MAGLAB AG, Güterstrasse 141, 4053 Basel, Switzerland
Terms and Conditions
These contractual terms and conditions, unless modified or supplemented by a written agreement, apply in full to all contracts resulting from (i) an order given by the customer (hereafter: the Order) or (ii) resulting from the acceptance by the customer of a quotation regarding a pre-study, a feasibility study, non-standard products, a development project or any other product or services provided (hereafter: the Project). No additional or different terms or conditions, whether contained in the Customer’s Purchase Order or any other document or communication pertaining to the Customer’s order will be binding unless accepted in writing, and MAGLAB hereby expressly objects to any such terms and conditions which shall be deemed ineffective, and are herewith rejected.
2. Contractual Relationship
No contractual relationship between MAGLAB and the Customer shall arise until MAGLAB has accepted the Customer’s Purchase Order through a valid order acknowledgement. The simple remittance of a Purchase Order or acceptance of a MAGLAB offer of sale by the Customer implies the Customer accepts these Terms and Conditions and, by the same, waives its own General Terms and Conditions of Purchase, if any, even if such acceptance or Purchase order explicitly states otherwise.
3. Disclaimer of partnership
Nothing in these Terms and Conditions will be construed to place the Parties in an agency, employment, franchise, joint-venture, or partnership relationship. No party has the authority to obligate or bind the other in any manner. Nothing in these Terms and Conditions gives rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that they will perform their obligations as independent contractors. Each party retains the right to exercise full control of, supervision over and responsibility for its performance hereunder, including the employment, direction, compensation and discharge of Supplier’s personnel, as well as compliance with workers’ compensation, unemployment, disability insurance, social security, withholding and all other laws, rules, codes, regulations and ordinances governing such matters.
4.1. Unless otherwise stated therein, a quotation is valid for 30 days from the date of the quotation.
4.2. MAGLAB’s quotations are confidential and only persons actually entrusted with the matter may have access to them.
4.3. MAGLAB reserves its copyright and ownership on all documents furnished and its associates Intellectual Property (IP) in whatever form including, but not limited to, reports, schemes, plans, drawings and layouts. The customer shall not make them available to third parties or copy them without MAGLAB’s prior written permission. Such documents must be returned to MAGLAB on its request.
4.4. MAGLAB reserves its copyright and ownership on all samples, demonstrators, prototypes furnished and its associates Intellectual Property (IP) in whatever form. A sample, prototype or demonstrator is only for the purpose of demonstration and the customer has no right to copy, reproduce or alter the demonstrator partially or in full without MAGLAB’s prior written permission.
5. Project organization and exchange of information
In case of Projects, each party shall appoint its project manager who will be responsible for liaison between the parties. The project managers will organize regular meetings and MAGLAB will keep throughout the progress of the Project a file of documents such as discussion notes, minutes of meetings etc. The customer will be deemed to have accepted the minutes unless he informs MAGLAB of its nonacceptance in writing within 10 days of receipt.
MAGLAB and the Customer will mutually determine the specifications for the Products including but not limited to special product and process characteristics as well all relevant technical standards or its derivations, and the Control Plan to finally define the quality and nature of the products.
Customer with his expertise has the sole responsibility to provide in its sole discretion all relevant information and requirements for Products. No other sources for information to be provides by the Customer but those provided in pursue of the foregoing shall be relevant for any performance of MAGLAB. MAGLAB and the Customer will update the specifications and related processes upon mutual consent of the scope and the cost of changes of the Products or processes related to the manufacturing of the Products which constitutes the relevant revision of the specifications at the date of delivery.
Special characteristics or critical characteristics of the Product must expressly be identified as such by the Customer. They do not constitute any extended liability or guarantee of MAGLAB unless otherwise expressly stipulated and covered by amendments to the Control plan.
Respect of deadlines implies that the customer on his part punctually fulfills his obligations, especially as regards communicating specifications, results of tests, etc. The customer may grant MAGLAB an extension of any delivery deadline(s) to carry out an Order or outstanding work in Projects. A delay may be justified upon the occurrence of unforeseen circumstances or causes beyond MAGLAB’s control such as delays by MAGLAB’ suppliers.
