• General Terms and Conditions for Services of UNITY AG

    § 1 Nature and Scope of Service

    Contractor shall provide the services as agreed in the contract. Customer shall retain the responsibility for the respective project itself and the resulting outcome. Customer shall be responsible for correct and proper data security. Any services under a contract for work (werkvertragliche Leistungen) shall not be the subject of the contract and shall only become valid in the form of a deviating written agreement in the contract.

    Contractor shall provide the services in accordance with the state of the art at the time of the contract formation and shall employ personnel for this purpose who are qualified to provide the agreed services.

    § 2 Co-Operation of Contractual Parties

    If contact persons of the contractual parties are expressly named in the contract, they shall be the sole responsible contact persons.

    Customer shall communicate requests with regard to the service to be provided exclusively to the responsible contact appointed by Contractor and shall not give directions to any of the other persons used for the services by Contractor. Persons used for the services by Contractor shall not be deemed to enter into any employment relationship with Customer even if such render any performance at the premises of Customer.

    The contracting parties shall inform each other immediately of any claims asserted by third parties. If the Customer is responsible for the infringement of the property rights, claims against the Contractor shall be excluded.

    § 3 Substitution of Personnel

    Contractor is entitled to substitute any person used in the performance of the contract with other persons. When selecting such persons, Contractor shall take into consideration the best interest of Customer.

    § 4 Rights to Physical Results of the Service

    Contractor shall grant Customer the non-exclusive, permanent, irrevocable and non-transferable right to use the physical results of performance insofar as such comes from the purpose and scope of application. Such rights shall extend to the agreed intermediate results, training materials and accessories. The transfer of rights of use shall take place at the earliest upon full payment of the remuneration. Any deviation from the above provisions for use shall require written agreement by way of contract.

    § 5 Participation by Customer

    Customer shall provide reasonable assistance to Contractor in its provision of services under the contract. Among other things, Customer shall make available to Contractor the necessary personnel as well as the necessary information and documentation in a full and timely manner, and if any work is to be performed at the premises of the Customer, Customer shall provide the necessary rooms and technical equipment. Any duty of support beyond the above shall be separately agreed upon in the contract.

    § 6 Remuneration

    6.1 
    Except as otherwise agreed, the sole consideration for the time spent in performing the services under the contract shall be the remuneration agreed upon in the contract. Waiting times of the Contractor for which Customer is responsible shall be remunerated in the same matter as working hours.
    Except as otherwise agreed, Contractor shall issue its invoices on a monthly basis for the performance provided. Insofar as an invoice is accompanied by a performance report, such performance report shall be deemed to have been approved if the Customer does not raise any objections thereto within a period of 14 calendar days of receipt.

    6.2 
    Travelling times, travel expenses, and ancillary expenses shall be remunerated in accordance with the contractual provisions.

    § 7 Non-conforming Performance

    7.1 
    If the service is not performed in accordance with the contract or is not performed in a correct manner and if the responsibility for such non-conforming performance is with the Contractor, the latter shall provide the service in accordance with the contract within a reasonable period of time at no additional charge to Customer. The above shall only apply if Customer issues a notification of default without delay, but in no case later than 2 weeks after Customer has become aware of such. If Contractor, for reasons for which Contractor is responsible, materially fails to provide performance within a reasonable period expressly defined for such purpose by Customer, Customer shall be entitled to terminate the contract.
    In such an event, Contractor shall be entitled to remuneration for any services delivered under the contract until the effective date of the termination including the costs in accordance with Clause 6.2. No remuneration shall be due for any services which Customer can demonstrate within 4 weeks of giving notice of termination to be unsuitable for use by Customer now or in future.

    7.2
    Any further rights on the part of Customer to claim for non-conforming performance are excluded. This exclusion shall not apply in the case of liability for willful acts or gross negligence, or for injury to life, limb or health.

     

    § 8 Other liability

    8.1 
    Clause 7 herein above shall cover the entire liability for quality-related non-conformance with performance requirements.

