general terms and conditions for Nativy Ltd. (GmbH)
Preamble
Nativy Ltd.
(GmbH) operates a web-based system for communication as well as data processing
(available online at www.Nativy.com) for
the individual selection, organisation and subsequent placing of translation
assignments by registered clients in Austria and abroad. The purpose of the
modular Nativy web-platform is to allow the placing of orders that are
individually tailored to the needs of clients, and the professional
organisation of translation and proofreading assignments. A broad network of
certified translators and proofreaders enables a high-quality and
time-efficient placing of translation assignments with clients/members.
These General
Terms and Conditions regulate the legal as well as economic parameters in the
preliminary stages, during and after the conclusion of a contract for work and
services between Nativy and the members as well as other users of the Nativy
platform.
Section 1: Definitions
The terms
listed below will be frequently used in the General Terms and Conditions and
are therefore defined below to enable better understanding. The following
definitions include the singular as well as the plural form of the terms
listed.
GTCs: These
General Terms and Conditions, which constitute the exclusive basis for the
contract of use agreed upon between Nativy and the user.
Nativy: Nativy Ltd.
(GmbH), Schönborngasse 18 Top 5,
A-1080 Vienna, Austria.
Nativy
platform: The online platform operated by Nativy
(available online at www.Nativy.com) for
the interactive evaluation and selection of translators as well as for the
placing of translations assignments with Nativy.
Intellectual
property: All proprietary rights to the Nativy platform and all
content made available via this platform as well as the rights to a
translation, consisting of, among other things, (i) copyright as well as any
expertise of a translator extending beyond this and capable of being protected.
Cooperation
partners: Are long-term members who recruit new customers for Nativy
on a regular basis. These cooperation partners receive a revenue share under
the provisions of these general terms and conditions. Cooperation partners may
also make use of Nativy’s translation services according to these general terms
and conditions.
Proofreader: A proofreader
qualified according to the European Standard for Translation Services ‘EN
15038’ and selected by Nativy according to internal regulations based on
qualifications and experience, and accepted into the translation network.
Member: Every
natural and legal person in Austria and abroad having duly registered on the
Nativy platform to whom an individual account/user interface has been assigned.
Member
account:
An individual account created at member registration enabling access to the
user interface.
User: Every
natural and legal person accessing the Nativy website and the Nativy platform
online, or having it accessed, without becoming a member.
Contract for
work and services: The legal transaction between Nativy and the
contracting parties established exclusively on the basis of these General Terms
and Conditions.
Translator: A translator
qualified according to the European Standard for Translation Services ‘EN
15038’ and selected by Nativy according to internal regulations based on
qualifications and experience and accepted into the translation network.
Translation: A
translation made by a translator on the basis of a member’s assignment and
approved by Nativy.
Translator
network: The network portfolio of international, certified
translators accessible to the client via the Nativy platform.
User
interface: The interface on the Nativy platform allotted to a member
for individual download/upload of content.
Selection: The choice
of a translator made by the client at the end of the selection phase. After a
successful selection, only Nativy will contact the respective translator and
will allocate the translation assignment on a bilateral level. Translators and
clients can communicate directly via Nativy once the translation process has
started.
Selection
phase:
Time from the member’s first request for a translation on the Nativy platform
until any final selection.
Proofreading: Revision of
a text in order to improve its comprehensibility for the target audience.
Contracting
parties: All natural and legal persons making legitimate use of the
Nativy platform – thus all members and all users, independent of their
registration.
Section 2: Foundations of cooperation
(1) These
general terms and conditions replace all existing cooperation agreements.
Additional agreements require a written form.
(2) Objectives
of the cooperation: Promotion of Nativy’s translation services and acquisition
of new customers for Nativy’s translation services. Support for the promotion of
additional functions in order to further facilitate the process of translation
orders for new customers. For instance, the number of processed orders can
significantly be increased with 'Nativy connect.'
