Terms and Conditions
Terms
December 1, 2010
1. Application of these conditions
1. These General Conditions apply to all quotes, agreements and their implementation between LiveWords B.V., registered under Chamber of Commerce number 34382279, Amsterdam, hereinafter called "LiveWords", and its counterpart, hereinafter called "Client".
2. These Terms shall apply with effect from December 1, 2010. This version replaces all previous versions.
3. The applicability of the purchasing and other conditions of the Client are expressly dismissed by LiveWords, unless both parties agree otherwise in writing.
2. Quotes, agreements and security
1. Unless otherwise indicated by LiveWords, the quotes provided are subject to change and only applicable for one month after their date of issue. LiveWords has the right to retract a quote up to the fifth day after receipt of acceptance.
2. Any additional agreements and undertakings given by or on behalf of LiveWords are only considered binding if confirmed in writing by LiveWords.
3. LiveWords reserves the right, without closer investigation, to consider the contact person of the Client as authorised to make binding agreements, and/or binding statements and to regard their verbal or written statements towards LiveWords as those of the client, unless expressly stated that these orders and statements were made on behalf of third parties and on condition that the name and address of said third persons have been provided.
4. LiveWords is entitled to charge a 50% lump sum by means of an invoice after receiving the acceptance by the Client. LiveWords is furthermore entitled to demand security (or additional security) if it sees reason to do so when entering into the Agreement and during the execution of the contract.
3. Services, use of LiveWords application
1. Under the Agreement and these Conditions, the following definitions apply:
Application: The computer software that LiveWords makes available to Clients.
Server: A computer managed by or on behalf of LiveWords possessing all the necessary facilities in order to function properly.
Service: by using a server operating the Application and Application Client over the Internet to make available and keep.
End User: A person using the Service to operate the Application.
Calamity: Situation in which the Service is not provided.
2. LiveWords shall provide the Service to the Client for the duration of the Agreement. LiveWords grants the Client the right to access and make use of the Application. In return, the Client shall pay LiveWords a periodic fee ('License Fee') which is agreed upon at the time the Agreement is entered into.
3. LiveWords guarantees that the Application will function according to the agreed specifications at least 99.5% of the time and is committed to preventing and fixing errors in the Application. This excludes the regular maintenance that usually takes place in the early hours during weekends. LiveWords cannot guarantee that the Application will always be in correct working order.
4. Within one hour after the notification of a Mishap, a LiveWords employee will set to work finding and eliminating the cause of the Mishap.
5. LiveWords takes appropriate technical and organizational measures to prevent the unlawful processing of the data that End Users record and/or exchange via its Service. These measures match the level of technology and relevant costs. LiveWords will take particular care to prevent unauthorized persons from gaining wrongful access to data belonging to the End User.
6. LiveWords makes information available via the internet about the use of the Service and the functioning of the Application.
7. LiveWords will answer the Client's e-mail questions about the use of the service and the functioning of the Application weekdays from 9:00 to 17:30. If the message does not concern a notification of a technical malfunction or if its handling lasts longer than 15 minutes, the standard rate of € 95 per hour applies. This rate applies to all additional work.
8. An employee of LiveWords is available weekdays from 8:00 to 20:00 by telephone in the case of a Mishap.
9. LiveWords is entitled to alter its Service and Application to improve the operation and correct mistakes.
10. The Client and End Users determine what information they capture and/or exchange through the Service. The Client is responsible for ensuring that the information does not infringe upon the rights of third parties and indemnifies LiveWords against claims by third parties who claim an infringement on their rights when using the Service and/or exchanging information.
11. All property rights on the Application and the Service are held exclusively by LiveWords and its licensors.
12. This Agreement entitles the Client to make this service available to End Users.
13. Rights acquired to the Service by means of this Agreement are non transferable.
14. After termination of the Agreement, LiveWords will provide the Client with a free copy of the data that was recorded during the Service rendered. Upon request, LiveWords will also provide such a copy during the process, at an additional fee.
15. LiveWords reserves the right to replace, at its own cost, the Application available for the Client with comparable or better software if it deems this necessary, while bearing in mind the wishes of the Client.
16. The software of LiveWords is confidential and copyrighted. Title to Software and all associated intellectual property rights is retained by LiveWords and/or its licensors. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer Software.
4. Translations
1. LiveWords is obliged to execute a translation assignment to the best of its ability and with the necessary expertise, taking into account the purpose specified by the Client of the translated or edited text(s).
