General Terms & Conditions
JMS TEXTSERVICE BV
Clause 1 – Definitions
In these general terms and conditions, the following terms have the following meanings:
1.1 General Terms & Conditions: the present general terms and conditions of JMS Textservice;
1.2 Clause: each clause of the General Terms & Conditions;
1.3 Documents: all computer software, data carriers, data files, and information, documents and/or data, contained therein or otherwise, as well as all information, documents or data created or collected by JMS Textservice in the context of the performance of the Agreement, and all other information that bears any relevance to the performance or completion of the Agreement;
1.4 JMS Textservice: the private limited liability company JMS TEXTSERVICE B.V., having its registered office in Edam-Volendam, the Netherlands, registered in the commercial register of the Chamber of Commerce under number 36049540, the entities affiliated to JMS Textservice and/or any third parties designated or to be designated by JMS Textservice;
1.5 Offer: a non-binding offer to enter into an Agreement issued to the Client by JMS Textservice or an authorised person designated by JMS Textservice;
1.6 Assignment: the translation and/or interpretation services undertaken by JMS Textservice in the context of the Agreement with the Client, in accordance with the specifications provided in the Agreement in conjunction with the General Terms & Conditions;
1.7 Client: the natural person or legal entity who has entered into an Agreement with JMS Textservice, or who wishes to enter into an Agreement with JMS Textservice and has made a proposal to that end, or to whom JMS Textservice has issued an Offer;
1.8 Agreement: all agreements entered into, or to be entered into, with JMS Textservice for the provision of interpretation and/or translation services;
1.9 Parties: the Client and JMS Textservice collectively.
Clause 2 – General
2.1 The General Terms & Conditions are applicable to all proposals, Offers and quotations (including appendices) issued by JMS Textservice, to all acceptances by JMS Textservice of proposals issued to it, and to the formation, the content and the performance of all Agreements concluded between the Client and JMS Textservice and the related services.
2.2 The applicability of any General Terms & Conditions used by the Client (including those of its trade association or parent company) is expressly excluded, unless it has been agreed explicitly and in writing that such terms and conditions apply to the Agreement between the Parties to the exclusion of the General Terms & Conditions. If the General Terms & Conditions of JMS Textservice and the General Terms & Conditions of the Client apply in parallel, the General Terms & Conditions of JMS Textservice will prevail in case of conflict.
2.3 Amendments and/or supplements to the General Terms & Conditions are valid only with the written permission of JMS Textservice and to the extent that JMS Textservice is represented in that regard by the management board of JMS Textservice or by an authorised person designated by the management board of JMS Textservice. Any such deviation will not have binding effect on other agreements/juridical acts between the Parties.
2.4 The non-applicability, for whatever reason, of the General Terms & Conditions to any proposal, Offer and/or Agreement does not affect the applicability thereof to other proposals, Offers and/or agreements. The Client also consents in advance to the applicability of the General Terms & Conditions to later Agreements and juridical acts between the Client and JMS Textservice and to the fact that the General Terms & Condition need not be provided once more in such case.
2.5 If one or more provisions of the General Terms & Conditions are void or voidable, the other provisions of the General Terms & Conditions will remain in full force and effect.
2.6 JMS Textservice reserves the right to unilaterally amend the substance of the General Terms & Conditions in the interim. The amended version will apply once JMS Textservice has communicated it by sending a copy of the amended General Terms & Conditions by e-mail and/or by post to the e-mail address and/or postal address of the Client known to JMS Textservice. The latest version of the General Terms & Conditions applies to proposals, Offers and Agreements made thereafter and in cases where different versions can be deemed applicable.
Clause 3 – Offers, proposals and the conclusion of the agreement
3.1 The mere submission of a quotation or a similar notice, whether indicated with Offer or not, will not oblige JMS Textservice to enter into an Agreement with the Client.
3.2 Proposals, Offers and quotations by JMS Textservice are always without obligation and can only be accepted by the Client without changes. If the proposal, Offer or quotation by JMS Textservice contains a time limit, JMS Textservice may always withdraw it before the expiry of such term.
3.3 JMS Textservice cannot be obliged to comply with a proposal, Offer or quotation if it contains a manifest clerical error or misprint which reasonably can be or reasonably could have been recognised as such by the Client.
3.4 JMS Textservice will rely on the correctness of the information provided by the Client and will base its proposal, Offer or quotation on that information. Any loss resulting from incorrectness or incompleteness of this information will be for the account of the Client.
3.5 Proposals and Offers, as well as their acceptance, must always be in writing, except in the event of urgent circumstances.
