General Terms and Conditions
General Terms and Conditions of Cerebro AG for its services as a translation agency in relation to other companies
§ 1 Scope of validity
(1) The deliveries, services and offers of Cerebro AG take place exclusively on the basis of these terms and conditions. These therefore also apply to all future business relationships, even if this is not explicitly agreed for each and every business transaction.
(2) The contractual relationship with the customer is exclusively governed by the general terms and conditions of Cerebro AG. The customer’s general terms and conditions shall apply only insofar as they are expressly agreed to in writing by Cerebro AG.
§ 2 Conclusion of contract
(1) Offers contained in brochures, advertisements, on websites etc. are subject to change and non-binding – including with regard to the price information. Cerebro AG remains committed to specially drafted offers for a period of 30 days.
(2) The services listed on the website of Cerebro AG do not represent a binding offer. They should instead be seen as an invitation to the customer to place an order with Cerebro AG.
(3) The customer is committed to his order for seven days. Orders shall only be deemed accepted and legally binding if they are confirmed by Cerebro AG in writing.
(4) All agreements and declarations relating to the contractual relationship require the written form in order to be legally valid. This also applies to an agreement according to which the requirement for the written form is to be waived.
§ 3 Object of services
(1) The object of the services of Cerebro AG is the undertaking of translations, interpreting and DTP. Cerebro AG assumes liability, within the framework of the following provisions, exclusively for the content-related accuracy of the translation, though not for its suitability for the application or reuse anticipated by the client.
§ 4 Warranty for defects
(1) There are no claims due to defective performance, insofar as the defects only affect the suitability for use as per the contract in an insignificant manner.
(2) Cerebro AG shall in no case be obliged to reproduce the service as part of supplementary performance. If the supplementary performance is unsuccessful, the customer has the right to request a price reduction or withdraw from the contract, as he chooses.
(3) If the customer wishes to demand compensation instead of the service, the supplementary performance is only considered to have failed following the second unsuccessful attempt.
§ 5 Liability
(1) Cerebro AG shall be liable in the event of intent or gross negligence in accordance with the legal regulations. In all other cases, Cerebro AG shall only be liable due to the culpable infringement of fundamental contractual obligations. However, the claim for damages due to the infringement of fundamental contractual obligations is limited to contractually typical, foreseeable damage. This also applies to minor negligent breaches of duty by representatives or agents of Cerebro AG.
(2) However, liability for damage to the customer’s legal assets is completely excluded, unless a guarantee for damage caused by delays or for consequential damage was provided contractually. This does not apply if the damage was caused deliberately or due to gross negligence.
(3) The provisions of the aforementioned Paragraphs 1 and 2 extends to compensation for damages in addition to and instead of the service, regardless of the legal justification for this, in particular due to defects, the infringement of duties from the legal obligations, or due to unauthorised actions. This also applies to the claim for reimbursement of wasted expenditure. However, liability for default is determined in accordance with § 5 (5), and liability for impossibility in accordance with § 5 (6).
(3) In the event of delayed performance, Cerebro AG shall be liable for cases of intent or gross negligence, including for representatives and agents, in accordance with the legal regulations. However, the liability of Cerebro AG is limited to foreseeable, contractually typical damage in cases of gross negligence. In other cases of delayed performance, the liability of Cerebro AG for compensation for damages in addition to the service shall be limited to 50%, and for compensation for damages instead of the service to 50% of the price agreed for the service. Further claims of the customer are excluded – even after expiration of a performance deadline set for Cerebro AG. If the non-observance of deadlines is due to force majeure or similar events (e.g. industrial action and lock-outs), the deadlines will be extended accordingly.
(4) If performance is impossible, the customer is entitled to claim compensation for damages in accordance with the legal regulations. However, the liability of Cerebro AG is limited to foreseeable, contractually typical damage in cases of gross negligence. The customer’s claim to compensation for damages in addition to or instead of the service and to the reimbursement of wasted expenditure shall be limited to 50% of the price agreed for the part of the performance that cannot be fulfilled. Further claims of the customer due to the impossibility of delivery are excluded. The customer’s right to withdraw from the contract remains unaffected.
(5) An alteration of the burden of proof to the disadvantage of the customer is not associated with the aforementioned regulations.
§ 6 Withdrawal from the contract
Within the scope of the legal regulations, the customer can withdraw from the contract if Cerebro AG is responsible for a breach of duty. In such a case, the customer must, within a reasonable period of time and if requested to do so by Cerebro AG, state whether he is withdrawing from the contract or claiming the performance. In the case that the object of the contract is defective, the legal regulations remain in force.
§ 7 Limitation
(1) The statutory period of limitation for claims and rights due to defects, regardless of the legal basis for these, is three months.
(2) The statutory period of limitation in accordance with Clause 1 also applies to other claims for compensation against Cerebro AG, regardless of their legal basis and also in the event that they are not related to a defective performance.
(3) The aforementioned statutory period of limitation applies with the following stipulation:
a) The statutory period of limitation does not fundamentally apply in the case of intent.
b) It also does not apply to fraudulent concealment of the defect or if Cerebro AG has provided a guarantee for the characteristics of the object of performance. In the event of fraudulent concealment, the statutory periods of limitation of § 634 a(1) No. 1 of the German Civil Code [BGB] apply to the exclusion of § 634 a(3) of the BGB insofar as there is no other exceptional case for this paragraph.
c) Furthermore, the limitation obligations do not apply for compensation claims due to breaches of duty resulting from gross negligence or intent.
(4) The statutory period of limitation begins on acceptance for all compensation claims.
(5) The compensation claims mentioned here also conceptually include claims to reimbursement of wasted expenditure.
(6) Unless expressly agreed otherwise, the statutory regulations on the start of the period of limitations, suspension of the period, stay and recommencement of the period remain unaffected.
(7) An alteration of the burden of proof to the disadvantage of the customer is not associated with the aforementioned regulations.
§ 8 Due date for payment, off-setting, right of retention
(1) The payment is due in full on acceptance of the service and issuance of the invoice. The customer will be in default without any further declaration if he has not paid within 10 days of the payment becoming due and of presentation of the invoice.
(2) In the event that defects are in existence, the customer does not have a right of retention, unless the service is clearly defective or the customer clearly has a right to refuse acceptance. In such a case, the customer is only entitled to retention if the retained amount is reasonable in relation to the defects and the anticipated costs of supplementary performance.
(3) The customer is not entitled to exercise claims or rights due to defective performance if he has not made due payments and the due amount (including any payments already paid) is reasonable in relation to the value of the defective performance.
(4) In the event of default of payment, Cerebro AG is entitled to demand default interest amounting to nine per cent above the base rate. The customer is entitled to present evidence that Cerebro AG has suffered less or no damage due to the default. Cerebro AG is entitled to provide evidence of greater damage caused by the default.
(5) The customer may only offset payables against claims of Cerebro AG if they are acknowledged or have been established in law.
(6) Cerebro AG is entitled to credit the customer’s payments first against older debts, then against costs and interest accrued, and finally against the principal amount.
§ 9 Place of jurisdiction
Insofar as the customer is a tradesman, the headquarters of Cerebro AG shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.