General Terms and Conditions (KERN B.V.)

1. General

These General Terms and Conditions (hereinafter “Terms and Conditions”) apply to any order placed with KERN B.V. or its affiliates, suppliers, parent and sister companies, subsidiaries and successors and assigns, officers, directors, employees and agents (hereinafter collectively “KERN”) by the party purchasing products and services (“Sales Order”) from KERN (hereinafter “Purchaser”), and supersede any terms and conditions referred to, offered or relied on by Purchaser, unless KERN specifically approves the application of such terms and conditions in writing. Any service or product, including without limitation interpreting, typesetting, voiceover, transcription, branding, translation, localization, printing or graphic design services (individually and collectively, “Service(s)”) delivered by KERN to Purchaser shall be conclusively deemed to have been made subject to these Terms and Conditions irrespective of any contrary conditions or terms printed on or accompanying Purchaser's documents or otherwise provided by Purchaser which contrary terms shall in no circumstances prevail. Acceptance of these Terms and Conditions by Purchaser for one Sales Order is deemed acceptance of these Terms and Conditions for any additional or future Sales Order.

2. TERMS

In addition to the terms defined in specific Sections, the following terms shall have the following meaning for the purpose of these Terms and Conditions:

2.1    “Confidential Information” has the meaning in Section 4.

2.2    "Intellectual Property Rights" means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.

2.3    “KERN” has the meaning provided in Section 1.

2.4    "Sales Order" has the meaning provided in Section 1.

2.5    “Source Material(s)” means information, documentation, glossaries, style guides, specific terms or similar materials regarding the text, file, material, disc, tape, video, web page, software, data, graphics, table or audio, video, electronic, magnetic or other recording or other information in electronic form or otherwise provided by Purchaser to KERN. 

2.6    “Services” has the meaning provided in Section 1.

2.7    “Terms and Conditions” has the meaning provided in Section 1.

3. QUOTATIONS; SALES ORDERS 

3.1 Quotation

Unless expressly provided otherwise, a per- word or per-line price quoted by KERN refers to the price of each output word or line in the target language. Any minimum charge quoted shall apply to any document, file or other material of 200 words/characters or less. Verbal quotations are given for guidance only and are not binding on KERN. KERN may revoke quoted prices or terms of delivery if it has not had the opportunity to view the entire text to be translated prior to issuing the quotation or if an order has not been placed on the basis of such quotation within four weeks of issuing such quotation. Unless otherwise specified, quotes on an hourly basis shall not include travel time, mileage or any other expenses. Purchaser's oral or written acceptance of the quotation or estimate submitted by KERN or, if no quotation was submitted, written confirmation by KERN of a sales order placed by Purchaser shall constitute a contract. These Terms and Conditions shall govern any such contract.

3.2 Responsible Party

Unless expressly agreed otherwise in writing, KERN will at all times consider the party placing the Sales Order with KERN the party responsible and liable for the performance and payment of the Purchaser’s obligation under such Sales Order. 

3.3 Additional Information

Upon KERN’s request or in the event Purchaser wishes KERN to provide a Service that corresponds to a specific style or vocabulary or covers a particular industry, Purchaser shall provide KERN with Source Materials required and/or relating to such Services to be rendered pursuant to the relevant Sales Order. Unless otherwise stated in the Sales Order, KERN, however, will at no time be responsible for providing a Service in correspondence to a particular style or vocabulary.

3.4 Delivery Date 

Delivery dates are provisional. Delivery dates stated or otherwise confirmed by KERN, whether in writing or orally, are bona fide estimates but KERN cannot guarantee the same and no liability shall attach to KERN in the event of delivery being delayed. Delay shall in no circumstances amount to or be deemed to be a breach or repudiation of the contract. A rush surcharge will apply to the urgent provision of Services and KERN will not accept any liability for any Services provided on an urgent basis.

3.5 Storage 

Unless otherwise agreed in writing any obligation of KERN to store material whether as hard copy or in a retrieval system shall be limited to three months from the date KERN invoices Purchaser in respect of that material.

3.6 Carriers and Delivery 

Whilst KERN will take reasonable care in the selection of its carriers, couriers or other means of delivery, including without limitation email, fax and internet, KERN cannot be held liable for loss of any document dispatched by KERN or consequent loss or damage thereupon. Delivery is deemed to have taken place on posting or delivery to a carrier or despatch via electronic mail or other electronic means, as the case may be, and the risk shall pass to the Purchaser. 

