Terms and Conditions for Clients

§ 1 – General

(1) All existing and future legal transactions between Toptranslation GmbH, Ferdinandstraße 29-33, 20095 Hamburg (hereinafter referred to as "Toptranslation") and the client are exclusively subject to the following terms and conditions. These terms and conditions apply as part of an ongoing business relationship to all future orders, offers, supplies and services even when there is no explicit reference to them. The application of all other conflicting contract, business, purchasing and supply terms issued by the client is expressly rejected unless Toptranslation explicitly agrees to do so in an individual instance. Any such agreement must be in writing. Any conflicting prohibition of assignment is hereby expressly rejected.

(2) Toptranslation will supply the client with high-quality translation services.

§ 2 – Concluding a contract

(1) Toptranslation will issue the client with an offer to produce a translation based on the information and data provided by the client.

(2) On acceptance of this offer the translation agreement between the client and Toptranslation shall come into effect on the terms referred to in the offer.

(3) In so far as the contract is concluded verbally Toptranslation is entitled to have the contract terms set out in writing and for a signed version of the contract to be issued.

(4) Toptranslation may refuse to translate a text. This applies in particular to instances in which texts are submitted for translation, which are liable to prosecution or which offend against common decency, or where the difficulty or length of the original makes it appear unreasonable for the text to be translated to an appropriate standard within the period specified by the client.

§ 3 – Scope of services offered

(1) Toptranslation will complete the translation on the agreed terms. Unless otherwise agreed Toptranslation will produce and supply a revised translation. Toptranslation undertakes to translate (or arrange to be translated) any text submitted by the client in an appropriate and workmanlike fashion into the agreed language or languages and to ensure that the translation is made without any omissions, additions or other changes to the content. Translations are made depending on the meaning of the original text literally or analogously according to average generally applicable quality standards for the translation sector of the relevant linguistic area. Taking into account individual specialist terminology introduced by the client is subject to appropriate agreement.

(2) Toptranslation is entitled to use the services of suitable and approved third parties to produce the translation. The client's contract is solely with Toptranslation. We cannot guarantee uniformity of terminology for urgent orders that require the work to be divided among several translators. The preparation or expansion of a terminology list or glossary is subject to express agreement.

(3) Toptranslation will supply the completed translation in the agreed format. Certifications, adaptations of advertising texts in foreign languages, Web and software localisation, inputting text, setting and printing work, formatting and conversion tasks, express deliveries, preparing and expanding a terminology list or a glossary do not form part of the contract unless otherwise agreed.

(4) Deadlines are only binding if they have been expressly agreed by both parties. In cases of force majeure or circumstances outside the control of Toptranslation the deadline may be extended as necessary. The client shall explain to Toptranslation the relevance of adhering to a particular deadline as far as the particular work is concerned.

(5) Texts will only be returned to the client at the latter's request and risk.

(6) If the client intends to publish the translated text or use it for advertising purposes or have it formulated in a particular style, he must provide clear information, glossaries, and style and textual guidelines for the text to be published or the advertising text to be adapted, when he gives the order. If he fails to provide information regarding the use of the translation when he issues the order and the text is subsequently published or used for advertising purposes, he cannot then claim compensation for the publication or advertising having to be repeated because of an error in translation or an unsatisfactory adaptation. In this case Toptranslation reserves any rights arising from the infringement of copyright requirements. The client shall provide Toptranslation with a galley proof for approval before going to press. If any document is printed without its having been cleared by Toptranslation, the client will bear full responsibility for this and shall also be fully liable for any consequential damage.

§ 4 – Duty of the client to co-operate

(1) The client shall provide Toptranslation with a plain version of the text to be translated or one that can be handled by standard word-processing programs.

(2) The client shall also, when issuing the order, provide Toptranslation with all information, documents and materials necessary for carrying out the translation in accordance with the contract. These include in particular existing pre-translations, word lists or individual specialised terminology held by the client as well as the use and purpose planned for the translation.

(3) The client has a primary obligation to accept the translation including partial translations. If the client refuses to accept it or part of it or neglects to do so he is in default without further reminder and is liable for any resultant losses.

(4) Data received in the course of the client’s order or the file containing the translation itself will be retained by Toptranslation for archiving. Data will only be deleted at the express request of the client.

§ 5 – Usage Rights

Subject to full payment of all compensation due and uncontested, Toptranslation shall transfer exclusive usage and exploitation rights to the translation, in perpetuity throughout the universe and without any restrictions in terms of contents, as well as any other intellectual property rights to the translation, as appropriate, to Customer. Customer may transfer these rights to third parties without informing Toptranslation in advance and without having to obtain Toptranslation’s consent.