    8.2 
    Otherwise, Contractor shall be liable for damage or less for which Contractor is responsible as follows:

    8.2.1 
    In the event of slight negligence Contractor shall be liable only if Contractor is in material breach of contract or in the event of default or impossibility to perform. In such cases liability shall be restricted to typical, foreseeable, damage and shall be limited to Euro 500,000 per claim event, but not exceeding Euro 1 million per contract, or a maximum of 10% of the total remuneration for the contract for financial loss.
    Liability for financial loss shall be limited to a total of Euro 500,000 per contract.
     Any rights to claim for loss of profit are excluded.
    In the event of loss of data Contractor shall be liable only for the time and effort required by Customer to recover the data where proper data backups have previously been performed. In the event of slight negligence on the part of Contractor this liability shall be effective only if Customer has performed a proper data backup immediately before the action leading to the loss of data.

    8.2.2 
    Even in case of gross negligence, liability shall be restricted to typical, foreseeable damage, provided that such damage has not been caused by any officers of Contractor.
    In case of strict liability for initial impossibility, default or express warranties, Contractor's liability shall also be restricted to typical, foreseeable damage. The liability with regard to the above shall also be limited.

    8.3 
    The limitations of liability in accordance with Clause 8.2 shall not apply in case of willful acts, in case of injury to life, limb or health or in cases involving the application of the Product Liability Act (Produkthaftungsgesetz).

    § 9 Limitation

    Any claims in accordance with Clauses 7 or 8 shall expire within 2 years of knowledge, however not later than 8 years of full completion of the services or premature termination of the contract.

    § 10 Set-off

    Customer shall be entitled to set-off only if customer's claims are undisputed or recognized by final legal judgment.

    § 11 Data Protection, Confidentiality, Security

    11.1 
    Customer shall ensure that Contractor is duly made aware of any relevant facts in addition to those required under the provisions of law, knowledge of which is necessary for the Contractor for reasons of data protect and confidentiality.

    11.2 
    Except as otherwise agreed, Customer shall make sure to delete sensitive data prior to delivery of the relevant data medium to Contractor.

    11.3 
    Contractor shall ensure that all persons assigned by Contractor for the handling or performance of the contract shall observe the provisions of law related to data protection. The obligation to maintain data confidentiality as required under data protection laws shall be undertaken no later than before initial performance of the services, proof of which shall be submitted to Customer at Customer's request.

    11.4 
    Customer and Contractor undertake to keep confidential all information and trade and business secrets received under or in connection with the contract and not to disclose such information or trade or business secrets to third parties.

    § 12 Textual Form

    Unless otherwise agreed, contractual notifications and declarations require the written form as a minimum.

    § 13 Applicable Law

    The laws of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

    § 14 Severability

    If any provision of the contract is ineffective, this shall not affect the effectiveness of the remaining provisions. The parties to the contract shall cooperate to replace any ineffective provision with a provision which reflects as closely as possible the original intention of the ineffective provisions.

    Corresponding shall apply mutatis mutandis in the event of a loophole in the contract.

    § 15 Jurisdiction, Place of Performance

    The place of performance for all obligations arising under the contract shall be Büren, Germany. The place of jurisdiction for all disputes arising from the contract shall be Paderborn, Germany insofar as the requirements for an effective agreement on jurisdiction have been met (full merchants or legal entities under public law). Contractor shall also be entitled to bring legal action at principal seat of Customer.

    Revised: 26.09.2018

  • General Terms and Conditions for Services of UNITY Schweiz AG

    § 1 Nature and Scope of Services

    Contractor shall provide the services as agreed in the contract. Customer shall retain the responsibility for the respective project itself and the resulting outcome. Customer shall be responsible for correct and proper data security. Any services under a contract for work (werkvertragliche Leistungen) shall not be the subject of the contract and shall only become valid in the form of a deviating written agreement in the contract. 

    Contractor shall provide the services in accordance with the state of the art at the time of the contract formation and shall employ personnel for this purpose who are qualified to provide the agreed services.

    § 2 Co-Operation of Contractual Parties

    If contact persons of the contractual parties are expressly named in the contract, they shall be the sole responsible contact persons. Customer shall communicate requests with regard to the service to be provided exclusively to the responsible contact appointed by Contractor and shall not give directions to any of the other persons used for the services by Contractor. 

    Persons used for the services by Contractor shall not be deemed to enter into any employment relationship with Customer even if such render any performance at the premises of Customer. 

    The contracting parties shall inform each other immediately of any claims asserted by third parties. If the Customer is responsible for the infringement of the property rights, claims against the Contractor shall be excluded.

    § 3 Substitution of Personnel

    Contractor is entitled to substitute any person used in the performance of the contract with other persons. When selecting such persons, Contractor shall take into consideration the best interest of Customer.

