General Terms and Conditions (GTC)
v3.0, last revised January 08, 2020
Section 1: Scope of Application
- These General Terms and Conditions (GTCs) are an integral part of and the sole basis for all contractual relationships, whether they relate to services that are free of charge or paid for, between Memsource GmbH (formerly Dynport GmbH) as the provider and operator of Phrase.com (hereinafter referred to as “Phrase”) and its customers. Conflicting terms and conditions of the customer do not apply even if Phrase has not expressly rejected such terms and conditions and/or renders its services without reservation in knowledge of the customer’s terms and conditions.
- By registering for Phrase, the customer affirms that it is not a consumer, but an entrepreneur and merchant within the meaning of the German Commercial Code (“Handelsgesetzbuch”).
Section 2: Definitions
“Services” or “Phrase Services” denotes all translation and localisation services and platforms offered by Phrase and provided in data networks or on data carriers.
“Plan” denotes the scope of the Phrase Services booked by the customer, as defined in more detail by the number of authorised users, the volume of managed words or other parameters.
“Content” denotes all materials, data and information uploaded by the customer or any other third party to whom the customer has provided access to Phrase Services.
Section 3: Conclusion of Contracts
A contract is concluded when Phrase either explicitly gives the customer confirmation of the booking of a Plan or other Services in writing, in text form or by way of an appropriate online dialogue, or by means of unambiguous behaviour to that effect (e.g. by commencing to render its Services).
Section 4: Services, Subject Matter of the Contract
- Phrase shall provide its Services to the customer to the scope in accordance with the customer’s booked Plan. The creation and maintenance of a data connection between the customer’s systems and the transfer point operated by Phrase is not the responsibility of Phrase.
- Phrase strives to constantly improve and update its Services. If this process requires technical changes to the Services, Phrase 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.
- Phrase warrants an annual average of 99.0 percent availability for its Services.
Section 5: Term, Termination
The term of the contract is determined by the Plan chosen. A Plan can be terminated any time effective the end of the agreed minimum term. Otherwise, the term of the contract shall be extended by an additional period corresponding to the agreed minimum term in each case, unless terminated by one of the parties effective to the end of the respective contractual term. If the minimum term is longer than one year, the renewal term shall be one year in each case. Notice of termination may be given by letter, fax, or email or via a button for this purpose in the Phrase application.
Section 6: Particular Obligations of the Customer
- The customer shall keep its access data to the Phrase Services secret and shall not disclose it to unauthorised third parties. If the customer has reason to believe that an unauthorised person has gained knowledge of its access data, the customer has to change its access data immediately. The customer ensures that its use of the Services shall not impair the working order of the Services. The customer shall maintain appropriate standards of security for using the Services.
- The customer is committed to carry out a regular, at least daily, data backup of all its Content in order to reduce the risk of losing data permanently.
- The customer is committed to have appropriate insurance coverage for damage caused by data loss for all of its projects conducted using Phrase Services.
- The customer shall be responsible for the Content; in particular, it shall be responsible for ensuring that any personal data is allowed to be transferred to Phrase in compliance with applicable data protection laws. Moreover, the customer warrants that its Content is legally unobjectionable and is virus-free, for which the customer is liable according to general laws. In particular, the customer undertakes not to upload any Content that violates prevailing laws or infringes third-party rights. In addition, the customer shall indicate its advertising content on the websites that the customer maintains using the Phrase Services, insofar as editorial and advertising contributions are mixed, and shall clarify that the customer is itself responsible for the contents of these websites.
- If claims against Phrase are asserted because of the customer’s non-compliance with one of the obligations stipulated above, the customer shall, upon first request, indemnify and hold harmless Phrase from all claims by third parties, while waiving the defence of unexhausted remedies. The customer shall bear the reasonable costs of legal defence incurred by Phrase. Phrase may then also terminate the Services it provides with immediate effect, or block and/or terminate Plans, or remove the Content in question without being obliged to repay already paid fees. This Section 6 No. 5 shall not apply if the customer can prove that it is not (partially) to blame for the violation.
