TEXTKING
TEXTKING GTCS

The general terms and conditions of business
of TEXTKING Deutschland GmbH for customers

Last revised: November 2013
  1. Application of General Terms and Conditions of Business
  1. TEXTKING operates a direct translation service, which is available via the Internet. The translations are done not by TEXTKING itself, but by specialist translators who work for TEXTKING as independent contractors. However, the client's contractual relationships are always exclusively with TEXTKING and never with the translator directly.
  2. TEXTKING provides its services solely on the basis of these General Terms and Conditions of Business (GTCs); the GTCs will be deemed to be accepted when any order is placed with TEXTKING. We hereby expressly exclude any of the client's terms and conditions that differ from ours.
  3. TEXTKING is authorized to modify or amend these GTCs at any time.
  4. Supplementary agreements, representations, and other agreements, as well as modifications and amendments to the contract shall only be effective if made in writing.
  1. Formation of contract
  1. TEXTKING generates an offer on the basis of information provided by the client.
  2. The calculation of the size of the document to be translated, and hence the price calculation, is carried out electronically. TEXTKING is expressly entitled, even after the contract has been entered into, to adjust the price of the translation to the actual size of the document (in accordance with TEXTKING's current prices), if the automatic calculation of the size of the translatable text is not sufficiently accurate for technical reasons. The client accepts the offer by submitting it online.
  3. The contract is valid after the placement of the online order. Upon formation of the contract, TEXTKING will start work. Likewise, upon formation of the contract, the contractual delivery time will generally begin to apply.
  1. Scope of services/rights of use
  1. TEXTKING agrees to properly and professionally render in the desired language a text specified by the client and to ensure the translation is carried out without adding, removing or otherwise modifying content. Depending on the meaning of the original text, translations are done literally or freely and in accordance with the author's intentions and with the average quality standards generally prevailing in the translation industry in the applicable language area.
  2. The translations will incorporate specialist client-specific terminology if and only if a prior agreement has been made and complete, adequate documents – such as prior translations or word lists – are provided when the order is placed. Otherwise, technical terms will be translated in keeping with common practice and the quality standards laid out in Point 3.1.
  3. Only texts will be translated. Source texts may be rejected if they contain images. Texts may also be rejected if they have illegal content or violate accepted principles of morality. In addition, texts may be rejected if special circumstances indicate that it would be impracticable to translate the text. Such circumstances include, but are not limited to, texts which are too long and/or difficult to be translated by the client's specified deadline to a reasonable quality standard. TEXTKING will inform the client as soon as possible if this is the case. There is no claim to remuneration if a text is rejected.
  4. If the copyright to a translation vests in a translator because he or she performed the translation, TEXTKING will ensure – insofar as legally possible – that the client receives rights of use and exploitation that are not restricted in terms of time, content or territory. This includes the right to modify and transfer the translation to third parties.
  1. Acceptance/duty to give notice of defects
  1. Once the translation is complete, the translated text will be available for download at the online customer area at the TEXTKING server. The client is then being informed by email that the download is available. The client will ensure that the translated text is downloaded immediately after he/she has been notified that the order has been completed.
  2. Other delivery methods – e.g. post, e-mail or fax – will only be used by separate express agreement (in accordance with subsection 1.4), such as in the case of certified documents.
  3. TEXTKING can make the supply of the translated text for retrieval contingent on the presentation of written proof of authorisation, an advance payment or a guarantee issued by a bank.
  4. The client must check the translation for defects immediately following receipt. Any obvious defects in the translation must be reported in writing immediately after downloading or after receipt of the translation in the client's area (if another delivery method is used), hidden defects immediately after their discovery, detailing the defects. If written notice of defects is not issued within 5 days at the latest, the translation will be deemed rendered as contracted.
  5. TEXTKING bears the risk of data loss until the translation is retrieved by downloading it to the client's hard drive/cache memory. The client is responsible for downloading the work to his/her hard drive/cache memory and exempts TEXTKING from all liability in connection therewith. If other delivery methods (post, e-mail, fax) are expressly agreed, risk will not pass to the client until the carrier takes delivery of the translation or the e-mail is received in the recipient's inbox or the applicable fax is printed at the recipient's premises.
  1. Correcting defects
  1. If the translation does not conform to the agreed parameters, the client must set a reasonable extended deadline for TEXTKING to rework the translation. The translation will not be reworked if the client is responsible for the translation's non-conformity, e.g. in the case of defective source texts or incorrect or incomplete information.
  2. After the deadline set for reworking the translation has lapsed without result, the client is entitled to demand cancellation of the contract if the defect has not been remedied in time.
  3. The client is not, however, entitled to this if the translation’s value or suitability is only insignificantly impaired by the non-conformity.
  4. There is no need to set a deadline if, when the contract is concluded, the client explicitly states that he/she has no use for the service forming the object of the contract if it is rendered after the stipulated delivery time.
