Scope
These General Terms and Conditions of Business (GTC) apply to contracts between Mahrt Fachübersetzungen GmbH (hereinafter also referred to as Contractor) and its customer (hereinafter referred to as Client), as long as nothing else has been expressly agreed or is mandatory by law. There is a direct business relationship between Client and Contractor. The General Terms and Conditions of Business are acknowledged by Client when the order is placed and apply to the entire term of the business relationship, even if they are not again expressly agreed upon. Client’s General Terms and Conditions of Business are only binding on Contractor if Contractor has expressly acknowledged them. This acknowledgement must be made in writing.
Order placement
Contractor makes a non-binding offer for a translation or other language services based on the information and data provided by Client. Orders must be placed in writing. A contract is concluded with Contractor according to the terms of the offer only if Client has confirmed the offer to Contractor by placing an appropriate written customer order in electronic or other form, and if Contractor has sent an appropriate written order confirmation to Client. Client submits the source text to Contractor electronically, in person, by mail, or by fax. No liability is assumed for delays caused by incorrect or incomplete submission of the source text. Client must notify Contractor of any special characteristics of the translation (translation on data carriers, number of copies, external form of the translation, etc.) when the order is placed, at the latest. The intended purpose of the translation must be indicated. If the translation is intended to be printed, then Contractor is only liable for errors if Contractor has performed a final inspection for Client after completion of the layout work.
Contractor can refuse to translate a text if its content is criminal or offends common decency.
Obligation of Client to cooperate and inform
Contractor reserves the right to ask Client to clarify depictions or statements in the source text, but is not obligated to do so. Each source text should be written in accordance with the rules of modern spelling and punctuation, and only contain wording and terms that are clearly understandable (including to outside persons). Translations are only adapted to Client’s company terminology if sufficient, complete documents (in particular, Client’s glossaries, previous translations, illustrations, drawings, table, abbreviations, etc.) are provided of Client’s own accord before or when the order is placed. Errors arising from non-compliance with these obligations are Client’s responsibility.
Performance of orders
Contractor is allowed to make use of third parties in the performance of all business transactions if considered suitable. In this case, Contractor is only liable for a careful selection. Contact between Client and these third parties is only permitted with the written consent of Contractor. The contractual relationship of Client exists exclusively with Contractor. The translation is done in keeping with the standards of professional practice. The duty of Contractor is to render the sense of a given wording in another language. A translation can be expected to fulfill the same quality standards as the source text. However, it does not need to surpass the quality of the source text, since it is not the task of a translator to improve source texts without specific instructions, such as eliminating errors of orthography or punctuation, ambiguous or cumbersome expressions, or any other defects. Client is exclusively liable for all defects in the source text. If not otherwise expressly agreed, all translations are prepared as clean typewritten copies that essentially conform to linguistic conventions and without any significant orthographic or grammatical mistakes. Before initial drafts of this nature are converted into meticulous printed matter, Client should subject them to further inspection and, if appropriate, undertake improvements. Upon express request, Contractor undertakes to provide, for a fee, ready-to-print translations, including proofreading the galley proofs. Technical terms are translated into the generally common, lexically justifiable, or generally understandable version, unless Client provides documents or special instructions. Contractor cannot be held responsible for defects in the translation that are due to an illegible, faulty, or incomplete source text, or to Client’s own incorrect or faulty terminology. The above-mentioned pledge of quality cannot be assured if the work is done under deadline pressure from Client; for instance, if the normal performance of the work is prevented because necessary reviews and improvements must be omitted, manual corrections in the original draft cannot be rendered in a clean copy, or other reasons pertain for which Client is responsible. This does not entitle Client to demand a reduction of the price. Any steps in the work that are saved in such cases are considered to be offset by the additional strain of pressure due to lack of time through no fault of our own. Data or files of translations provided by Client within the scope of the order remain with Contractor for purposes of archiving. These data are only deleted at the express written request of Client, and at the earliest after Client has paid for the translation order in full.