3.7 Legibility 

Purchaser is obligated to supply KERN with Source Materials(s) in an accessible, legible and uncorrupted form. In the event that Source Materials(s)  supplied by Purchaser is not clearly legible or not accessible or otherwise infected with viruses or the like, KERN may at its discretion decline to complete the Sales Order in which case KERN shall not be liable for the non-completion or delay of the Services pursuant to the Sales Order.  KERN may charge an additional fee if Source Materials(s) is not typed or printed text.

3.8 Viruses 

Purchaser represents and warrants that its Source Material(s) are free of any type of virus, worm, trojan horse or similar technological device or data (collectively, “Viruses”) and that Purchaser has scanned such Source Material(s) for such Viruses prior to providing this Files to KERN. 

3.9 Offensive Materials 

KERN reserves the right to refuse to translate or provide other Services in relation to any Source Materials(s) that are of an offensive nature, defamatory, obscene, pornographic, illegal, in breach of any statutory, regulatory or legal obligation, or is otherwise considered inappropriate by KERN, whose decision in all matters shall be binding and conclusive.

3.10 Changes to Sales Orders 

Any changes made by Purchaser to a Sales Order after execution of the Sales Order form shall entitle KERN to either modify the quoted price and/or term of delivery or cancel such Sales Order and refuse performance. In the event of cancellation, Purchaser shall pay for any work already performed pursuant to such Sales Order and KERN shall be entitled to levy a cancellation fee not exceeding the value of such Sales Order were it completed.

4. CONFIDENTIALITY

4.1 Protection of Confidential Information 

KERN shall not use Source Materials(s) identified by Purchaser as confidential or proprietary (hereinafter “Confidential Information”) for any purpose except to perform its obligations and duties under the particular Sales Order and will only disclose such Confidential Information to such employees or contractors who have a need to know the Confidential Information for purposes of such Sales Order. KERN will use commercially reasonable efforts to protect Purchaser’s Confidential Information from unauthorized use or disclosure.

4.2 Exceptions 

KERN’s obligations under Section 4.1 with respect to any Confidential Information of Purchaser will terminate if such information (a) was already known to KERN at the time of disclosure by Purchaser; (b) is disclosed to KERN by a third party; (c) is, or through no fault of KERN has become, generally available to the public; (d) is independently developed by KERN without use of Purchaser’s Confidential Information.

5. PRICES AND PAYMENT

5.1 Payment Terms 

Unless otherwise agreed, Purchaser shall pay to KERN the total amount due without any discount, set-off or suspension as specified in the KERN’s invoice upon placement of the Sales Order, unless a corporate account has been established in which case payment is due within fourteen (14) days of the date of invoice. Any reasonable doubt by KERN concerning Purchaser’s ability to pay the full amount stated in the Sales Order shall entitle KERN to require security for payment from Purchaser that KERN deems sufficient before performing its obligations under the Sales Order. Unless otherwise agreed in writing, first-time Purchasers shall pay cash at the time the Sales Order is placed. All amounts due are invoiced in U.S. Dollars, and all payments must be made in U.S. Dollars, unless otherwise expressly indicated on the Sales Order form.

5.2 Credit Card Payment 

Should Purchaser submit or should KERN require a valid credit card number from Purchaser, Purchaser agrees that the credit card will be charged the then current, applicable, non-refundable fee for our Services. Purchase also agrees that any additional Services it orders from KERN may also be charged to that credit card without notifying the Purchaser of this charge or requiring an additional authorization for that charge. Purchaser acknowledges and agrees that its signature on the Sales Order form authorizes KERN to charge Purchaser’s credit card without obtaining a separate signature or authorization from Purchaser for such charge to its credit card.

5.3 Unclear or Technical Documents 

KERN shall be entitled to raise the price stated on the Sales Order form if it is forced to perform more work or to incur more costs not reasonably foreseeable at the time of execution of the Sales Order form or as a result of having to work with very highly technical, difficult, ambiguous, unclear, inaccurate, defective or specialized Source Material(s).

5.4 Taxes 

Purchaser will be responsible for payment of all taxes (other than taxes based on KERN’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising form the payment of fees under a Sales Order. Purchaser will make all payments of fees to KERN free and clear of, and without reduction for, any withholding taxes.

