GENERAL TERMS AND CONDITIONS
As on: 2nd of May 2018
Nativy Ltd. (GmbH)
Schönborngasse 18, Top 5
Phone: +43-660-508 80 33
Email: [email protected]
GENERAL TERMS AND CONDITIONS for Nativy Ltd. (GmbH)
Nativy Ltd. (GmbH) operates a web-based system for communication as well as data processing (available online at www.Nativy.com) for the individual selection, organisation and subsequent placing of translation assignments by registered clients in Austria and abroad. The purpose of the modular Nativy web-platform is to allow the placing of orders that are individually tailored to the needs of clients, and the professional organisation of translation and proofreading assignments. A broad network of certified translators and proofreaders enables a high-quality and time-efficient placing of translation assignments with clients/members.
These General Terms and Conditions regulate the legal as well as economic parameters in the preliminary stages, during and after the conclusion of a contract for work and services between Nativy and the members as well as other users of the Nativy platform.
Section 1: Definitions
The terms listed below will be frequently used in the General Terms and Conditions and are therefore defined below to enable better understanding. The following definitions include the singular as well as the plural form of the terms listed.
GTCs: These General Terms and Conditions, which constitute the exclusive basis for the contract of use agreed upon between Nativy and the user.
Nativy: Nativy Ltd. (GmbH), Schönborngasse 18 Top 5, A-1080 Vienna, Austria.
Nativy platform: The online platform operated by Nativy (available online at www.Nativy.com) for the interactive evaluation and selection of translators as well as for the placing of translations assignments with Nativy.
Intellectual property: All proprietary rights to the Nativy platform and all content made available via this platform as well as the rights to a translation, consisting of, among other things, (i) copyright as well as any expertise of a translator extending beyond this and capable of being protected.
Proofreader: A proofreader qualified according to the European Standard for Translation Services ‘EN 15038’ and selected by Nativy according to internal regulations based on qualifications and experience, and accepted into the translation network.
Member: Every natural and legal person in Austria and abroad having duly registered on the Nativy platform to whom an individual account/user interface has been assigned.
Member account: An individual account created at member registration enabling access to the user interface.
User: Every natural and legal person accessing the Nativy website and the Nativy platform online, or having it accessed, without becoming a member.
Contract for work and services: The legal transaction between Nativy and the contracting parties established exclusively on the basis of these General Terms and Conditions.
Translator: A translator qualified according to the European Standard for Translation Services ‘EN 15038’ and selected by Nativy according to internal regulations based on qualifications and experience and accepted into the translation network.
Translation: A translation made by a translator on the basis of a member’s assignment and approved by Nativy.
Translator network: The network portfolio of international, certified translators accessible to the client via the Nativy platform.
User interface: The interface on the Nativy platform allotted to a member for individual download/upload of content.
Selection: The choice of a translator made by the client at the end of the selection phase. After a successful selection, only Nativy will contact the respective translator and will allocate the translation assignment on a bilateral level. Translators and clients can communicate directly via Nativy once the translation process has started.
Selection phase: Time from the member’s first request for a translation on the Nativy platform until any final selection.
Proofreading: Revision of a text in order to improve its comprehensibility for the target audience.
Contracting parties: All natural and legal persons making legitimate use of the Nativy platform – thus all members and all users, independent of their registration.
Section 2: Scope
(1) The current version of the GTCs regulates the legal and economic parameters for the use of the Nativy platform as well as its subdomains by the contracting parties. The contracting parties are only bound to the provisions that actually apply to them in the contract for work and services.
(2) The GTCs have an immediate binding effect exclusively between Nativy and the contracting parties. Legal effects and claims on the basis of a contract in favour of third parties or with a protective effect for third parties do not arise from the GTCs unless explicitly stated otherwise in a contractual agreement or provision.
(3) In every single case, contractual deviation from the GTCs requires the explicit agreement of Nativy, communicated in writing. Where supplementary regulations apply for particular functions, services or areas of the Nativy platform, the contracting party will be notified separately of these regulations before the first implementation and/or use of the function, service or area in question. Upon implementation and/or use, the contracting party agrees to the relevant supplementary regulations and recognises them as binding. The supplementary regulations apply to every use of the same function, service or area.
(4) When using the Nativy platform, the contracting party must observe and duly comply with current law as well as the regulations of these GTCs.
