These terms and conditions (T&Cs) apply to all business transactions between A.C.T. GmbH (hereinafter referred to as “ACT”) and its clients. ACT provides its services exclusively to legal entities or natural persons who are not acting as consumers (Section 13 of the German Civil Code – Bürgerliches Gesetzbuch; BGB).
By placing an order, the client acknowledges and accepts the T&Cs, which shall be valid for the entire duration of the business relationship. For a client who is not an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law (for example, private associations), this only applies if the client has been made aware of and provided with the opportunity to review these T&Cs. The T&Cs shall equally apply to future business transactions. We hereby explicitly refute any deviating purchase and other conditions used by the client.
1 Client’s obligation to participate, to explain and inform
The client is responsible for informing ACT of any special formats in which the translation is to be provided (e.g. delivery on data media, number of copies, format of the translation, exposure films, etc.). The purpose of use of the translation (certification, publication, etc.) shall also be specified. Should the translation be intended for printing, the client shall provide ACT with a copy for correction. The client shall provide the background information and documents required to produce the translation (specialist terms that are known to the client in glossary form, illustrations, drawings, explanations of abbreviations, specification of the target country, etc.) to ACT in good time without being requested to do so.
If the client does not comply with these obligations, ACT will provide the translation suitable for normal use and in accordance with generally accepted conventions for such translations.
2 Issuing of orders
The client shall issue orders to ACT electronically, in writing or text form. Orders only come into effect once a confirmation (electronic, written or text form) has been issued by ACT. Verbal side agreements and changes to orders only apply subject to ACT’s written confirmation.
3 Scope and execution of services
ACT commits to producing all translations with due care in accordance with prevailing professional standards. If no special instructions or documents are submitted by the client, technical terminology will be translated in accordance with generally accepted and/or standard conventions.
ACT shall be entitled to engage third parties in order to carry out all business transactions if it considers this appropriate and sensible. Any direct contact between the client and such third parties is subject to approval by ACT.
If required, ACT shall create a customer-specific terminology database for the client. This database is the property of ACT.
4 Quotes and prices
Unless otherwise regulated, all quotes and prices offered by ACT are subject to alteration and non-binding, unless otherwise confirmed by ACT in writing. Quotes can be adjusted to reflect actual circumstances and any alteration in scope upon notification.
All prices are indicated in euros unless a different currency has been agreed upon. All prices indicated in our quotes are net prices exclusive of tax. Payment terms, discounts and any other deductions shall not be granted unless they have been explicitly arranged between ACT and the client.
5 Delivery periods and partial deliveries
Delivery periods are indicated to the best of our knowledge and can only constitute anticipated dates of delivery. They are not binding unless explicitly agreed otherwise. The client shall be obliged to accept possible partial deliveries on the agreed terms. The client shall only be entitled to rescind the contract if the delivery period has been exceeded to an unacceptable extent and if the client has set a reasonable grace period in writing.
6 Acceptance and rejections
The acceptance of the service or delivery, including partial deliveries, is a primary obligation of the client. If the client refuses or neglects acceptance, the client shall be in default of acceptance and shall be held responsible by ACT for all damages arising from this default.
If the client is a merchant (Sections 1 and 2 of the German Commercial Code – Handelsgesetzbuch; HGB) and submits no written objection without undue delay but no later than within seven working days, the translation shall be considered approved with respect to defects that are obvious. If the client makes a complaint within this seven-day period pertaining to an objective, not insignificant defect, this defect must be explained in as much detail as possible.
In the case of justified, properly submitted complaints, ACT is obliged to amend or exchange the translation or service whichever the client chooses. If such rectification fails, the client is entitled to to reduce the price or rescind the contract. Further claims, including damages for non-compliance, shall be subject to Clause 9 (Liability).
7 Disruptions, force majeure, network and server errors, viruses
ACT shall not be liable for losses which arise due to disruptions to its operations due to force majeure, for example natural disasters and transport disruptions, network and server errors, any other line or transfer failures, as well as other hindrances for which it is not responsible. If any such exceptional situation continues for more than four weeks, ACT and the client shall be entitled to rescind the contract in full or in part.
