These General Terms and Conditions (“GTC”) are intended to govern the business relationship between you and us in a binding and fair manner, taking into account the interests of all parties. Accordingly, any order or contract shall always be based on the following GTC. By placing an order, you acknowledge and confirm that you have taken note of, and agree to the incorporation of, these GTC.
magnolia psychometrics GmbH
c/o Basislager Coworking
Peterssteinweg 14
04107 Leipzig
Germany
Represented by the managing director:
Dr. Björn E. Hommel
Contact:
Telephone: +49 (0)341 / 98 97 71 07
Email: hello@magnolia-pm.com
Commercial Register Entry:
Register court: Local Court (Amtsgericht) Leipzig
Commercial register number: HRB 33427
VAT ID:
VAT identification number pursuant to Section 27a German VAT Act (Umsatzsteuergesetz): DE815679336
1 Scope of Application
1.1 These GTC shall apply to the entire business relationship between magnolia psychometrics GmbH and the customer.
1.2 magnolia psychometrics GmbH does not recognize any terms and conditions of the customer that conflict with or deviate from these GTC unless their validity has been expressly agreed in writing. This shall also apply if the customer accepts an offer or confirms an order while referring to the priority of its own terms and conditions.
1.3 The current version of these GTC shall also apply to all future business with the customer. The current version of the GTC can be accessed online at https://magnolia-psychometrics.com/terms.
1.4 These GTC apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law.
2 Conclusion of Contract
2.1 The contract shall be concluded upon the customer’s confirmation of the offer or magnolia psychometrics GmbH’s confirmation of the order.
2.2 No particular form, in particular no written form, is required for the conclusion of the contract.
2.3 Offers made by magnolia psychometrics GmbH are non-binding unless expressly stated otherwise. magnolia psychometrics GmbH shall be entitled to withdraw from the offer in the event of typographical, printing, or calculation errors. In the absence of other provisions, magnolia psychometrics GmbH shall be bound by binding offers for four (4) weeks from the date of the offer.
2.4 The customer shall not be granted ownership or rights of use in drawings, drafts, layouts, software, concepts, scientific findings, or other materials and documents provided within the scope of offers and contract negotiations. Any use or disclosure to third parties requires our prior express written or electronic consent.
3 Cooperation
3.1 The contracting parties shall each designate contact persons who are authorized to coordinate all questions regarding the performance of the contract in a binding manner. In the event a contact person is unavailable due to vacation, illness, etc., a substitute shall be designated. Any changes to the designated persons shall be communicated to the other party without undue delay. Until receipt of such communication, the previously designated contact persons shall be deemed authorized to make and receive declarations within the scope of their existing authority.
3.2 The contact persons shall communicate at regular intervals and as required regarding progress and obstacles in the performance of the contract.
3.3 Where necessary, magnolia psychometrics GmbH shall prepare a confirmation of the exchange of information and agreements between the contact persons and provide it to the customer. Such confirmation shall be binding on the parties’ agreements unless the customer objects within one (1) week of receipt.
4 Services
4.1 The details of the services to be provided by magnolia psychometrics GmbH to the customer shall be set out in the offer and/or service description.
4.2 Unless otherwise agreed separately, magnolia psychometrics GmbH is not obliged to hand over interim results leading to the contractual service, such as drafts, layouts, source files, data analyses, raw data, sample analyses, etc.
4.3 Unless otherwise agreed separately, magnolia psychometrics GmbH does not owe any patentability, registrability as a design, copyrightability, or trademark protectability of ideas, suggestions, concepts, drafts, or other services delivered under the contract.
4.4 If a service relates to the technical implementation of internet applications, the benchmark for defect-free implementation shall be their functionality in the browsers “Microsoft Edge”, “Google Chrome”, and “Mozilla Firefox” in their standard desktop versions and in the latest version available at the time the service is delivered.
4.5 All dates and deadlines are non-binding unless magnolia psychometrics GmbH has expressly confirmed them in writing as binding.
4.6 Where the assertion of customer rights requires the setting of a reasonable grace period, such grace period shall be at least two (2) weeks.
4.7 magnolia psychometrics GmbH shall not be responsible for delays in performance caused by circumstances within the customer’s sphere of responsibility (e.g., failure to provide required cooperation pursuant to Section 5 in due time) or by force majeure (e.g., strike, lockout, general telecommunications disruptions). Such events entitle magnolia psychometrics GmbH to postpone the affected services for the duration of the impediment plus a reasonable start-up period. magnolia psychometrics GmbH shall notify the customer of delays due to force majeure.
5 Customer Cooperation
5.1 The customer shall support magnolia psychometrics GmbH in the performance of the contractual services. This includes, in particular, providing information, materials, test items, access credentials, goods, and data (“Content”) in due time.
5.2 Content to be provided by the customer must be submitted in a common, directly usable digital format. If conversion of the provided Content into another format is required, the customer shall bear the resulting costs based on time spent (Section 9).
5.3 As a rule, magnolia psychometrics GmbH shall procure necessary third-party services in the name of and for the account of the customer. Upon request, the customer shall grant to us the powers of attorney required for this purpose.