(5) Upon entering into a contract for work and services as per to Section 3, Subsection 1, the GTCs are also accepted by the contracting party and are subsequently valid for the entire duration of business relations. Any (business) conditions stated by the contracting party do not automatically become subject matter of the contract and only apply if accepted in writing by Nativy, and only with an individual agreement. In every individual case, contractual deviation from the GTCs and a contract for work and services based on these terms requires the explicit agreement of Nativy in writing.
(6) Employees of Nativy as well as any other person employed by Nativy in the performance of its contractual obligation are not permitted to make any side agreements exceeding the content of the contractual obligation.
Section 3: Entering into contract
(1) A contractual relationship is established between the contracting party and Nativy as a result of a written and/or electronic offer from Nativy; the explicit and implicit acceptance as a result of simple use of and/or registration on the Nativy platform; the transfer of a text (document) to be translated and the subsequent award of a translation assignment where applicable. The current version of the GTCs is accessible via a link on the Nativy website www.Nativy.com.
(2) In the event of registration, the member must explicitly declare his/her agreement with the GTCs through activation of and/or clicking of the box provided for this purpose.
(3) Users as per Section 1 of the Consumer Protection Act can revoke their contract in text format (e.g. letter, email) within 2 (two) weeks from valid registration on the Nativy platform, without giving reasons. The revocation period shall be deemed observed if notice of revocation is given within this period.
(4) Nativy shall be entitled to decline a contract for work and services with the contracting party or withdraw from this contract at any time if:
(a) justified doubts arise concerning the identity, legal capacity and/or legal personality of the contracting party or the authority of a (natural or legal) person representing the same;
(b) reasonable suspicion arises regarding abuse of the Nativy platform or of applications accessible via the member account (user interface) exclusively allocated to the member;
(c) other circumstances arise which would make it unacceptable for Nativy to enter into or maintain a contractual relationship.
(5) Offers from Nativy upon entering into a contract are subject to change without notice. Products and services depicted by Nativy online, on brochures or other advertising material do not represent binding offers.
(6) Nativy reserves the right to change or temporarily or permanently deactivate existing functions and services, introduce new functions and link individual functions to the satisfaction of particular requirements.
(7) None of the information regarding technical data or product attributes in printed matter, catalogues, advertisements, price lists and other information or promotional materials produced by Nativy serves as a basis for any claims by the contracting party and represent only a general description of Nativy and an identification of its benefits. A quality guarantee can be assumed only where this is expressly designated and agreed as such.
(8) In the case of disagreement over the meaning of technical IT terms and symbols, quality stipulations, formatting requirements or the like, provisions in the version current at the time of entering into the contract are to take priority.
(9) Furthermore, Nativy has the right to change, expand or limit the contents and scope of the contractual services in a manner deemed reasonable for the contracting party, after providing prior notification in a timely manner. Nativy will take such measures in particular where these are prompted by technical or legal circumstances or where they will serve to ensure the functionality of Nativy.
Section 4: Subject matter of contract and scope of services
(1) Object of the contract for work and services is solely the appropriate provision of the Nativy platform, the handling of translations and the independent commissioning of a translator after successful selection by a member. All services will be provided within and on the basis of the current GTCs. It shall be noted that the handling of the translation assignment is to be carried out exclusively by Nativy and the translator acting as an auxiliary agent for Nativy (Section 1313a, Austrian Civil Code). However, the provision of mediation services by Nativy in the sense of a brokerage contract is not the purpose of the contract for work and services.
(2) The use of the Nativy platform in accordance with the regulations is generally open to any user. The use of some functions and/or tools, in particular the optional selection of translators as well as the awarding of translation assignments requires a previous registration on the Nativy platform as per Section 7.
(3) During the selection phase, the client is permitted at any time to place specific requests as well as a request for qualifications to the translator via the Nativy platform in the lead-up to a possible translation assignment. Nativy will ensure smooth communication as well as an unrestricted exchange of information. Should members select a translator, Nativy may at its own discretion award the translation assignment to the selected translator.
(4) The object of the services to be provided by Nativy within the framework of the contract for work and service can be, amongst others:
(a) Provision and maintenance of the Nativy platform for members and users;
(b) Implementation of generated data on the member account/user interface as well as the granting of custom access to the same.