3.6 In the event that the acceptance by the Client deviates from the proposal by JMS Textservice, this will be deemed a new proposal from the Client to JMS Textservice as well as a rejection of the proposal by JMS Textservice to the Client, even if the deviation only concerns minor points.
3.7 The person who has made a proposal to JMS Textservice or who has accepted a proposal from JMS Textservice will always be regarded as the Client, unless this person has expressly informed JMS Textservice in writing that they are acting on the instructions, in the name of, and for the account of a third party, and have informed JMS Textservice in writing of the name and address details of this third party concurrently with the submission or acceptance of such proposal.
3.8 An Agreement will be concluded as soon as the Client has accepted a proposal or Offer issued by JMS Textservice, or as soon as JMS Textservice has expressly confirmed the Assignment, whether or not in writing, or as soon as JMS Textservice performs an act in execution of the Assignment and the Client does not object to this immediately after JMS Textservice has informed the Client of this. An Agreement for the translation of a text will not be concluded until JMS Textservice has examined the text to be translated and has definitively accepted the Assignment.
3.9 If JMS Textservice accepts an Assignment from the Client or the Client accepts a proposal or an Offer from JMS Textservice, JMS Textservice will have the right to withdraw this acceptance or the Offer within a period of five (5) business days – even after the Agreement has been concluded. In such case, JMS Textservice will not be obliged to pay any damages.
3.10 Agreements and amendments thereto may only be made in writing by the management board of JMS Textservice or by an authorised person designated by the management board of JMS Textservice. JMS Textservice will not be bound by any agreements or amendments thereto with employees of JMS Textservice, unless these have been confirmed in writing by the management board of JMS Textservice or by an authorised person designated by the management board of JMS Textservice. At the Client’s first request JMS Textservice will indicate which persons within its company are authorised to conclude and amend agreements.
3.11 If the Client makes amendments or wishes to make amendments to the Assignment after the Agreement has been concluded, JMS Textservice will be entitled to adjust the term and/or the prices or to still refuse or withdraw the Assignment. If JMS Textservice refuses or withdraws an Assignment, the Client will owe JMS Textservice the price for the part of the Assignment already performed, as well as a fee on the basis of an hourly rate for any research and other work already performed..
3.12 If at any time during the performance of the Agreement it turns out that the proper performance thereof requires the Agreement to be amended or supplemented, this will not be deemed an unforeseen circumstance within the meaning of Article 6:258 of the Dutch Civil Code (DCC), but the party that has made the discovery must inform the other party of this in writing as soon as possible. The Parties will then immediately enter into consultations with a view to amending or supplementing the Agreement. JMS Textservice is entitled to charge all reasonable additional costs related to the amendment to the Client and to reasonably adjust the indicated terms.
Clause 4 – Obligations of the Client
4.1 The Client is obliged to provide its full cooperation with regard to the performance of the Agreement by JMS Textservice, including the prompt answering of questions that JMS Textservice deems relevant to the performance of the Agreement.
4.2 The Client is obliged to provide JMS Textservice with all the Documents that JMS Textservice deems necessary for the proper performance of the Agreement and to do so in good time, in the desired form and in the desired manner.
4.3 The Client is obliged to inform JMS Textservice immediately of all facts and circumstances that may be relevant in the context of the performance of the Agreement.
4.4 The Client guarantees that the information and Documents it provides to JMS Textservice are correct, complete and reliable, even if they originate from third parties. JMS Textservice accepts no liability whatsoever for loss of any kind resulting from the use of the Documents provided by the Client.
4.5 JMS Textservice is entitled to suspend performance of the Agreement in full or in part until the Client has fulfilled its obligations pursuant to this Clause 4.
4.6 All direct and indirect costs and loss incurred by JMS Textservice as a direct or indirect consequence of the fact that the Client has not fulfilled its obligations under this Clause 4 will be fully for the account and risk of the Client.
4.7 If the Agreement concerns an Assignment to perform translation services, the Client must, among other things:
(a) provide JMS Textservice with a readable and/or editable text;
(b) at the request of JMS Textservice, provide a substantive explanation of and/or further documentation for the translation assignment to be performed;
(c) expressly refer to specific terminology that it wants JMS Textservice to use in the text to be translated, by means of a preferred terminology list to be provided upon granting the Assignment.