6 Changes to Services; Acceptance
6.1 If the customer requests a change to the contractually agreed scope of services, the customer shall notify magnolia psychometrics GmbH in writing. magnolia psychometrics GmbH shall review the requested change and its impact on the existing agreement. The review and, if applicable, the implementation shall be remunerated based on time spent (Section 9).
6.2 magnolia psychometrics GmbH shall inform the customer of the result of the review. In doing so, magnolia psychometrics GmbH shall submit a detailed proposal for implementing the requested change or explain why the change cannot be implemented.
6.3 If the change is feasible based on the review, the contracting parties shall coordinate on the implementation proposal. If they reach agreement, the contract shall be amended accordingly. Otherwise, the original scope of services shall remain unchanged.
6.4 Any agreed dates affected by the change procedure shall be postponed, taking into account the duration of the review, coordination of the proposal, and implementation of the changes, plus a reasonable start-up period. magnolia psychometrics GmbH shall notify the customer of the new dates.
6.5 If magnolia psychometrics GmbH requests a change to the contractually agreed scope of services, magnolia psychometrics GmbH shall notify the customer thereof in writing and submit an implementation proposal. The further procedure shall be governed by Sections 6.3 and 6.4. Any expenses incurred in preparing the implementation proposal shall be borne by magnolia psychometrics GmbH.
6.6 Upon request by magnolia psychometrics GmbH, the customer is obliged to accept the services. This also applies to the acceptance of drafts and interim results insofar as they can reasonably be assessed independently. The services shall be deemed accepted if magnolia psychometrics GmbH has set the customer a reasonable period for acceptance of at least two (2) weeks after completion and the customer has not refused acceptance within this period stating at least one defect.
6.7 If the owed service consists of changes to existing products, the service shall be deemed accepted if the customer has been informed that the service has been performed and the customer does not object within one (1) week.
6.8 Requests for changes after acceptance shall constitute a new contractual offer.
7 Rights
7.1 Upon full payment of the agreed remuneration, magnolia psychometrics GmbH grants the customer the right to use the services for the purposes underlying the contract within the contractually agreed scope. Unless otherwise agreed, magnolia psychometrics GmbH grants the customer a non-exclusive right of use for any and all design-related services solely for the purposes underlying the contract.
7.2 If the customer intends to exploit works designed by magnolia psychometrics GmbH in whole or in part beyond the originally agreed purpose or scope, a separate fee agreement shall be concluded in advance to cover the extended rights of use.
7.3 The transfer of rights of use or the granting of sublicenses is permitted only if expressly agreed or if it follows from the purpose of the contract.
7.4 Unless separately permitted, the customer is not entitled to modify or process the services provided. Changes and adaptations that are necessary to achieve the purpose of the contract shall remain permitted.
7.5 The customer is obliged to name magnolia psychometrics GmbH on the completed work and on its reproductions.
7.6 If software is provided within the scope of a contract, this shall be subject to the license terms of the respective manufacturer, which are hereby expressly incorporated.
8 Materials and Content
8.1 magnolia psychometrics GmbH shall not be responsible for materials and Content provided by the customer. magnolia psychometrics GmbH is not obliged to check such materials and Content for potential legal violations but will inform the customer of any significant risks that are readily apparent.
8.2 If magnolia psychometrics GmbH is itself held liable due to materials and Content provided by the customer, the customer shall indemnify and hold magnolia psychometrics GmbH harmless from all claims and costs.
8.3 If magnolia psychometrics GmbH becomes aware of allegations of legal violations by the customer, magnolia psychometrics GmbH shall be entitled, without prior consultation or review, to block access to the customer’s offers or to terminate the contracts without notice.
9 Remuneration, Payment, and Retention of Title
9.1 magnolia psychometrics GmbH is entitled to invoice partial payments for self-contained or independently usable parts of the agreed services.
9.2 Unless otherwise agreed, remuneration shall be based on time spent, and the respective valid rates of magnolia psychometrics GmbH shall apply. A current schedule of rates is available upon request.
9.3 All contractually agreed fees are exclusive of packaging and shipping and plus the applicable statutory German VAT.
9.4 Expenses, disbursements, and travel costs incurred by magnolia psychometrics GmbH in connection with the order shall be borne by the customer and will be charged at cost.
9.5 If it becomes foreseeable that the actual costs will exceed the budgeted costs stated in writing by more than ten percent (10%), magnolia psychometrics GmbH shall inform the customer of the higher costs without undue delay.
9.6 Customer suggestions or other cooperation shall have no influence on the agreed amount of remuneration.
9.7 All services delivered shall remain the property of magnolia psychometrics GmbH until all monetary claims arising from the contractual relationship have been fully satisfied (goods subject to retention of title). In the event of enforcement measures against such goods, the customer shall notify magnolia psychometrics GmbH without undue delay.
