General Terms and Conditions of Services
1. Scope and Definitions
These General Terms and Conditions (“GTC”) govern the conclusion, content and execution of contracts between you (“Customer” or “Client”) and Magnolia International AG (“Magnolia”) for services rendered by Magnolia, including but not limited to IT consultancy and coaching, development services, project planning, workshops and training of Client’s staff (“Services”).
2. Offer and Acceptance
Your order is an offer to Magnolia to buy the product(s) in your order. When you place an order to purchase a product from Magnolia, we will send you an e-mail confirming receipt of your order and containing the details of your order. This e-mail is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the Services ordered. Magnolia only accepts your offer, and concludes the contract for a Service ordered by you, when Magnolia sends another e-mail to you confirming that the Services will be rendered. In the present Agreement some English terms are clarified by German terms (in brackets). In the event of any discrepancy between an English and a German term, the German term shall prevail and be used to resolve any doubts arising in respect of the interpretation and/or application of the clause.
3. Change Requests
After the conclusion of the contract, the contract may be only be changed if mutually agreed upon by the Parties in writing.
4. Performance of Contract
4.1. Client's obligation to cooperate
Client shall ensure that Magnolia, in time and to the extent required,
obtains all relevant technical and organizational set up and information (e.g. hardware set up, relevant persons);
is granted access to Client's premises in time and is provided suitable workstations (if necessary) and a phone and internet access;
has at its disposal the necessary hardware and software as requested by Magnolia;
is supported by qualified members of Client's staff and may contact Client’s personnel who is responsible for the respective project.
Client shall be responsible to obtain permits (e.g. work permits) if necessary for the performance of this contract.
In the event of Client’s insufficient cooperation Client shall be deemed to be in default, and Magnolia shall be entitled to withdraw from this Agreement and/or claim damages. The provisions of section 10 shall apply by analogy.
Any costs incurred as a result of Client's insufficient cooperation shall be borne by Client.
4.2. Information Obligation
The Parties shall inform each other of any facts or circumstances that might significantly affect the performance of this Agreement.
Any statements relating to the date of performance of services or an IT system represent Magnolia’s best estimate only. Deadlines shall be only binding upon Magnolia if they have expressly been agreed upon as such in writing.
Magnolia may subcontract its obligations to any third party.
5. Performance of Services
Magnolia does not guarantee any particular success or work result, unless otherwise expressly agreed upon in writing and is only obliged to perform the Services with due care according to industry standards.
The obligations assumed by Magnolia shall be deemed fulfilled if Magnolia has performed the Services designated in the relevant offer/tender.
6. Remuneration and Invoicing
6.1. Remuneration based on material and time
Unless otherwise provided in writing, Magnolia shall charge its Services based on material and time and generally as of the end of each month. The daily or hourly rates stated in the relevant offer/tender shall primarily apply; in the absence of such rates, Magnolia’s then applicable standard daily and hourly rates shall apply. The standard rates may be obtained from Magnolia upon request.
6.2. Remuneration based on cost ceiling
Unless otherwise expressly agreed upon by the Parties, if the Parties agreed upon a fixed or maximum fee, such sum shall be considered as cost ceiling with the following meaning (the “Cost Ceiling”): If a Cost Ceiling is agreed Magnolia shall inform Client as soon as possible if it becomes evident that the Cost Ceiling cannot be adhered to. Such Cost Ceiling may be not deemed a flat fee. Magnolia shall be remunerated based on the actual material and time spent (see above 6.1).
6.3. Remuneration based on flat-rate fee
If a flat fee is expressly stipulated, it shall cover all material and time spent by Magnolia with regard to the Services described in the proposal including any annexes. If Client’s incomplete information with regard to the requested Services (see above 4.2) or its insufficient cooperation (see above 4.1) leads to extra work or cost, Client shall additionally reimburse Magnolia based on extra time and material spend.
Client shall be obliged to reimburse all expenses reasonably incurred by Magnolia, such as travel expenses (transport, accommodation, meals).
6.5. Value added taxes
All fees and incidental costs do not include any tax (e.g. value-added tax), custom duties or similar taxes and charges that may be directly or indirectly assessed by governmental authorities with regard to the provision of the Services. Such taxes shall be borne by Client.
6.6. Terms of payment
Unless otherwise set forth in the proposal, payment of the remuneration shall be due 30 days after Magnolia’s obligations are fulfilled or deemed to be fulfilled (“Due Date”). Client may not set potential claims off against Magnolia’s remuneration. On expiry of the Due Date Client shall be automatically in default (without any formal reminder). Default interest shall amount to 6% per year.