(3) Commission for customers acquired through a referral link or discount code: For each successfully completed translation order (order including settled
payment) by a customer who registered through the
specific referral link or discount code of Nativy's cooperation partner, the cooperation
partner receives a sales commission in form of a percentage of the revenue from
the incoming order. The commission is calculated according to the following percentage of the revenue from the recruited customer (invoice amount of the customer), and the effective date of the incoming order: 12% of the revenue for the duration of 24 months starting from the first order of the new customer. The maximum commission per order is 100 Euro. Hereafter, all commission claims expire.
(4) Commission for customers acquired through an integration of Nativy's services (iFrame or API): For all orders received via an integration of Nativy's iFrame or API, cooperation partners receive a commission of 12% of the revenue. In this case, the commission period is not limited to a duration of 24 months, and is in effect as long as the integration is in place.
(5) If
a company/customer does not register through the registration link or integration, or is
already registered with Nativy, the company/customer is not considered a
recruited new customer and neither a commission nor any other claim may be
asserted. The cooperation partner may however uphold the commission claim
within 2 months after the registration of the new customer by sending an email
to Nativy (including the confirmation of receipt) naming the new customer (name
of the registered person and the company).
(6) Nativy
automatically calculates the amount of the commission based on customer orders.
The cooperation partner may overview the monthly commission claims by accessing his/her profile page on the website.
(7) Payment
of commission: The commission is settled and paid at the end of each month for
the period of the previous month. For example, at the end of July, commissions
will be settled for orders successfully processed until the end of June. Nativy
may charge commission claims for outstanding claims, e.g. translation services,
without the written consent of the cooperation partner.
(8) Mandatory
absorption of costs by Nativy for promotional events does not subsist, but in
individual cases of mutual interest may be stipulated in writing.
(9) Service
provision: The contractual relationship for the service delivery of the
translations is solely arranged between the customer and Nativy. General terms
and conditions of Nativy apply, as displayed in the current version at
Nativy.com. The cooperation partner merely ensures the promotion of Nativy with
new customers and supports Nativy in the communication of additional technical
functions.
(10) Contractual
duration of cooperation: This agreement is concluded for an indefinite period
and may be terminated by either party by giving a written two months' notice
with justification of the termination at the end of a calendar month. No
malicious conduct of either party needs to be present for this type of
termination of the cooperation. Existing commission claims are not affected and
continue to be paid.
(11) In case of
discrediting behavior or non-compliance with this agreement by one of the
parties, the other party may terminate this agreement immediately without prior
notice. The termination applies in writing or orally at any given time, the
latter requires a written notice retrospectively. Both sides immediately must
refrain from any actions suggesting the appearance of an existing cooperation
and all existing or unpaid commission claims expire entirely.
(12) This
agreement is non-transferable and expires with the liquidation of one of the
two companies.
(13) The transfer
of data (including the data of the customer and the commission amounts) to
third parties and the use of this data for third-party advertising purposes
requires prior written consent. This also applies to the mailing of newsletters
and the like to customers or to the mentioning of commission claims or
commission amounts.
(14) The
cooperation partners assume no reciprocal liability.
(15) Technical
malfunctions rendering the operation of the translation services impossible or
incorrectly are to be reported. The removal of the cause of malfunction needs
to be arranged. Eliminations of commission claims caused by technical
malfunctions cannot be asserted.
Section 3: Scope
The current version of the GTCs regulates the
legal and economic parameters for the use of the Nativy platform as well as its
subdomains by the contracting parties. The contracting parties are only bound
to the provisions that actually apply to them in the contract for work and
services.
(1) The GTCs have an immediate binding effect
exclusively between Nativy and the contracting parties. Legal effects and claims
on the basis of a contract in favour of third parties or with a protective
effect for third parties do not arise from the GTCs unless explicitly stated
otherwise in a contractual agreement or provision.
(2) In
every single case, contractual deviation from the GTCs requires the explicit
agreement of Nativy, communicated in writing. Where
supplementary regulations apply for particular functions, services or areas of
the Nativy platform, the contracting party will be notified separately of these
regulations before the first implementation and/or use of the function, service
or area in question. Upon implementation and/or use, the contracting party
agrees to the relevant supplementary regulations and recognises them as
binding. The supplementary regulations apply to every use of the same function,
service or area.