10 Payment Terms; Default; Right of Retention; Set-Off
10.1 Unless expressly agreed otherwise, all payments are due without deduction of any cash discount within eight (8) days of the invoice date. Bank charges shall be borne by the customer. If the customer fails to pay on time, the customer shall owe default interest at the statutory rate (Section 288 (2) BGB) and the lump sum pursuant to Section 288 (5) BGB; the assertion of further damage remains reserved.
10.2 magnolia psychometrics GmbH may block third parties from accessing the customer’s offers or terminate contracts for cause if the customer is in default on due claims for more than four (4) weeks.
10.3 Set-off against counterclaims is permitted only insofar as such counterclaims are undisputed or have been finally adjudicated. In addition, the customer may set off a counterclaim that has replaced a right of retention to which the customer was entitled under this contractual relationship.
10.4 The customer’s right of retention is limited to the same contractual relationship and, in case of defects, to an amount not exceeding three times the expenses required to remedy the defects. The customer may, however, exercise a right of retention based on undisputed or finally adjudicated claims.
11 Claims for Defects
11.1 In the event of a defective delivery, the customer shall be entitled to subsequent performance. At magnolia psychometrics GmbH’s discretion, subsequent performance shall take the form of remedying the defect or delivering/manufacturing a new defect-free item. In the event of replacement delivery, the customer shall return the defective item.
11.2 If subsequent performance fails, the customer may, at its discretion, reduce the price or withdraw from the contract without setting a deadline. This also applies if magnolia psychometrics GmbH refuses subsequent performance or if subsequent performance is unreasonable for the customer.
11.3 The limitation period for defect claims is one (1) year. This shall not apply to claims for damages arising from injury to life, body, or health, to claims based on intent or gross negligence, to claims under the German Product Liability Act (Produkthaftungsgesetz), or where a defect was fraudulently concealed or a guarantee was assumed; in these cases the statutory limitation periods apply.
12 Support
12.1 In connection with the services rendered, magnolia psychometrics GmbH shall provide the customer with support regarding operating questions and technical issues.
12.2 After acceptance (Section 6), support shall be subject to a fee (Section 9) unless otherwise agreed.
12.3 magnolia psychometrics GmbH does not warrant that a solution can be provided within a specific period of time or that a solution is economically feasible or technically practicable.
13 Liability
13.1 magnolia psychometrics GmbH shall be liable without limitation for intent and gross negligence. In cases of slight negligence, magnolia psychometrics GmbH shall be liable only for the breach of essential contractual obligations (obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the customer may regularly rely), and such liability shall be limited to the typical, foreseeable damage. In the event of failure of hosting services caused by slight negligence, liability per incident is limited to one monthly hosting fee. In all other respects, liability for slight negligence is excluded.
13.2 In the event of loss of data, magnolia psychometrics GmbH shall only be liable for the effort that would have been required to restore the data had the customer made proper and regular backups. The customer is responsible for ensuring adequate data backups.
13.3 Liability arising from the assumption of a guarantee or a procurement risk, from default, for damages to life, body, or health, under the German Product Liability Act (Produkthaftungsgesetz), and under mandatory statutory provisions shall remain unaffected.
14 Confidentiality and Data Protection
14.1 The contracting parties agree to keep confidential the content and conditions of the contract and any insights gained in connection with its performance. This confidentiality obligation shall survive termination of the contractual relationship.
14.2 If a contracting party so requests, the documents provided by that party shall be returned after the termination of the contractual relationship, insofar as the other contracting party cannot assert a legitimate interest in retaining such documents.
14.3 Press releases, information, etc. in which one contracting party refers to the other are permissible only after prior written coordination. Notwithstanding the foregoing, magnolia psychometrics GmbH may refer to the customer as a reference client on its own website or in other media, reproduce and distribute the services for its own promotional purposes, and publicly display and refer to them for demonstration purposes, unless the customer can assert a legitimate interest to the contrary.
14.4 The customer is advised that, according to the current state of the art, data and data transmissions on the internet cannot be fully protected against unauthorized access. In order to improve security, additional technical measures may be agreed on a case-by-case basis.
14.5 magnolia psychometrics GmbH is entitled to store data relating to the business relationship and to use such data for operational purposes in accordance with statutory provisions. Disclosure to third parties is permitted if and insofar as this is part of the respective contract.
14.6 Where magnolia psychometrics GmbH processes personal data on behalf of the customer (for example data of participants, applicants, or employees), the parties shall conclude a data processing agreement pursuant to Art. 28 GDPR, which shall take precedence over these GTC in matters of data protection.
15 Final Provisions
15.1 The place of performance shall be the location of magnolia psychometrics GmbH’s office.
15.2 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including disputes regarding its conclusion and validity, shall be Leipzig, provided the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) or a legal entity under public law. This shall also apply to disputes arising from documents, bills of exchange, and checks relating to the contractual relationship. magnolia psychometrics GmbH shall, however, also be entitled to bring an action against the customer before the court of the customer’s domicile or place of business.
15.3 All legal issues arising from the order and its performance shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.4 Should one or more provisions of these GTC be or become invalid, the validity of the remaining provisions shall not be affected. In place of the invalid provision, the statutory provisions shall apply.