(c) Specific user features through the provision of an individual member account; members can independently access the data saved in the system at any time;
(d) Provision of information and contacts to certified translators as well as the commissioning of translation services by selected translators.
(e) The offer of a ‘terminology database’, which can be populated by individual users with subject-specific terms for the translator to use in their assignments, which will not, however, be reviewed by Nativy for linguistic correctness.
(f) Optional setup of a credit account for the member, from which payments for future translation assignments can be booked in advance.
(g) Implementation of a ‘chat protocol’ accessible via the member account, which enables members to contact the translator directly, after the selection process, with reference to an order number assigned by Nativy, in order to facilitate the clarification of issues relating to a particular translation assignment, and other messages.
(5) As an exclusively technical service provider, Nativy is neither directly nor indirectly involved in the communication between members and/or between members and users that takes place via the Nativy platform. The description of a text during the order process acts solely as information for the translator and does not represent the subject matter of a contract. Any notifications sent via the Nativy platform in relation to an enquiry regarding a translation are exclusively for the purposes of information. Furthermore, Nativy is not required to receive and process complaints against other members/users or to mediate in or arbitrate on disputes between them, except where the object of the complaint is compliance with legal or contractual obligations on the part of Nativy.
Section 5: Services/obligations of the contracting parties
(1) The contracting party is obliged to use the Nativy platform in a manner that conforms to the purpose of the contract. Furthermore, members are responsible for the lawful use of the member account/user interface.
(2) The contracting party is not permitted to use software, data or (technical) facilities or act in a manner such that potential impairment of any kind could be caused, affecting the functionality of the Nativy platform. The same applies to the use of the user account/user interface by members.
(3) Changes to system requirements within the influence of the contracting party shall immediately be communicated before Nativy performs service delivery. Delays and additional costs caused by these changes during the carrying out of an assignment are at the expense of the contracting party.
(4) Where necessary, the contracting party shall provide all necessary documents, information and facilities from its sphere of influence, in good time and free of charge. Furthermore, the contracting party shall in a timely manner ask for cooperation or assistance from third parties, where this is a prerequisite for the provision of services by Nativy.
(5) In the event of delayed assistance or assistance that is not requested in a timely manner on behalf of the contracting party, a delay or restriction in Nativy’s service delivery may result; Nativy takes no responsibility for futile expenditures or damages thus incurred.
(6) Translations are considered delivered when the user receives a notification that the data is ready to be downloaded from the Nativy website. The download takes place via an encrypted connection.
(7) Reclamations have to be sent within 7 days upon notice of delivery to stop payment to translators. Later reclamations will not be considererd and have no influence on payments.
(8) Members must inform Nativy in writing about any changes in their company and legal status as well as their address without delay. Should these changes not be communicated, documents shall be considered received when they are sent to the address or to an appointed paying agent given last by the member.
(9) The decision by Nativy to commission a translation as well as the conclusive and correct implementation of the contractual relationship based on these GTCs are subject to a valid service contract with the translator as well as their conforming to the conditions of their contract as an auxiliary agent of Nativy. Any rights to the content of a translation are to be transferred to the relevant member at the conclusion of the translation assignment.
Section 6: Use of the Nativy platform
(1) During the registration process on the Nativy platform, every member must select a user name in order to enable individualised and secure access to the user interface.
(2) Registration is unconditionally reserved for legally competent natural and legal persons. Only a duly approved representative, who must be named, may register a legal person.
(3) The access data entered and transferred during the process of registration on the Nativy platform is to be complete and correct and is to be kept up-to-date, in particular address and other contact details.
(4) The member may access the member account/user interface at any time by means of a user-defined access method (user name). The choice of user name must not break any law, be contrary to good morals or infringe the rights of a third party. Furthermore, the username may contain neither the term ‘Nativy platform’ nor a similar designation that may be confused with it, nor may it contain an email address, Internet address or any other contact information such as telephone numbers. The username must be kept secret unless its communication is required in order to use the Nativy platform. For example, this may be the case when third parties provide individual functions or services on the Nativy platform and where signing in is necessary in order to use these. Where members are required to transmit or enter a username, they must check insofar as possible and reasonable whether this requirement originates from Nativy or a third party authorised by the same, in order to prevent their access information from being exposed or the abuse of the member account/user interface.
