Status as per 1st September 2010
§ 1 Scope
These General Terms and Conditions shall apply to all contracts concluded with Yabylon GmbH (hereinafter referred to as “Yabylon”) by a contracting party with respect to localisation, globalization, Internet and consulting services unless expressly otherwise agreed. They shall take precedence over all terms and conditions of the contracting party, even if this is expressly excluded in the General Terms and Conditions of said party. This shall be deemed as recognised by the contracting party upon contract conclusion.
§ 2 Conclusion of a contract
Orders shall be binding only if the contracting party has accepted in writing a written quotation submitted beforehand by Yabylon. In the sense of this provision, in writing shall also be deemed to include a statement sent by fax or e-mail.
§ 3 Terms of payment
Payments shall be due immediately after performance of the work and services without deductions. The statutory regulations with respect to default shall apply. Reminders, invoices and similar correspondence may also be sent electronically, and in particular by e-mail.
§ 4 Localisation and globalisation services
Localisation and globalisation services comprise in particular, but not exclusively
Items 2 to 5 will also be referred to below as “other services”.
Other services shall be subject solely to the legislation applicable to service contracts. Yabylon shall not in any case be liable for success in the sense of the law on contracts for work, but shall be responsible for proper performance of the services. In the case of all other services, the focus of the activities performed by Yabylon shall be on providing consulting for the customer. Documents which are produced by Yabylon in this context are auxiliary materials and not the due result of the contract.
b) Warranty and contract termination
In cases of liability based on fault, the liability of Yabylon shall be limited to intent and gross negligence. The maximum amount of liability shall be limited to the net order value (not including value-added tax), irrespective of the legal foundation on which liability is based. Liability for loss of profit shall be excluded. The upper liability limit shall expressly not apply to loss of life, physical injury and damage to health.
bb) Translation work
In deviation from the legal regulations, the warranty period shall be one year from delivery. In so far as not otherwise legally prescribed, warranty periods of all kinds shall commence at the latest upon delivery of the work and services to the contracting party, e.g. upon delivery of the files after completion of translation work. The contracting party shall examine the work and services immediately for defects of all kinds, and shall notify Yabylon immediately and in writing of any complaints. If the contracting party does not comply with this obligation, all warranty claims shall be excluded. If the contracting party does not expressly specify a defined terminology, particularly for the translation of certain terms, then it shall not be in any case deemed to be a defect if Yabylon uses translations with the correct meaning which can be found in general dictionaries. If the contracting party does not specify the notation of proper names or other fixed designations which cannot be represented in the Roman alphabet, Yabylon shall be entitled to use a notation which represents the sound pattern as exactly as possible without further consultation. Yabylon shall not be obliged to carry out a separate check or observe transliteration conventions defined in international agreements.
If defects are established, the contracting party shall have the rights defined in § 634 BGB (German Civil Code). However, he shall be entitled to invoke his right of self-performance (§§ 634 Item 2 and 637 BGB) or right of rescission or reduction in price (§ 634 Item 3 BGB) only if at least three attempts at remedy by Yabylon have failed. Further warranty rights, particularly claims for compensation, shall be excluded for the period of defect remedy.
If the contract is terminated prematurely by the contracting party in accordance with § 649 BGB during the performance of translation work, Yabylon shall retain its entitlement to the agreed consideration, but shall be obliged to offset flat-rate saved costs amounting to 5% of the net order value as saved costs. Notwithstanding this provision, both parties shall be entitled to prove that the saved costs were higher or lower in their favour.
cc) Other services
If Yabylon performs other services in the sense of § 4 Sub-paragraph a) Items 2 to 5 of these General Terms and Conditions, then ordinary termination of the contract shall not be possible in the cases of Items 2, 3 and 5, and the contract shall end upon delivery of the concept. The right of extraordinary termination shall not be affected. In the case of Item 4, the period of notice shall be 4 weeks.
Yabylon does not provide legal consultancy services, and shall be liable only for diligent consultancy services within the scope of other services. Yabylon shall not be liable in any case for the general business risk of the contracting party. If the contracting party terminates the contract, he shall be obliged to pay any remuneration due up to the point in time at which the termination comes into force. This shall include reimbursement for all working hours performed at the hourly rate specified in the order or, if such a rate is not specified, at the hourly rate usual for work and services of the respective kind, and shall also include reimbursement for cost of materials. Yabylon shall be entitled at any time to assert claims for losses incurred over and beyond this as a result of termination.
§ 5 Internet services
Internet services are all services offered in conjunction with presentation and communication on the Internet, and comprise in particular, but not exclusively:
b) Warranty and contract termination
The warranty provisions for localisation and globalisation services in § 4 Sub-paragraph b Section aa) shall apply analogously to all Internet services. In so far as not otherwise agreed, both parties shall have the right to terminate a contract for all Internet services with a period of notice of 4 weeks.
§ 6 Copyrights
Yabylon shall transfer to the customer all transferable copyrights and other rights with respect to the work and services performed for publication, duplication, utilisation, exploitation, dissemination, processing, conversion and modification of the work and services supplied by Yabylon, including all conceivable legal positions relating to drafts and designs in any medium and of any kind. Said transfer shall be unrestricted in time, place, purpose or any other way. It shall be subject to the condition precedent of complete payment of the agreed remuneration.
Yabylon shall be entitled to a contractual claim of restraint against the client during default of payment which is independent of copyright claims. This shall apply to the use of work results produced by Yabylon in products of the client until the contractually agreed remuneration has been paid in full.
§ 7 Written form
Contractual agreements, ancillary agreements, additions and changes to the contract with Yabylon shall be made in writing, as shall all statements within the scope of the contractual relationships such as, in particular, notice of termination and other unilateral legal transactions. This shall also apply to a change in the requirement for written form. Written form shall also include sending by fax or e-mail if adequate identification of sender and transmission time is ensured.
§ 8 Separability clause
If an invalid provision should be agreed between the parties or one of the contractual provisions become invalid, then this shall not affect the validity of the rest of the contract. The parties shall be obliged in such a case to replace the invalid provision by a valid provision which is as close as possible to the economic purpose of the omitted provision. Each party shall have the right to propose such a provision in writing; this provision shall then be deemed as agreed if the other party does not object in writing within 14 days after receiving the proposal.
§ 9 Applicable law and place of jurisdiction
All contracts concluded on the basis of these General Terms and Conditions shall be assessed exclusively in accordance with German law. The place of jurisdiction for all disputes arising from this contract shall be Berlin.
§ 10 Data storage
All data of the contracting party relevant to the order will be stored by Yabylon, whereby the data will be stored so that it is inaccessible to third parties. Yabylon shall be entitled to delete the data after a period of two years.
These General Terms and Conditions shall apply to all legal transactions with Yabylon after the date stated in the header.
The following provisions shall apply additionally if you are a consumer in the sense of § 13 BGB (German Civil Code):
Supplementary provisions for consumers
§ 1 Warranty
The reduction in the warranty period in § 4 b Sections aa to cc shall not apply. The statutory warranty periods shall apply.