§ 6 – Fee

(1) The agreed fee shall apply. Details in the offer relating to fees will be exclusively in euros, unless another currency has been explicitly agreed. Exchange-rate risks shall be borne by the client. Amounts quoted will be net, to which VAT must be added at the current rate where this is prescribed by law.

(2) The fee will normally be charged by the word or line, taking into account the language combination, difficulty or special field of the translation or as a lump sum. Surcharges will be made according to the shortness of the deadlines are. The agreed terms of the translation contract shall take precedence.

(3) Unless otherwise stated in writing the prices quoted for translation services are prices per translated word or line. Unfinished lines of more than 30 characters are treated as full lines. A minimum charge will be made if the agreed price per word or line multiplied by the number of words or lines does not exceed the minimum charge.

(4) The agreed fee is payable without deduction as soon as the translation is supplied and invoiced. Toptranslation will invoice the client accordingly. Accounts must be settled within 14 days. If payment is delayed Toptranslation is entitled to claim damages for default. In case of default Toptranslation is entitled to demand default interest amounting to 8% above the current base interest rate of the European Central Bank. Where Toptranslation is able to provide evidence of additional losses caused by this delay in payment, it shall be entitled to claim for these losses. The client shall be entitled to provide evidence to Toptranslation that no loss or a significantly lower loss has occurred. In case of default on more than one obligation, the whole of Toptranslation’s claims against the client shall immediately become due for payment.

(5) In the case of initial orders Toptranslation is entitled to request a prepayment amounting to 50% of the order when the translation agreement has been made and before the translation has been started. Subsequent orders fall due for payment as invoiced as the work is completed.

(6) Special and additionally agreed services attract a surcharge or are charged on a time basis. Certifications, adaptations of advertising texts in foreign-languages, Web and software localisation, inputting text, setting and printing work, formatting and conversion tasks, exclusive revision, editorial work, express deliveries, preparing and expanding a terminology list or a glossary will be invoiced based on time taken or as agreed.

(7) If the client cancels the order Toptranslation shall be entitled to charge cancellation fees and deficiency fees of up to 100% of the agreed fee. Toptranslation may however offset any expenditure it saves as a result of the contract being cancelled.

(8) Toptranslation is also entitled, following prior notification, to exercise its right of retention for all outstanding deliveries or request payments in advance.

§ 7 – Assignment/offsetting/right of retention/reservation of title

(1) Rights and title relating to the translation and associated rights (such as the moral right of the author, and the rights of exploitation and use) are reserved until the client has settled all outstanding accounts. A withdrawal from the contract is not required in order for Toptranslation to assert its rights to reservation of title, unless the client is a consumer.

(2) Assignment of the client’s rights requires written consent.

(3) The client can only offset amounts owed to Toptranslation with claims that are undisputed or have been determined in a court of law. The client is only entitled to claim a right of retention by invoking counter claims based on the same contract as those for which the right of retention is cited.

§ 8 – Acceptance and guarantee

(1) The client shall check the translation that has been supplied for defects without delay. The client must issue a written complaint to Toptranslation concerning obvious defects immediately they are discovered.

(2) Unless a written complaint is received within 10 days, the translation shall be deemed to have been supplied and accepted.

(3) The client is liable for defects in the document submitted for translation.

(4) Should the translation depart from any agreed requirements, the client shall allow Toptranslation a period of time appropriate to the circumstances to rectify the defect. Rectification is ruled out if the discrepancies were caused by the client himself, by for example incorrect or incomplete information having been given, defective originals or changes made to the translation that has been provided. Statutory guarantee regulations shall otherwise apply. In the case of justified, properly notified defects Toptranslation shall have the option to rework or redraft the translation at least twice. The client must accept and pay for the translation provided.

(5) The client is only entitled to withdraw from the contract or assume responsibility for the translation in cases of default, rectification, and justifiable impossibility and in other instances, if the deadline has been substantially exceeded and it has given Toptranslation an appropriate period of grace.

§ 9 – Liability

(1) Toptranslation is not responsible for the translation in question being permissible and suitable for the client’s purpose. This particularly applies if the translation is to be published or used for advertising purposes. The client shall bear the legal risk in terms of usability or publication.

(2) Toptranslation is not liable for imprecise, unclear, incomplete, faulty and false information or terms within the source texts, models, information, specialised terminology or wording of the order provided by the client.

(3) No liability is accepted for delays or defects in execution, caused by incorrect, incomplete, misleading and illegible information provided by the client, including those in translation requirements and circumstances outside the control of Toptranslation.