(5) It is the responsibility of the member alone to keep a username secret and to use it according to the regulations. The use of other usernames and passwords or the authorisation of a third party by a registered member to do the same is not permitted. Where this is contravened, Nativy is permitted to delete the access data of the member in question at its own discretion, while the latter is solely responsible for interim uses of the platform by a third party.
(6) Members are required to inform Nativy immediately of any unauthorised use of the Nativy platform and/or usernames as well as any other violation of confidentiality and data protection obligations. Where abuse by a third party is suspected, Nativy may block access to some functions in order to protect the user.
(7) The use or application of electronic or automated applications (such as web crawlers, robots, spiders etc.) is not permitted regardless of their configuration or use.
(8) Members are permitted at any time to end the contractual relationship based on these GTCs by closing their individual user account. It is the responsibility of the member alone to close the account in a proper manner. After the contract for work and services has been terminated, all data on the user account/user interface at the time of termination will be immediately and irreversibly erased. This may include graphics, images, comments, communication or other contents. Exceptions to this are data/information that Nativy is legally obliged to store for a particular length of time. Even after the account is closed, Nativy is entitled to an ordinary right of use, duplication and exploitation in relation to the texts provided (published) on the Nativy platform and approved for translation.
(9) Customers who operate commercially must, in the course of opening a member account, provide, amongst other things, proof of a VAT identification number
(10) The creation of multiple member accounts for the same natural or legal person is not permitted.
(11) Member accounts are not transferable without explicit written permission from Nativy.
(12) Where no contractual relationship is entered into with a member, any documents, suggestions, test programs etc. that have already been made available are to be given back or erased and may not be used further.
Section 7: Regulations for users
(1) It is generally possible for the user to visit the Nativy platform without registering. However, the user is required to register in order to be able to use specific functions of the Nativy platform, in particular the selection of a translator as well as the subsequent awarding of a translation. The user is not entitled to registration and activation for the purposes of using the Nativy platform.
(2) The terms and conditions for access and use set forth for members as per Section 6 apply correspondingly to the registration of users and for the use of the Nativy platform.
Section 8: Liability
(1) Nativy is liable under the law only if intent or gross negligence can be proven for damages caused by bodies, employees, auxiliary agents or other persons contractually commissioned to provide a service for the contracting party. Liability for ordinary negligence is ruled out, subject to damage to life and limb.
(2) The contracting parties agree that Nativy is dependent upon the services of third parties (software and web service providers), [acting as agents or procuring agents in terms of Sections 1313a and/or 1315 of the Austrian Civil Code] in order to carry out its contractual obligations in terms of service provision, in particular the operation of the Nativy platform.
(3) Nativy is not liable for damages caused by use of the Nativy platform and/or the member account/user interface that is improper or contrary to contract. Equally, Nativy is not liable for the success and/or selection of a translator by a member/user. Nativy can also not be held responsible for any infringements of the rights of a contractual party by a third party. Providing (publishing) a translation via the Nativy platform takes place at the member’s own risk.
(4) Nativy acts exclusively as ‘Application Service Provider’ in relation to the provision of the Nativy platform. Any business as well as hosting, security and further development (where available) of the (user-) data on the member account/user interface remain the exclusive responsibility of the member (see Section 4). Accordingly, the member alone is responsible for the content made available via the Nativy platform. Damages and/or disadvantages to the member as a result of such content being unlawful and/or anticompetitive shall be borne by the member alone. In addition to a possible obligation to pay compensation, abuse of the member account/user interface may result in a member receiving a temporary or permanent suspension of contractual access rights to the member account/user interface.
(5) The contracting parties are aware that the content placed on the Nativy platform may represent legally protected intellectual property. Taking this into consideration, contracting parties are not permitted to make available contents on the Nativy platform, the use of which, regardless of type, may infringe the property rights of third parties and which may result in possible prosecution under criminal or civil law.
(6) Nativy cannot rule out the possibility that members who register and/or communicate on the Nativy platform do not exist, or that they will abuse the platform in a manner that is illegal or unfair. Contracting parties who make use of the Nativy platform and who upload and download contents where required do so at their own risk.
