General Terms and conditions of Loctimize GmbH
§ 1 Scope
- These General Terms and Conditions shall apply exclusively to all contracts which a contracting party concludes with Loctimize GmbH (hereinafter referred to as "Loctimize"), unless explicitly agreed otherwise. They shall take precedence over all General Terms and Conditions of the contracting party, even if this is explicitly ruled out in such contracting party’s General Terms and Conditions. The contracting party recognizes this by signing the contract.
§ 2 Subject Matter of the Contract
- Training services as defined in these provisions are all kinds of further training activities, including seminars, webinars, workshops and lectures. Documents drawn up by Loctimize in this context are aids, not the result of the contracted services. Insofar as a final consultation report has been agreed, this shall not be deemed to be an expert report, but shall be deemed to merely document the content of the consultation process flow and its results.
- Support services are all kinds of on-site, telephone and online support provided by Loctimize to support its customers. These services include support by telephone, email and online via desktop sharing for all products in respect of which we provide training, e.g.: Across, memoQ, SDL MultiTerm, SDL Passolo, SDL Trados, Wordfast.
- Consultancy services shall be deemed to mean the provision of the necessary examinations, analyses and communication of the conclusions arising from the aforementioned to the customer.
- Software applications include the customization of third party software to the operational requirements of the customer. In this respect the results agreed in writing prior to order confirmation shall be deemed to have been agreed. For contractual obligations please refer to the individual order.
- Certification Procedure and Audit Services
- Loctimize is an official sales partner of the certifying body Austrian Standards plus, and as such performs audits on site or by telemonitoring leading to the LICS® certification. The LICS®logo is a registered trademark of Austrian Standards plus GmbH.
- Audit services means all services offered by Loctimize as partner of Austrian Standards plus GmbH. Re-audits for LICS® certification take place at intervals of two years and are subject to a separate offer.
- Austrian Standards plus GmbH, Heinestraße 38, 1020 Vienna, Austria, is the contracting party for certification services leading to the LICS® certification. In this context the General Terms and Conditions for the certification system “ON Certified Service” of Austrian Standards plus shall apply.
§ 3 Conclusion and Performance of the Contract
- Orders shall be binding only if the contracting party has accepted a written quotation previously sent by Loctimize. Offer and acceptance must be transmitted in writing (§ 126b Bürgerliches Gesetzbuch); a statement transmitted by telefax or email shall suffice.
- In the case of consultancy services, performance shall be deemed fulfilled when the necessary examinations, analyses and the resulting conclusions have been drawn up with the customer. Whether, when or how the conclusions or recommendations are implemented is immaterial.
- In the case of training services, performance shall be deemed fulfilled when the such training events have been carried out. Whether, when or how the knowledge and skills provided are implemented is immaterial.
- Loctimize shall be entitled to employ independent subcontractors and staff, notwithstanding its own direct obligations.
- Contractual arrangements, subsidiary agreements, supplementary provisions and alterations to the contract with Loctimize must be effected in writing (§ 126b Bürgerliches Gesetzbuch). The same applies in regard to all statements within the contractual relationship, in particular its termination and other unilateral legal acts. This shall also apply to any change concerning the formal requirement itself.
§ 4 Non Disclosure and Data Protection
- For the duration of the contract period and following the delivery of the contracted services Loctimize shall observe strict professional discretion and not disclose any business or customer-related facts of which Loctimize gains knowledge in connection with the execution of the order. Loctimize shall also oblige its subcontractors and staff to observe strict professional discretion and non-disclosure. Loctimize may not pass on any of the above-mentioned facts to third parties without the client’s prior written consent.
- The obligation to observe strict professional discretion and non-disclosure shall be deemed not to be infringed if
- such information is to be made public on foot of a final judicial or administrative ruling, or on foot of a law, or
- publication is effected for the purpose of litigation by Loctimize, or such information was available to the public prior to receipt of same by Loctimize, or
- such information was available to the public following receipt of same without the recipient of the information bearing responsibility for this, or
- such information was known to the recipient of the information prior to receipt of same, or was independently developed by him.
- The contracting party confirms that they are entitled to permit Loctimize or its subcontractors and staff to store and process the third party personal data supplied to them, as defined in the Bundesdatenschutzgesetz (German Federal Data Protection Act), so as to allow Loctimize to perform the contracted service.
- The collection, storage, amendment or transmission of personal data in the meaning of § 3 BDSG (Federal Data Protection Act), made available by the customer, or their utilization in pursuit of the customer’s own business purposes, shall be permitted within the scope of §28 BDSG (Federal Data Protection Act). Loctimize is entitled to delete such data after a period of two years.