Complaints and remedy of defects
If Client is a merchant under German law (Kaufmann), complaints are acknowledged only if reported in writing with an exact description of the defect, immediately after delivery of the translation or rendering of the service in the case of obvious defects, immediately after review of the same in the case of identifiable defects, or immediately after discovery in the case of defects that are not readily apparent. In the case of non-business transactions as well, complaints must be made in writing with an exact description of the defects. In both business and non-business transactions, all notices of defects are excluded two weeks after delivery of the translation or rendering of the service for obvious defects and, in business transactions, four weeks after the delivery of the translation or rendering of service in business transactions for identifiable defects and two weeks after discovery of defects that are not readily apparent. If Client has given proper notification and reasons for defects, then Contractor is obligated to make corrections or redo the work, at Contractor’s discretion (§§ 633, 634 of the German Civil Code). If the translator does not remedy the defects that were the object of a justified complaint within a reasonable time or refuses to do so, or if the attempt to remedy the defects must be considered to have failed, then Client can, after consultation with Contractor, have the defects remedied by another translator at Contractor’s expense or, alternatively, demand a reduction in fee or withdraw from the contract. An attempt to remedy the defects is considered to have failed if the translation still exhibits defects after several attempts to remedy them.
Client is liable for defects in the source text.
Liability
Client is liable for gross negligence and intent up to a reasonable amount exclusively for damages that are the direct consequence of an error that can be proven to be Contractor’s fault. Liability for slight negligence arises only if essential contractual obligations are violated. Contractor assumes no liability for damage or loss of electronic materials provided by Client. Client must ensure that Client’s data are sufficiently secured. Should a justified objection nevertheless arise, Contractor is liable for financial losses up to a total of € 300,000.00 in each case. If Client does not indicate the purpose when placing the order, especially if the target text is intended for printing or for advertising purposes, then Client cannot demand compensation for damages caused by the target text proving to be unsuitable for the intended purpose, by the publication or advertising having to be repeated owing to a deficient adaptation, or by harm being done thereby to the reputation or image of the company. If Client does not indicate that the translation is intended for printing, does not provide Contractor with a proof copy before printing, and prints the text without clearance from Contractor, then all defects must be borne in full by Client.
Client exempts Contractor from all third-party claims arising from the use of the product and thus excludes any liability of Contractor by virtue of this clause.
Client undertakes to indemnify Contractor for all third-party claims based on alleged violation of property rights, patent rights, copyrights, or other intellectual property rights in conjunction with the fulfillment of the contract.
Contractor ensures that there are no third-party rights pending on the texts to be translated, which would prevent their being processed.
This clause does not cover the basis for claims under data protection law.
Delivery periods
Delivery periods and deadlines are agreed when the order is placed and are binding. Client is entitled to withdraw from the contract in cases of delay and impossibility of performance for which Contractor is at fault only if Contractor misses the deadline by an unreasonable period and if Client has specified an appropriate extension in writing or electronically. In business transactions, Contractor is liable for late delivery, for cases of non-fulfillment, and for vicarious agents. In business and non-business transactions, liability is limited to twice the invoice value of the delivery or service causing damage in cases of slight negligence. In business transactions, the liability amounts to three times the invoice value of the delivery or service causing the damage, up to a maximum of € 20,000 in cases of intent or gross negligence of Contractor’s vicarious agents who are not executive staff members. In business transactions involving such cases, the liability limits stated in the previous clause are reduced to one third according to amount if Client is insured for damages caused by Contractor. However, Contractor is not in default if services remain unfulfilled owing to circumstances for which Contractor is not responsible (for example, late mail delivery, server problems, etc.). If the non-adherence to the delivery deadline is due to force majeure, then Contractor is entitled to withdraw from the contract or demand an appropriate period of grace from Client. Any further rights, in particular damage compensation claims, are excluded in these cases. In the event of changes to the subject matter of the order, delivery periods and remuneration must be renegotiated. Client is not entitled to derive conversion or reduction claims from deadlines that, in Client’s opinion, were not met. This does not affect the right to cancel the contract within the scope of statutory regulations.
Protection of business secrets
Contractor undertakes to keep secret all information on Client acquired in the course of the business relationship, as well as information and documents provided by Client in relation to the order. Forwarding to third parties for the purpose of translation is permissible. Contractor undertakes to obligate these third parties to maintain secrecy and to act according to the new German Data Protection Act. What is more, data are transferred by way of an encrypted platform to ensure confidentiality on the part of Contractor. In the case of electronic transmission of texts and data, as well as any other communication in electronic form between Client, Contractor, and potential vicarious agents, absolute secrecy with regard to business and information secrets, as well as other confidential data and information, cannot be guaranteed because it is impossible to prevent unauthorized third parties from gaining access by electronic means to the transmitted texts. In the event that more stringent secrecy obligations must be observed with regard to certain documents, Client is obligated to expressly notify Contractor in writing of the relevant requirements when the order is placed, and to make available the programs, codes, and passwords to be used.