2. Unless otherwise agreed, LiveWords reserves the right to commission an assignment (partly or in full) to third parties, without prejudice to the responsibility of LiveWords for confidential treatment and proper execution of the contract.
3. In view of the execution of the Agreement, the Client is obliged to do all that is reasonably necessary or desirable to facilitate timely delivery by Live Words. The Client is required to cooperate fully and submit upon request a written commentary of the text to be translated, and furthermore, if available, supply relevant documentation and terminology. The aforementioned shall always happen at the expense and risk of the Client.
4. The agreed delivery date is an estimated time, unless expressly stipulated otherwise. If LiveWords concludes that timely delivery is not possible, it is obliged to notify the Client of this fact immediately.
5. Quotes and specified deadlines for translations may be revoked if LiveWords has been unable to view the full text to be translated or edited.
6. Delivery shall be deemed to have taken place at the time that the translation is made available to Client.
7. The fee for translations is based on the current rate that LiveWords charges per word or hour, unless otherwise agreed. For each assignment, a minimum rate per language pair will be charged.
8. The agreed rate only applies to the performance according to the agreed specifications. LiveWords is entitled to increase this rate if the client has delivered additionally ambiguous or unclear text copy to be translated and if this causes more work or higher costs than had been agreed to at the signing of the Agreement.
9. If Client questions translations and Live Words requests comment on these claims and if LiveWords subsequently is able to demonstrate that the translations are not incorrect, LiveWords has the right to charge for the related additional time spent and other costs made. Changes made by Live Words to any portion of a translated text at the request of the Client does not entail that LiveWords recognizes that a defective performance has been delivered. The Client's right to complain shall lapse if the translation to which the complaint relates, has been reworked or edited. Ambiguity in the text to be translated release LiveWords from any liability.
10. The Client indemnifies LiveWords against all third-party claims relating to the use of the Application by the Client, on behalf of the Client or with permission from the Client, including claims related to the storage and/or disclosure of data. This also applies to all third-party claims of alleged infringement of ownership rights, patents, copyrights or other intellectual property rights.
11. The copyright on translations produced by Live Words passes to the Client at the time that all financial and other obligations to LiveWords in the respective contract have been completely fulfilled.
5. Complaints and Liability
1. The total liability of LiveWords with regard to a breach in the performance of the Agreement is limited to direct damages suffered by the Client up to the amount that the Client owes for the provision of Service for the month in which the damage occurs.
2. In the event of damages, the Client must notify the Commissioner within 10 days of discovering the damages. If this disclosure is not made within 10 days, the right to compensation shall be forfeited.
3. The filing of a complaint does not relieve the Client of his payment obligation.
4. If the Application performs less that 99.5% in accordance with the specifications and agreements in any calendar month, barring regular maintenance, then LiveWords will reimburse the License Fee upon written request by the Client after 8 days in that calendar month.
5. If LiveWords admits she has factually delivered an insifficient service or has otherwise failed, LiveWords has the right to provide the appropriate performance or remedy in a second attempt. Should LiveWords complete the Agreement within a reasonable time, this means that the Agreement has been properly respected and the Client is not entitled to compensation.
6. If LiveWords is found to be liable for compensation in addition to or in lieu of these Terms regarding its liability, then LiveWords limits, except in the case of wilful misconduct or gross negligence, its liability to a maximum for the appropriate performance or, if application, the rates agreed upon for the relevant contract period. LiveWords cannot at any time be held responsible for damage claims above the amount of € 10,000 per Contract Period agreed to with the Client or, if no contract has been agreed to, for the services rendered.
7. If it appears that a complaint has been wrongly issued to LiveWords and the consequence was that LiveWords has completed work or supplied services, LiveWords is entitled to charge for these products at its regular rates.
8. LiveWords is not liable for indirect damage, consequential loss, trading loss, losses due to delays or loss of profits.
9. In the case of permanent or temporary force majeure, both LiveWords and its Client are entitled to fully or partially - or for that part that, due to the force majeure situation, cannot be met - terminate the Agreement without entitlement to charge compensation. In the case of temporary force majeure, this is only possible if the temporary force majeure lasts longer than three weeks. Force majeure is understood as any impediment which hinders LiveWords from being able to meet the terms of the Agreement, to the extent that prevention is not reasonably attributable to LiveWords. These include strikes and/or illness of its employees, breach of contract and/or force majeure on the side of its suppliers, carriers and other third parties concerned with the Agreement; stagnation in traffic, natural disasters, war or mobilization, restrictive measures of any government, fire and other accidents in the company of LiveWords or of the aforementioned parties.