ACT’s IT equipment is regularly checked for viruses. Nevertheless, the client shall be responsible for carrying out a final virus check of the delivered or provided data and/or text files upon delivery.
ACT shall be liable in accordance with statutory provisions for (i) damages to life, body or health caused by negligence or wilful misconduct, (ii) other damages caused by gross negligence or wilful misconduct, and (iii) damages caused by negligent breaches of a contractual obligation which must be fulfilled in order allow proper performance of the agreement (die erfüllt werden müssen, um die ordnungsgemäße Durchführung des Vertrags zu ermöglichen) and on fulfillment of which the other party usually relies and may rely (auf deren Einhaltung die andere Partei regelmäßig vertraut und vertrauen darf) (so-called essential obligations or cardinal obligations). However, in cases covered only by point (iii) (but not points (i) or (ii)) of the preceding sentence, ACT’s liability shall be limited to the typical and foreseeable damage. In all other cases, the liability of ACT under any theory of law shall be excluded.
In the case that ACT furnishes a guarantee or otherwise assumes strict liability, ACT shall be fully liable in accordance with the terms of the respective declaration or, insofar as the declaration is silent, statutory law. The limitations of liability set out in the preceding paragraph will not be applicable unless otherwise set out in the respective declaration.
This clause shall also apply mutatis mutandis for the liability of subcontractors of ACT as well as the liability of employees, representatives, entities, and other members of staff of ACT or said subcontractors.
9 Transfer of rights
The transfer of rights under a contract by the client requires written consent from ACT. Section 354a of the German Commercial Code shall remain unaffected.
10 Terms and conditions of payment
Unless otherwise agreed, ACT will invoice the fee to the client immediately upon completion of the translation. Our fee shall be due immediately and shall be settled by bank transfer, check or in cash. The client shall be in default of payment if it fails to settle the invoice within 30 days from receipt of the invoice. In the case of payment default, ACT shall be entitled to rescind contracts with respect to outstanding deliveries or pursue a claim for damages due to non-performance, following the expiry of a reasonable period of grace. We shall further be entitled to exercise the right of retention in respect of all outstanding deliveries or to request advance payment upon giving prior notice. In the case of default, ACT shall further be entitled to charge the statutory interest from the day of entering default.
11 Retention of title
ACT shall retain ownership of its work product until all respective payment claims have been settled in full. The client has a right of use only after full payment has been received. If the product is sold to a third party by the client, ACT retains the right to inform this third party of our outstanding claim and the resulting unlawfulness of the use of the product in question, and potentially to demand payment of all outstanding sums and resulting expenses.
12 Shipment, transmission
Shipment or electronic transmission is made at the risk of the client.
All texts shall be treated as confidential and ACT undertakes to maintain secrecy concerning any and all facts that may become known to it in connection with its work for the client. To the extent that the texts for translation include personal data, ACT will be a separate controller, and will process such data in accordance with the Regulation (EU) 2016/679 (General Data Protection Regulation).
Should claims for damages be brought against ACT due to a translation that infringes copyrights for which ACT is not responsible, the client shall fully release ACT from any liability insofar as the client has acted negligently or intentionally.
ACT (the translator, typesetter, graphic designer, etc.) shall retain the copyright of the works created. The licensing of the copyright must be agreed upon in writing for each individual item.
15 Amendments to the terms and conditions (T&Cs)
ACT is entitled to amend the T&Cs at any time without prior notice. By placing an order after having become aware of such amendment, the client acknowledges and accepts the amended T&Cs for said order and future orders. For a client who is not an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law, this only applies if the client has been made aware of and provided with the opportunity to review the amended T&Cs.
16 Applicable law, place of performance and place of jurisdiction
The contractual relationship and other business relationships between ACT and the client shall be subject exclusively to the law of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
If the client is a merchant (Sections 1 and 2 of the German Commercial Code), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction and place of performance of all disputes for both contracting parties shall be the place of business of ACT, currently Mönchengladbach, Federal Republic of Germany.
17 Final provisions
Collateral agreements, assurances and other agreements as well as changes and amendments to the contract are only effective if made in writing. If any of the terms of this agreement become fully or partially void or ineffective, the remaining parts of this agreement shall remain unaffected.
(Version: March 2020)