    § 4 Rights to work results

    Upon full payment of the remuneration, the Customer shall be entitled to use the Contractor's work results for the agreed purpose. Any use beyond the scope of the contract shall not be permitted in order to protect the Contractor's preliminary work and know-how. 

    The property rights to their work shall remain with the Contractor, unless a different provision is expressly agreed in the contract. The property rights to work results which have been developed jointly by the Customer and the Contractor shall be held jointly by both contracting parties. The term "property rights" includes in particular the copyright as well as the right to further use and utilization of the work results. However, the provisions of Clause 11 (Data Protection, Confidentiality, Security) shall remain

    § 5 Participation by Customer

    Customer shall provide reasonable assistance to Contractor in its provision of services under the contract. Among other things, Customer shall make available to Contractor the necessary personnel as well as the necessary information and documentation in a full and timely manner, and if any work is to be performed at the premises of the Customer, Customer shall provide the necessary rooms and technical equipment. Any duty of support beyond the above shall be separately agreed upon in the contract.

    § 6 Remuneration

    6.1
    Except as otherwise agreed, the sole consideration for the time spent in performing the services under the contract shall be the remuneration agreed upon in the contract. Waiting times of the Contractor for which Customer is responsible shall be remunerated in the same matter as working hours. Except as otherwise agreed, Contractor shall issue its invoices on a monthly basis for the performance provided. Insofar as an invoice is accompanied by a performance report, such performance report shall be deemed to have been approved if the Customer does not raise any objections thereto within a period of 14 calendar days of receipt. 

    6.2 
    Travelling times, travel expenses, and ancillary expenses shall be remunerated in accordance with the contractual provisions.

    § 7 Non-Conforming Performance

    7.1
    If the service is not performed in accordance with the contract or is not performed in a correct manner and if the responsibility for such non-conforming performance is with the Contractor, the latter shall provide the service in accordance with the contract within a reasonable period of time at no additional charge to Customer. The above shall only apply if Customer issues a notification of default without delay, but in no case later than 2 weeks after Customer has become aware of such. If Contractor, for reasons for which Contractor is responsible, materially fails to provide performance within a reasonable period expressly defined for such purpose by Customer, Customer shall be entitled to terminate the contract. In such an event, Contractor shall be entitled to remuneration for any services delivered under the contract until the effective date of the termination, including the costs in accordance with Clause 6.2. No remuneration shall be due for any services which Customer can demonstrate within 4 weeks of giving notice of termination to be unsuitable for use by Customer now or in future. 

    7.2 
    Any further rights on the part of Customer to claim for non-conforming performance are excluded. This exclusion shall not apply in the case of liability for willful acts or gross negligence, or for injury to life, limb or health.

    § 8 Other Liability

    8.1
    Clause 7 herein above shall cover the entire liability for quality-related non-conformance with performance requirements. 

    8.2 
    Otherwise, Contractor shall be liable for damage or less for which Contractor is responsible as follows:

    8.2.1
    The Contractor's liability shall be limited in total to the amount of the remuneration owed in accordance with the contract. This limitation applies to any kind of damage, based on whatever legal ground. The Contractor shall not be liable for pure financial loss, in particular not for loss of profit or for damage resulting from loss of data. Liability for slight negligence is excluded. 

    8.2.2 
    The Contractor shall be liable for the damage caused by him or by a third party commissioned by him arising from the contractual relationship, provided that the third party is not an auxiliary person and if the Customer proves that the Contractor or the commissioned third party caused the damage by gross negligence or intentionally. The exemption from liability based on Art. 399 para. 2 OR shall remain. In the event of the use of auxiliary persons, any liability shall be excluded. 

    8.2.3 
    The liability of the Contractor is excluded: 

    • for instructions of the Customer on which the Customer insists despite being advised against them, as well as for instructions which the Customer gives directly to third parties; 
    • for services and deliveries of third parties who are in a direct contractual relationship with the Customer; 
    • for financial losses resulting from the exceeding of cost estimates or the failure to meet deadlines and/or dates.

    8.3
    The limitations of liability in accordance with Clause 8.2 shall not apply in case of willful acts, in case of injury to life, limb or health or in cases involving the application of the Product Liability Act (Produkthaftungsgesetz).

