Article 1 Definitions

In the absence of an explicit provision to the contrary, the following terms in these general terms and conditions (hereinafter referred to as: ‘these Conditions’) will mean:

The Translation Agency: Tupelo Translations, with its registered office at Zwaerdecroonstraat 52B, 3021 WV, Rotterdam, the Netherlands, listed in the Commercial Register under number: 24468143, VAT no.: NL136167883B01, the contractor.

Client: any party (natural or legal entity) who enters into an Agreement with the Translation Agency or to whom the Translation Agency has submitted an offer to which these Conditions apply.

Agreement: any contract, concluded in whatever way, between the Translation Agency and the Client, any changes or additions to it, as well as any actions or legal actions taken in preparation of, and in execution of, that Agreement.

Assignment: any instruction, given by the Client to the Translation Agency to provide services or delivers goods, which comes into effect between the Translation Agency and the Client by means of an Agreement. The applicability of Sections 404 and 407 (2) and 409 of Book 7 of the Dutch Civil Code (hereinafter: “DCC”) is explicitly excluded, regardless of the way in which this occurred.

 

Article 2 Applicability

2.1 These Conditions apply to any legal relationships in which the Translation Agency acts as a party, between in any event the Translation Agency and the Client. All the provisions of these Conditions are effective between the parties, to the extent that the parties have not explicitly derogated from these Conditions in writing.

2.2 The applicability of any conditions or general terms and conditions other than those used by the Translation Agency are hereby expressly rejected. Conditions or stipulations which derogate from these Conditions only apply if and insofar as they have been expressly accepted by the Translation Agency in writing and, if that is the case, they apply exclusively to the Agreement for which they have been accepted.

2.3 These Conditions also apply to all Agreements for which third parties are engaged in order to carry them out.

2.4 If the Translation Agency tacitly permits derogation from these Conditions, this will not affect its right to demand immediate and strict compliance with these Conditions. The Client may never enforce any right, or have any rights enforced, on the basis that the Translation Agency applies these Conditions flexibly, and/or does not always demand strict compliance with the provisions of these Conditions.

2.5 If and insofar as any provisions of these Conditions are wholly or partly null and void or are voidable, the other provisions of these Conditions will remain in full force. In that event, the Translation Agency will draw up provisions to replace the void and/or voidable provisions. In doing so, the purpose and meaning of the void or voidable provision will, as far as possible, be taken into account.

2.6. A lack of clarity as regards the content of these Conditions, or if there are any circumstances that have not been regulated by these Conditions, are to be interpreted in the spirit of these Conditions.

2.7 Once the Client has entered into an Agreement under these Conditions, it is considered to have tacitly agreed to the applicability of these Conditions to later Agreements concluded with the Translation Agency.

Article 3 Quotations and Formation of Agreement

3.1 Any offer, quotation or other communication by or on behalf of the Translation Agency is entirely free of obligation.

3.2 The Translation Agency may at any time revoke or change prices and delivery dates quoted if it has not had the opportunity to view the entire text to be translated or edited, prior to providing such quote.

3.3 The Agreement will only become effective when the Client accepts the Translation Agency’s quotation in writing or when the Translation Agency confirms the Assignment in writing within 8 (eight) days, or once the Translation Agency has made a start on executing the Assignment within 14 (fourteen) days of receiving it. The provision included in the previous sentence also applies to changes to Assignments. The confirmation of Assignment is deemed to completely represent the Agreement.

3.4. Arrangements and commitments made by the Translation Agency’s representatives or staff will only bind the Translation Agency after it has explicitly confirmed these in writing.

3.5 If the acceptance derogates from the quotation, then the Translation Agency will not be bound by it. As a result, the Agreement will not become effective in line with this derogated acceptance, unless the Translation Agency explicitly accepts it in writing. Earlier quotations, prices and/or rates do not automatically apply to new Assignments.

