(Last updated: 15 January 2015)
Section 1 – Scope of the General Terms and Conditions (GTC)
Milengo GmbH (hereinafter “Milengo”) renders its translation services exclusively on the basis of these General Terms and Conditions (hereinafter “GTC”). Any deviating terms and conditions of purchase or other conditions of the customers shall hereby be excluded in express terms.
Section 2 – Creation of a contract
Milengo draws up an offer for the translation services to be rendered by Milengo. Upon receipt by Milengo of the legally binding offer countersigned by the customer, a contract is created. Milengo may, prior to entering into an agreement, demand written proof of power of attorney, a prepayment and/or a declaration of surety of a German bank.
Section 3 – Scope and quality of translation services
The scope of the translation services to be rendered by Milengo shall be subject to the offer and, if applicable, any of its appendices.
Any services beyond the contractually agreed scope of performance (hereinafter “Additional Services”) may be ordered by the customer and shall be subject without exception to separate remuneration. In the absence of any provisions to the contrary, said remuneration shall be on a time and material basis in accordance with such price list of Milengo as is in effect from time to time.
Milengo shall render translation services that meet the following quality requirements:
Factual and cultural accuracy and correctness
Correct and consistent use of the terminology specified (glossaries, if applicable) and/or appropriate standard terminology as well as compliance with guidelines on style (style guide, if applicable) and/or adequate standard rules of style
Correct use of language pursuant to valid rules of grammar and spelling.
Section 4 – Granting of rights
Unless otherwise agreed, Milengo grants the customer, upon full payment of the remuneration, the right to duplicate and distribute the translations produced by Milengo. Milengo, however, shall be entitled to being named in all duplicates and publications of translation services as the translation agency, including its web address.
Until such time as full payment has been received, the customer shall be entitled to tentative use, while such tentative right to use may be revoked by Milengo at any time until full payment has been received.
Section 5 – Remuneration
Remuneration for translation services shall be based on the respective contract. In the absence of any agreement therein to the contrary, Milengo will invoice the customer for the translation services on a time and material basis pursuant to such price list of Milengo as is in effect from time to time.
2. Urgent jobs
Urgent jobs (jobs, which require extra cost and effort in terms of time and administra- tion and need to be delivered outside the usual delivery deadlines) shall be subject to a surcharge of 30%.
3. Minimum charge
For jobs where the net order value per language is below EUR 50.00, a minimum charge of EUR 50.00 per language plus a 10% management fee shall be calculated to cover administration costs.
4. Changes to or cancellation of orders
If the customer changes orders, work, extensive planning or similar items and/or cancels the order or contract, he shall be liable to pay Milengo the agreed remuneration less any expenses avoided. The amount of such expenses avoided shall hereby be agreed, by Milengo and the customer, to be 40% of the order value, without there being a need to provide specific proof on the part of Milengo.
5. Terms of payment, default of payment
Payments shall be made within 30 days of receipt of invoice. The timeliness of payments shall be determined by the receipt thereof in the account of Milengo. In the event of large orders, Milengo is entitled to demand installment payments for self-contained partial services that shall become due upon delivery of the partial service. Large orders are orders whose value exceeds net EUR 10,000.00 and/or whose project period exceeds 30 days. Self-contained partial services shall be defined, in particular, as individual chapters, modules or language versions.
If the customer defaults on his payment obligations, Milengo will reserve the right to withhold performance until full payment has been received. Where binding performance dates have been agreed, the performance period shall be extended by the number of days by which the customer has defaulted on his payment obligations.
In the event of default on payment, statutory late-payment interest shall be paid in the amount of eight (8) percentage points above the basic interest rate; any further statutory claims of Milengo shall remain intact.
Section 6 – Delivery dates
Delivery dates shall be binding only if they have been agreed in writing and in express terms.
Delivery dates may be arranged by mutual agreement at the time the contract is awarded. Milengo shall use its best efforts to meet such delivery dates. If an inevitable delay in delivery (e.g., due to unexpected complexity, illness, loss of data, etc.) is foreseeable, Milengo will inform the customer thereof immediately. Milengo shall not be deemed in default if the cause of the delay in delivery is beyond its control. If failure to meet a delivery deadline is due to force majeure, Milengo shall be entitled to request a reasonable grace period.
In the event of changes to the subject matter of the order or contract, delivery periods and remuneration shall be renegotiated
Section 7 – Liability for defects (Mängelhaftung)
1. Deadline for checking and acceptance
The quality of translations shall meet the customary quality standards applicable to translations. The customer shall check immediately upon receipt, and at any rate prior to any reproduction and/or publication, the translations delivered by Milengo. If no problems are flagged up within 14 days, the translation shall be deemed accepted.