    § 9 Limitation

    Claims in accordance with Clauses 7 and 8 shall become statute-barred within one year of knowledge of the circumstances giving rise to the claim, or of the time at which the Customer should have become aware thereof without gross negligence, but no later than five years after performance of the services. The statute of limitations in the case of liability due to intent shall be governed by the statutory provisions.

    § 10 Set-off

    Customer shall be entitled to set-off only if Customer's claims are undisputed or recognized by final legal judgment.

    § 11 Data Protection, Confidentiality, Security

    11.1 
    Customer shall ensure that Contractor is duly made aware of any relevant facts in addition to those required under the provisions of law, knowledge of which is necessary for the Contractor for reasons of data protect and confidentiality. 

    11.2 
    Except as otherwise agreed, Customer shall make sure to delete sensitive data prior to delivery of the relevant data medium to Contractor. 

    11.3 
    Contractor shall ensure that all persons assigned by Contractor for the handling or performance of the contract shall observe the provisions of law related to data protection. The obligation to maintain data confidentiality as required under data protection laws shall be undertaken no later than before initial performance of the services, proof of which shall be submitted to Customer at Customer's request. 

    11.4 
    Customer and Contractor undertake to keep confidential all information and trade and business secrets received under or in connection with the contract and not to disclose such information or trade or business secrets to third parties.

    § 12 Textual Form

    Unless otherwise agreed, contractual notifications and declarations require the written form as a minimum.

    § 13 Applicable Law

    The Swiss law shall apply (to the exclusion of the conflict laws (Kollisionsrecht)).

    § 14 Severability

    If any provision of the contract is ineffective, this shall not affect the effectiveness of the remaining provisions. The parties to the contract shall cooperate to replace any ineffective provision with a provision which reflects as closely as possible the original intention of the ineffective provisions. Corresponding shall apply mutatis mutandis in the event of a loophole in the contract.

    § 15 Jurisdiction, Place of Performance

    The place of performance for all obligations arising under the contract shall be Zürich, Switzerland. The place of jurisdiction for all disputes arising from the contract shall be Zürich, Switzerland.

    Revised: 22.06.2021

  • General Terms and Conditions for Services of UNITY Business Consulting (Shanghai) Co., Ltd.

    § 1 Application of these General Terms and Conditions

    These General Terms and Conditions for Services (“General Terms”) shall apply to all services provided by UNITY Business Consulting (Shanghai) Co., Ltd. (“Contractor”) to any customer (“Customer”) who has entered into a service contract (“Contract”) with the Contractor according to Clause 2 hereof.

    § 2 Formation of the Contract

    Unless otherwise agreed in the Contract, the Contract shall come into effect as soon as Customer confirms the offer of Contractor or Contractor accepts the order of Customer for provision of service by Contractor to Customer.

    § 3 Nature and Scope of Services

    Contractor shall provide the services as agreed in the Contract. Customer shall retain the responsibility for the respective project itself performed by Contractor and the resulting outcome. Customer shall be responsible for correct and proper data security. Considering the nature of the Contract being a service contract, the Parties may agree on criteria to measure the completion of the services provision however the Contractor shall not be obliged to guarantee or promise the results to be achieved upon completion of provision of services. Contractor shall provide the services in accordance with professional standards at the time of the contract formation and shall employ personnel for this purpose who are qualified to provide the agreed services.

    § 4 Co-Operation of Contractual Parties

    The responsible contacts specified in the Contract shall be the exclusive contact persons for the contractual parties. Customer shall communicate requests with regard to the service to be provided exclusively to the responsible contact appointed by Contractor and shall not give directions to any of the other persons used for the services by Contractor. Persons used for the services by Contractor shall not be deemed to enter into any employment relationship or labor service relationship with Customer even if such render any performance at the premises of Customer.

    § 5 Substitution of Personnel

    Contractor is entitled to substitute any person used in the performance of the Contract with other persons. When selecting such persons, Contractor shall take into consideration the best interest of Customer.

    § 6 Rights to Physical Results of the Service

    Contractor shall grant Customer the non-exclusive, permanent, irrevocable and non-transferable right to use the physical results of performance insofar as such comes from the purpose and scope of performance of services under the Contract. Such rights shall extend to the agreed intermediate results, training materials and accessories. The aforesaid rights of use shall only be granted to Customer at the earliest upon full payment by Customer to Contractor of the remuneration. Any deviation from the above provisions for use shall require written agreement by way of written contract.

