinquent, and interest shall accrue on all balances outstanding for more than 25 days at the lower of (i) 1.5% per month (18% per annum) or (ii) the highest rate allowed by law. The Client agrees that any and all fees, costs and expenses, including without limitation reasonable attorney’s fees and disbursements (‘Collection Costs’) incurred by ZINACLE in connection with collection attempts shall be paid by the Client. Any such Collection Costs shall be due and payable to ZINACLE immediately upon the Client’s receipt of ZINACLE’s invoice to the Client therefore.
7. Revision of Translation-Related Deliverables. The Client agrees to promptly review the translation-related Deliverables upon receipt thereof and to notify ZINACLE within ten (10) business days of any errors or omissions in such Deliverables. ZINACLE agrees to rectify the following without charge within a reasonable period of time: outright mistranslation, omission, typos, grammatical mistake, or non-adherence to any approved glossary (‘Non-Subjective Errors’). ZINACLE’s sole obligation with respect to such Non-Subjective Errors is the obligation to correct the Deliverable at no cost to Client, provided that the Client gives notice of such errors to ZINACLE within ten (10) business days of Client’s receipt of the Deliverables. Failure to raise an objection within this period shall be considered as approval of the work as delivered. All changes requested by the Client other than non-subjective errors or omissions will be subject to additional charges. ZINACLE shall not be responsible for alterations to ZINACLE’s work made by any other person acting on behalf of the Client.
8. Employees & Subcontractors; Non-Solicitation. The Client agrees that the Client shall not solicit or retain, either directly or indirectly, any employee, translator, interpreter, or other personnel contracted or supplied by ZINACLE (collectively referred to as ‘ZINACLE’s Agents and Independent Contractors’) to provide services for the Client other than by submitting the desired work to ZINACLE. In the event of any breach of this provision by the Client, without limiting any other remedy which may be available to ZINACLE at law or in equity, the Client shall owe to ZINACLE as a referral fee, 100% of any and all amounts paid by Client to any of ZINACLE’s Agents and Independent Contractors with respect to any services performed for the Client by any of ZINACLE’s Agents and Independent Contractors, other than by or through ZINACLE, at any time within one year after the date of the Client’s most recent Request made to ZINACLE.
9. Cancellation Policy. All cancellations of services contracted by the Client require written notice to ZINACLE. For services related to translation and/or transcription, any cancellation of work already begun will incur a cancellation fee to be reasonably determined by ZINACLE, plus all costs and Disbursements, of any kind, incurred in connection with the services contracted or the performance of work thereunder. This may include billing for work performed up to the time of cancellation, additional administrative or research time, rush fees, and project-specific expenses.
10. Limitation of Liability; No Warranties. ZINACLE makes no warranties of any kind, WHETHER express, implied, OR STATUTORY, including without limitation any warranties of merchantability, fitness for a particular purpose, or otherwise, except only as may be contained in such written certification that ZINACLE may deliver to the Client at the time of delivery of the Deliverables. ZINACLE shall be under no obligation to provide any such certification unless, and except only to the extent, as specifically agreed in the written confirmation of the Client’s Request delivered by ZINACLE to the Client. The Client agrees that ZINACLE’s sole and exclusive liability with respect to the text of any translation-related Deliverables shall be to correct Non-Subjective Errors as set forth in Section 7 above. ZINACLE shall under no circumstances be liable for any losses, claims, causes of action, expenses, judgments, or damages of any nature or kind, including without limitation special, direct, indirect, incidental or consequential damages or loss of profit or income (collectively, the ‘Claims’), exceeding the lesser of the invoice amount or the replacement value of the work performed by ZINACLE, and REGARDLESS OF WHETHER ZINACLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. This limitation shall apply whether such alleged Claims may be due to dispute, inadequate guidelines, faulty specifications, failure to respond to inquiries, negligence, scheduling, third party service provider failure, wars, riots, acts of God or nature, or any other cause.
11. Client Warranties; Indemnification. The Client represents and warrants that (a) the Client owns or has obtained all necessary rights, title and interest, in and to the source material(s) to be translated or otherwise worked on by ZINACLE, including and without limitation all applicable copyrights, trademarks or service marks, or licenses thereunder, with respect to written materials or designs; the rights and titles for film and audio productions; and any necessary patent rights or license thereunder with respect to technical materials, (b) neither the provision of the Deliverables nor any other service to be performed by ZINACLE with respect to such material(s), or any copying in connection therewith, will infringe or otherwise violate the rights of any third parties and (c) Client is in compliance with and shall at all times comply with all applicable United States regulation, in particular, restrictions regarding the export or re-export of services and information to countries or person prohibited by such regulation. The Client shall indemnify and hold ZINACLE harmless from and against (a) any Claims of any person or entity arising in connection with any challenge to the Client’s rights to, or use of, the above material(s), any allegation or infringement or violation of a third party’s rights, or any other circumstances calling into question the accuracy and truth of the Client’s representations and warranties above, whether or not such challenge or allegations are ultimately successful in legal proceedings, and (b) any and all costs, expenses, attorney’s fees and disbursements, losses and damages of any kind incurred by ZINACLE as a consequence of or in connection with such Claim, whether or not ZINACLE was named as a party to any action or proceeding in connection therewith.
12. Confidentiality. ZINACLE shall treat Client’s proprietary information, including any materials such as trade secrets, financial information, information relating to business, products, patent applications, litigation, customer lists, personal information, to the extent that such materials are designated by the Client as ‘Proprietary and Confidential.’ as strictly confidential, preserve the confidentiality thereof and not duplicate or use the information, except that ZINACLE will be entitled to provide copies of any such Proprietary and Confidential Information to any and all of ZINACLE’s employees, agents, independent contractors, or other third party service providers, to the extent required, in ZINACLE’s judgment, to complete the work contracted for by the Client.
13. Governing Law. This Amendment shall be governed by, and construed and interpreted in accordance with, the law of the State of Massachusetts, without reference to conflicts of laws principles.
14. Dispute Resolution. Except for any remedies in equity to which a party may be entitled to under applicable law, the parties agree that any dispute or controversy arising out of, relating to, or in connection with this Agreement, or the interpretation, validity, construction, performance, breach, or termination of this Agreement, shall be finally settled by binding arbitration before one arbitrator in Boston, Massachusetts under the rules and regulations of the American Arbitration Association as then in effect (the ‘Rules’). The arbitration shall be conducted in the English language. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration, and judgment may be entered on the decision of the arbitrator in any court having jurisdiction. Any arbitration award shall be promptly paid in U.S. dollars, free of any deduction or offset and to the extent permitted by law, any costs, including attorneys’ fees shall be payable by the party against whom such award has been declared.
15. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any party to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or facsimile to the address or fax number provided by each party on the Request of confirmation of Request, as the case may be.
16. Modifications. None of the terms or provisions of this Amendment may be amended, supplemented or otherwise modified except by a written instrument executed by both parties.
17. Waiver. No waiver by either party, express or implied, of any term, condition or obligation of these Terms and Conditions shall be construed as a waiver of any subsequent breach of any term, condition or obligation of these Terms and Conditions, whether of the same or a different nature.
18. Entire Understanding. These Terms and Conditions, and the terms of any written confirmation provided by ZINACLE to the Client, set forth the entire understanding of the parties as to the subject matter hereof, and supersede all previous understandings or agreements (whether written or oral) concerning the subject matter hereof.
19. Severability. If any provision of these Terms and Conditions is held to be invalid or unenforceable, such provision shall be severed from these Terms and Conditions with respect to the matter in question, and the remainder of the Terms and Conditions shall remain in full force and effect.