(3) When using the Nativy platform, the contracting
party must observe and duly comply with current law as well as the regulations
of these GTCs.
(4) Upon
entering into a contract for work and services as per to Section 3, Subsection
1, the GTCs are also accepted by the contracting party and are subsequently
valid for the entire duration of business relations. Any (business) conditions
stated by the contracting party do not automatically become subject matter of
the contract and only apply if accepted in writing by Nativy, and only with an
individual agreement. In every individual case, contractual deviation from the
GTCs and a contract for work and services based on these terms requires the
explicit agreement of Nativy in writing.
(5) Employees
of Nativy as well as any other person employed by Nativy in the performance of
its contractual obligation are not permitted to make any side agreements
exceeding the content of the contractual obligation.
Section 4: Entering into contract
(1) A contractual relationship is established
between the contracting party and Nativy as a result of a written and/or
electronic offer from Nativy; the explicit and implicit acceptance as a result
of simple use of and/or registration on the Nativy platform; the transfer of a
text (document) to be translated and the subsequent award of a translation
assignment where applicable. The current
version of the GTCs is accessible via a link on the Nativy website www.Nativy.com.
(2) In the event
of registration, the member must explicitly declare his/her agreement with the
GTCs through activation of and/or clicking of the box provided for this
purpose.
Users as per Section 1 of the Consumer
Protection Act can revoke their contract in text format (e.g. letter, email)
within 2 (two) weeks from valid registration on the Nativy platform, without
giving reasons. The revocation period shall be deemed observed if notice of
revocation is given within this period.
(3) Nativy
shall be entitled to decline a contract for work and services with the
contracting party or withdraw from this contract at any time if:
(a) justified
doubts arise concerning the identity, legal capacity and/or legal personality
of the contracting party or the authority of a (natural or legal) person
representing the same;
(b) reasonable
suspicion arises regarding abuse of the Nativy platform or of applications
accessible via the member account (user interface) exclusively allocated to the
member;
(c) other circumstances arise which would
make it unacceptable for Nativy to enter into or maintain a contractual
relationship.
(5) Offers from
Nativy upon entering into a contract are subject to change without notice.
Products and services depicted by Nativy online, on brochures or other
advertising material do not represent binding offers.
(6) Nativy reserves the right to change or
temporarily or permanently deactivate existing functions and services,
introduce new functions and link individual functions to the satisfaction of
particular requirements.
(7) None of the information regarding technical
data or product attributes in printed matter, catalogues, advertisements, price
lists and other information or promotional materials produced by Nativy serves
as a basis for any claims by the contracting party and represent only a general
description of Nativy and an identification of its benefits. A quality
guarantee can be assumed only where this is expressly designated and agreed as
such.
(8) In the case of disagreement over the meaning of
technical IT terms and symbols, quality stipulations, formatting requirements
or the like, provisions in the version current at the time of entering into the
contract are to take priority.
(9) Furthermore, Nativy has the right to change,
expand or limit the contents and scope of the contractual services in a manner
deemed reasonable for the contracting party, after providing prior notification
in a timely manner. Nativy will take such measures in particular where these
are prompted by technical or legal circumstances or where they will serve to
ensure the functionality of Nativy.
Section 5: Subject matter of
contract and scope of services
(1) Object
of the contract for work and services is solely the appropriate provision of
the Nativy platform, the handling of translations and the independent
commissioning of a translator after successful selection by a member. All services
will be provided within and on the basis of the current GTCs. It shall be noted
that the handling of the translation assignment is to be carried out
exclusively by Nativy and the translator acting as an auxiliary agent for
Nativy (Section 1313a, Austrian Civil Code). However, the provision of
mediation services by Nativy in the sense of a brokerage contract is not the
purpose of the contract for work and services.
(2) The use of the Nativy platform in accordance
with the regulations is generally open to any user. The use of some functions
and/or tools, in particular the optional selection of translators as well as
the awarding of translation assignments requires a previous registration on the
Nativy platform as per Section 7.