    § 7 Participation by Customer 

    Customer shall provide reasonable assistance and support to Contractor in its provision of services under the Contract. Among other things, Customer shall make available to Contractor the necessary personnel as well as the necessary information and documentation in a full and timely manner, and if any work is to be performed at the premises of the Customer, Customer shall provide the necessary rooms and technical equipment. Any duty of support beyond the above shall be separately agreed upon in the Contract.

    § 8 Remuneration and Payment Terms 

    8.1 
    Except as otherwise agreed, the sole consideration for the time spent in performing the services under the Contract shall be the remuneration agreed upon in the Contract. Waiting times of the Contractor for which Customer is responsible shall be remunerated in the same matter as working hours. Except as otherwise agreed, Contractor shall issue its commercial invoices or payment notice on a monthly basis for the performance provided. Insofar as an commercial invoice or payment notice is accompanied by a performance report, such performance report shall be deemed to have been approved if the Customer does not raise any objections thereto within a period of 14 calendar days of receipt. 

    8.2 
    Travelling times, travel expenses, and ancillary expenses shall be remunerated in accordance with the contractual provisions. 

    8.3 
    Unless otherwise agreed in the Contract, the payment of the remuneration for a month shall become due in [ten (10)] working days after Customer receives the corresponding commercial invoice or payment notice from Contractor. Contractor will issue a corresponding tax invoice (“fapiao”) after it receives the payment from Customer. 

    § 9 Non-Conforming Performance

    9.1
    If the service is not performed in accordance with the Contract or is not performed in a correct manner and if the responsibility for such non-conforming performance is with the Contractor, the Contractor shall provide the service in accordance with the Contract within a reasonable period of time at no additional charge to Customer. Such claims are only valid if customer issues notification of default within two (2) weeks after notice. If Contractor, for reasons for which Contractor is responsible, materially fails to provide performance within a reasonable period expressly defined for such purpose by Customer, Customer shall be entitled to terminate the Contract. In such an event, Contractor shall be entitled to remuneration for any services delivered under the Contract until the effective date of the termination. No remuneration shall be due for any services which Customer can demonstrate within four (4) weeks of giving notice of termination to be unsuitable for use by Customer now or in future. 

    9.2 
    Travelling times, travel expenses, and ancillary expenses shall be remunerated in accordance with the contractual terms and conditions. 

    9.3 
    Any further rights on the part of Customer to claim for non-conforming performance are excluded. This exclusion shall not apply in the case of liability for willful acts or gross negligence of Contractor, or for personal injury or death.

    § 10 Other Liability 

    10.1 
    Clause 9 herein above shall cover the entire liability of Contractor for quality-related non-conformance with performance requirements. 

    10.2 
    Notwithstanding otherwise provided in the Contract, Contractor shall be liable for damage or loss for which Contractor is responsible as follows: 

    10.2.1 
    In the event of general or slight negligence Contractor shall be liable only if Contractor is in material breach of contract or in the event of default or impossibility to perform. In such cases liability of Contractor to Customer shall be restricted to direct damage and shall be limited to RMB 4,000,000 per claim event, but not exceeding RMB 8 million per contract, or a maximum of 10% of the total remuneration for the contract for financial loss. Liability for financial loss shall be limited to a total of RMB 4,000,000 per contract. Any rights of Customer to claim for any indirect damages and losses, including but not limited to loss of profit are excluded. In the event of loss of data Contractor shall be liable only for the time and effort required by Customer to recover the data where proper data backups have previously been performed. In the event of general or slight negligence on the part of Contractor this liability shall be effective only if Customer has performed a proper data backup immediately before the action leading to the loss of data. 

    10.2.2 
    Even in case of gross negligence, liability shall be restricted to direct damage, provided that such damage has not been caused by any leading personnel of Contractor who are designated for taking charge of the performance of the Contract. In case of liability for initial impossibility, default or express warranties by Customer under the Contract, Customer's liability shall also be restricted to direct damage. The liability with regard to the above shall also be limited. 

    10.3 
    The limitations of liability in accordance with Clause 10.2 shall not apply in case of willful acts of Contractor, in case of personal injury or death. 

    § 11 Limitation 

    Unless otherwise mandatorily provided by the applicable PRC laws, any claims of Customer to Contractor in accordance with Clauses 9 or 10 shall expire within two (2) years after Customer becomes aware or should become aware of the event or circumstances alleged to justify such claim. 

