GENERAL TERMS AND CONDITIONS
Publication date: January 5, 2018
Table of contents
2. Quotations, Conclusion of Written Agreements
3. Changes to or Cancellation of Orders
4. Execution of Orders and Non-Disclosure Clause
5. Agreed Date and Time of Delivery
6. Prices and Payment
7. Complaints and Disputes
8. Liability and Indemnity
9. Dissolution and Force Majeure
11. Governing Law
12. Severability clause
13. Amendments and additions
Article 1 – General
These Terms and Conditions shall govern the legal relationship between Peter Leeflang, also sometimes doing business as FM Linguistics (hereinafter referred to as the “Translator”), and any individual or corporate body (hereinafter referred to as the “Client”), and shall supersede any (general) terms and conditions of the Client, unless the Translator approves the applicability of such terms and conditions in writing.
In such a case of approval by the Translator of the (general) terms and conditions of the Client, the terms and conditions hereunder shall still apply in so far as that there are any transaction situations that are not covered in the (general) terms and conditions of the Client.
Article 2 – Quotations, Conclusion of Written Agreements
2.1 General quotations and estimates provided by the Translator shall not signify any commitment.
2.2 The Translator may at any time revoke or change prices and dates of delivery quoted if he has not had the opportunity – prior to quoting such details – to view the entire text to be translated or edited.
2.3 The Client’s oral or written acceptance, even if via electronic means, of the quotation submitted by the Translator or, if no quotation is submitted, confirmation by the Translator in writing of an order placed by the Client shall constitute a written agreement.
2.4 The Translator may consider as a Client any person or legal entity that has placed an order with the Translator on its own account, unless said person or entity explicitly states that they are acting on the instructions, on behalf and at the expense of a third party, whose name and address shall be disclosed to the Translator at the same time.
2.5 Agreements made and assurances given by representatives or personnel of the Translator shall not be binding upon the Translator unless explicitly confirmed in writing by the Translator himself.
2.6 Any reasonable doubt on the part of the Translator about the Client’s ability to pay shall entitle the Translator to require the Client to provide sufficient security before the Translator commences or continues to execute an order.
2.7 As part of any written agreement the Client shall be asked by Translator to provide the following necessary information to ensure a high quality translation and total satisfaction of the Client’s needs:
– The source files to be translated, proofread, (post)edited, localized or internationalized.
– The intended use and purpose of the target files. The translator shall also be informed of any changes regarding that use and purpose.
– The word count and file format of the source file(s).
– The desired format of the target files.
– The deadline for delivery of all the target files.
– The schedule for partial deliveries of target files.
– The desired structure and names of the target files.
– If possible, the translation memory databases, terminology databases, dictionaries, glossaries or other sources of information owned by the Client and required by the Translator for ensuring consistent use of terminology and for other purposes regarding the written agreement.
– The contact details of all contact persons for inquiries related to all aspects of the written agreement.
– The details of submission and delivery of the target files.
Article 3 – Changes to or Cancellation of Orders
3.1 Any major changes made by the Client to an order after a written agreement has been concluded shall entitle the Translator either to modify the price and/or the date of delivery agreed or to refuse to execute the order. In the latter case, the Client shall be required to pay for the work already performed, and the provisions stipulated in clause 3.3 shall apply by analogy.
3.2 Cancellation of an order by the Client shall require the Client to pay in full for the work already performed with respect to that order and, where appropriate, to pay compensation on the basis of an hourly rate of US $ 34.95 for time spent on partially finished, so unfinished, translations or on research for that part of the work not performed. The Translator shall make the unfinished work performed available to the Client at the latter’s request, but shall accept no responsibility for its quality.
3.3 If the Translator has earmarked time for executing an order that has been cancelled, he may charge the Client 50% of the agreed price for that part of the work not performed.
