General Terms and Conditions (GTC) of Dynport GmbH for PhraseApp.com
V1.0, last revised June 07, 2017
§ 1 Area of Application
1. These GTCs are an integral part of all contractual relations, whether free of charge or paid for, between Dynport GmbH as the provider and operator of PhraseApp (hereinafter referred to as "PhraseApp") and its customers. Conflicting terms and conditions do not apply, even if PhraseApp has not expressly rejected such terms and conditions and/or renders its services without reservation.
2. By registering for PhraseApp, the customer assures that the he is not a consumer, but an entrepreneur and merchant within the meaning of the German Commercial Code (“Handelsgesetzbuch”).
§ 2 Definitions
"Services" or "PhraseApp Services" means all translation and localization services and platforms offered by PhraseApp and provided in data networks or on data carriers.
"Plan" means the scope of the PhraseApp Services booked by the customer specified through the number of authorized users and through the volume of managed words or other parameters.
"Content" means all materials, data and information uploaded by the customer or any other third party to whom Customer has provided access to PhraseApp Services.
§ 3 Conclusion of Contract
The contract is concluded when PhraseApp either explicitly confirms the booking of a Plan or other Services in writing, in text form or by way of an appropriate online dialogue, or implicitly by commencing to render its Services through the granting of authorization to use PhraseApp.
§ 4 Services, Subject-matter of Contract
1. PhraseApp shall provide its Services to the customer to the extent appropriate according to the Customer's booked Plan. The creation and maintenance of a data connection between the customer's systems and the transfer point operated by PhraseApp is not the responsibility of PhraseApp.
2. PhraseApp is committed to constantly improving and updating its Services. If this process requires technical changes to the Services, PhraseApp shall notify the customer of this at least four weeks before the change date and shall provide the customer with all necessary information regarding any technical adjustments necessary on the customer's side.
3. PhraseApp guarantees an annual average of 99.0-percent availability for its Services.
§ 5 Term, Termination
The term of the contract is determined by the Plan chosen. A Plan can be terminated any time effective at the end of the agreed minimum term. If not terminated, the term of the contract shall be extended by the period corresponding to the agreed minimum term. Termination may be carried out by letter, fax, or email or via a corresponding button in the PhraseApp application.
§ 6 Specific Obligations of the Customer
1. The customer shall keep the customer’s access data to PhraseApp Services secret and shall not inform unauthorized third parties of such access data. If the customer has reason to believe that an unauthorized person has gained knowledge of the customer's access data, the customer shall change the customer's access data immediately.
2. The customer shall carry out a regular, at least daily, data backup of all his Content and make this available to PhraseApp upon request.
3. The customer shall have appropriate insurance coverage for damages caused by data loss for all of his projects that use PhraseApp Services.
4. The customer guarantees that his Content is legally harmless, contains no personal data within the meaning of the Federal Data Protection Act, and is virus-free, for which the customer is liable according to general laws. In particular, the customer shall not upload any Content that is contrary to applicable laws or that is illegal, offensive, insulting, threatening, racist, or sexually offensive, or any Content that glorifies violence, injures religious feelings, disparages politically dissimilar thinking, morally endangers children or adolescents, or adversely affects their well-being. In addition, the customer shall indicate the customer's advertising content on the websites that the customer maintains that use the PhraseApp Services, insofar as editorial and advertising contributions are mixed, and clarify that the customer is responsible for the contents of these websites.
5. If claims against PhraseApp should be made because of to Customers noncompliance with one of the obligations stipulated above, the customer shall, upon first request, indemnify and hold harmless PhraseApp from all claims from third parties without explicitly waiving the defence of failure to pursue remedies. PhraseApp may then also terminate the Services provided by PhraseApp with immediate effect, or block and/or terminate the customer’s Plans, or remove the concerned Content without being obliged to repay already paid fees.
§ 7 Warranty
The warranty covers primarily rectification/restitution in kind, for which the customer allows PhraseApp an appropriate period of time. If, after two unsuccessful attempts, such rectification fails, the customer may reduce the agreed remuneration or terminate the contract without notice. The parties agree to shorten the limitation period for defects in performance by PhraseApp to 12 months, as long as such defects are not based on intent.