4.8 If the Agreement concerns an Assignment to perform interpretation services, the Client must, among other things:
(a) ensure normal and proper working conditions under which the interpretation services will be provided;
(b) if the work is performed on location, provide a suitable workspace that meets the statutory occupational health and safety standards and other applicable regulations with regard to working conditions;
(c) provide JMS Textservice, if so requested, with office space and other facilities which JMS Textservice deems necessary or useful for the performance of the Agreement and which meet all the relevant statutory and other requirements.
Clause 5 – Performance of the Agreement
5.1 JMS Textservice is authorised at its own discretion to engage third parties in the context of the performance of the Agreement. The Client will have no voice in the selection of these third parties. JMS Textservice will determine the manner in which and the persons by whom (including persons working at or for JMS Textservice and third parties) the Agreement will be performed. JMS Textservice is not obliged to have its work performed by sworn translators or provisionally/fully certified interpreters or translators. The applicability of Articles 7:404, 7:407(2) and 7:409 DCC is hereby expressly excluded. The third parties engaged by JMS Textservice will also be entitled to invoke the General Terms & Conditions. This provision therefore qualifies as a third-party clause as referred to in Article 6:253 DCC.
5.2 JMS Textservice is obliged to perform the Agreement to the best of its ability and with the necessary expertise, all this based on the state of affairs known at that time. JMS Textservice in no way guarantees that any intended result will be realised.
5.3 JMS Textservice will take the timely and justified instructions provided by the Client into account in the performance of the Agreement, but only to the extent that this is reasonably possible and can reasonably be expected of it and with due observance of the fact that the Client will immediately answer any questions that JMS Textservice deems relevant to the performance of the Agreement.
5.4 The Agreement will be performed by JMS Textservice in accordance with the applicable laws and regulations.
5.5 JMS Textservice will cooperate in amending the Agreement within reasonable limits provided that the amended performance does not differ substantially from what was originally agreed upon, all this at the discretion of JMS Textservice.
Clause 6 – Price
6.1 The prices applied by JMS Textservice will be determined, inter alia, as follows:
a) calculated on the basis of a fixed rate per word to be translated, depending on, inter alia, whether or not there is a need for a sworn translation and revision and the source and target languages;
b) calculated on the basis of a rate per time unit worked (such as per hour or half-day), depending on, inter alia, whether or not there is a need for a sworn translation and revision and the source and target languages;
c) calculated on the basis of a fixed price agreed between the Parties, depending on, inter alia, whether or not there is a need for a sworn translation and revision and the source and target languages;
d) in the event of an urgent assignment, the prices at a), b) and c) will be increased by 15%.
6.2 All prices stated are exclusive of turnover tax (VAT) and other government levies and are, in principle, based on a rate per word, hour, day or half-day as applicable at JMS Textservice.
6.3 The price stated by JMS Textservice for the Assignment to be performed by it will apply only to performance of the Assignment in accordance with the specifications laid down in the Agreement.
6.4 If and to the extent that travel expenses, accommodation expenses and/or other expenses are incurred in the performance of the interpretation services by JMS Textservice, these will be for the account of the Client, unless agreed otherwise in writing with JMS Textservice.
6.5 If a fixed price has been agreed, JMS Textservice will be entitled to charge an additional rate per translated word or time unit worked if the work performed by JMS Textservice exceeds the work provided for in the Agreement.
6.6 Prices will never depend on the outcome of the work performed or any expectation of the Client in this regard.
6.7 JMS Textservice is entitled to increase its prices and/or rates annually. JMS Textservice is furthermore entitled, at its own discretion, to charge on to the Client any price increase of factors determining the cost, including but not limited to wages, social security costs, and suchlike, that have arisen after the Agreement was concluded but before the Agreement was performed in full. If JMS Textservice does so within three (3) months after the Agreement has been concluded, the Client will have the right to dissolve the Agreement, which right it must exercise within fourteen (14) days after notification of the price increase. Dissolution of the Agreement in this manner will not entitle either Party to indemnification.
Clause 7 – Payment
7.1 JMS Textservice has the right to invoice the Client periodically, or after the completion of its services. JMS Textservice may require a partial advance payment of all or part of the agreed price.
7.2 If the services are performed in parts, each performance will be considered a separate transaction and JMS Textservice may invoice per transaction.
7.3 Unless agreed otherwise, the Client must pay the price and other amounts due under the Agreement within twenty (20) days after the invoice date. Any claim for a discount, set-off and/or suspension by the Client is expressly excluded. Payment must be made by transfer to the giro or bank account in the currency stated on the invoice.
7.4 If payment is not made in full within the term specified in Clause 7.1, the Client will be in default by operation of law, without requiring any further notice of default by JMS Textservice. From that moment until the date of payment in full, JMS is entitled to payment of the statutory commercial interest.