7. Intellectual Property Rights
7.1. Work Products and Magnolia’s IPR
Unless otherwise explicitly set forth in the proposal Magnolia shall retain exclusive ownership of and title to any and all intellectual property, such as copyright protected works, patents, trademarks and know-how including but not limited to methods, protocols etc., resulting from or relating to the Services performed by its personnel or any of its products (e.g. software) including any copy, translation, modification, enhancement, improvement, development or adaptation thereof by Magnolia and/or Client (“Magnolia IPR”).
7.2. Indemnification and Liability
Magnolia warrants that, at the time of the conclusion of this Agreement, it is not aware of any violation of any intellectual property right of any third party.
Subject to compulsory law, willful intent and gross negligence, Magnolia shall have no liability and Client shall have no rights or remedies with respect to any suit instituted against Client based upon claims that Magnolia’s IPR infringe a third party’s rights (the “IP Claim”).
In the event of an IP Claim Customer shall notify Magnolia of such claim without undue delay, but latest within 7 days after knowledge. In any case, Magnolia shall have the right, but not an obligation, to defend, at its own expense, any such IP Claim. Subject to mandatory law, Magnolia’s right with regard to such IP Claim shall be comprehensive and include, without limitation, the following: conducting the lawsuit in its own name or on behalf of Customer, conducting all procedural acts, and/or giving instructions to Customer. Customer shall comply with all instructions of Magnolia and tolerate Magnolia’s actions. Customer shall provide Magnolia with all information and assistance to defend and/or settle the IP Claim.
Subject to willful intent, gross negligence and compulsory law, and unless expressly otherwise stated in Magnolia’s offer, Magnolia shall have no liability for any direct or indirect damages irrespective of their legal basis (e.g. contractual or non-contractual nature).
Magnolia shall not assume any liability for damages resulting from Client’s violation of any of the provisions of this agreement.
Subject to compulsory law, with regard to its subcontractors (if any), Magnolia shall not be liable for any damages, irrespective of their legal basis.
9. Delay of Services
Magnolia may delay the performance of the Services in the event of an unexpected lack of personnel (e.g. due to illness).
If Client withdraws from this Agreement it shall compensate Magnolia for work already done and indemnify Magnolia in full (including but not limited to lost profits). Such compensation shall be at least 33% of the total remuneration agreed upon by the parties or of the estimated remuneration based on time and material probably spent and shall be paid to Magnolia within 20 days of the termination. On expiry of the aforementioned due date Client shall be automatically in default (without any formal reminder). Default interest shall amount to 10% per year.
11. Force Majeure
Neither Party shall be liable to the other Party for any default, to the extent the default is wholly or materially caused, whether directly or indirectly, by circumstances beyond its reasonable control, such as fire, flood, other natural disasters, general strike, governmental action, embargos or communication line failures (the “Force Majeure”), provided the affected Party notifies the other Party in writing of the Force Majeure event within a reasonable time after its occurrence.
In the event the affected Party’s delay or non-performance as a result of Force Majeure continues for a period of more than sixty (60) days, either Party shall have the right to terminate this Agreement with immediate effect.
Both parties to the contract, as well as their staff and consultants, shall treat in strict confidence all documents and information not publicly known and generally accessible which relate to the business sphere of the other party and to which they have access in the preparation and performance of this contract, unless a party is obliged (by law) to disclose such confidential information or documents to governmental authorities. This confidentiality obligation shall survive the termination of this Agreement for as long as the information or documents remain proprietary or confidential but at least for 2 years following the termination this contract.
Neither party may assign, transfer, charge or otherwise deal with all or any of its rights or obligations under this Agreement in whole or in part, nor grant, declare, create or dispose of any right or interest in it without the prior written consent of the other party.
Should any part or provision of this contract be held invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the other provisions of this agreement shall nonetheless remain valid. In this case, the parties shall endeavor to negotiate a substitute provision that best reflects the economic intentions of the parties without being unenforceable, and shall execute all agreements and documents required in this connection.
15. Governing Law
This Agreement shall be governed by and construed in accordance with Swiss Law, under exclusion of its conflict of law rules and the provisions of the Vienna Convention on the Sales of Goods.
16. Venue and Jurisdiction
The Parties hereby submit to the exclusive jurisdiction of the ordinary courts of Basel-Stadt (Switzerland) with regard to any dispute arising out of or in connection with this Agreement.