    § 12 Set-off 

    Customer shall be entitled to set-off only if Customer's claims are undisputed or recognized by final legal judgement issued by competent courts or arbitration commission.

    § 13 Data Protection, Confidentiality, Security 

    13.1 
    Customer shall ensure that Contractor is duly made aware of any relevant facts or information in addition to those required under the provisions of PRC laws, knowledge of which is necessary for the Contractor for reasons of data protect and confidentiality. 

    13.2 
    Except as otherwise agreed, Customer shall make sure to delete sensitive data prior to delivery of the relevant data medium to Contractor. 

    13.3 
    Contractor shall ensure that all persons assigned by Contractor for the handling or performance of the Contract shall observe the provisions of PRC laws related to data protection. The obligation to maintain data confidentiality as required under data protection PRC laws shall be undertaken no later than before initial performance of the services, proof of which shall be submitted to Customer at Customer's request. 

    13.4 
    Customer and Contractor undertake to keep confidential all information and trade and business secrets (“Confidential Information”) received from the other party under or in connection with the Contract and not to disclose such Confidential Information to third parties (except for performance of the Contract and on a strict need-to-know basis). The foregoing confidentiality obligations shall remain valid until the relevant Confidential Information comes into public domain with no default of the receiving party.

    § 14 Intellectual Properties 

    14.1 
    Contractor shall retain all copyright, patent and all other intellectual property rights (“IPR”) and proprietary rights, attached to or embodied in any and all documents, files, consulting and training materials, either oral or written, provided, used or developed by Contractor during the performance of services under the Contract. 

    14.2 
    Contractor shall be authorized to use the Customer’s trade name, company name and trademarks for Contractor’s marketing and promotion purposes in an adequate manner. 

    § 15 Non-solicitation 

    Unless otherwise agreed in the Contract, during the term of cooperation and for a period of one (1) year following the termination of the cooperation, Customer shall abstain from directly or indirectly soliciting, encouraging or making any offer to any person who is engaged as personnel of Contractor (particularly including consultants of Contractor)during the cooperation or at the date of the termination of cooperation with a view to inducing that person to leave his/her position with Contractor. 

    § 16 Writing 

    Unless any other additional form has been agreed, the Contract and any amendments thereto and all representations made under the Contract shall be made in writing. The same shall also apply to any waiver of this requirement of the written form.

    § 17 Termination of the Contract 

    17.1 
    Both Customer and Contractor may terminate the Contract by thirty (30) days’ written notice to the other party. In the event of Customer terminating the Contract as mentioned in the preceding provision, Customer shall be liable to compensate all losses and damages suffered by Contractor, including but not limited to costs and expenses for all time and effort already contributed by Customer in respect of the Contract and services until the date of termination. 

    17.2 
    In case one party is in material breach of the Contract and fail to rectify such breach within thirty (30) days upon receipt of notice of the other party requiring rectification, the other party may terminate the Contract with immediate effect by serving a written notice to the breaching party. 

    17.3 
    Upon termination of the Contract, Customer shall remain liable for payment of remuneration for services already performed by Contractor and such payment obligation shall become immediately due upon the termination of the Contract. The foregoing shall not prejudice the right of Contractor to claim for additional losses and damages incurred by it. 

    18 Applicable Law 

    The laws of the People’s Republic of China shall apply to the Contract.. 

    19 Severability 

    If any provision of the Contract is ineffective, this shall not affect the effectiveness of the remaining provisions. The parties to the Contract shall cooperate to replace any ineffective provision with a provision which reflects as closely as possible the original intention of the ineffective provisions. 

    20 Entire Agreement 

    These General Terms shall be an integral part of any Contract between Contractor and Customer. In case of any difference between these General Terms and the body text of the Contract, the body text of the Contract shall prevail. 

    21 Jurisdiction, Place of Performance 

    The place of performance for all obligations arising under the Contract shall be the People’s Republic of China. Any dispute, controversy or claim arising from or in connection with the Contract, including the validity, breach or termination thereof shall finally be submitted to Shanghai International Arbitration Center for arbitration acting on the basis of its arbitration rules in force at that time. The arbitration shall be held in Shanghai. The arbitral tribunal shall be composed of three (3) arbitrators. The arbitral procedure shall be conducted in both English and Chinese. The arbitral award shall be final and binding upon both Parties.