7.5 If the Client does not pay within the term stated, the Client will furthermore be obliged to pay all of the extrajudicial and judicial collection costs, including all internal costs of JMS Textservice and the costs of lawyers, bailiffs and collection agencies. The Client will in any event owe extrajudicial collection costs if there is a monetary claim. If the Client is a natural person or legal entity acting in the course of their profession or business, the collection costs will be 15% of the outstanding principal amount, with a minimum of EUR 100 (excluding VAT). If the Client is a natural person not acting in the course of their profession or business, the collection costs will equal a rate in accordance with the Dutch Extrajudicial Collection Costs (Standards) Act (Wet Normering Buitengerechtelijke Incassokosten), with a minimum of EUR 40 (excluding VAT). If in the context of legal proceedings a decision is rendered in favour of JMS Textservice, any judicial costs and enforcement costs incurred will also be fully for the account of the Client.
7.6 Payments made by the Client will always in the first place serve to settle any interest and collection costs owed, and in the second place to settle the due and payable invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
7.7 If, in JMS Textservice’s opinion, the financial position or payment record of the Client, or of the party on whose behalf the Client acts in accordance with the provisions of Clause 3.7, so warrants, JMS Textservice will be entitled to require the Client to provide security/additional security in a form to be determined by JMS Textservice. If the Client fails to provide the required security, JMS Textservice will be entitled, without prejudice to its other rights, to suspend further performance of the Agreement in whole or in part with immediate effect, and all amounts that the Client owes to JMS Textservice will become immediately due and payable.
7.8 If there are several Clients, they will all be jointly and severally liable for the fulfilment of the contractual obligations to JMS Textservice.
7.9 All claims of JMS Textservice in respect of the Client will become immediately due and payable in full if:
a) the Client does not fulfil its payment and/or other obligations under an Agreement in full or on time;
b) the Client has applied for bankruptcy, suspension of payments or debt restructuring, has offered a composition, indicates that it will cease its business activities, has gone bankrupt, has been granted a suspension of payments or has been admitted to a debt rescheduling arrangement;
c) attachment has been levied on the Client’s assets or receivables;
d) the Client (legal entity) changes its legal form, merges, demerges or is dissolved;
e) the Client (natural person) is placed under guardianship or administration or dies.
Clause 8 – Delivery
8.1 Unless agreed otherwise, delivery will be deemed made:
a) in case of translation services, at the time the translation or draft translation is sent to the Client. In this regard, the time of sending will be the moment when the translation is handed over to a courier or is posted or, in case of electronic transmission (by e-mail, fax, etc., including notification of a web link via which the Client can gain access to the translation), the moment when the transmission is completed;
b) in case of interpretation services, at the time the services are provided.
8.2 If, in case of translation work, the delivery is made by electronic transmission, the translation or draft translation is delivered to the Client only once and without any guarantee and/or obligation for replacement.
8.3 JMS Textservice is authorised, but not obliged, to deliver or perform its work in parts.
8.4 The Client is obliged to provide its full cooperation in the delivery or performance of that which JMS Textservice is required to do under the Agreement. The Client will also be in default, without requiring a notice of default by JMS Textservice, if it refuses to accept delivery and/or obstructs performance in JMS Textservice’s opinion, which expressly includes the failure to promptly answer any questions that JMS Textservice deems important for the performance of the Agreement.
Clause 9 – Term of delivery
9.1 A term of delivery stated by JMS Textservice will be of an indicative nature only, unless it has been expressly agreed in writing that it is a deadline. A term or date stated will never be a deadline, unless expressly agreed otherwise in writing. JMS Textservice will not be in default until the Client has given it notice of default, even if a deadline has been agreed. If no term of delivery has been agreed with JMS Textservice, JMS Textservice itself will be entitled to determine a reasonable term for the performance of the Agreement.
9.2 JMS Textservice’s obligation to comply with any agreed deadline for delivery will lapse if the Client and JMS Textservice have agreed on an amendment to the Agreement or the specifications of the Assignment. In such a case, the Parties must agree on a new term of delivery. If the Parties do not agree on a new term of delivery, the provisions of this Clause 9 will apply mutatis mutandis.
9.3 The indicated or agreed term of delivery will apply as soon as an Agreement has been concluded between the Parties in accordance with Clause 3, JMS Textservice has been provided with all the data, materials and Documents necessary for the performance of the Assignment, any agreed advance payment has been made to JMS Textservice, and any other conditions agreed in writing between the Parties have been complied with.