2. Duty to report defects
The customer shall notify Milengo of any defects in writing immediately, at least within the aforementioned checking period, and shall document any defects in writing in a transparent and clear manner. If the customer fails to comply with this obligation in a timely manner, any liability for defects on the part of Milengo shall be excluded.
3. Rights regarding defects
The customer’s rights regarding defects towards Milengo shall initially be limited to a claim of subsequent performance in connection with subsequent improvement. Three attempts at subsequent improvement may be made in connection with a defect, provided that this is reasonable from the customer’s point of view. The customer shall have a right of withdrawal and/or termination or reduction in price only if subsequent improvement has failed; claims for damages shall be excluded unless willful or gross negligence or damages resulting from injury to life, limb or body are involved.
The customer’s rights regarding defects shall expire one year after delivery.
5. Waiver of liability for defects
Defects in the translation resulting from flawed or incomplete source documents shall not be the responsibility of Milengo. Nor shall Milengo be responsible for any linguistic inaccuracies due to lack of context. In the aforementioned cases, any liability for defects on the part of Milengo shall be excluded.
Section 8 – Liability
Milengo shall be fully liable for damages caused by willful or gross negligence.
In the event of simple or minor negligence on the part of a legal agent or vicarious agent, the liability of Milengo shall be limited to the typically foreseeable damages in connection with the breach of substantial contractual obligations (cardinal obligations). For all other intents and purposes, Milengo shall not be held liable for simple or minor negligence.
The preceding paragraph notwithstanding, Milengo shall assume unlimited liability for damages resulting from injury to life, limb or body caused by willful or gross dereliction of duty on the part of Milengo.
All claims for damages – with the exception of those derived from willful negligence – shall expire after two years. The limitation period shall commence at the end of the year in which the claim arose.
Section 9 – Customer’s services
1. Information and documentation
The customer shall make information and documents that are required for the provision of the translation service of Milengo (for example, customer glossaries, terminology, reference material, diagrams, drawings, fonts) available without a specific request to this effect. Defects and time delays resulting from the customer’s failure to comply with these obligations shall be the responsibility of the customer.
2. Third-party proprietary rights, release from claims
The customer shall guarantee that he has the necessary rights of use for the execution of the agreed translation services. Upon initial request, the customer shall comprehensively release Milengo from any claims brought by a third party due to an existing or alleged infringement of third-party proprietary rights.
Section 10 – Confidentiality
The parties shall keep confidential, both during and beyond the respective contract terms, information, images and documentation concerning the circumstances, business processes and technical facilities of the respective other party. Neither party shall reproduce, publish or pass on to a third party in any manner or use or exploit for purposes extraneous to this agreement such information and documentation without the prior written consent of the other party.
Information shall be deemed not confidential if, at the time the other party learns thereof, it was known to the public or, after such time, the public learns thereof without any involvement of such party or if such party has received the information from a third party that was not subject to an obligation of secrecy or if such party has discovered the information independently and without making use of confidential information of the other party.
Any party shall be released from the obligation of confidentiality if and to the extent that such party is requested by a government agency, court of law or other government authority to share information that is subject to confidentiality. Said party shall immediately inform the other party thereof as well as name the agency requesting the information and the extent thereof. The party obliged to share the information shall ensure that the extent of the information to be shared be kept to a minimum where possible and shall, if possible, obtain a guarantee that the information to be shared will be handled in confidence. The party obliged to share the information shall take all reasonable measures so as to enable the other party to defend against said request for information.
Section 11 – Subcontractors
Milengo may rely on third parties for the execution of translation services and will require third parties to abide by the confidentiality terms at least as protective of the Customer’s confidential information as those set forth in this Agreement. Contact or direct business between the customer and the third party thus deployed by Milengo shall be permitted only with the written consent of Milengo.
Section 12 – Jurisdiction, applicable Law
Jurisdiction for all legal disputes arising between the parties from and in connec- tion with these GTC and the respective contracts/orders shall lie with the courts in Berlin where permitted.
The contractual relationships shall be subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Section 13 – Final provisions
The GTC of the customer shall not apply. The customer can assign rights under these GTC and/or the respective contracts only with the written consent of Milengo.
All changes and additions must be made in writing. Cancellations and declarations of withdrawal must also be made in writing. The same shall apply to the revocation of this requirement for written form.
Should any provision of these GTC be ineffective, the validity of the remaining provisions hereof shall in no way be affected. In the event the parties shall immediately replace such ineffective provision with a relative effective provisions that comes as close as possible to the purpose of the ineffective provision.
The customer shall be permitted setoff against counterclaims only if they have been confirmed by declaratory judgment or acknowledged by Milengo.