    Made: 03.2014

  • Additional Terms and Conditions for the Supply of Goods of UNITY AG

    § 1 Period of Delivery and Performance 

    1.1 
    Except as expressly otherwise agreed in writing, deadlines and delivery periods are not binding. All delivery periods and delivery dates specified by UNITY are subject to the proper and timely receipt of supplies from suppliers and manufacturers by UNITY. 

    1.2 
    In the event of delays in delivery and performance due to force majeure and/or other unforeseeable events which significantly obstruct or entirely prevent delivery by UNITY and which are beyond the control of UNITY (including without limitation war, war-like events, government acts, withholding of export, import or transit permits, national trade restrictions, strike, lock-out and any other interruptions of operations whatsoever, traffic disruptions, Acts of God, regardless of whether such events of force majeure occur within the sphere of UNITY or its suppliers or sub-suppliers), UNITY shall be entitled to delay, for the duration of such an event of force majeure plus a reasonable response time, its delivery and/or performance or to cancel the contract in whole or in part to the extent the contract has not been performed yet. 

    1.3 
    If the obstruction continues for more than three (3) months, the Customer is entitled to cancel the contract in whole or in part (to the extent it has not been performed yet) after having granted a reasonable extension of time (of at least 14 days) for its performance. If the delivery period is extended in accordance with Article 1.2 herein above or if UNITY is released from its obligation, the Customer shall not be entitled to claim damages for default. UNITY shall be entitled to plead the above-mentioned circumstances only if UNITY has notified the Customer thereof without undue delay. 

    1.4 


    UNITY shall be entitled to dispatch part shipments and perform part services. Where supply contracts are concerned, any partial delivery and/or partial service constitutes an independent delivery item. The delivery period is extended by the time that the Customer itself is in default of meeting its own contractual obligations. 

    1.5 
    Where the date of our delivery or service is not specifically identified on our invoice, it is identical with the invoice date. 

    § 2 Default in Acceptance 

    2.1 
    While the Customer is in default in acceptance, UNITY is entitled to store the deliverable items at the risk and expense of the Customer. UNITY is entitled to appoint a freight forwarding or storage company for this purpose. 

    2.2 
    If the Customer refuses to take acceptance of the deliverable items even after a period of grace granted for this purpose has expired, or if the Customer fails to react to a written request of acceptance or declares that it does not wish to accept the goods, then UNITY is entitled to refuse performance of the contract and to claim damages for nonperformance. UNITY is entitled to claim compensation for damages from the Customer; such compensation consists either in the payment of a lump-sum amount of 20% of the agreed gross purchase price (unless the Customer proves that the damage or loss has been lower) or in the compensation of any actual damage or loss occasioned. 

    § 3 Delivery Quantity/Incorrect Delivery 

    3.1 
    The Customer shall notify UNITY and the carrier in writing of any differences in quantity; visible differences in quantity shall be reported upon receipt of the goods, hidden differences in quantity shall be reported within four (4) days of receipt. Takeover of the goods by the forwarding agent or carrier is regarded as proof of proper quantity, compliant packaging and loading. 

    3.2 
    In addition, the Customer agrees to notify UNITY in writing within fourteen (14) days of receipt of any goods erroneously delivered to the Customer by UNITY without any purchase order from the Customer and to have the goods ready for collection by a forwarding agent or carrier appointed by UNITY. 

    3.3 
    If such written notification of an erroneous delivery is not made at all or is not made within the period specified herein above, such delivery is deemed to have been accepted by the Customer and the Customer has to pay UNITY the customary and reasonable purchase price for such goods. 

    § 4 Transfer of Risk 

    The risk passes to Customer as soon as the goods have been handed over to the person carrying out the transport and/or as soon as the goods have been dispatched from the UNITY warehouse. If shipping is delayed or becomes impossible through no fault of UNITY, the risk passes to the Customer, and the Customer is notified immediately that the goods are ready for shipment. If UNITY takes over the costs of transport in any individual case, such assumption of costs has no impact on the transfer of risk. 

    § 5 Defects Liability 

    5.1 
    The Customer is entitled to make claims based on defects only if the Customer has duly discharged its duty to examine the goods delivered and to notify UNITY of any defects in accordance with Section 377 of the German Commercial Code (HGB). 

    5.2 
    If there is a defect in the goods delivered, the Customer is entitled to demand supplementary performance. Supplementary performance is provided, at our option, either by rectifying the defect or by supplying non defective goods. In the event of rectification of defects, any expenses incurred as a result are replaced only if such expenses have not been increased by moving the goods to any place other than the place of performance. 