9.4 If the term within which the Assignment is to be performed is expressed in days, this will be understood to mean business days, which are calendar days, unless they fall on a day of rest or public holiday, weekend day, day of leave or other non-individual days off, recognised nationally or at the place of work, prescribed by the government or by virtue of a collective bargaining agreement. If delivery is to be made on a day that is not a business day, the next business day will apply as the agreed day of delivery or performance.
9.5 JMS Textservice is entitled to change the agreed term unilaterally if, but not exclusively if:
a) the Client provides an an exceptionally labour-intensive text, an unclear copy, an illegible text and/or Documents of inferior quality, which forces JMS Textservice to perform more work than it could reasonably have expected upon entering into the Agreement;
b) the Assignment cannot be performed given the information provided by the Client and circumstances on which JMS Textservice based its proposal or Offer or accepted the Assignment;
c) the Assignment cannot be performed within the agreed term of delivery as a result of force majeure, a circumstance that is for the account of the Client or a circumstance that cannot be attributed to JMS Textservice;
d) the Client has not fulfilled its obligations pursuant to Clauses 4 and/or 5 and/or 7 and/or 8 and/or 9 and/or 10, or has not done so in full or in time.
The above list is not exhaustive.
9.6 In the performance of the Agreement by JMS Textservice, the Client is obliged to do all that is reasonably necessary or desirable to enable JMS Textservice to deliver on time.
9.7 If the performance of the Agreement is delayed, halted, postponed and/or cancelled due to factors that cannot be attributed to JMS Textservice, for which the Client is responsible in JMS Textservice’s opinion and/or that are for the account and risk of the Client, the Client will compensate JMS Textservice for the costs and loss arising therefrom. JMS Textservice will at all times be entitled to set off its costs and loss against any advance payment made by the Client.
Clause 10 – Inspection upon delivery / complaints procedure
10.1 The Client will be obliged to check promptly after delivery whether JMS Textservice has properly complied with the Agreement and must furthermore immediately inform JMS Textservice in writing if it believes that this is not the case. Filing a complaint will not release a Client from its payment and other obligations in respect of JMS Textservice. The Client must carry out the aforementioned inspection and issue the relevant notice within the terms set out below at a through c.
(a) If the Client has a complaint with regard to an interpretation service, this complaint must be reported to JMS Textservice in writing within five (5) business days after the end of the interpretation service;
(b) The Client is obliged to check essential elements of the translation or draft translation for correctness immediately upon delivery, in particular where this concerns legal, medical or technical terms, amounts of money, quantities or values, and to report any inaccuracies in a concrete and sufficiently specific manner to JMS Textservice in writing within twenty-four (24) hours after delivery of the translation or draft translation. If the Client has a complaint with regard to a translation of a text, this complaint must, to the extent that it concerns objectively ascertainable errors, be reported to JMS Textservice in writing within five (5) business days after delivery of the translation or draft translation, after which JMS Textservice will correct these objective errors – to the extent that it shares the Client’s view – free of charge. Errors reported after the above terms will, in principle, not be corrected free of charge.
(c) If the Client has a complaint with regard to an invoice of JMS Textservice, this complaint must be reported to JMS Textservice in writing within two (2) weeks after the invoice date.
10.2 If and to the extent that complaints concern a translation of a text, these complaints will not be accepted if they are the result of an error or ambiguity in the source text provided by or on behalf of the Client.
10.3 If a complaint is well-founded, JMS Textservice will always be entitled to correct or replace what has been delivered within a reasonable term, to the extent that this is still reasonably possible. JMS Textservice will also be entitled to grant a price reduction. The free choice between correction, replacement or price reduction will always be exclusively reserved to JMS Textservice.
10.4 If the Client has failed to carry out the inspection or notify JMS Textservice within the terms stated in paragraph 1 of this Clause, the Parties will be deemed to have performed the Agreement properly.
10.5 Performance of the Agreement by JMS Textservice will in any event be deemed satisfactory if the Client has reproduced, edited or processed the translation or draft translation (whether or not in digital form), has supplied it to third parties (for processing, printing, reproduction or otherwise), or has allowed it to be used by third parties, has had it edited, processed, reproduced or supplied to third parties. In that case, any right to file a complaint, to obtain a correction, replacement and/or a price reduction will lapse.
10.6 If JMS Textservice alters any part of the translated and/or edited text, whether or not at the request of the Client and whether or not after the expiry of an applicable term specified in this Clause 10, such alteration will not constitute an acknowledgement by JMS Textservice of unsatisfactory performance.