3.6 If, in the interest of the Client, the delivery of services and/or goods, wholly or in part, is required immediately, or if the Client has explicitly requested immediate delivery of services and/or goods, the Agreement is considered to have become effective once the Translation Agency has actually proceeded to start to deliver the services and/or goods, wholly or in part, to the Client.

 

Article 4 Amendment to the Assignment or Circumstances

4.1 If the Client makes changes, other than minor ones, to the Assignment after the Agreement has become effective, the Translation Agency is entitled to modify the delivery term and/or the fee or to refuse the Assignment. In the latter case, the Client is obliged to pay for that part of the Assignment that has already been carried out.

4.2 If the Client cancels an Assignment, it is obliged to fully pay for that part of the Assignment that has already been carried out. Moreover, if applicable, the Client must pay a fee, on the basis of an hourly rate, for research activities already carried out for the remaining part. The Translation Agency will make the work already carried out available to the Client, if so required. In that case, the quality of the work delivered cannot be guaranteed.

4.3 If the Translation Agency has reserved time to carry out the cancelled Assignment, the Translation Agency may charge the Client a 50% (fifty percent) fee, in compensation, for the part that has not been carried out, which the Client is expressly obliged to pay.

4.4 If the circumstances in which the Agreement was drawn up between the Client and the Translation Agency, change in such a way that, as a result, compliance with the Agreement, or a part of it, cannot reasonably be expected from one of the parties, the parties agree to consult one another about interim changes to the Agreement.

4.5 If the changed circumstances arise through actions of the Client, any costs incurred arising from additional work will be charged to the Client, which the Client is expressly obliged to pay.

 

Article 5 Performance

5.1 The Translation Agency is free to perform the contract as it sees fit, and when doing so, will observe the requirements of professionalism.

5.2 The Translation Agency is entitled to have certain activities performed by third parties.

5.3 Agreements will only be defined as an obligation to perform to the best of one’s abilities and may never contain an obligation to produce a certain result.

5.4 The Translation Agency bases the execution of its activities on the information and data provided by the Client. The Translation Agency may assume that the information provided by the Client is correct. The sending of this information always takes place at the risk and expense of the Client.

5.5 The Client ensures that it will provide the Translation Agency with any information, in good time, which the Translation Agency indicates is needed or which the Client should reasonably understand is needed for the execution of the Agreement. If possible, the Client is obliged to honour any request for information by the Translation Agency about the content of the text to be translated.

5.6 If the information needed for the execution of the Agreement is not provided to the Translation Agency in good time, the Translation Agency is entitled to suspend performance of the Agreement and/or charge the Client any costs incurred as a result of the delay, at the customary rates.

5.7 If its service is based on inaccurate and/or incomplete information provided by the Client, the Translation Agency is not liable for damage of any kind of damage whatsoever.

5.8 An agreed deadline for the supply of a service by the Translation Agency will never be considered as a strict deadline, but merely as a guideline, unless otherwise explicitly agreed in writing. An agreed deadline will start from the time that the Client provides the Translation Agency with all the information it has requested.

5.9 Both during and for up to one year after the end of the Agreement with the Translation Agency, the Client is prohibited, in its or in any other party’s interest, from maintaining contact with or contacting, providing an Assignment to, or collaborating with, at or for, or being involved in/ having a (financial) interest in, third parties hired by known and/or demonstrable business relations and former employees of the Translation Agency, directly or indirectly, for payment or for no consideration, in any form whatsoever, without the prior explicit written consent of the Translation Agency.

5.10 If the Client acts in breach of the provisions of this Article’s previous paragraph, it will be liable to pay the Translation Agency a fine of € 5,000.00 (in words: five thousand euros) for each breach, without any further notice of default being required, with a further payment of € 500.00 (in words: five hundred euros) for each day that it continues to be in breach, without prejudice to the Translation Agency’s right to claim full compensation instead.

Article 6 Fee and Payment

6.1 The Client owes a fee for the performance of the Assignment… In principle, the fee is based on the Translation Agency’s current rate, unless otherwise agreed. As well as its fee, the Translation Agency may also charge the Client for disbursements, such as travelling and shipping costs, associated with the performance of the Assignment. A minimum rate per language combination may be charged for each Assignment.