Section 7: Warranty
The warranty covers primarily remedying of defects, for which the customer shall allow Phrase a reasonable period of time. If, after two unsuccessful attempts, such remedy fails, the customer may reduce the remuneration or terminate the contract extraordinarily. The parties hereby agree to shorten the limitation period for defects in performance by Phrase to 12 months, as long as such defects are not due to wilful intent.
Section 8: Impairment of Performance, Disclaimer
- Liability for brief or insignificant disruptions to the Services or for disruptions to them that cannot be influenced by Phrase is excluded. Liability is also excluded for any impairments in the performance of obligations during planned maintenance work of which the customer has been given prior notice in good time. Any such impairment shall not entitle the customer to reduce the remuneration, terminate the contract or assert claims for compensation. Faults and defects must be reported immediately so that they can be rectified. Claims due to defects which are not reported to Phrase by the customer in writing, in text form or by e-mail within two weeks of the customer being able to learn of them for the first time shall be excluded.
In all cases of contractual and non-contractual liability, Phrase shall pay damages or reimburse futile expenses only to the scope defined in the following:
- Phrase shall be liable to an unlimited amount in the case of wilful intent, gross negligence, damage to health or bodily injury, violations of the relevant product liability law, and the lack of a quality explicitly guaranteed by Phrase. In the event of a lack of a guaranteed quality, however, Phrase’s liability shall be limited to the amount of foreseeable damage that was intended to be prevented by the guaranteed quality.
- In all other cases, Phrase shall only be liable if it violates a cardinal contractual obligation. A violation of a cardinal contractual obligation within the meaning of this provision shall exist in the event of a violation of a contractual obligation whose fulfilment is vital to the proper performance of the contract, or whose violation jeopardises achievement of the contract’s purpose, or which the customer may usually rely on to be complied with.
- In the cases defined in Section 8 No. 2 Letter b), liability shall be limited to 25% of the planned fee for the planned Plan.
- Phrase accepts no liability whatsoever if the customer exclusively uses Services that are free of charge. Any liability if Services are used for testing shall likewise be excluded, since the customer’s objective in using the trial version is specifically to examine and establish whether the Services meet its requirements.
- Phrase reserves the right to claim contributory negligence (e.g. violation by the customer of its obligations in accordance with Section 6 of these GTCs).
- The limitation period for liability claims against Phrase shall be reduced to 12 months, unless a case defined in Section 8 No. 2 Letter a) exists.
Section 9: Acceptance
Contractual Services are deemed accepted upon use of the Services, but no later than ten (10) days after the Services are made available, unless the customer reports a defect that prevents acceptance within the ten (10) days.
Section 10: Rights of use
- Copyrights held by the customer for its Content shall not be affected by use of the Services. Any right to use that Content shall be transferred to Phrase only where necessary for Phrase to be able to provide its Services agreed under the booked Plan for the customer.
- Copyrights to the Services shall remain solely with Phrase; the customer shall only be granted a simple, non-transferable right to use the Services within the scope corresponding to the contract’s purpose and booked Plan.
- Phrase can temporarily suspend the customer’s access to the Services (in particular user names and passwords) for reasons of IT security, if there is sufficient probability that the Services are being used in breach of contract by the customer or an unauthorised third party through the customer’s means of access and that this might have a negative impact on the Services or the ability of other customers to use them. Phrase shall only suspend access temporarily if it needs to act immediately to avoid impairments. Phrase shall notify the customer as soon as access is suspended. Phrase shall notify the customer in advance in text form where circumstances permit. Phrase shall restrict suspension of access to the necessary time and scope. Further claims and powers of Phrase under the contract or law shall remain unaffected.
Section 11: Customer References, Granting of Rights
The customer grants Phrase the right, which is freely revocable at any time for the future, 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 Phrase as well as in other marketing materials concerning Phrase Services, with reference to the customer relationship, but without Phrase being obliged to make such reference.