§ 5 Obligation of the Customer to Cooperate
- The customer is obliged to do his utmost to support Loctimize and if required to create the necessary preconditions in his operating surroundings to allow due execution of the order. In particular, the customer shall provide Loctimize with the documents and information necessary to perform the services and shall provide the required number of rooms, the technical equipment and staff free of charge. The customer shall also comply with the provisions of the Employees’ Representation Act (Betriebsverfassungsgesetz) and the Personnel Leasing Act (Arbeitnehmerüberlassungsgesetz).
- If necessary, the contracting partner shall procure the approval of third parties.
- On conclusion of the contract, the contracting partner shall name the person or persons whose technical and contractual declarations are binding for the contracting partner. In the event that such a person is replaced, Loctimize must be informed without delay and in writing.
- The necessary technical conditions for the participation in or retrieval of on-line training or support measures or the related information are noted on the home page of Loctimize (www.loctimize.com). Loctimize shall not be responsible for how the respective technical requirements are met by of the customer. The customer shall receive access authorization (password) for the duration of the online training course. He must treat this confidentially and protect it from abuse by third parties. Loctimize reserves the right to block the password if it gains knowledge of abuse (e.g. disclosure of the password to unauthorized third parties).
§ 6 Remuneration, Terms of Payment, Set-off
- The remuneration for the services provided by Loctimize is calculated according to the time required for the activities (time-based fees) or is agreed in writing as a fixed price. Fees based on the degree of success, or payable in case if success only, are excluded.
- Remuneration is due immediately on performance of the service and is payable due net plus statutory value-added tax, unless explicitly agreed otherwise.
- Cancellations of training courses are possible free of charge up to 2 months before commencement of a training course. For cancellations received up to 1 month before the agreed date, Loctimize shall charge 30% of the price as cancellation costs, and thereafter the full price.
- Set-off against customer claims shall only be possible if such claims are undisputed or have been established as legally binding.
§ 7 Guarantee and Statute of Limitation
- Loctimize shall accept liability - irrespective of the cause in law - for any damage caused with intent or by gross negligence. In the case of slight negligence we shall accept liability only for any loss arising from injury to life, body, or health, and for any loss arising from the breach of a material obligation under the contract (obligations whose fulfillment make the proper performance of the contract possible in the first place and on whose fulfillment the contracting party must be able to rely on regularly).
- Insofar as we are liable for damages on the merits of a claim this liability shall be limited to the extent of the possible damage which we anticipated, at the time of entering into the contract, as a possible consequence of a breach of the contract or should have anticipated when taking into account the circumstances known to us, or which we should have anticipated while due care was exercised. Also, indirect loss (in particular lost profit or operational disruptions during training sessions) and consequential loss attributable to defects in the goods or services delivered is only recoverable if such loss can typically be expected if the delivered goods or services are used for their intended purpose.
- The above exclusions of and restrictions on liability shall also apply for the benefit of our executive bodies, legal representatives, employees and other vicarious agents.
- The restrictions do not apply in respect of our liability on the grounds of intentional behavior, for the guaranteed nature of the goods or services in question, for injury to life, body or health or under the provisions of the Product Liability Act.
- We do not assume any liability for the success of the training services in the meaning of §2 I. Loctimize owes the execution of the training program in accordance with the training concept as agreed with the customer. Beyond this the customer shall not be entitled to a particular content of the training program.
- In relation to the Webinars it should be noted that the uploaded documents might be subject to updating at any point in time. In the event that a Webinar does not take place due to a technical fault for which Loctimize is responsible, Loctimize shall be entitled to repeat the training session at a later date to be agreed between the contracting parties.
- In the case of software applications Loctimize shall only be liable for the result agreed in writing prior to order confirmation.
- Our support services are available by telephone and email Monday to Friday between 9.30 am and 6 pm. We will endeavor to be available also outside the times specified and to respond to your queries by email as quickly as possible.
- We only owe the provision of the support services but not their successful outcome.
- The costs of the support shall be charged to the customer and shall be invoiced on a monthly basis.
- In regard to consultancy services we owe their proper execution on the basis of state of the art analyses and examinations. We do not owe any success in regard to the advice as implemented by the customer.
- The analyses and examinations are based on the information provided to us by the customer. Loctimize shall carry out a plausibility check only on the information provided. Loctimize shall not be liable if any error in the analyses and examinations is due to incorrect information having been provided.
- Loctimize is an official sales partner of the certifying body Austrian Standards plus, and as such is contracted to perform external audits and monitoring in the meaning of the General Terms and Conditions governing the „On Certified Service“ certification system of Austrian Standards plus GmbH, Heinestraße 38, 1020 Vienna, Austria.