(3) During the selection phase, the client is
permitted at any time to place specific requests as well as a request for
qualifications to the translator via the Nativy platform in the lead-up to a
possible translation assignment. Nativy will ensure smooth communication as
well as an unrestricted exchange of information. Should members select a
translator, Nativy may at its own discretion award the translation assignment
to the selected translator.
(4) The object of the services to be provided by
Nativy within the framework of the contract for work and service can be,
amongst others:
(a) Provision and maintenance of the Nativy
platform for members and users;
(b) Implementation of generated data on the member
account/user interface as well as the granting of custom access to the same.
(c) Specific user features through the provision of
an individual member account; members can independently access the data saved
in the system at any time;
(d) Provision of information and contacts to
certified translators as well as the commissioning of translation services by
selected translators.
(e) The offer of a ‘terminology database’, which
can be populated by individual users with subject-specific terms for the translator
to use in their assignments, which will not, however, be reviewed by Nativy for
linguistic correctness.
(f) Optional setup of a credit account for the
member, from which payments for future translation assignments can be booked in
advance.
(g) Implementation of a ‘chat protocol’ accessible
via the member account, which enables members to contact the translator
directly, after the selection process, with reference to an order number
assigned by Nativy, in order to facilitate the clarification of issues relating
to a particular translation assignment, and other messages.
(5) As an exclusively technical service provider,
Nativy is neither directly nor indirectly involved in the communication between
members and/or between members and users that takes place via the Nativy
platform. The description of a text during the order process acts solely as
information for the translator and does not represent the subject matter of a
contract. Any notifications sent via the Nativy platform in relation to an
enquiry regarding a translation are exclusively for the purposes of
information. Furthermore, Nativy is not required to receive and process
complaints against other members/users or to mediate in or arbitrate on
disputes between them, except where the object of the complaint is compliance
with legal or contractual obligations on the part of Nativy.
Section 6: Services/obligations of
the contracting parties
(1) The contracting party is obliged to use the
Nativy platform in a manner that conforms to the purpose of the contract.
Furthermore, members are responsible for the lawful use of the member
account/user interface.
(2) The contracting party is not permitted to use
software, data or (technical) facilities or act in a manner such that potential
impairment of any kind could be caused, affecting the functionality of the
Nativy platform. The same applies to the use of the user account/user interface
by members.
(3) Changes to system requirements within the
influence of the contracting party shall immediately be communicated before Nativy
performs service delivery. Delays and additional costs caused by these changes
during the carrying out of an assignment are at the expense of the contracting
party.
(4) Where necessary, the contracting party shall
provide all necessary documents, information and facilities from its sphere of
influence, in good time and free of charge. Furthermore, the contracting party
shall in a timely manner ask for cooperation or assistance from third parties,
where this is a prerequisite for the provision of services by Nativy.
(5) In the event of delayed assistance or
assistance that is not requested in a timely manner on behalf of the
contracting party, a delay or restriction in Nativy’s service delivery may
result; Nativy takes no responsibility for futile expenditures or damages thus
incurred.
(6) Translations are considered delivered when the
user receives a notification that the data is ready to be downloaded from the
Nativy website. The download takes place via an encrypted connection.
(7) Reclamations have to be sent within 7 days upon
notice of delivery to stop payment to translators. Later reclamations will not
be considererd and have no influence on payments.
(8) Members must inform Nativy in writing about any
changes in their company and legal status as well as their address without
delay. Should these changes not be communicated, documents shall be considered
received when they are sent to the address or to an appointed paying agent
given last by the member.
(9) The decision by Nativy to commission a
translation as well as the conclusive and correct implementation of the
contractual relationship based on these GTCs are subject to a valid service
contract with the translator as well as their conforming to the conditions of
their contract as an auxiliary agent of Nativy. Any rights to the content of a
translation are to be transferred to the relevant member at the conclusion of
the translation assignment.
Section 7: Use of the Nativy platform
(1) During the registration process on the Nativy
platform, every member must select a user name in order to enable
individualised and secure access to the user interface.
(2) Registration is unconditionally reserved for
legally competent natural and legal persons. Only a duly approved
representative, who must be named, may register a legal person.
(3) The access data entered and transferred during
the process of registration on the Nativy platform is to be complete and
correct and is to be kept up-to-date, in particular address and other contact
details.