(7) Events vis major, which render the provision of contractual services significantly more difficult or impossible, entitle Nativy to delay the provision of contractual obligations for the duration of this obstruction as well as a reasonable start-up time. Events vis major are equivalent to strike, lockout, regulatory interference beyond the control of Nativy and similar circumstances, inasmuch as they are unpredictable, unable to be influenced, severe and not the fault of Nativy. Liability on the part of Nativy is excluded in these cases.
(8) Nativy is not liable for the unauthorised duplication or use of graphics, text, logos and trademarks whose rights are protected by third parties. In addition, the contractual liability of Nativy in relation to the website www.Nativy.com is in every case exclusively restricted to its own content. In the absence of control over the websites of other (branch-specific) organisations, a liability on the part of Nativy is also ruled out where a corresponding reference (link) to the website of another provider exists on its own website.
Section 9: Availability and guarantee
(1) Nativy provides services based on generally accepted industry norms and practices. The contracting parties are aware, however, that it is not possible to provide an internet-based service completely free of errors, given the present state of technology.
(2) In spite of this, Nativy guarantees that the services offered on the Nativy platform, in particular the translation sought, shall be carried out by the selected translator, and that the translation awarded at the conclusion of the selection phase shall be of the quality described in the lead up to the contract for work and services. Nativy does not guarantee that the availability of the Nativy platform will be uninterrupted or free from error.
(3) In addition, Nativy does not guarantee the correctness of the data provided by the contracting parties, in particular that provided by members. Nativy will investigate indications that incorrect information has been provided and may demand corrective action from the member in question or lock and/or delete the information.
(4) Power failure, disruptions, maintenance work or other unavoidable events for which Nativy is not liable can result in an interruption of services. In such cases, Nativy will honestly and in good faith endeavour to repair disruptions and interruptions as quickly as technically and economically possible.
(5) Nativy is not liable for mistakes or other loss of service on the Nativy platform and/or on the user account/user interface,
(a) that result from faulty hardware, operating systems or software from another manufacturer and/or telecommunications provider;
(b) that, whatever their nature, are caused by the user, and that could have been avoided with proper and careful use;
(c) that result from an infection by a virus or other events such as fire, accidents, power failure etc. for which Nativy is not liable;
(d) that result from an unauthorised change to the system environment, for which the Nativy platform or the member account/user interface was configured, by the contracting party or a third party.
(6) The contracting parties, in particular members, guarantee that the content and data they provide and communicate on the Nativy platform
(a) is free of third-party ownership rights – in particular intellectual property rights;
(b) is their (intellectual) property or due authorisation has been given by an eligible third party to use the content in question on the Nativy platform;
(c) does not break the law or any other binding statutes, and in addition
(d) is in no way able to cause legal liabilities for Nativy.
Section 10: Granting of rights and use
(1) All copyright as well as the intellectual property rights to the Nativy platform remains the unrestricted property of Nativy. The same applies to the content and information (e.g. files and information about translators, (translation) suggestions, text, graphics, photos, logos, test programs etc.) in the form in which they exist at the time that a contract is entered into.
(2) All specifications, further developments and modifications of the Nativy platform resulting from the contractual relationship to the client automatically become the property of Nativy. This also includes those rights that could result from provisions of copyright or other intellectual property rights worldwide.
(3) Nativy grants the contractual parties a user authorisation for the Nativy platform that is non-exclusive, non-transferable and restricted in terms of time and scope. Furthermore, members are granted user authorisation for the functionalities and interfaces related to the Nativy platform (in particular the member account/user interface).
(4) The contractual parties are not authorised to alter or otherwise model the Nativy platform or the individually provided member account/user interface, nor to distribute it to third parties, to connect it to other programs in ways other than through the interface provided for this purpose, to translate (reverse engineer) it into another display format, to remove, circumvent or change any copy- or protective mechanisms, program elements serving the purpose of digital rights management (DRM), security codes or elements identifying the Nativy platform and/or user interface (proprietary notices, trademarks, copyright notices).
(5) The contracting parties are authorised only to use the Nativy platform and the member account/user interface for the agreed purposes and only to the extent permitted by of the acquired user authorisation. Nativy is indemnified and held harmless for any damages resulting from the failure to comply with the contractual conditions of use. This applies in particular to the infringement of any copyright or other intellectual property rights owned by Nativy or third parties.