- Loctimize has no influence whatsoever over the awarding of such certification. Loctimize merely provides non-binding recommendations to Austria Standards plus on the basis of the audit performed. Loctimize shall not be liable for the awarding, the refusal to award, or the revocation of a certificate.
- Loctimize as sales partner performs audits leading to the LICS® certification. Loctimize does not owe the applicant any particular outcome of the audit, but merely the preparation and execution of the audit.
- The customer himself is liable for damage of any kind caused by him in rented premises.
- Performance and warranty claims become statute-barred within one year. Claims for the rectification of defects must be asserted without delay.
§ 8 Liability
- Insofar as the results of Loctimize's work are protected by copyright, Loctimize shall remain the author and shall retain all rights. This applies in particular to concepts and material produced.
- The customer may use the results, finished products and documentation produced by Loctimize for his own purposes only and exclusively, and may not pass them on to third parties.
- The customer is not permitted to reproduce, record in data-processing media or to disseminate in any form, said materials, in full or in part, without Loctimize’s prior written approval.
- The use of the services provided for companies associated with the customer requires a separate written agreement.
§ 9 Delay in Acceptance and Failure of the Customer to Cooperate
- If the customer delays acceptance or if he fails to provide the cooperation incumbent on him despite a warning notice and setting of a deadline, Loctimize is entitled to terminate the contract without notice.
- Notwithstanding the assertion of this claim for termination, Loctimize shall be entitled to compensation for the damage or additional expenditure caused by the delay in performance or by the failure to cooperate. This also includes additional expenditure caused by work having to be repeated by Loctimize or being delayed as a result of incorrect, subsequently corrected, incomplete or delayed information received from the customer.
§ 10 Default in Payment by the Customer
- The statutory provisions relating to default in payment shall apply. Reminders, invoices and other letters may also be transmitted electronically, in particular by e-mail.
- During the default period, Loctimize is entitled to a contractual cease-and-desist order against the customer, notwithstanding any copyright claims. This shall apply to the use by the customer of the work results produced by Loctimize, until the contractually agreed remuneration has been paid in full.
- In addition, Loctimize may also suspend all other services, including those from other contracts with the customer, until the contractually agreed remuneration has been paid in full.
§ 11 Force Majeure
- Loctimize shall not accept liability for delays or defects for which it is not responsible (force majeure). In this case, Loctimize is entitled to suspend the provision of services for a reasonable period of time. Strikes, lockouts as well as the death or longer illness of a person involved in the project are also considered to be force majeure.
§ 12 Termination of Contract
- Contracts for services generally end with the conclusion of the agreed measure or with the presentation of the concept, and do not require a separate notice of termination.
- This does not affect the right to extraordinary termination of the contract. An extraordinary termination of contract must be effected in writing.
- If the contracting partner terminates the contract, he is obliged to pay any remuneration due up to the point in time at which the termination comes into force. This includes compensation for all working time according to the hourly, half-daily, daily or project rates specified in the order or, if such rates have not been specified, according to Loctimize's usual rates for services of the type in question, as well as for materials and other expenses. Loctimize shall be entitled at any time to assert claims for additional damage caused by the termination of the contract. These claims for damage also include all costs incurred by Loctimize for legal proceedings.
§ 13 Right of Retention
- Until the full and final settlement of all claims, Loctimize has a right of retention of documents placed at its disposal; the exercise of this right is, however, deemed to be in breach of trust if retention would cause unnecessary damage to the customer, damage which cannot be justified if the interests of both parties are taken into account. After settlement of its claims arising from the contract, Loctimize must surrender all documents which the customer or a third party placed at the disposal of Loctimize for purposes of the execution of the order.
- This provision does not cover normal business correspondence or copied documents of which the customer has kept the originals.
§ 14 Choice of National Law, Place of Fulfillment, Place of Jurisdiction and Contract Language
- All contracts concluded on the basis of these General Terms and Conditions shall be adjudicated on exclusively in accordance with German law.
- The place of fulfillment for Loctimize and the contracting partner shall be Saarbrücken.
- The place of jurisdiction for all disputes between the contracting parties is Saarbrücken.
- The contract language is German.
§ 15 Amendments to the General Terms and Conditions
Loctimize is entitled at all times to amend or supplement these General Terms and Conditions. Loctimize shall advise contracting parties of any amendments to the General Terms and Conditions. If the customer does not object to such amendments in writing within 4 weeks following receipt of the notification of amendment, same amendments shall be deemed to have been accepted.
§ 16 Severability clause
If an invalid provision should have been agreed between the parties to the contract, or if one of the contractual provisions should become invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties undertake to replace the invalid provision with a valid provision coming as close as possible, in legally permissible terms, to the economic purpose of the invalid provision.