(4) The member may access the member account/user
interface at any time by means of a user-defined access method (user name). The
choice of user name must not break any law, be contrary to good morals or
infringe the rights of a third party. Furthermore, the username may contain
neither the term ‘Nativy platform’ nor a similar designation that may be
confused with it, nor may it contain an email address, Internet address or any
other contact information such as telephone numbers. The username must be kept
secret unless its communication is required in order to use the Nativy
platform. For example, this may be the case when third parties provide
individual functions or services on the Nativy platform and where signing in is
necessary in order to use these. Where members are required to transmit or enter
a username, they must check insofar as possible and reasonable whether this
requirement originates from Nativy or a third party authorised by the same, in
order to prevent their access information from being exposed or the abuse of
the member account/user interface.
(5) It is the responsibility of the member alone to
keep a username secret and to use it according to the regulations. The use of
other usernames and passwords or the authorisation of a third party by a
registered member to do the same is not permitted. Where this is contravened,
Nativy is permitted to delete the access data of the member in question at its
own discretion, while the latter is solely responsible for interim uses of the
platform by a third party.
(6) Members are required to inform Nativy
immediately of any unauthorised use of the Nativy platform and/or usernames as
well as any other violation of confidentiality and data protection obligations.
Where abuse by a third party is suspected, Nativy may block access to some
functions in order to protect the user.
(7) The use or application of electronic or
automated applications (such as web crawlers, robots, spiders etc.) is not
permitted regardless of their configuration or use.
(8) Members are permitted at any time to end the
contractual relationship based on these GTCs by closing their individual user
account. It is the responsibility of the member alone to close the account in a
proper manner. After the contract for work and services has been terminated,
all data on the user account/user interface at the time of termination will be
immediately and irreversibly erased. This may include graphics, images,
comments, communication or other contents. Exceptions to this are
data/information that Nativy is legally obliged to store for a particular length
of time. Even after the account is closed, Nativy is entitled to an ordinary
right of use, duplication and exploitation in relation to the texts provided
(published) on the Nativy platform and approved for translation.
(9) Customers who operate commercially must, in the
course of opening a member account, provide, amongst other things, proof of a
VAT identification number
(10) The
creation of multiple member accounts for the same natural or legal person is
not permitted.
(11) Member
accounts are not transferable without explicit written permission from Nativy.
(12) Where
no contractual relationship is entered into with a member, any documents,
suggestions, test programs etc. that have already been made available are to be
given back or erased and may not be used further.
Section 8: Regulations for users
(1) It is generally possible for the user to visit
the Nativy platform without registering. However, the user is required to
register in order to be able to use specific functions of the Nativy platform,
in particular the selection of a translator as well as the subsequent awarding
of a translation. The user is not entitled to registration and activation for
the purposes of using the Nativy platform.
(2) The terms and conditions for access and use set
forth for members as per Section 6 apply correspondingly to the registration of
users and for the use of the Nativy platform.
Section 9: Liability
(1) Nativy is liable under the law only if intent
or gross negligence can be proven for damages caused by bodies, employees,
auxiliary agents or other persons contractually commissioned to provide a
service for the contracting party. Liability for ordinary negligence is ruled
out, subject to damage to life and limb.
(2) The contracting parties agree that Nativy is
dependent upon the services of third parties (software and web service
providers), [acting as agents or procuring agents in terms of Sections 1313a
and/or 1315 of the Austrian Civil Code] in order to carry out its
contractual obligations in terms of service provision, in particular the
operation of the Nativy platform.
(3) Nativy is not liable for damages caused by use
of the Nativy platform and/or the member account/user interface that is
improper or contrary to contract. Equally, Nativy is not liable for the success
and/or selection of a translator by a member/user. Nativy can also not be held
responsible for any infringements of the rights of a contractual party by a
third party. Providing (publishing) a translation via the Nativy platform takes
place at the member’s own risk.