5.5 Interest 

Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum permitted by applicable law, whichever is lower, from the due date until paid. 

5.6 Installments 

In the event that the price payable by Purchaser is agreed to be payable in installments, failure by Purchaser to make any installment payment on or by the due date shall render the whole sum outstanding immediately due and payable. 

5.7 Title 

Title to the Intellectual Property Rights embodied in any deliverable produced by KERN shall not pass to Purchaser until all fees owed by Purchaser to KERN, including without limitation late payment interest is paid in full. Nothing within these Terms and Conditions shall be construed as giving Purchaser any intellectual property rights to any methodology, information, material, including without limitation databases, software and systems, whether developed by KERN or by third parties, that KERN may use in the performance of its duties and obligations under the particular Sales Order and any subsequent Sales Order  or any inventions, methodology, innovations, know-how, and databases developed by KERN in the course of translating or otherwise providing Services in relation to the documents, files or other materials, including any and all Intellectual Property Right. 

5.8 Lien 

KERN reserves a right of a lien on all property of Purchaser in KERN's possession until settlement of all monies outstanding.

5.9 Attorney Fees 

In the event legal action, including but not limited to litigation, arbitration and mediation, is necessary to enforce the payment terms of a Sales Order in accordance with these Terms and Conditions, KERN shall be entitled to collect from Purchaser all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in and arising from such legal action.

6. WARRANTY

Purchaser represents and warrants that it owns or is licensee of the Source Material(s) and all parts thereof, and that translation of, or any other results of Services provided by KERN in relation to these Source Material(s) and publication, distribution, sales or other use of the deliverable of KERN shall not infringe upon or violate any Intellectual Property Right.

7. DISCLAIMER OF WARRANTY

THE SERVICES AND PRODUCTS PROVIDED PURSUANT TO THE PARTICULAR SALES ORDER ARE PROVIDED TO PURCHASER “AS AVAILABLE” AND “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND. UNLESS OTHERWISE AGREED ALL TRANSLATIONS, LOCALIZATIONS AND OTHER APPLICABLE SERVICES SUPPLIED BY KERN ARE FOR INFORMATION PURPOSES ONLY AND NO WARRANTY IS GIVEN AS TO THEIR SUITABILITY FOR ANY PARTICULAR PURPOSE, INCLUDING WITHOUT LIMITATION PUBLICATION OR LEGAL PROCEEDINGS. KERN DOES NOT WARRANT THE CONVERSION FROM ONE SYSTEM OF MEASUREMENT TO ANOTHER, THE TRANSLITERATION OF NAMES AND OTHER PROPER NOUNS FROM ONE SCRIPT TO ANOTHER OR THE TRANSLATION OF ABBREVIATIONS OR ANY PARTICULAR LAYOUT OR FORMATTING OF A TEXT. KERN WILL ALSO NOT BE LIABLE FOR ERRORS RESULTING FROM ILLEGIBILITY OF ANY MATERIAL SUPPLIED BY PURCHASER. ANY CERTIFICATE, DECLARATION OR AFFIDAVIT, INCLUDING WITHOUT LIMITATION A CERTIFICATE OF ACCURACY, KERN MAY PROVIDE TO PURCHASER DOES NOT WARRANT THE ACCURACY OF THE TRANSLATION BUT ONLY THAT KERN HAS USED A TRANSLATOR THAT HAS ASSURED KERN OF HIS TRANSLATION EXPERIENCE. IN ADDITION, KERN DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHERMORE, KERN DOES NOT WARRANT THE ACCURACY, CORRECTNESS, COMPLETENESS, USABILITY OR APPROPRIATENESS OF ANY SERVICES AND PRODUCTS IT PROVIDES PURSUANT TO THE PARTICULAR SALES ORDER. PURCHASER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY OTHER WARRANTIES.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL KERN BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST REVENUE, LOST PROFITS, LOSS OF DOCUMENTS, VIRUSES OR SIMILAR DISRUPTIVE TECHNOLOGICAL DEVICES OR DATA, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING FROM OR RELATING TO THE PARTICULAR SALES ORDER, THE SERVICES AND PRODUCTS PROVIDED OR RECEIVED IN CONNECTION WITH THE PARTICULAR SALES ORDER. KERN’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY SALES ORDER AND THE SERVICES AND PRODUCTS PROVIDED OR RECEIVED IN CONNECTION WITH SUCH SALES ORDER WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY PURCHASER TO KERN PURSUANT TO SUCH SALES ORDER. PURCHASER ACKNOWLEDGES THAT THE FEES SET FORTH IN THE PARTICULAR SALES ORDER REFLECT THE ALLOCATION OF RISK SET FORTH IN SUCH SALES ORDER AND THAT KERN WOULD NOT AGREE TO SUCH SALES ORDER WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