6. Payment
1. All amounts stated in the Agreement and General Conditions are exclusive of the applicable VAT rate, unless otherwise indicated.
2. Unless otherwise agreed in writing, payment of amounts invoiced by LiveWords must take place within 30 days after the invoice date. After the expiry of the payment term, the Client is officially in breach of the Contract, without LiveWords having to supply notice of this breach. After the 31st day after the invoice date, the Client is obliged to pay an interest at the rate as set out in Article 6:119 of the Dutch Civil Code for commercial interest on the outstanding amount. Each month entered into is accounted for as a full month. LiveWords reserves the right to charge € 75 in administration fees per written reminder. The Client is not entitled to offset any amounts owed or defer the payment thereof.
3. Unless otherwise agreed, the annual License Fee must be paid annually in full. Payment by instalments may be agreed in writing only.
4. In the situations as described in Article 7.6, LiveWords has the right to claim all open liabilities of Client towards LiveWords, at once, all without prejudice to any other rights of LiveWords, including the right to terminate the Agreement by a written notice and claim compensation costs.
5. The Client is required to pay all of LiveWords' judicial and extra-judicial costs upon, despite official warning, failing to pay a debt to LiveWords and thereby forcing LiveWords to forward this claim to a third party.
6. Reimbursement and/or cancellation of previously paid and/or owing License Fee is not possible since LiveWords has committed itself, inter alia, to its suppliers and employees.
7. Duration of the Agreement
1. Notwithstanding the provisions of Article 7.6, LiveWords has the right to terminate the Agreement with immediate effect to say if the Client, despite notice, fails to meet any obligation in respect to the Agreement. In this situation LiveWords is also entitled to charge damages to the Client to an amount equal to the total compensation that LiveWords would have received if the Agreement would not have been canceled.
2. If the Agreement is entered into for a fixed Contract Period, it shall automatically be renewed after the expiry for a further term and at least the same "volume" of the Service and other services of the Contractor (agreed number of target languages in LiveWords applications; services of the Contractor; compensation of the Contractor) as applied to the previous Contract, provided that if a different contract and/or a different volume is agreed at any time in writing, the extension term will from then on be based on this different Contract and/or different volume. Each party is entitled to termination of the Agreement by means of a registered letter with acknowledgement of receipt, at least three months before the end of the current Contract.
3. The Client is entitled to change the scope of the Service and other services when entering into a new Contract period. If the Client so wishes, he may make this known to LiveWords by means of a registered letter with acknowledgement of receipt at least three months before the end of the current contract. Without notice, as described in the preceding sentence, LiveWords reserves the right to request full payment and Licence fee compensation for services rendered, equal to the situation of an unchanged scope of Service.
4. If the Client wishes to reduce the scope of the Service or other services provided by LiveWords before the end of a Contract Period, whether or not established by extension, then the Client will nevertheless be obliged to pay the fee and other costs applicable to the original scope of the Contract until the end of the current Contract Period.
5. After the expiry of the Contract Period agreed to with the Client, LiveWords is entitled to raise the periodic payments in accordance with the price index figure of the CBS.
6. Subject to the right of LiveWords to terminate the Agreement on the grounds of default, LiveWords is entitled to terminate the Agreement in writing in the event of insolvency of the Client including (whether or not provisional) moratorium, bankruptcy of the Client or in the case of a court ordered debt payment. LiveWords retains this right when the Client has been placed under legal guardianship, when the company is in the process of division or merging, or property of the Client is seized.
8. Applicable law and other provisions
1. Dutch law applies to all agreements made by LiveWords, as well as to these Terms & Conditions, with the exception of, when necessary and applicable, the United Nations Treaty on international sales agreements.
2. Disputes between parties will at first instance be decided by the Amsterdam District Court, without prejudice to LiveWords' right to bring the Client before an otherwise competent court.
3. If the Client enters into a working relationship with an employee of LiveWords, the Client must pay LiveWords a fee of € 20,000, unless LiveWords agrees in writing to waive this fee.
4. The Client agrees that the name of the Client may be used in press releases and market publicity by LiveWords.