Article 4 – Execution of Orders and Non-Disclosure Clause
4.1 The Translator undertakes to carry out orders to the best of his ability, bringing to bear sufficient professional know-how to meet the purpose specified by the Client for the text(s), images or data to be translated, proofread, (post)edited, localized or internationalized by the Translator.
4.2 The Translator may perform or have performed translations, proofreading, editing and localizing by utilizing automated translation assistance tools (such as CAT tools and (partial) machine translation) along with human translation whereby human translation shall prevail and shall be used to adapt, remove and replace any erroneous automated translation.
4.3 The Translator shall keep any information provided by the Client confidential in so far as this is possible in connection with the performance of the written agreement and in so far as he is not bound otherwise by laws.
4.4 The Translator shall require any of his employees to observe this code of confidentiality mentioned in clause 4.3. However, the Translator shall not be liable for any breach of confidentiality by his employees if he can sufficiently demonstrate that he was unable to prevent the same.
4.5 Unless explicitly agreed otherwise, the Translator shall be entitled to hire third parties to carry out the order (in full or in part), without prejudice to the Translator’s responsibility for the confidential treatment and proper execution of the order. The Translator shall require any such third party to observe this code of confidentiality mentioned in clause 4.3. However, the Translator shall not be liable for any breach of confidentiality by such third parties if he can sufficiently demonstrate that he was unable to prevent the same.
4.6 As far as possible, the Client shall honor any request for information by the Translator about the content of the text to be translated, as well as about requests for relevant documentation and lists of terms if such are available. Such information and documentation shall be dispatched at the Client’s expense and risk.
Article 5 – Agreed Date and Time of Delivery
5.1 The orally agreed date of delivery shall be provisional, unless an explicit written agreement stipulates a firm date.
5.2 The Translator shall notify the Client immediately if he perceives that he will be unable to meet an agreed deadline.
5.3 If a firm delivery date is specifically agreed in writing and if the Translator fails to meet it for reasons other than circumstances beyond his control, and if the Client cannot reasonably be expected to accept any further delay, the Client shall be entitled to cancel the agreement unilaterally. In such cases, however, the Translator shall not be required to pay any compensation whatsoever. Such cancellation shall not affect the obligation on the part of the Client to pay for the work already performed nor does is a claim on warranted corrections after delivery by the deadline a reason to cancel the agreement if the corrections can be reasonably be expected to be made with a small delay.
5.4 Delivery shall be deemed to have taken place at the moment when the text is mailed. The moment when the text is mailed, handed to a courier or – if the text is transmitted electronically (by fax, e-mail, modem, FTP etc) – the electronically registered moment when the medium completes the transmission shall count as the time of dispatch. Third party records may serve as evidence of delivery.
5.5 The Client shall do whatever may reasonably be necessary for or conducive to prompt delivery by the Translator of work performed under the written agreement.
5.6 The Client shall do everything in its power to facilitate delivery of the product by the Translator under the written agreement. Any refusal to accept the Translator’s product shall constitute default on the part of the Client, and the provisions of clause 6.9 shall apply accordingly, even if no explicit request for acceptance has been made.
Article 6 – Prices and Payment
6.1 Prices shall generally be based on the Translator’s current rates (per source word or per hour), unless agreed otherwise.
6.2 In addition, the Translator may charge the Client for any out-of-pocket expenses incurred in the execution of the order.
6.3 The Translator shall be free to charge a minimum rate for each combination of source and target language, as specified in the written agreement.
6.4 Quoted prices shall apply only to services and products conforming to agreed specifications.
6.5 The Translator shall be entitled to raise the agreed price if he is forced to perform more work or incur more costs than might reasonably have been foreseen on conclusion of the written agreement as a result of having to work with laborious, time-consuming or unclear texts, for example, or faulty files or software supplied by the Client. This list of examples is not exhaustive.
6.6 All prices are quoted exclusive of VAT, since this tax is not required to be charged by Translator due to his location in the USA.