(4) Toptranslation shall otherwise only be liable for losses caused by intentional or grossly negligent infringements of duty by Toptranslation, its legal representatives or vicarious agents. This shall apply accordingly where pre-contractual or sub- contractual duties are infringed, or in cases of deficiency losses and consequential losses. The liability of Toptranslation for losses under the Product Liability Act, and for losses due to life, body or health are unaffected by this exclusion from liability.

(5) Nor is Toptranslation liable for disruptions caused by force majeure, closure and restriction of the operation, network and server failures, viruses and for connection and transmission failures, other disruptions, absence of teachers or interpreters and comparable instances outside the control of Toptranslation. Toptranslation is in these cases entitled to withdraw wholly or partly from the contract. The same shall apply if Toptranslation must wholly or partly close or restrict its operation, especially the online service, for a serious reason on individual days or for a particular period. Toptranslation shall not be liable for losses caused by viruses, Trojan horses, autodiallers, spam mail or comparable data. The computing equipment (network, workstations, programs, files etc.) are regularly checked for viruses and harmful data. Where files are supplied by e-mail or other long-distance transmission facilities the client is responsible for conducting a final virus and data check on the data and  text files that have been transmitted. Toptranslation will not recognise any compensation claims. Electronic transmission is at the client's risk. Toptranslation is not liable for defective, incomplete or lost text and data resulting from the electronic transmission. In the case of electronic transmission of text and data between the client and Toptranslation no absolute protection of secrecy can be guaranteed in view of external opportunities for intervention.

(6) Toptranslation shall not be liable for possible losses suffered by the client in the combination of circumstances referred to above.

(7) Liability is limited in the case of ordinary negligence to twice the invoice value of the item or service giving rise to the loss and to a maximum of €20,000 and in the case of commercial business with intent and gross negligence on the part of the vicarious agents to three times the invoice value of the item or service and to a maximum of €30,000. The duty to pay compensation referred to here is always restricted to typical, direct losses, foreseeable when the contract was concluded. Limitations of liability are reduced in terms of the amount to a third, if the client is insured against losses. The client has comprehensive duties  to co-operate:  he undertakes to check any work supplied by Toptranslation for defects and for its suitability in the actual situation, before using it elsewhere. Toptranslation shall not be liable for consequential damage, such as defective printing, unless the client has fulfilled his duty to cooperate comprehensively and promptly.

§ 10 – Third-party rights and indemnity

(1) The client provides the assurance that there are no third-party rights relating to the text to be translated, which conflict with editing, translation or transmission to third parties for translation. Toptranslation is  entitled, if necessary, to request suitable documentation to clarify these rights.

(2) The client shall indemnify Toptranslation and its subcontractors against any liability for third-party claims, which relate to using, editing, exploiting or duplicating this information, these documents and other items or editing or processing them.

§ 11 – Confidentiality

(1) Toptranslation will observe confidentiality with regard to information concerning the client that has come to its knowledge as part of the contract, and also to documents and materials that have been provided,  and undertakes neither to use nor exploit this nor pass it on to third parties without express written consent, unless this is necessary in the course of fulfilling the contract. It is permissible to pass this on to third parties for translation purposes. Toptranslation undertakes to commit these third parties to secrecy.

(2) Where stricter obligations of confidentiality must be observed when handling certain documents, the client shall notify Toptranslation of these obligations in writing when the order is made and make available the programs, codes and passwords to be used.

(3) The client agrees with data being stored to carry out the order in accordance with data protection regulations.

§ 12 – Advertising right

Toptranslation is entitled to use the name and brand of the client as a reference in its own advertising.

§ 13 – Prohibition against enticement

In so far as Toptranslation employs the services of third parties for translation purposes, the client may neither directly nor indirectly appoint, employ or engage them within 12 months of this contract coming to an end without the consent of Toptranslation. For each instance of culpable violation the client shall pay a contract penalty, the level of which will be set by Toptranslation and in the case of dispute reviewed by the relevant court.

§ 14 – Final provisions

(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on the Sale of Goods.

(2) The place of performance is the registered office of Toptranslation GmbH. The place of jurisdiction for all disputes arising from the contractual relationship is Hamburg, in so far as the customer is an entrepreneur ["Unternehmer"] pursuant to § 14 BGB [German Civil Code]. In all other instances the statutory place of jurisdiction shall apply.

(3) Should individual provisions of the contract in question between the parties be ineffective or impossible to implement or become ineffective or impossible to implement after the contract has been concluded, this shall not otherwise affect the validity of the contract in question.

Ciara Rodriguez, Team leader Account Management, Toptranslation
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