10.7 The right to file a complaint will in any event lapse one year after the termination of the Agreement.
10.8 JMS Textservice must be given the opportunity to investigate the complaint in good time. If the investigation of the complaint requires that the translation or draft translation delivered be returned, this will, in principle, be done at the expense of JMS Textservice and at the risk of the Client. In the event of unjustified complaints, JMS Textservice will be free to charge the Client for the costs of the investigation and/or the return shipment.
Clause 11 – Retention of title and right of retention
11.1 JMS Textservice will retain title to all that has been and will be delivered to the Client under the Agreement and to the translations or draft translations resulting from the services, until such time that the Client has fulfilled all its obligations, of whatever nature, to JMS Textservice. The Client’s obligations expressly, but not exclusively, include payment of the price for the services performed or to be performed, increased by claims for the Client’s attributable failure in the performance of its obligations, including the payment of damages, judicial and extrajudicial collection costs and any interest.
11.2 Translations and draft translations that are subject to retention of title may be sold by the Client in the context of its ordinary business operations only if and to the extent that the Client has obtained the express permission of JMS Textservice to that end. The Client is not authorised to pledge the performances and translations or draft translations subject to the retention of title or to encumber them in any other way or to give them in use to third parties. This provision has effect under property law.
11.3 If third parties levy attachment on the translations or draft translations delivered by JMS Textservice subject to retention of title, or wish to establish or exercise rights in that regard, the Client must inform JMS Textservice of this immediately.
11.4 If JMS Textservice has Documents, translations, draft translations, or other property of the Client in its possession, it has the right to retain these until the Client has fulfilled all its obligations, of whatever nature, in respect of JMS Textservice, unless the Client has provided adequate security for its obligations. The Client’s obligations expressly, but not exclusively, include payment of the price for the services performed or to be performed, increased by claims for the Client’s attributable failure in the performance of its obligations, including the payment of damages, judicial and extrajudicial collection costs and any interest.
Clause 12 – Copyright / Intellectual property
12.1 All intellectual property rights that are or will be vested in the intellectual products of JMS Textservice and which were developed by JMS Textservice, such as, inter alia, the performances delivered and the translations and draft translations, will remain vested in JMS Textservice. The Client is expressly not permitted to reproduce, disclose or exploit such products without the express permission of JMS Textservice.
12.2 If JMS Textservice acquires knowledge regarding the translation of certain words and/or terms during the performance of an Agreement and/or Assignment, JMS Textservice will be permitted to use this knowledge for other purposes and agreements as well, all this to the extent that JMS Textservice does not thereby violate its duty of confidentiality in respect of the Client under Clause .
12.3 The Client will indemnify JMS Textservice against claims by third parties on account of alleged infringement of property rights, patent rights, copyrights or other intellectual property rights related to the Assignment and performance of the Agreement.
12.4 The Client will immediately inform JMS Textservice of any infringement and/or improper use of the intellectual property rights vested in JMS Textservice.
Clause 13 – Confidentiality
13.1 The Client is not permitted to disclose or otherwise make available to third parties the contents of advice, opinions or other statements made by JMS Textservice, whether or not in writing, except in the event that this has been agreed in advance and in writing for the purpose of obtaining an expert opinion concerning the work of JMS Textservice, disclosure is required based on applicable laws or regulations, or the Client is a party to legal proceedings.
13.2 JMS Textservice is not entitled to use the information made available to it by the Client for any purpose other than that for which it was obtained, unless by virtue of applicable laws or regulations or with the written permission of the Client.
Clause 14 – Force majeure
14.1 If JMS Textservice is permanently or temporarily prevented from performing the Assignment and/or the Agreement as a result of force majeure, JMS Textservice will be entitled to terminate the Agreement in whole or in part with immediate effect or suspend its obligations in whole or in part, without this giving rise to any obligation on the part of JMS Textservice to pay damages.
14.2 In the event that when the situation of force majeure arises JMS Textservice has already performed part of its obligations under the Assignment and/or the Agreement, or can perform only part of its obligations, it may invoice the part already performed or the part it will be able to perform separately, which invoice the Client must pay to JMS Textservice in accordance with the provisions of Clause 7.
14.3 JMS Textservice will also be entitled to rely on force majeure if the circumstance preventing further performance has arisen after JMS Textservice should have performed its obligations under the Assignment and/or the Agreement.