6.7 Payment for products supplied or services rendered under the written agreement shall be due 30 calendar days after the invoice date (or within such other term as the Translator shall set in writing).
6.8 Payment shall be net and in full – without any discount, set-off or deferral – only in the currency invoiced. The Client has no right to balance mutual debts unless agreed upon in advance nor may a payment be postponed past due date to seek a set-off.
6.9 If payment is not made by the due date, the Client shall be in default – immediately and without notice of default being required – and shall owe the statutory interest due on the invoice amount, plus two percentage points, from the due date until settlement in full.
All originally other later due payments will also become due immediately.
The rate for extrajudicial collection costs shall be 15% on the first US $ 3,000 of the principal sum plus interest, and 10% on the balance, subject to a minimum of US $ 150 per invoice.
6.10 The accepted payment methods, exclusively in US $ or Euros, are:
– for non-US clients: SEPA transfer to IBAN account (in euros), Paypal (in US $ or euros, no e-checks are accepted), international wire transfer (in US $ only) or Transferwise, the two latter ones with sender paying all costs being debited to Translator,
– for US clients: direct deposit/ACH, Paypal (no echecks are accepted), Dwolla, Bitcoin. Paper checks are not accepted.
Article 7 – Complaints and Disputes
7.1 The Client shall be required to notify the Translator in writing of any complaints about the product supplied or service rendered by the Translator as soon as possible, yet no later than TWENTY ONE working days after the said product is supplied or the said service is rendered. Complaints arriving later than that complaint period cannot be addressed.
7.2 Lodging a complaint shall not release the Client from its payment obligations nor shall it allow him to carry out set-offs.
7.3 Should the Client, within the period mentioned above, query the accuracy of specific passages of the translation supplied by the Translator and ask the Translator for his comments, and should the Translator subsequently be able to demonstrate that the passages in question are not incorrect, the Translator shall be entitled to charge the Client in full for the additional time spent on dealing with the query and for any other expenses incurred in this connection.
7.4 If the Client does not lodge a complaint within the period specified in clause 7.1 above, the Client shall be deemed to have fully accepted the product supplied or the services rendered by the Translator, and complaints shall only be considered if the Translator, at his sole discretion, deems such to be expedient.
7.5 Any changes made by the Translator, at the Client’s request, to any part of the translated or edited text shall in no way constitute an acknowledgement on the part of the Translator of supplying an inferior product or rendering an inferior service.
7.6 In the case of a valid complaint, the Translator shall be allowed a reasonable period of time to improve or substitute the product or service. If the Translator, in all fairness, is unable to make the required improvements or to substitute the product or service, he will grant the Client a discount.
7.7 If the Client and the Translator prove unable to settle their dispute amicably within a reasonable period of time, they may refer it to the ATA Arbitration Committee within two months once it has become apparent that no settlement will be reached. The dispute shall then be settled by an arbitral tribunal in accordance with the ATA Arbitration Rules.
7.8 If the Client wishes to submit a dispute for arbitration on the basis of these Arbitration Rules, the Translator shall be required to concur in and assist with this procedure. The Arbitration Committee’s decision shall be binding for both parties.
7.9 The Client’s right to complain shall lapse if the Client has itself edited or has instructed others to edit the part or parts of the product forming the subject of the complaint, regardless of whether the Client has subsequently supplied the product to a third party or not.
Article 8 – Liability and Indemnity
8.1 The Translator shall exclusively be liable to the Client for any loss or damage directly and demonstrably deriving from gross negligence shortcomings attributable to the Translator.
8.2 The Translator shall under no circumstances be liable for any other forms of loss or damage, such as indirect loss, consequential loss, trading loss, loss caused by delay in performance or loss of profit.
8.3 The Translator’s liability shall never exceed the invoice value of the (part of the) product or service in question, which (part) has already been invoiced and/or supplied or rendered.