(4) Nativy acts exclusively as ‘Application Service
Provider’ in relation to the provision of the Nativy platform. Any business as
well as hosting, security and further development (where available) of the
(user-) data on the member account/user interface remain the exclusive
responsibility of the member (see Section 4). Accordingly, the member alone is
responsible for the content made available via the Nativy platform. Damages
and/or disadvantages to the member as a result of such content being unlawful
and/or anticompetitive shall be borne by the member alone. In addition to a
possible obligation to pay compensation, abuse of the member account/user
interface may result in a member receiving a temporary or permanent suspension
of contractual access rights to the member account/user interface.
(5) The contracting parties are aware that the
content placed on the Nativy platform may represent legally protected
intellectual property. Taking this into consideration, contracting parties are
not permitted to make available contents on the Nativy platform, the use of
which, regardless of type, may infringe the property rights of third parties
and which may result in possible prosecution under criminal or civil law.
(6) Nativy cannot rule out the possibility that
members who register and/or communicate on the Nativy platform do not exist, or
that they will abuse the platform in a manner that is illegal or unfair.
Contracting parties who make use of the Nativy platform and who upload and
download contents where required do so at their own risk.
(7) Events vis major, which render the provision of
contractual services significantly more difficult or impossible, entitle Nativy
to delay the provision of contractual obligations for the duration of this
obstruction as well as a reasonable start-up time. Events vis major are
equivalent to strike, lockout, regulatory interference beyond the control of
Nativy and similar circumstances, inasmuch as they are unpredictable, unable to
be influenced, severe and not the fault of Nativy. Liability on the part of
Nativy is excluded in these cases.
(8) Nativy is not liable for the unauthorised
duplication or use of graphics, text, logos and trademarks whose rights are
protected by third parties. In addition, the contractual liability of Nativy in
relation to the website www.Nativy.com is in every case
exclusively restricted to its own content. In the absence of control over the
websites of other (branch-specific) organisations, a liability on the part of
Nativy is also ruled out where a corresponding reference (link) to the website
of another provider exists on its own website.
Section 10: Availability and
guarantee
(1) Nativy provides services based on generally
accepted industry norms and practices. The contracting parties are aware,
however, that it is not possible to provide an internet-based service
completely free of errors, given the present state of technology.
(2) In spite of this, Nativy guarantees that the
services offered on the Nativy platform, in particular the translation sought,
shall be carried out by the selected translator, and that the translation
awarded at the conclusion of the selection phase shall be of the quality
described in the lead up to the contract for work and services. Nativy does not
guarantee that the availability of the Nativy platform will be uninterrupted or
free from error.
(3) In addition, Nativy does not guarantee the
correctness of the data provided by the contracting parties, in particular that
provided by members. Nativy will investigate indications that incorrect
information has been provided and may demand corrective action from the member
in question or lock and/or delete the information.
(4) Power failure, disruptions, maintenance work or
other unavoidable events for which Nativy is not liable can result in an
interruption of services. In such cases, Nativy will honestly and in good faith
endeavour to repair disruptions and interruptions as quickly as technically and
economically possible.
(5) Nativy is not liable for mistakes or other loss
of service on the Nativy platform and/or on the user account/user interface,
(a) that result from faulty hardware, operating
systems or software from another manufacturer and/or telecommunications
provider;
(b) that, whatever their nature, are caused by the
user, and that could have been avoided with proper and careful use;
(c) that result from an infection by a virus or
other events such as fire, accidents, power failure etc. for which Nativy is
not liable;
(d) that result from an unauthorised change to the
system environment, for which the Nativy platform or the member account/user
interface was configured, by the contracting party or a third party.
(6) The contracting parties, in particular members,
guarantee that the content and data they provide and communicate on the Nativy
platform
(a) is free of third-party ownership rights – in
particular intellectual property rights;
(b) is their (intellectual) property or due
authorisation has been given by an eligible third party to use the content in
question on the Nativy platform;
(c) does not break the law or any other binding
statutes, and in addition
(d) is in no way able to cause legal liabilities
for Nativy.
Section 11: Granting of rights and use
(1) All copyright as well as the intellectual
property rights to the Nativy platform remains the unrestricted property of
Nativy. The same applies to the content and information (e.g. files and
information about translators, (translation) suggestions, text, graphics,
photos, logos, test programs etc.) in the form in which they exist at the time
that a contract is entered into.