MAGLAB reserves the right to make deliveries in instalments. Delivery of a quantity that varies from the quantity specified in Customer’s order shall not relieve Customer of its obligation to accept delivery and pay for the Products delivered. Customer shall not refuse to accept delivery or any consignment or instalment on account of any shortage or defect in any other delivery.
In case of an Order if the delay in delivery is unreasonable and therefore not acceptable to the customer, the customer may cancel the Order, excluding any further claims. In case of a Project, MAGLAB welcomes orders of non-standard products and R&D services in its field of expertise. However, it is impossible to foresee all difficulties and MAGLAB cannot warrant that the agreed objectives can be met. The customer will be informed about a delay and the parties will agree in writing on how to proceed in such case. However, in any case, the customer will be obliged to pay for the work on a Project performed to date.
7. Customer Caused Delay
MAGLAB will not be liable for any delays or increased costs caused by a failure of the Customer, such as delays in providing necessary information or other Customer deliverables or delays by the Customer designated suppliers in providing Products or services. In the event of a non-force majeure Customercaused delay, the price and other affected terms will be adjusted accordingly to reflect MAGLAB’ increased costs and other adverse impacts associated with such delay. In addition, if delivery of Products or services is delayed due to the acts or omissions of the Customer or Customer-designated suppliers, MAGLAB may store the Products at Customer’s risk and expense and, may invoice the Customer just as if there had been no delay in delivery.
Any modification that alters the Order or the statement of work, milestones, costs or the deliverables in case of a Project, is subject to written agreement between the parties prior to the modification becoming effective. Any such modification agreed in writing by the parties shall be inserted as an amendment to the Order or Project and is subject to agreement on the corresponding price on the modification.
Unless otherwise agreed, the customer is solely responsible for the installation and the application of MAGLAB products as well as the combination/integration of MAGLAB products with other products, including all related IP in whatever form.
10. Prices and terms of payment
10.1. Unless otherwise specified, prices are stated in Euro, « ex works » MAGLAB offices or MAGLAB associated warehouses or production sites (EXW INCOTERMS 2019). Customs taxes or VAT or other duties, as well as insurance, transport packaging, bank fees, installation, schooling and application support , if applicable, are at the expense of the customer. The customer is responsible to comply with all pertinent export or import regulations.
10.2. Invoices are to be settled net within thirty (30) days of receipt.
10.3. In case of late payment, an interest rate of 5 % p.a. will apply.
10.4. Unless the parties agree otherwise, the customer shall not be entitled to set-off any of its claims it may have against MAGLAB, or otherwise withhold the proper payment of any amount payable to MAGLAB.
11. Acceptance and rejection
11.1. Upon receipt of each deliverable as defined in the Order or the Project, the customer shall verify it and notify of any rejection of the deliverable within ten (10) days unless otherwise stated in the Order or Project. If no written rejection is received within the acceptance period, the relevant deliverable will be considered accepted.
11.2. Some of MAGLAB’ products are manufactured in small series or even individually. Therefore, their appearance may not be perfect; however this does not impact their functionality. The customer shall not make claims or reject a product for such defects or other negligible defects.
11.3. If a deliverable is rejected, the customer shall give notice of the rejection within the acceptance period mentioned in article 8.1, with a description of the alleged defect(s). If the defect is attributable to MAGLAB, the customer will allow MAGLAB a reasonable period of time to remedy the defect free of charge.
11.4. If after the remedy the customer is still not able accept the deliverable, he may terminate the Order or the Project.. In such case the customer shall have no obligation to pay for the relevant deliverable except for his obligation to pay the charges due for previously completed and accepted deliverables.
12. Warranty and liability
12.1. MAGLAB will perform its obligations under the Order or the Project. to the best of its ability with its customary diligence and on the basis of the latest scientific and technological developments known to it.
12.2. According to Swiss law MAGLAB will be liable for any direct damages resulting from wilful misconduct or gross negligence.
12.3. MAGLAB accepts no further responsibility, in particular for consequential damages such as but not limited to financial or commercial losses, loss of profit, increase of general costs, loss of clients or market share.
12.4. MAGLAB’ liability shall be limited to the amounts paid to it by the customer for the Order or the Project with a maximum liability of 50 000 CHF.