§ 8 Impairment of Performance, Disclaimer
1. Liability for brief or insignificant disruptions that cannot be influenced by PhraseApp is excluded. This also applies to any impairments in the performance of obligations during maintenance work. These do not entitle the customer to a reduction, termination or assertion of any claim for damages. The immediate reporting of faults and defects is required for the rectification of said faults and defects. Claims due to defects, of which PhraseApp is not given notice by the customer in writing within two weeks after the customer obtains knowledge of the default, are excluded.
2. PhraseApp is not liable in cases of force majeure or in cases of gross negligence on the part of the customer. A breach by the customer of the specific obligation stipulated under § 6 of these GTC is considered gross negligence.
3. PhraseApp accepts not liability whatsoever in case the customers exclusively uses Services that are free of charge.
4. Within the framework of Services that are paid for by the customer, PhraseApp is liable for damages resulting from gross negligence, from a wilful breach of duty, or from a negligent violation of contractual obligations by PhraseApp or its agents, and is liable in the case of initial inability or if expressly assured characteristics are not present, insofar as the purpose of the assurance of such characteristics is to safeguard the customer against incurred damages.
5. The liability of PhraseApp is in any case limited to contract-typical and reasonably foreseeable damages, at most 25% of the fee agreed upon for the booked Plan.
§ 9 Acceptance
Contractual services are deemed accepted upon use of the Services, but no later than 10 days after the Services are made available.
§ 10 Copyright
1. Copyrights held by the customer of the customer’s Content are not affected by the use of the Services. A transfer of the rights of use of said Content to PhraseApp does not occur.
2. Copyrights to the Services remain solely with PhraseApp. The customer is only granted a simple, non-transferable right of use to the Services within the scope of the corresponding contract and booked Plan.
§ 11 Customer References, Granting of Rights
The customer grants PhraseApp the right, which is freely revocable at any time, to use the names of the customer's company, products and services, as well as the customer’s logos and other company identifiers, as part of the Services of PhraseApp as well as in other marketing materials concerning PhraseApp Services, in which reference is made to the customer relationship, without PhraseApp being obliged to make such reference.
§ 12 Payments, Due Dates, Default, SEPA Presentation Period
1. Invoices shall be issued after conclusion of the contract. PhraseApp is also entitled to issue invoices electronically. Payments are due immediately upon receipt of the invoice and in advance without any deduction. If the customer is in arrears in regard to payments or exceeds the limits of the Plan booked by the customer and after issuance of a corresponding warning for a period of 14 calendar days or more, PhraseApp may discontinue the provision of services as a whole or in part, as well as initiate legal dunning procedures or legal proceedings concerning all existing obligations. Payment is deemed to be made as soon as PhraseApp can actually dispose of the amount due (in the case of cheques: the date on which the amount is credited without reservation).
2. In the event of default, PhraseApp shall charge default interest pursuant to § 288 II BGB (German Civil Code).
3. If a cheque is not honoured or payments are cancelled, PhraseApp may make all remaining debts due immediately – including by cheque. Returned direct debits lead to the immediate maturity of all claims against the customer and will be billed in the amount of the actually incurred costs, but at least in the amount of 10.00 EUR in each case. A shortening of the SEPA presentation period (pre-information period for SEPA direct debiting) to one (1) day is hereby agreed. Offsetting is only possible with counterclaims that are either undisputed or have been established in court.
§ 13 Adjustment of Prices
In order to maintain a balanced relationship between performance and consideration, particularly within long-term contracts, PhraseApp reserves the right to adjust the pricing of its Plans or additional Services to own higher costs one time per calendar year, at the beginning of the renewal period by up to 20 percent, alternatively in line with development of the consumer price index of the month of the invoice.
§ 14 Data Processing, Assignment of Rights
Upon conclusion of contract, the customer agrees to the processing, storage and use of both the company and usage data that are required for order execution, invoicing, technical support and performance analysis as well as to the use of the personal data associated with it.
§ 15 Choice of Law, Place of Performance, Place of Jurisdiction, Written Form Requirement
The laws of the Federal Republic of Germany apply. The place of performance and place of jurisdiction is the domicile of Dynport GmbH. PhraseApp may also file a lawsuit against customers at the place where their assets are located. All changes to these General Terms and Conditions and the requirement of the written form must be made in writing. The invalidity of individual provisions does not affect the validity of the other provisions of these General Terms and Conditions.
Represented by Wolfram Grätz, Tobias Schwab and Frederik Vollert
Commercial register: District Court Hamburg HRB 109537
VAT ID-No.: DE265148725
+49 40 357 187 76