6.2 If the parties have agreed a fixed price prior to the execution of certain services, and the provision of these services results in required additional work/performances that cannot be reasonably considered to be included in the fixed price, the Translation Agency will inform the Client in advance of the financial consequences thereof.

6.3 The Translation Agency is entitled to increase the agreed price if it is forced to perform more work or incurs more costs than might reasonably have been foreseen on conclusion of the Agreement, as a result of having to work with very time-consuming texts, unclear copies or faulty files or computer programmes supplied by the Client. The above overview is not exhaustive.

6.4 All amounts given are exclusive of VAT and other government levies.

6.5 Pending the completion of the Agreement, the Translation Agency is entitled to send interim invoices.

6.6 Invoices must be paid (net of VAT) in the currency stated in the invoice within 14 calendar days of the invoice date, unless explicitly agreed otherwise, in writing, with the Translation Agency, without applying a discount, deduction or suspension. In the event of an overdue payment, the Client will be in immediate default, without notice of default being required, and will owe statutory interest on the invoice amount due, plus two percent, as well as the extrajudicial costs incurred or owed by the Translation Agency, from the date of default until settlement in full.

6.7 The extrajudicial costs will be calculated in accordance with the collection charges of the Netherlands Bar Association [Nederlandse Orde van Advocaten]. In the event that the Translation Agency incurs higher costs, which were reasonable and necessary, these costs will also be borne by the Client, as will any legal and enforcement costs incurred.

6.8 The Translation Agency has the right of retention in respect of all information, documents and other products of the Client until the Client has paid everything it owes the Translation Agency.

6.9 Payments made by the Client will always first be applied to settle any interest payable and costs, and secondly the due and payable invoices that have been outstanding for the longest period.

6.10 If, in the Translation Agency’s opinion, the Client’s financial position or payment record gives cause to do so, the Translation Agency will be entitled to request the Client for immediate or additional security in some form to be decided by the Translation Agency or for an advance payment. If the Client fails to provide the requested security, the Translation Agency will be entitled, without prejudicing any of its other rights, to immediately suspend further performance of the Agreement, and everything that the Client owes the Translation Agency will become immediately due and payable. The Translation Agency is not liable for any damage that may arise from such a suspension of performance.

6.11 In the event of the Client’s liquidation, bankruptcy/insolvency or if there is a suspension of payments, all of the Translation Agency’s claims as well as the obligations of the Client to the Translation Agency, will become immediately due and payable.

Article 7 Complaints

7.1 To avoid the risk of lapsing, complaints about the Assignment that has been carried out, or invoices, must be notified to the Translation Agency as soon as possible in writing and at most within ten (10) days of sending. Expressing a complaint does not release the Client from its payment obligation. The previous sentence also applies in the case of a complaint about the amount of an invoice.

7.2 Should the Client question the accuracy of specific passages of the translation supplied by the Translation Agency and asks for comments, and should the Translation Agency subsequently be able to demonstrate that the passages in question are not incorrect, the Translation Agency will be entitled to charge the Client in full for the additional time spent on dealing with the query and for any other related expenses incurred.

7.3 If the Client does not lodge a complaint within the period specified in Article 7.1 above, the Client will be deemed to have fully accepted the services rendered by the Translation Agency, and complaints will only be handled if the Translation Agency, at its sole discretion, deems such to be expedient. Any changes made by the Translation Agency, at the Client’s request, to any part of the translated or edited text, will not constitute an acknowledgement by the Translation Agency of supplying an inferior service.

7.4 The Client’s right to file complaints lapses if the Client has edited that part of the services rendered (or has had it edited) which is the subject of the complaint, regardless of whether the Client has subsequently supplied the product to a third party or not.