12.5. MAGLAB will not be responsible for any damage, personal injury or loss of life related in any way to MAGLAB products.
12.6. If a product becomes non-functional within a period of up to one year from the date of delivery to the customer, while it has been used properly, MAGLAB will repair or replace the product free of charge. The defective part shall be returned to MAGLAB at the customer’s own cost and risk. This warranty does not cover any defect that occurs due to a fall, shock, exposure to high voltage, high temperature, chemicals, cleaning, repair, modification, mechanical damage and similar mishandling in the customer’s area of responsibility.
12.7. If MAGLAB is responsible for the product installation and commissioning, the final acceptance has to be completed during the on-site installation time period that was quoted by MAGLAB. The warranty period of up to one year starts then immediately after the final acceptance.
13.1. All information in whatever form that has been disclosed by one party to the other in connection with, or in pursuance of an Order or a Project, especially knowhow and all information or results obtained within a Project (hereafter: “Confidential Information”) shall be handled in a confidential manner. Each party undertakes not to communicate and not to divulge to third parties Confidential Information received from the other party nor to use such Confidential Information for any purpose other than the execution of the Order or the Project..
13.2. Furthermore, each party agrees that it will restrict the access to Confidential Information received from the other party to those of its employees who need to be informed for the execution of the Project. Each party shall take all necessary and useful measures in order to protect the Confidential Information received from the other party with at least the same degree of care as it uses for the protection of its own proprietary and confidential information.
13.3. The foregoing obligations shall not apply to any Confidential Information, which the receiving party can prove (a) was known to it prior to disclosure by the disclosing party, (b) was rightfully received from a third party without any obligation of confidentiality or (c) is in the public domain.
13.4. Nothing in this paragraph shall be construed as granting any license or right to either party with respect to any Confidential Information of the other party.
13.5. These obligations relating to confidentiality will remain effective during the term of the Project and for a period of three (5) years after termination or expiry of the Order or the Project.
14. Intellectual Property Rights
14.1. All intellectual and industrial property rights existing as of the coming into force of the Order or the Project. or created either during the course of the work performed or outside of the framework of the Order or the Project. shall remain with the originating party.
14.2. The customer may dispose freely of the results of the Project but limited to the scope of the project, in particular on design studies and demonstrators and no right to the IP is transferred to the company. If not otherwise stated, the company has no right to copy, reproduce or alter the designs, demonstrators or any intellectual and industrial property rights neither partially nor in full.
14.3. Inventions, findings and creations made within the framework of the Project by either party shall be the property of the originating party which shall be entitled to apply for patent protection and hold title to any patent issued thereon in its own right.
14.4 If, in the course of carrying out work on the Project, MAGLAB and the customer jointly make an invention, finding or creation, the arrangement for applying for a patent shall be agreed between the parties on a case by-case basis. Unless otherwise agreed, the parties will be joint owners of the said patent. In this case, as long as any such patent is in force, each party shall be entitled to use the patent without restraint.
15. Force Majeure
15.1. MAGLAB shall not be liable for any failure of or delay in the performance of its obligations under the Order or the Project. if such failure or delay is caused by reason of Force Majeure.
Force Majeure shall be understood to mean and include failure or delay caused by unforeseen circumstances or to causes beyond the reasonable control of MAGLAB’s, including but not limited to total or partial suspension of activity of MAGLAB’s suppliers, injunctions, mobilization, war, riots, fire, import or export blocking or a considerable raise in customs taxes.
This terms and conditions shall become effective upon receipt of the customer’s Order or his acceptance of MAGLAB’s quotation in the case of a Project and shall be valid until each and every obligation are performed completely and until the definitive settlement of any account and/or litigation between the parties.
17. Governing law and jurisdiction
17.1. This terms and conditions shall be governed by and construed in accordance with the substantive laws of Switzerland without giving effect to the provisions on the conflicts of law and the Vienna Convention on the International Sale of Goods.
17.2. The parties agree to first endeavour to settle amicably any dispute arising from the execution or interpretation of this contract. In the absence of an amicable agreement, the ordinary courts at MAGLAB place of business shall resolve such dispute exclusively and the parties expressly waive any right to claim or assert forum non convenience.