(2) All specifications, further developments and
modifications of the Nativy platform resulting from the contractual
relationship to the client automatically become the property of Nativy. This
also includes those rights that could result from provisions of copyright or
other intellectual property rights worldwide.
(3) Nativy grants the contractual parties a user
authorisation for the Nativy platform that is non-exclusive, non-transferable
and restricted in terms of time and scope. Furthermore, members are granted
user authorisation for the functionalities and interfaces related to the Nativy
platform (in particular the member account/user interface).
(4) The contractual parties are not authorised to
alter or otherwise model the Nativy platform or the individually provided
member account/user interface, nor to distribute it to third parties, to
connect it to other programs in ways other than through the interface provided
for this purpose, to translate (reverse engineer) it into another display
format, to remove, circumvent or change any copy- or protective mechanisms,
program elements serving the purpose of digital rights management (DRM),
security codes or elements identifying the Nativy platform and/or user
interface (proprietary notices, trademarks, copyright notices).
(5) The contracting parties are authorised only to
use the Nativy platform and the member account/user interface for the agreed
purposes and only to the extent permitted by of the acquired user
authorisation. Nativy is indemnified and held harmless for any damages
resulting from the failure to comply with the contractual conditions of use.
This applies in particular to the infringement of any copyright or other
intellectual property rights owned by Nativy or third parties.
Section 12: General
regulations concerning enquiry, selection and awarding of translation
assignments
(1) The award of translation assignments is always
preceded by the selection of a translator suited to the member’s specific
requirements. An individualised translation, tailored to suit the member’s
requirements, can be produced on the basis of the search and selection tools
provided on the Nativy platform, which allow the member to set or request
specific qualification attributes for a translator during the selection
process.
(2) The user selected by the member must agree to
take on the translation assignment within 24 hours. Where a translation
assignment is not agreed to within the prescribed period, or where it is
refused by a translator – allowing the deadline to elapse without a reaction
from the translator will be understood as a refusal of the translation contract
– Nativy will, after discussions with the member, suggest an alternative
translator, whose qualification profile most closely matches that of the selected
translator. With the agreement of the member, Nativy will commission this
translator for the translation.
(3) Further regulations and conditions relating to
requesting and awarding translation assignments as well as the selection of a
translator are to be taken from the FAQ, which are available to download on the
Nativy platform, and which represent an integral component of these GTCs in
this context.
Section 13: Fees, conditions of payment
(1) Nativy charges the user a service fee on a
percentage basis, which is included in the price quoted, for the delivery by
Nativy of services specified in the contract, in particular for making
available the Nativy platform and the translation services of the translator
selected by the member. It shall be noted that simple usage of the Nativy
platform without registration on the same shall be made available free of
charge.
(2) Nativy’s pricing is based on the billing costs
applicable to the respective translator and is calculated individually for each
request. All prices are quoted in Euros excluding VAT. Delivery costs, where
applicable, are calculated separately and apply only to the current order.
(3) As part of the selection process, the member is
required to transfer the applicable service charge in advance to the clearing
account communicated on the Nativy platform and during the selection process.
After issuing the transfer order, Nativy will commission the translator for the
translation in question. Where the member’s advance payment has not, for
whatever reason, arrived in Nativy’s clearing account within seven days
following the selection and award of the translation assignment, Nativy
reserves the right to cancel the translation assignment in question.
(4) Where a translation assignment is cancelled by
Nativy, any payments already received from the member will be checked and may
be returned. Where the cancellation of a translation assignment and/or the
(temporary) locking of a member account is the member’s fault, the member is
responsible for compensating Nativy for any losses incurred (including those
relating to the translator). The balance of the member’s/credit account will be
offset against any claims for damages.
(5) The day on which the amount arrives at Nativy
or is credited to the account described on the invoice is regarded as the day
of payment. For late payment, Nativy calculates late fees at the rate of 12%
p.a. – where higher costs have not arisen – charged from the 15th
day from the invoice date. All costs related to reminders, information and
other costs incurred to recover a debt shall be borne by the member. This does
not restrict Nativy's right to claim for damages.