9. DEFAULT; CANCELLATION

KERN may terminate the particular Sales Order, in whole or in part, if Purchaser breaches or fails to comply with any of the Terms and Conditions.  Without limiting the foregoing, failure to provide KERN with adequate written assurance of future performance promptly upon reasonable request thereof, or bankruptcy or insolvency of Purchaser shall be sufficient cause for such cancellation.  In the event of such cancellation, KERN shall not be liable for any damages, and Purchaser shall be liable to KERN for any and all damages (including but not limited to indirect or consequential damages as well as any costs incurred in performing its obligations under the particular Sales Order) sustained by reason of the default which gave rise to such cancellation.  Purchaser may not cancel a Sales Order for any reason. 

10. INDEMNIFICATION

Purchaser agrees to defend, indemnify, hold harmless KERN, its owners, directors, officers, employees, representatives, agents, successors and assigns  from and against any and all claims, suits, judgments, actions proceedings, losses, damages, liabilities, costs and expenses (including, but not limited to, attorney’s fees) relating to, incidental to, or arising from (i) Purchaser’s violation or breach of any covenants, representations and warranties made by it herein (ii) the manufacture, advertisement, promotion, sale or distribution by Purchaser of any deliverables provided by KERN to Purchaser, (iii) any taxes and duties, levies, tariffs, or like fees that may be imposed by any government or collective authority upon manufacture, advertisement, promotion, use, import, licensing or distribution of items by Purchaser. 

11. MISCELLANEOUS

11.1 Assignment 

Purchaser may not assign or transfer, by operation of law or otherwise, any of its rights under this Sales Order or delegate any of its duties under this Sales Order to any third party without KERN’s prior written consent. Any assignment in violation of the foregoing shall be null and void.

11.2 Interpretation

11.2.1 Unless the context clearly indicates otherwise, an expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa. 

11.2.2 When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday. 

11.2.3 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail. 

11.3 Waivers 

All waivers must be in writing. Any waiver or failure to enforce any provision of the Sales Order on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 

11.4 Notices 

All notices, consents and approvals under these Terms and Conditions as applied to the Sales Order may be made via email, first class mail, certified mail or courier to the other party at the address set forth on the Sales Order form and will be effective upon receipt. Email notices are accepted upon reply to that notice.

11.5 Severability 

If any provision of the Sales Order is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.

11.6 Governing Law; Jurisdiction.

Any Sales Order under these Terms and Conditions will be governed by the laws of the Netherlands, without application of conflict of laws provisions that would require the application of the law of another country. The United Nations Convention on Contracts for the International Sale of Goods is not applicable. Purchaser acknowledges and agrees that any action or proceeding arising from or relating to this Sales Order must be brought in a federal court of the Netherlands in Amsterdam and Purchaser irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

11.7 Force Majeure

Any delay in performance or non-performance of any obligations and duties of KERN will not be considered a breach of these Terms and Conditions if such delay or non-performance is caused by an event beyond KERN’s control.  Events beyond KERN’s control shall include, but are not limited to, government action or inaction, strike or labor trouble, interruptions in telecommunication or internet-related systems, war, acts of terrorism, fire or other casualty, unusually severe weather or the like (each a “Force Majeure Event”).

11.8 Entire Agreement

The Sales Order constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior and contemporaneous agreements, understandings, and communications, whether written or oral. Agreements with and representations made by representatives or employees of KERN shall not be binding unless confirmed by KERN in writing.

11.9 Language 

The operative and governing version of the Sales Order and these Terms and Conditions shall be the English language version. All versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties.

11.10 Remedies

All remedies available to either party under these Terms and Conditions are cumulative and may be exercised concurrently or separately.  The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.

11.11 Changes

KERN may make changes to these Terms and Conditions at any time without notice to Purchaser. Purchaser may at any time request a copy of the then-current Terms and Conditions from KERN.

11.12 Headings

Headings or captions herein are merely for convenience and shall not in any way modify or affect the provisions of this Sales Order.