14.4 Force majeure is understood to mean circumstances which prevent the performance of obligations under the Assignment and/or Agreement and which cannot be attributed to JMS. These expressly, but not exclusively, include (if and to the extent that such circumstances make performance impossible or unreasonably difficult) government measures, extraordinary weather conditions, illness and/or death of employees and/or auxiliary staff of JMS Textservice, disturbances, revolutions and/or wars, a failure in the performance, whether attributable or not, and/or force majeure on the part of those persons on whom JMS Textservice depends for the performance of the Agreement, fire and/or interruption in JMS Textservice’s operations, strikes at companies other than JMS Textservice, wildcat strikes or political strikes at JMS Textservice, a defect in or malfunction of the required equipment or electronics, disruptions in the services of internet providers, unforeseeable stagnation at suppliers or other third parties on which JMS Textservice depends and general transport problems at JMS Textservice, or other circumstances beyond the control of JMS Textservice.
Clause 15 – Termination; right of revocation
15.1 An Agreement for an indefinite period of time may be terminated in writing by either Party with due observance of a reasonable term.
15.2 An Agreement for a definite period of time cannot be terminated early by the Parties, without prejudice to the provisions of Clause 16.
15.3 If the Client terminates an Agreement early, JMS Textservice will be entitled to compensation for the costs and loss it incurs as a result, provided that these have been made plausible. Such costs and loss include, among other things, the work already performed by JMS Textservice, the loss incurred and lost profit, and at any rate the costs already incurred by JMS Textservice in preparation, including those of reserved capacity, purchased materials and services supplied by third parties. The assessment of this compensation will furthermore be based on the average turnover realised by JMS Textservice in the past with regard to Assignments for this Client, as well as the turnover with regard to the Assignments still to be performed by JMS Textservice for the Client during the remaining contract period.
15.4 If JMS Textservice terminates an Agreement early, the Client will be entitled to the cooperation of JMS Textservice in transferring the services to a third party, unless JMS Textservice felt compelled to terminate the Agreement as a result of intent or deliberate recklessness on the part of the Client. The right to cooperation provided for in this paragraph is subject to the condition that there may not be any outstanding claims (including claims for damages, costs and interest) of JMS Textservice in respect of the Client.
15.5 In case of an Agreement with regard to translation services, the resulting product will be deemed a custom-made product. As custom-made products, these translations and draft translations – which are made or adapted specifically for the Client – are not subject to the statutory cooling-off period and the right of revocation. Such an Agreement cannot be terminated after delivery of the translation or draft translation, the translation or draft translation cannot be returned, and the Agreement and delivery are thus final, unless agreed otherwise in writing.
Clause 16 – Dissolution
16.1 JMS Textservice will be entitled to dissolve the Agreement in whole or in part and/or to suspend performance of its obligations in whole or in part, without a further notice of default being required and without being obliged to pay any damages, if:
(a) the Client does not fulfil its obligations under the Agreement in full or on time;
(b) the Client acts contrary to one or more of its obligations under the General Terms & Conditions;
(c) JMS Textservice has good reason to fear that the Client will not fulfil its obligations under the Agreement and/or the General Terms & Conditions at all, in full or on time;
(d) bankruptcy, suspension of payments or debt rescheduling has been applied for in respect of the Client, a composition has been offered, or the Client indicates that it will cease its business activities;
(e) attachment has been levied on the Client’s property;
(f) the Client (legal entity) changes its legal form, merges, demerges or is dissolved;
(g) the Client (natural person) is put into guardianship or administration or dies.
(h) there is a change of control over the Client, or the control over the Client is transferred to a third party;
(i) JMS Textservice has asked the Client to provide security for the performance of its obligations and this security is not provided or is insufficient.
16.2 If the Agreement is dissolved, cancelled or otherwise terminated, the claims of JMS Textservice in respect of the Client will become immediately due and payable in full.
Clause 17 – Liability and indemnity
17.1 JMS Textservice will be liable in respect of the Client only for the loss resulting directly from an attributable failure in the performance of JMS Textservice’s obligations under the Agreement and/or from unlawful conduct on the part of JMS Textservice. Direct loss is exclusively understood to mean:
i. property damage,
ii. the reasonable costs incurred to establish the cause and extent of the loss, to the extent that this concerns the direct loss as referred to in this Clause 17;
iii. any reasonable and demonstrable costs incurred in order to have an inadequate performance rendered by JMS Textservice conform to the Agreement, to the extent that such performance can be attributed to JMS Textservice, and
iv. the reasonable and demonstrable costs incurred by the Client to prevent or limit the direct loss, to the extent that the Client demonstrates that these costs have led to the limitation of the direct loss as referred to in this Clause 17.