    5.3 
    If supplementary performance has failed, the Customer may, at its option, demand rescission from the contract or reduction in the purchase price. 

    5.4 
    We are liable under the legal requirements if the Customer claims damages for intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Liability for damages is limited to foreseeable, typically occurring loss or damage unless we can be accused of intentional breach of contract. 

    5.5 
    We are liable under the legal requirements in the event of culpable fundamental breach of contract on our part; in such a case, liability for damages is, however, limited to foreseeable typically occurring damage. 

    5.6 
    In the event that the Customer is entitled to compensation of damages in lieu of performance, our liability is limited to compensation for foreseeable, typical damage or loss even where the circumstances described in para. 3 hereof prevail. 

    5.7 
    Liability for culpable injury to life, bodily injury or injury to health shall be not be affected by the above provisions; this also applies to mandatory liability under the Product Liability Act (Produkthaftungsgesetz). 

    5.8 
    Save as otherwise provided herein above, any further liability is excluded. 

    5.9 
    Any claims for defects shall fall under the statute of limitations after the expiry of twelve (12) months from the transfer of risk. The statute of limitations for delivery recourse claims (Lieferregress) in accordance with Sections 478, 479 of the German Civil Code (BGB) remains unaffected. 

    § 6 Right of Retention 

    6.1 
    Until satisfaction of all claims receivable held by UNITY against the Customer on whatever legal grounds, the Customer shall grant UNITY the following securities, which will be released by UNITY upon the Customer’s request at its discretion if and to the extent to which the value thereof sustainable exceeds the claims against the Customer by more than 20%. 

    6.2 
    The goods supplied remain the property of UNITY (“Reserved Goods”). Any processing or finishing of the Reserved Goods is carried out on behalf of UNITY without obligation to UNITY, UNITY being the manufacturer of the goods within the meaning of Section 950 of the BGB. If the Reserved Goods are processed or combined with other goods, UNITY shall as a matter of principle be entitled to a co-ownership share in the new product; in the case of processing, this share shall correspond to the value of the Reserved Goods in relation to the value of the new product; in the case of combination, the share shall correspond to the value of the Reserved Goods in relation to the value of the other goods. If the Customer becomes the sole owner of the goods, the Customer hereby and as of now grants UNITY co-ownership rights in the ratios referred to above and shall keep the goods in safe custody on behalf of UNITY without consideration. If the goods resulting from processing or combination are resold, then the above-mentioned advance assignment of claims shall not exceed the value of the Reserved Goods. 

    6.3 
    As long as the Customer is not in default of payment to UNITY, the Customer is entitled to process and sell the Reserved Goods in the ordinary course of business. The Reserved Goods must not be pledged or transferred by way of security. The Customer hereby assigns to us, by way of security, all and any claims with regard to the Reserved Goods (including without limitation all current account balance claims) which may arise from their resale and/or for other legal grounds (insurance, tort). The Customer shall collect any claims assigned to UNITY at its own cost and in its own name until receiving written notice from UNITY that UNITY wishes to collect itself. This authority to collect may only be withdrawn if the Customer fails to duly meet its payment obligations. 

    6.4 
    In the case of any seizure of the Reserved Goods by third parties the Customer shall refer to the ownership rights of UNITY and notify UNITY without undue delay. 

    6.5 
    If the Customer is in default of payment or if such default of payment is to be expected or if the Customer’s creditworthiness is diminished or if the Customer intentionally fails to meet any other obligations which are of the essence of the contract, UNITY is entitled to take back the Reserved Goods and/or to demand that any claims for surrender of possession that the Customer may have against third parties be assigned to UNITY. 

    6.6 
    For safety purposes, UNITY shall be granted access to the Customer’s premises and its delivery and bookkeeping records. More specifically, UNITY will be given, on first demand, a list of debtors’ balances including the customer addresses. 

    6.7 Unless the Consumer Credit Act applies, withdrawal and/or seizure of the Reserved Goods by UNITY do not constitute cancellation of the contract. 

    6.8 
    The securities provided also cover any goods requested and/or acquired in the course of insolvency proceedings by the insolvency administrator unilaterally by way of choice of satisfaction. 

    6.9 
    Any assignments are herewith accepted.

    Revised: 07.02.2011