Section 11: General regulations concerning enquiry, selection and awarding of translation assignments
(1) The award of translation assignments is always preceded by the selection of a translator suited to the member’s specific requirements. An individualised translation, tailored to suit the member’s requirements, can be produced on the basis of the search and selection tools provided on the Nativy platform, which allow the member to set or request specific qualification attributes for a translator during the selection process.
(2) The user selected by the member must agree to take on the translation assignment within 24 hours. Where a translation assignment is not agreed to within the prescribed period, or where it is refused by a translator – allowing the deadline to elapse without a reaction from the translator will be understood as a refusal of the translation contract – Nativy will, after discussions with the member, suggest an alternative translator, whose qualification profile most closely matches that of the selected translator. With the agreement of the member, Nativy will commission this translator for the translation.
(3) Further regulations and conditions relating to requesting and awarding translation assignments as well as the selection of a translator are to be taken from the FAQ, which are available to download on the Nativy platform, and which represent an integral component of these GTCs in this context.
Section 12: Fees, conditions of payment
(1) Nativy charges the user a service fee on a percentage basis, which is included in the price quoted, for the delivery by Nativy of services specified in the contract, in particular for making available the Nativy platform and the translation services of the translator selected by the member. It shall be noted that simple usage of the Nativy platform without registration on the same shall be made available free of charge.
(2) Nativy’s pricing is based on the billing costs applicable to the respective translator and is calculated individually for each request. All prices are quoted in Euros excluding VAT. Delivery costs, where applicable, are calculated separately and apply only to the current order.
(3) As part of the selection process, the member is required to transfer the applicable service charge in advance to the clearing account communicated on the Nativy platform and during the selection process. After issuing the transfer order, Nativy will commission the translator for the translation in question. Where the member’s advance payment has not, for whatever reason, arrived in Nativy’s clearing account within seven days following the selection and award of the translation assignment, Nativy reserves the right to cancel the translation assignment in question.
(4) Where a translation assignment is cancelled by Nativy, any payments already received from the member will be checked and may be returned. Where the cancellation of a translation assignment and/or the (temporary) locking of a member account is the member’s fault, the member is responsible for compensating Nativy for any losses incurred (including those relating to the translator). The balance of the member’s/credit account will be offset against any claims for damages.
(5) The day on which the amount arrives at Nativy or is credited to the account described on the invoice is regarded as the day of payment. For late payment, Nativy calculates late fees at the rate of 12% p.a. – where higher costs have not arisen – charged from the 15th day from the invoice date. Additionally a fee of 30 Euro net will be charged per each late notice. All costs related to reminders, information and other costs incurred to recover a debt shall be borne by the member. This does not restrict Nativy’s right to claim for damages.
(6) Invoices will generally be communicated via the member account or will be sent to the member by email. Unless otherwise agreed, Nativy is not required to send a/an (additional) written invoice to the member. The user may request a collective invoice if desired.
(7) In order to enable the member to gain an overview of Nativy’s billing procedure, a member has the right to have the customer fee checked for accuracy by an expert third party sworn to secrecy.
(8) Available methods of payment include immediate payment using a valid credit card from a recognised Austrian institute and a valid account, or else by deduction from a credit account created by a member using the member account as per Section 4, Subsection 4(f).
(9) All prices are quoted in Euros exclusive of VAT and any advertising tax. Delivery costs are calculated separately and only apply to the current order.
(10)The member relinquishes the right to settle any counterclaims with claims for compensation from Nativy unless these counterclaims have been recognised in written form by Nativy or have been legally established.
(11) All taxes resulting from the contractual relationship to Nativy, with the exception of income tax, are to be borne by the member alone. Nativy is indemnified and held harmless by the member for unwarranted application of such taxes.
(12) Further payment methods are listed under the ‘FAQ’ of Nativy (www.Nativy.com).
Section 13: Data protection
(1) Under certain circumstances, it is necessary to store and process members’ personal data in order to duly fulfil contractual service obligations. Nativy guarantees that this data will be handled confidentially as per the Data Protection Act 2000 (‘DSG 2000’).
(2) Nativy points out that confidentiality is not guaranteed for data that is transferred unencrypted over the Internet. The web platform Nativy is only accessible and usable via https encryption.
(3) The member alone is responsible for all personal data transferred, used or processed during the use of the Nativy platform, whether sensitive data under Section 4 of the Data Protection Act 2000 or non-sensitive data.