17.2 JMS Textservice will not be liable for loss incurred by the Client or third parties, to the extent that all or part of this loss is the result of:
(a) incorrect and/or incomplete Documents provided to JMS Textservice by or on behalf of the Client; and/or
(b) ambiguities in texts to be translated which have been provided to JMS Textservice by or on behalf of the Client; and/or
(c) incorrect, incomplete or other instructions or requests given to JMS Textservice by the Client;
(d) the absence of a prompt reply by or on behalf of the Client to questions that JMS Textservice deems of importance to the performance of the Agreement;
(e) an act and/or omission on the part of third parties and/or auxiliaries engaged by, on behalf of or at the request of the Client;
(f) misunderstandings, corruption, delays or improper transmission of assignments, instructions, changes and notifications resulting from the use of internet or any other electronic means of communication;
(g) an act or omission on the part of the Client.
17.3 JMS Textservice will not be liable for any indirect loss incurred by the Client or third parties. Indirect loss will be understood to include all loss that is not direct loss and in any event includes, but is not limited to, consequential loss, trading loss, loss due to delays, lost profit and/or personal injury.
17.4 JMS Textservice will not be liable for any damage to or loss of the Documents made available to JMS Textservice or third parties engaged by it for the performance of the Agreement. Nor will JMS Textservice be liable for costs and/or loss incurred by the Client or third parties as a result of the use of information technology and means of telecommunication or the transport or transmission of information and information carriers or the presence of computer viruses in the files and/or information carriers delivered by JMS Textservice.
17.5 In the unlooked-for situation that an event (including an omission) should occur during the performance of the Agreement which results in liability on the part of JMS Textservice, this liability will at all times be limited to the amount paid out by JMS Textservice’s insurer in the relevant case under the professional liability insurance taken out by JMS Textservice.
17.6 If and to the extent that, for whatever reason, no payment is made under the professional liability insurance, JMS Textservice’s liability will at all times be limited to the total amount of the invoices in the case concerned, or at least to that part of the invoice to which the liability pertains, at all times up to a maximum of the amount covered by the professional liability insurance taken out by JMS Textservice, including JMS Textservice’s excess in connection with said insurance. The professional liability insurance of JMS Textservice does not provide cover for Agreements with and Assignments for Clients from the United States and Canada, and JMS Textservice therefore cannot accept any liability in that regard. An overview of the further cover under the professional liability insurance will be sent to Clients or prospective Clients on request.
17.7 If and to the extent that loss is caused to persons or damage is caused to property in connection with the performance of the Agreement for which JMS Textservice is liable, such liability will always be limited to the payment under the general business liability insurance taken out by JMS Textservice, including JMS Textservice’s excess in connection with that insurance. The business liability insurance of JMS Textservice does not provide cover for Agreements with and Assignments for Clients from the United States and Canada, and JMS Textservice therefore cannot accept any liability in that regard. An overview of the further cover under the business liability insurance will be sent to Clients or prospective Clients on request.
17.8 In the event that third parties engaged by JMS Textservice for the performance of the Agreement with the Client wish to limit their liability in connection with the provisions of the foregoing Clauses, JMS Textservice assumes, and if necessary hereby confirms, that all assignments granted to it imply that JMS Textservice has the authority to accept such a limitation of liability on behalf of these third parties, which also follows from the provision of Clause 5.1 that there is a third-party clause as referred to in Article 6:253 DCC.
17.9 The Client will indemnify JMS Textservice against all claims of third parties, including all costs of legal assistance, relating to or arising from the use of the goods delivered by JMS Textservice, or otherwise arising from the Agreement.
17.10 The limitations of liability included in this Clause 17 will not apply if the loss can be attributed to intent or deliberate recklessness on the part of JMS Textservice or third parties engaged by it, or if provisions of mandatory law regarding liability provide otherwise.
Clause 18 – Dispute resolution
18.1 Any disputes that might arise further to the proposals, Offers and quotations issued by JMS Textservice, and all Agreements and Assignments between the Client and JMS Textservice, or further Agreements concluded between them as a result, will be adjudicated by the competent Dutch court in Noord-Holland, Haarlem location.
18.2 Bringing a case before a court will not be possible before the complaints procedure as stated in Clause 10 has been completed.
Clause 19 – Applicable law
19.1 The proposals, Offers and quotations issued by JMS Textservice, as well as all Agreements and Assignments, or at least legal relationships between the Client and JMS Textservice, will be governed by Dutch law.