  1. Remuneration/payment terms
  1. TEXTKING will invoice the client for the contractual services based on the agreed price or minimum charges and terms, plus the applicable statutory value added tax. To discharge his/her payment obligation, the client must render payment in Swiss francs or euros using the payment method provided by TEXTKING.
  2. TEXTKING generally sends bills only in .pdf format by e-mail.
  3. Remuneration becomes immediately due and payable without discounts when the underlying invoice is issued. TEXTKING is entitled to charge interest on late payments at the rate of 5 % p.a. If TEXTKING can prove that it has sustained greater losses due to the delay in payment, it is entitled to claim them instead.
  1. Right of set-off and retention/no assignment
  1. The client can only offset TEXTKING's claims against claims that are undisputed or upheld by final judgment. The client can only assert a right of retention for counterclaims arising under the same contractual relationship as the claims against which the right of retention is being asserted.
  2. Rights arising hereunder may not be assigned without TEXTKING's consent.
  1. Cancellation
  1. The client may cancel the order at any time prior to the completion of the translation.
  2. If the client cancels an order which he/she has placed, he/she must reimburse the costs incurred to that point based on the degree of completion. The minimum claim for reimbursement is 50% of the order value in any event.
  3. TEXTKING will retain the translation file and any data obtained from the client in connection with the order for archiving purposes. This data will only be deleted at the client's express request.
  1. Liability/Liability limitations
  1. TEXTKING assumes no liability for claims for losses arising under the contract or due to culpa in contrahendo, a breach of contract by a positive act, or default, except in cases of wilful misconduct or gross negligence. No liability is accepted for auxiliary staff in any case.
  2. TEXTKING is not liable for any delay or failure in performance resulting from force majeure or due to unforeseeable, temporary obstacles to performance not attributable to TEXTKING, including, but not exclusively, strikes, lock-outs or failures of other operators' gateways and communications networks.
  3. Liability for damages caused by the use of TEXTKING services, the incorrect storage or transfer of data by TEXTKING or the loss of texts or documents through the fault of TEXTKING, is restricted to proven damages. In any event, liability is restricted to EUR 200 per page and may not exceed the foreseeable sum of a maximum of EUR 10,000.
  1. No warranty
  1. TEXTKING extends no warranty that the translation is admissible or fit for the client's purpose. This particularly applies to translations that are published or used for advertising purposes. Instead, the client alone bears the legal risk of usability or publication.
  1. Confidentiality/viruses/data protection
  1. TEXTKING endeavours to maintain the confidentiality of texts entrusted to it using the latest technologies. However, TEXTKING cannot guarantee 100% confidentiality when data is exchanged electronically.
  2. TEXTKING also endeavours to examine its electronic data communications for viruses or malicious programs in accordance with the latest practices. However, even the exercise of due care cannot provide 100% protection from viruses or acts of sabotage. The client is expressly warned that a residual risk still remains.
  3. The client is hereby informed that TEXTKING automatically processes personal data in machine-readable form for purposes arising out of this contract.
  4. If TEXTKING uses third parties in the performance of its services, TEXTKING is entitled to disclose the participants' data in compliance with the provisions of the BDSG (Federal Data Protection Act). This right extends to those situations where the data has to be provided in order to identify, trouble-shoot and fix malfunctions and errors in TEXTKING's equipment or in third-party equipment which is in use.
  5. TEXTKING declares (a) that its employees and agents are bound to the strictest confidentiality and compliance with BDSG and (b) that TEXTKING has taken all the technical and administrative measures required to ensure compliance with BDSG.
  1. No recruiting
  1. The client agrees to refrain from recruiting any of TEXTKING's translators/service providers, whether employees or subcontractors, or employing them without TEXTKING's consent during its business relationship with TEXTKING and for one year thereafter. The client agrees to pay a contract penalty of EUR 20,000 for each and every culpable violation of this obligation. The payment of a penalty fee is no substitution for not complying with the recruitment prohibition agreement.
  1. Final provisions
  1. Services that do not fall within the scope of a translation service under these General Conditions and Terms of Business are not subject to these GTCs. This includes, in particular, additional services such as DTP, printing, HTML files, etc. Such services will be agreed separately.
  2. The place of performance for all contractual obligations is TEXTKING’s domicile in Bottighofen, Switzerland.
  3. E-mails and faxes meet any written form requirements which the parties may have stipulated.
  4. Contracts made on the basis of these GTCs are exclusively governed by Swiss law.
  5. Kreuzlingen (Switzerland) is deemed to be the exclusive place of jurisdiction for all disputes, claims or differences of opinion arising from, or in connection with, this contractual relationship, including its validity, invalidity, breach or cancellation.
  6. If individual provisions of this contract are invalid or void, this will not affect the validity of the remaining provisions. The invalid or void provision is to be replaced with the relevant analogous legal provisions. This applies mutatis mutandis to omissions.