(4) Before handling or processing (personal) data, members are required to obtain permission from the person concerned, and are to indemnify Nativy and hold it harmless in relation to any claims by third parties.
(5) Data processing agreement in accordance with Article 28 of the GDPR
5.1. Subject matter of the agreement
- The performance of the following tasks shall constitute the subject matter of this agreement: translation of texts, correction of texts, drafting of texts, modification of texts, creation of texts
- The following data categories are processed:
contact data, contractual data, billing data, credit history data, order data, payment data, bank data
- The following categories of affected persons are subject to data processing:
clients, interested parties, suppliers, key contacts, employees
5.2. Duration of the agreement
The agreement is concluded for an indefinite period of time and may be cancelled by either party with one month’s notice by the end of every month. The right to termination without notice and for good cause shall remain unaffected.
5.3. The contractor’s obligations
- The contractor shall undertake to process data and processing results solely within the scope defined by the client’s written orders. If the contractor is instructed to surrender the client’s data to a government authority, they must – if legally permissible – inform the client of this immediately and refer the authority to him or her. Likewise, processing the data for the contractor’s own purposes shall require a written order.
- The contractor declares in a legally binding manner that all persons assigned to data processing tasks have been bound to confidentiality before commencing work or are bound by suitable legal non-disclosure obligations. In particular, the obligation of the persons assigned to data processing to maintain confidentiality shall continue to apply after they leave the contractor’s employ or after termination of their activities.
- The contractor declares in a legally binding manner that he or she has undertaken all measures necessary to ensure security of processing pursuant to Article 32 GDPR (details listed under Item 6).
- The contractor shall undertake all technical and organisational measures necessary to allow the client to implement the rights of affected persons as defined in Chapter III of the GDPR (the right to information, communication, rectification, erasure, and data portability, the right to object, and rights related to automated individual decision-making) within the statutory periods at any time and shall provide the client with all the information necessary for this. If an application to this effect is submitted to the contractor and indicates that the person submitting the application has mistakenly assumed that the contractor is the contracting client of the data application in question, the contractor must immediately forward the application on to the client and inform the person submitting the application of this.
- The contractor shall assist the client in complying with the obligations specified in Articles 32 to 36 of the GDPR (data security measures, notification of a personal data breach to the supervisory authority, communication of a personal data breach to the affected person, data protection impact assessment, prior consultation).
- The contractor is aware that a record of processing activities pursuant to Article 30 of the GDPR must be created for the processing contract in question.
- With respect to the processing of data submitted by the client, the client shall be granted the right to inspect and monitor the data processing facilities at any time or to instruct a third party to do so. The contractor shall undertake to provide the client with any information necessary to monitor compliance with the obligations listed in this agreement.
- After termination of this agreement, the contractor shall undertake to submit all the results of processing and documents containing data to the client/destroy them on his or her behalf. If the contractor processes the data in a specific technical format, they shall undertake to hand over the data either in the same format or, if desired by the client, in the format in which they received the data from the client or in another commonly used format after termination of this agreement.
- The contractor shall inform the client immediately if, in his or her opinion, an instruction issued by the client violates the data protection regulations of the EU or EU member states.
5.4. Place of data processing
At least some data processing activities are carried out outside the EU or EEA, i.e. in the individually contracted translators’ countries of residence. Only a small proportion of the client’s data is submitted to the translator. The appropriate level of data protection is determined by the contractual terms approved by the data protection authorities pursuant to Article 46 (3) a of the GDPR.
All other data processing activities are carried out exclusively within the EU or the EAA.
The contractor may employ sub-processors to translate texts, correct texts, draft texts, modify texts or create texts, to send out the contractor’s newsletters, clarify issues in the online chat function, or for CRM software and software used to improve and control the Nativy platform.
He or she must however inform the client of his or her intention to involve a sub-processor in a timely manner to allow the client to prohibit this, if applicable. The contractor concludes the agreements stipulated in Article 28 (4) of the GDPR with the sub-processor. In doing so, the contractor must ensure that the sub-processor undertakes the same obligations that apply to the contractor on the basis of this agreement. If the sub-processor fails to fulfil his or her data protection obligations, the contractor shall be liable to the client for the performance of the sub-processor’s obligations.
5.6. Technical and organisational measures
- Physical access control: Keys are used to protect data processing facilities from unauthorised access.