Remuneration and basis of calculation
Contractor calculates the fee for the respective service when the order is placed. The agreed fee is due for payment as soon as the translation is delivered and invoiced. Payment is due immediately after receipt of the invoice, at the latest, however, within fourteen (14) days of the invoice date. The total amount stated in the invoice is to be paid in full by means of bank transfer or cash. In the case of ongoing long-term orders, partial amounts corresponding to the progress of the work can be invoiced, which are due on the above-mentioned deadlines without regard to previous or future invoices for the same order. In special cases, such as initial orders by unknown clients without indication of creditworthiness, other terms of payment may apply, such as payment in advance or cash on delivery. The scope of the translation is determined on the basis of the number of words in the source text. Corrections are charged according to time and effort. Any ancillary costs, such as courier fees, travel expenses, overnight stays, photocopies, notarizations, etc., as well as statutory VAT (sales tax) must be added to the fee. If the amount of the fee is not agreed, then remuneration is due that is commensurate with type and difficulty, as well as the normal level of remuneration. In these cases, at least the legally specified remuneration of experts, interpreters, and translators, as well as the compensation of honorary judges, witnesses, and third parties (JVEG, the German Law on Payment and Compensation of Judiciary Authorities) is considered appropriate and customary. Contractor`s offers are subject to change and non-binding. The currently effective price list applies, or the prices stated in the specific offer. The prices listed are in euro if no other currency is expressly agreed. All prices stated are net prices and do not include the currently effective statutory VAT.
Cancellation of the contract
Apart from another important reason, an existing contract can be canceled by Contractor if payment default or other circumstances (§ 626 of the German Civil Code) give rise to fears that Client will not be able to pay the fee adequately or on time. Cancellations must be made in writing. No damage compensation claims can be asserted against Contractor. If the contract is canceled by Client, then Client is in all cases obligated to pay the fees arising for the time spent on the work up to the end of the contract. The records alone are authoritative for determining this amount of time. Client is entitled to provide evidence regarding whether or to what extent damage has not been caused.
Disruption, force majeure, network and server failure, viruses
No liability is assumed for damages caused by disruption of business operations, in particular due to force majeure, such as natural phenomena and traffic tie-ups, network and service failure, any other wire faults and transmission interference, and other obstacles beyond Contractor’s control. Nor does Contractor assume liability for damage caused by viruses. The electronic data processing system (networks, workstations, programs, files, etc.) is regularly checked for viruses. If files are delivered by way of the encrypted OTM platform, by email, data telecommunications (modem) or any other form of telecommunication, Client is responsible for the final inspection of the transmitted files and texts. Claims for damage compensation in this regard cannot be acknowledged.
Rights of use
Contractor transfers to Client – subject to the complete payment of the due and undisputed fee – the right to exploit and use the translation, as well as any other property rights to the translation, with no restrictions concerning time, content, or place. Client is permitted to transfer these rights to third parties without prior notification of Contractor and without the consent of Contractor being required.
Right of set-off, right of retention, and non-assignment clause
Client can only set off claims of Contractor with undisputed and legally valid claims. Client is only entitled to assert a right of retention based on counterclaims resulting from the same contractual relationship as those claims against which the right of retention is invoked. The assignment of rights pursuant to this contract is not permitted without the prior consent of Contractor.
Non-solicitation clause
Client undertakes to refrain from soliciting translators working for Client away from Client during the term of the contractual relationship and for a period of six months thereafter.
Applicable law and place of jurisdiction
The contractual relationship and other business relations between Contractor and Client are subject exclusively to German law exclusive of international sales law. As far as is permissible, the place of jurisdiction for all disputes arising from the contractual relationship is the court responsible for Client’s registered office.
Severability clause, changes and supplements
If one or more provisions of these General Terms and Conditions of Business is or should become ineffective, this does not affect the validity of the remaining provisions. The ineffective provision must be replaced by an effective provision which most closely approximates the legal and/or commercial intent and purpose.
Changes and supplements to these General Terms and Conditions of Business are only effective if they have been agreed in writing.