7.5 In the event of a timely complaint about the Assignment that has been performed, the Translation Agency is free to choose between changing the rate charged, improving or re-performing the rejected activities free of charge, or terminating part of the contract (or remaining work) in exchange for a refund proportionate to the amount already paid by the Client. If it is no longer possible or useful to perform the activities agreed upon, the Translation Agency will only be liable within the limits laid down in Article 8 of these Conditions.

Article 8 Liability and Indemnity

8.1 The Translation Agency is only liable to the extent that this is reflected in this Article. Limitations on the Translation Agency’s liability do not apply if the damage is intentional or attributable to gross negligence on the part of the Translation Agency.

8.2 The Translation Agency will never be liable to the Client for costs, damage and interests, which might be incurred by the Translation Agency or third parties as a direct or indirect consequence of acts or negligence of persons employed by the Translation Agency or third parties engaged by the Translation Agency or of services provided, supervised or not by the Translation Agency or of anything delivered by the Translation Agency.

8.3 The Client is obliged to indemnify and compensate the Translation Agency against any damage, costs and interests, for which the Translation Agency could be held liable by third parties with respect to the provisions in the previous paragraph. The Client also explicitly indemnifies the Translation Agency against any claims from third parties regarding any intellectual or industrial property right concerning information, provided by the Client to the Translation Agency, which is used for the performance of the Agreement.

8.4 A translation mistake will not be considered as an attributable failure by the Translation Agency, unless the damage for the Client arises from apparent negligence and incompetence of the Translation Agency.

8.5 The Translation Agency will in any event never be liable for the following forms of damage: indirect damage, consequential damage, trading loss, loss due to delay and loss of profit.

8.6 The Translation Agency’s liability is in any case limited to the invoice amount, exclusive of VAT, of the already invoiced and/or delivered part of the Assignment in question. Moreover, the Translation Agency’s liability is in all cases limited to an amount of € 2,500.00 (in words: two thousand five hundred euros) per occurrence or per related series of occurrences.

8.7 Ambiguity of the text to be translated releases the Translation Agency from any liability.

8.8 The Translation Agency will not be liable in the case of force majeure.

8.9 Whether the use of a text to be translated or edited, or a translation or an edited version thereof delivered by the Translation Agency, involves certain risks of personal injury, remains entirely at the risk and expense of the Client.

8.10 The Translation Agency will not be liable for damage to or loss of the documents, information or information carriers provided to perform the Agreement. Nor will the Translation Agency be liable for costs and/or damage arising as a result of using information technology and telecommunication resources, or of the transport or the sending of information or information carriers, or of the presence of computer viruses in files or information carriers, provided by the Translation Agency.

8.11 If the Client provides information carriers, electronic files or software and suchlike, to the Translation Agency, the Client guarantees that these materials are free from viruses and defects. Any damage arising from the use of these materials will be compensated by the Client.

Article 9 Suspension and Termination

9.1 The Translation Agency is entitled to suspend performance of the Agreement if the Client does not comply with the payment conditions, or does not fulfill its obligations in some other way; all this without prejudice to the Translation Agency’s right to claim damages.

9.2 Agreements may be terminated early with the Translation Agency’s consent and in accordance with the stipulations in this Article.

9.3 If the Client terminates the Agreement early, the Translation Agency is entitled to be compensated for the costs incurred up to that moment. If the Translation Agency terminates the Agreement early, the Client is entitled to the Translation Agency’s cooperation in the transfer of the activities to third parties, unless the termination is based on facts and circumstances that are attributable to the Client. If an advance payment was made, it will, in consultation, be paid back pro rata if reasonably necessary.

9.4 In the event of the Client’s liquidation or if an application is submitted with respect to the Client for a suspension of payments or bankruptcy, or to attach the Client’s assets – if and to the extent that the attachment is not revoked within three months – the Translation Agency is free to terminate the Agreement at once and with immediate effect, without any obligation on its part to pay damages or other compensation. Notice of default is not required for this and nor is judicial intervention. In that case, the amounts the Client owes the Translation Agency will become immediately due and payable.