8.4 Ambiguities in the provided source files or instructions shall release the Translator from any liability whatsoever.
8.5 The question of whether (the use of) a text to be translated or edited or the translation or edited version of such text, produced by the Translator, entails any risk of bodily injury shall be entirely at the Client’s expense and risk.
8.6 No liability whatsoever shall be incurred by the Translator in respect of damage to or loss of documents, data or data carriers made available to facilitate performance of the written agreement.
8.7 Nor shall any liability be incurred by the Translator in respect of any costs incurred and/or any loss or damage sustained as a result of (1) the use of information technology and telecommunications media, (2) the transport or dispatch of data or data carriers, or (3) the presence of computer viruses in any files or data carriers supplied by the Translator.
8.8 The Client undertakes to indemnify the Translator against any claims by third parties deriving from the use of the product supplied or the services rendered.
8.9 The Client similarly undertakes to indemnify the Translator against any claims by third parties on account of alleged violation or infringement of property rights, proprietary rights, patent rights, copyrights or any other intellectual property rights in connection with the performance of the written agreement.
Article 9 – Dissolution and Force Majeure
9.1 If the Client fails to meet its obligations, if the Client is declared insolvent or bankrupt or if a petition is filed for the Client’s compulsory liquidation or bankruptcy, if the Client applies for or obtains a moratorium, if the Client is subject to an arrangement under the debt rescheduling regulations for natural persons or if the Client’s company or business is liquidated, the Translator shall have the right, without being required to pay any compensation, to dissolve the written agreement in whole or in part or to suspend performance of the written agreement. The Translator shall in that case be entitled to demand immediate payment of any outstanding amounts and deny the use of (part of) his work until full payment has been received.
9.2 Should the Translator prove unable to meet his obligations due to circumstances beyond his control and risk, he shall be entitled to dissolve the written agreement without being liable to pay any compensation whatsoever. Such circumstances (force majeure) include, but are not limited to: fire, accidents, illness, strikes, riots, war, terrorist attacks, transport restrictions and delays, government measures, disruption of the services of Internet providers, negligence on the part of suppliers or any other circumstances beyond the Translator’s control.
9.3 If the Translator is compelled by force majeure to discontinue further performance of the written agreement, he shall retain the right to payment for any work performed up to that moment as well as reimbursement for any costs and out-of-pocket expenses incurred.
Article 10 – Copyright
10.1 Barring explicit agreement in writing to the contrary, the copyright on translations produced by the Translator shall devolve upon the Client at such time as the Client meets all its financial and other obligations to the Translator in full with respect to the work in question.
10.2 The full translation as well as parts of it remain the property of the translator until complete payment has been received. Until then, the customer has no right of utilization.
10.3 The translator reserves the right to any generated copyright.
Article 11 – Governing Law
11.1 The legal relationship between the Client and the Translator shall be governed by the law of the US state of Florida or any US federal law that supersedes the state law.
11.2 The place of performance is the Translator’s business location office in the US state of Florida.
11.3 Any disputes in respect of which no binding decision has been given by the ATA Arbitration Committee in accordance with clause 7.7 above shall be submitted for judgment to the competent court at the place where the Translator has his business office location in the US state of Florida.
11.4 Although the place of jurisdiction is the translator’s business office location, the Translator is also entitled to sue the client in the court of jurisdiction at the client’s business location.
Article 12 – Severability clause
Should one or more of the articles or clauses of these terms and conditions be or become null and void, this shall not affect the validity of the remaining articles or clauses. The invalid provision should be replaced by a valid one which approaches as closely as possible the desired business results and the purpose sought.
Article 13 – Amendments and additions
Amendments and additions to these terms and conditions are only valid if they have been agreed in writing or by email.
Article 14 – Version
This version of these terms and conditions is dated January 5, 2018, cancels the version of September 5, 2016 that cancelled the version of May 4, 2016 and applies to any purchase orders started on that date or after it until a new version is published.