(6) Invoices will generally be communicated via the
member account or will be sent to the member by email. Unless otherwise agreed,
Nativy is not required to send a/an (additional) written invoice to the member.
The user may request a collective invoice if desired.
(7) In order to enable the member to gain an
overview of Nativy’s billing procedure, a member has the right to have the
customer fee checked for accuracy by an expert third party sworn to secrecy.
(8) Available methods of payment include immediate
payment using a valid credit card from a recognised Austrian institute and a
valid account, or else by deduction from a credit account created by a member
using the member account as per Section 4, Subsection 4(f).
(9) All prices are quoted in Euros exclusive of VAT
and any advertising tax. Delivery costs are calculated separately and only
apply to the current order.
(10) The
member relinquishes the right to settle any counterclaims with claims for
compensation from Nativy unless these counterclaims have been recognised in
written form by Nativy or have been legally established.
(11) All
taxes resulting from the contractual relationship to Nativy, with the exception
of income tax, are to be borne by the member alone. Nativy is indemnified and
held harmless by the member for unwarranted application of such taxes.
(12) Further
payment methods are listed under the ‘FAQ’ of Nativy (www.Nativy.com).
Section
14: Data
protection
(1) Under certain circumstances, it is necessary to
store and process members’ personal data in order to duly fulfil contractual
service obligations. Nativy guarantees that this data will be handled
confidentially as per the Data Protection Act 2000 (‘DSG 2000’).
(2) Nativy points out that confidentiality is not
guaranteed for data that is transferred unencrypted over the Internet. The web
platform Nativy is only accessible and usable via https encryption.
(3) The member alone is responsible for all personal
data transferred, used or processed during the use of the Nativy platform,
whether sensitive data under Section 4 of the Data Protection Act 2000 or
non-sensitive data.
(4) Before handling or processing (personal) data,
members are required to obtain permission from the person concerned, and are to
indemnify Nativy and hold it harmless in relation to any claims by third
parties.
Section
15: Communication
(1) All statements applying to the contract for
work and services based on these GTCs are to be submitted in written or text
form (email). Contact information for Nativy is to be taken from the website www.Nativy.com. Members’ contact information
is considered to be that which has been entered into the member account/user
interface. Statements emailed by Nativy to the address provided in this contact
information and statements sent by mail are considered received 2 days after
sending, unless the member can prove a later delivery time.
(2) Insofar as communications between Nativy and a
member or between members themselves take place via email and thus in text
form, the member recognises that this represents a declaration of intent with
unrestricted validity. The e-mail must include the name and email address of
the sender and the date of dispatch (date and time).
(3) An email received as per the above provisions
is considered to have been sent from the owner of the sender address, unless
proven otherwise. The binding nature of email, and thus the text form, which
applies to all statements, implies standard contractual procedures.
Section 16: Prohibition of assignment
Contracting
parties are not permitted to delegate or assign rights, or to delegate duties
arising from the contract for work and services unless there is a written
agreement on behalf of Nativy.
Section
17: Term
of contract
The contractual
relationship is entered into for an indefinite period, subject to an agreement
specifying otherwise, and can be cancelled in writing (by fax or email) by both
contracting parties at any time. The date of the postmark designates the time
of cancellation.
Section 18: Final clause
(1)
These terms are subject to Austrian law upon exclusion of the UN Sales
Convention.
(2)
As far as admissible, any disputes arising from this contract (including
disputes relating to possible amendments or additions to the contract) shall be
submitted for judgment to the competent court in the 1st district of
Vienna.
(3)
Amendments and additions to these GTCs as well as other arrangements shall only
be valid if confirmed by Nativy in writing.
(4)
Should any of the provisions of these GTCs be or become void or unenforceable,
the validity or enforceability of the remaining parts of these conditions shall
not be affected. The void or unenforceable provision shall be replaced by a
valid and enforceable provision corresponding as closely as possible to the
economic purpose and result of the provision to be replaced and doing justice
to the original intention. The contracting parties are obliged to write down
these replacement provisions and to sign them without delay.
END of TERMS