Article 10 Force Majeure

10.1 The Translation Agency is not obliged to fulfil any obligation if it is obstructed from doing so as a result of a circumstance for which it cannot be blamed or which, by virtue of the law, a legal act or common opinion, is not for its account.

10.2 During the period of force majeure, the Translation Agency may suspend its obligations under the Agreement. If this period continues for longer than one month, both parties are entitled to terminate the Agreement, without any obligation to pay damages to the other party. If the situation above occurs when part of the Agreement has already been performed, the Client must fulfil the obligations it has incurred to the Translation Agency up to that moment. In that event, the Translation Agency is entitled to separately invoice any work that has already been performed and any work still to be performed.

10.3 In these Conditions, in addition to the definition provided by law and case law, force majeure is understood to mean all external, foreseeable or unforeseeable causes which the Translation Agency cannot influence, but which, as a result, partly or wholly prevents it from fulfilling its obligations to the Client, or as a result of which the Translation Agency cannot reasonably be expected to fulfil its obligations. These circumstances also include any government measures, illness, fire, earthquakes, theft, operational and power failures, force majeure affecting an engaged third party and technical failures.

Article 11 Intellectual and Industrial Property

11.1 Unless explicitly agreed otherwise in writing, the copyrights to translated work provided by the Translation Agency transfer to the Client once it has completely fulfilled all its financial and other obligations to the Translation Agency regarding the Assignment concerned.

11.2 The Client is not allowed to publish, reproduce and/or use to translation, as long as the copyrights thereof are still vested in the Translation Agency.

11.3 The Translation Agency tolerates the use of the translation in which the Translation Agency’s copyright is vested, during a period of 30 days from the date the Translation Agency sends the invoice.

11.4 If the prohibitions referred to in the above-mentioned paragraphs of this Article are breached, the Client incurs a penalty, which is not subject to mitigation, of an amount that equals 10% of the invoice amount each day that the translation continues to be used unlawfully. In addition, the Client undertakes to impose both the prohibition contained in this Article and the penalty clause on its legal successors in the form of a perpetual clause, so that these legal successors and their legal successors are bound to the Translation Agency in this regard as well.

11.5 If the obligation laid down in the previous paragraph is not met, the Client or the Client’s legal successor will owe the Translation Agency an immediately due and payable penalty, which is not subject to mitigation, of € 2,500.00, ((in words: “two thousand and five hundred euros”, per breach.

Article 12 Confidentiality and Due Care

12.1 Both the Translation Agency as well as the Client guarantee that all information received from the other party will be treated as, and remain, confidential.

12.2 The Client will not publish the contents of documents, translations, advice, email messages and/or written or other communication of the Translation Agency, which were not drafted or made with the intention of making the information laid down therein known to third parties, unless the Translation Agency has given its explicit written consent thereto.

12.3 The parties will impose the obligations in this Article on any third parties engaged by them. The obligations in this Article will also remain in force after the termination of the Agreement.

Article 13 Concluding Provisions

13.1 All goods delivered by the Translation Agency in the context of an Agreement, will remain the Translation Agency’s property, until the Client has properly fulfilled all its obligations arising from the Agreement(s) concluded with the Translation Agency.

13.2 The Translation Agency is at all times authorised to make amendments to these Conditions. These amendments will become effective on the announced date of entry into force. The Translation Agency will send the amended Conditions to the Client in a timely fashion. If no date of entry into force has been communicated, the amendments will come into force for the Client as soon as they have been communicated to it.

13.3 The Dutch text of these Conditions is binding and decisive for the interpretation thereof.

13.4 Dutch law applies to all legal relationships between the Client and the Translation Agency.

13.5 Any disputes ensuing from or related to the legal relationship between the Client and the Translation Agency, will exclusively be brought before the Rotterdam District Court in the Netherlands.

13.6 These Conditions have been filed with the Chamber of Commerce on 29 July 2016. The most recently filed version or the version which was in force at the time the legal relationship with the Translation Agency was established, will always be applicable.

A copy of these Conditions will be sent to an applicant at any time, upon request and at no charge.