- Electronic access control: Encrypted passwords and automatic blocking mechanisms are used to protect systems from unauthorised use.
- Internal access control: No unauthorised reading, copying, changes or deletions of data within the system: standardised authorisation profiles on a “need to know” basis, standardised process for issuing authorisation, logging of system access events, periodic checks on issued authorisation rights, esp. of administrative user accounts.
- Pseudonymisation: Insofar as this is feasible for the respective data processing activity, the primary identifying characteristics of personal data are removed from the respective data application and stored separately.
- Classification scheme for data: On the basis of legal obligations or personal assessment (secret/confidential/internal/public).
- Data transfer control: Encryption is used to prevent unauthorised reading, copying, changes or deletions of data during electronic transfer or transport.
- Data entry control: Exact logging is used to detect whether and by whom personal data is entered into a data processing system, changed, or deleted.
5.6.3. Availability and resilience
- Availability control: Accidental or wilful destruction or loss is prevented by using a multi-stage backup strategy in which the backup copies are encrypted and stored in an off-site backup computer centre, standardised processes for a change of employees/employees leaving the company.
- Rapid recovery;
- Deletion periods: Both for the data themselves and for metadata such as log files or similar.
5.6.4. Procedures for regular testing, assessment and evaluation
- Data protection management, including regular employee training;
- Incident response management;
- Default privacy settings;
- Order or contract control: No third-party data processing as per Article 28 of the GDPR without corresponding instructions from the client, e.g.: unambiguous phrasing in the contract, formalised order management, strict controls on the selection of the processor (ISO certification, ISMS), duty of pre-evaluation, supervisory follow-up checks.
5.7. Consent to receiving our newsletter
I hereby declare that I explicitly consent to Nativy GmbH, company register number: FN 364355t, processing my name and title, my company, and my email address in order to send me an electronic newsletter featuring specialist information, information regarding the products and services offered by Nativy GmbH, and general information about Nativy GmbH (for example, awards, offers, availability, office hours over Christmas, relocations, staffing changes, etc.) via email.
I can withdraw my consent at any time by sending a letter or an email to [email protected] or by clicking the unsubscribe link at the bottom of every newsletter, without providing a reason.
5.8. Used services of third parties
Nativy uses Zendesk, Google Analytics and Google Ads.
Section 14: Communication
(1) All statements applying to the contract for work and services based on these GTCs are to be submitted in written or text form (email). Contact information for Nativy is to be taken from the website www.Nativy.com. Members’ contact information is considered to be that which has been entered into the member account/user interface. Statements emailed by Nativy to the address provided in this contact information and statements sent by mail are considered received 2 days after sending, unless the member can prove a later delivery time.
(2) Insofar as communications between Nativy and a member or between members themselves take place via email and thus in text form, the member recognises that this represents a declaration of intent with unrestricted validity. The e-mail must include the name and email address of the sender and the date of dispatch (date and time).
(3) An email received as per the above provisions is considered to have been sent from the owner of the sender address, unless proven otherwise. The binding nature of email, and thus the text form, which applies to all statements, implies standard contractual procedures.
Section 15: Prohibition of assignment
Contracting parties are not permitted to delegate or assign rights, or to delegate duties arising from the contract for work and services unless there is a written agreement on behalf of Nativy.
Section 16: Term of contract
The contractual relationship is entered into for an indefinite period, subject to an agreement specifying otherwise, and can be cancelled in writing (by fax or email) by both contracting parties at any time. The date of the postmark designates the time of cancellation.
Section 17: Final clause
(1) These terms are subject to Austrian law upon exclusion of the UN Sales Convention.
(2) As far as admissible, any disputes arising from this contract (including disputes relating to possible amendments or additions to the contract) shall be submitted for judgment to the competent court in the 1st district of Vienna.
(3) Amendments and additions to these GTCs as well as other arrangements shall only be valid if confirmed by Nativy in writing.
(4) Should any of the provisions of these GTCs be or become void or unenforceable, the validity or enforceability of the remaining parts of these conditions shall not be affected. The void or unenforceable provision shall be replaced by a valid and enforceable provision corresponding as closely as possible to the economic purpose and result of the provision to be replaced and doing justice to the original intention. The contracting parties are obliged to write down these replacement provisions and to sign them without delay.
END of TERMS