Section 12: Payments, Due Dates, Default, SEPA Presentation Period
- Invoices shall be issued after conclusion of the contract. Phrase is also entitled to issue invoices purely 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 it after being warned to this effect, for a period of fourteen (14) calendar days or more, Phrase may – at its choice – 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 Phrase can actually dispose of the amount due (in the case of cheques: the date on which the amount is credited without reservation).
- In the event of default, Phrase shall charge default interest pursuant to Section 288 II BGB (German Civil Code).
- If a cheque is not honoured or payments are ceased, Phrase is entitled to declare all remaining debts to be due immediately – including by cheque. Returned direct debits shall result in all claims against the customer becoming due immediately; such returned direct debits shall be billed in the amount of the actually incurred costs, but at least in the amount of €10.00 in each case. A shortening of the SEPA presentation period (pre-information period for SEPA direct debiting) to one (1) day is hereby agreed. The customer can only offset its counterclaims that are either undisputed or have been ruled on finally and conclusively by a court of law.
Section 13: Adjustment of Prices
In order to maintain a balanced relationship between performance and consideration, particularly in long-term contracts, Phrase reserves the right to adjust the pricing of its Plans or any additional Services to its 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 invoicing.
Phrase shall give the customer two months’ advance notice of a change in text form. The change shall be deemed to have been agreed if the customer does not object in text form within three weeks of receiving notice of the change. If the customer objects to the change, Phrase shall have an extraordinary right to terminate the contract. Such termination shall be effective as of the date from which the change is to apply. Phrase shall separately point out the deadline and the legal consequences of failing to meet it in the notice.
Section 14: Data Processing, Assignment of Rights
- process any personal data provided by the customer only subject to the customer’s written instruction, unless (i) the personal data must be processed to perform the contract or administer access rights to the Services, (ii) the personal data must be processed to monitor and scale use of the Services so as to enable efficient allocation of resources to the customer, (iii) Phrase is obliged to process the personal data entered by the customer in the Services, or (iv) Phrase is legally entitled for other reasons to process the personal data;
- ensure that Phrase has suitable technical and organisational measures in place to protect personal data against unauthorised or unlawful processing.
- conclude an agreement on commissioned data processing with the customer if this is required in individual cases due to the statutory provisions or the specific subject matter of the agreed Services.
- Phrase shall be permitted to create analyses using information obtained by Phrase through the customer’s use of the Services. The data shall be anonymised and aggregated for such analyses. The data in such analyses may be used for improving the quality of products, resource optimisation, and research into and development of new products; for improving performance and reviewing data security and integrity: and for data products, such as industry trends and anonymous benchmarking.
Section 15: Amendments to the GTCs
These GTCs may be amended for existing contractual relationships. Amendments shall be proposed to the customer in text form no later than two months before the date on which they are to take effect. The customer’s consent to the proposal shall be deemed to have been granted if it does not reject the proposal in text form within two weeks of receiving it. If the customer rejects the proposal, Phrase shall have an extraordinary right to terminate the contract. Such termination shall be effective as of the date from which the change is to apply. In the proposal, Phrase shall separately point out the deadline to the customer and the fact that failure to meet it will denote consent to the proposal.
Section 16: Choice of Law, Place of Performance, Place of Jurisdiction, Requirement for Text Form
The laws of the Federal Republic of Germany apply. The place of performance and place of jurisdiction is the domicile of Memsource GmbH. Phrase may also file a lawsuit against customers at the place where their assets are located. All changes to these GTCs and the requirement for text form must be made in text form. The invalidity of individual provisions shall not affect the validity of the other provisions of these GTCs.
Represented by Wolfram Grätz, Frederik Vollert, David Čaněk and Martin Konop
Commercial register: District Court Hamburg HRB 109537
VAT ID-No.: DE265148725
+49 40 357 187 76