OPERATIONAL EXCELLENCE REDEFINED
OPERATIONAL EXCELLENCE REDEFINED
General Terms & Conditions
1.1 These General Terms and Conditions (hereinafter “T&C”) apply to all contracts – (“Customer Contracts”) even future ones – entered into by Unique Business Consulting (Shanghai) Co. Ltd. (“UNIQUE”) and any of its customers (“Customers”) for deliveries or other services, including UNIQUE contracts for labor, work and materials. Agreements that differ from or supplement the T&C have priority over the T&C if the parties have agreed this in writing.
1.2 These T&C shall also apply to contracts entered into between UNIQUE and any affiliate of the Customer, and the Customer shall procure its relevant affiliates to comply with these T&C as if such affiliate itself would have accepted and agreed to these T&C.
1.3 The Customer’s terms and conditions that vary from these T&C, even if UNIQUE is aware of such terms and conditions and still provides the services, are only valid if and to the extent to which these have been confirmed by UNIQUE as valid in writing instead of these T&C.
1.4 Each change to these T&C by UNIQUE becomes part of the relevant Customer Contract between UNIQUE and the Customer, if the Customer agrees to this change or does not oppose it in writing within one month of becoming aware of the change.
2 Quotation and Conclusion of Contracts
2.1 Orders issued by the Customer are at all times considered to be a binding offer to UNIQUE. A Customer Contract only comes into existence after receipt by the Customer of a written order confirmation (also per fax or email) from UNIQUE, the content of UNIQUE’s order confirmation shall prevail over any other terms (including Customer’s order confirmation). In absence of an order confirmation by UNIQUE, a Customer Contract also comes into existence upon delivery of the goods ordered (“goods”) or services requested (“services”), or by the provision of the agreed service (“subject of the contract”) by UNIQUE.
2.2 The features of the services and subjects of a Customer Contract are finally described in the service description of the relevant Customer Contract between UNIQUE and the Customer (whereby UNIQUE’s order confirmation shall prevail). Oral agreements, catalogue statements, drawings, images, measurements, weights and other features are only binding if they have been confirmed in writing by UNIQUE. This also applies to properties that can be expected in line with public statements by UNIQUE or its agents, in particular in advertisements or by marking the goods. Technical and design variations that are reasonable for the Customer and differ from statements made in brochures, catalogues, written documents as well as changes to models, designs and materials due to technical progress and further development may occur without this resulting in claims against UNIQUE.
2.3 If the subject of the Customer Contract between UNIQUE and the Customer is consulting or other services, these are only provided by UNIQUE as a labor or delivery contract if this has been expressly agreed in writing. In addition, UNIQUE is not liable as a matter of principle for any consulting or other success. The services to be provided by UNIQUE in individual cases depend on the content stated in UNIQUE’s order confirmation.
2.4 UNIQUE does not undertake any guarantee in legal terms for the existence of particular characteristics of the services or goods provided if this is not expressly agreed in writing and no binding legal provisions stipulate something to the contrary.
3 Delivery and Service Terms
3.1 Time schedules or, as the case may be, milestone plans for the delivery of goods, or work or services to be carried out shall be stipulated in the Customer Contract, provided that such time schedules or milestone plans (including any delivery dates) shall be considered non-binding target dates, unless explicitly set out otherwise in the Customer Contract.
3.2 If instructions issued by Customer or other circumstances caused by Customer (including any lack of required cooperation) lead to an increased or decreased amount of work and/or services and affect the respective agreed dates and/or the milestone plan and/or the remuneration, the parties shall agree on an appropriate adjustment of the remuneration and/or an adjustment of the dates and/or the milestone plan.
3.3 UNIQUE is entitled to provide reasonable partial deliveries and services.
3.4 If any type of circumstances obstructs UNIQUE from fulfilling its obligations arising under the Customer Contract, and if UNIQUE is not responsible for such circumstances, the parties shall agree on an appropriate postponement of the dates and/or the milestone plan agreed in the Customer Contract, provided that UNIQUE may withdraw from a Customer Contract if a delay continues for at least six weeks due to circumstances for which UNIQUE is not responsible. In the event of such postponement or withdrawal, UNIQUE shall be entitled to remuneration for the work and/or services already performed and it may invoice Customer therefore immediately.
3.5 It lies in UNIQUE’s sole discretion how to plan, allocate and carry out the work and services, and UNIQUE shall be entitled to have third parties carry out the work and services on its behalf. Customer shall not be entitled to directly issue instructions to UNIQUE’s employees or contractors.
4 Acceptance of Services
4.1 In case Customer receives from UNIQUE a Delivery Note/performance verification for work or services provided, Customer shall accept or decline such work or services within a period of 4 working days. The acceptance by any employee, contractor, customer or agent of Customer shall be deemed a valid acceptance by Customer, regardless whether such acceptance is communicated in writing, by email or verbally. Simple copies of documents or emails containing any such acceptance shall constitute sufficient evidence in case of any dispute or legal proceeding (and UNIQUE does not need to provide any originals or notarized copies).
4.2 If UNIQUE does not receive any written objections within 4 working days of Customer receiving the Delivery Note, performance verification or the final work product, the work and/or services provided shall be considered as approved and accepted.
5 Prices and Payment Terms
5.1 The deliveries and services provided by UNIQUE are remunerated as per the Customer Contract (whereby UNIQUE’s order confirmation is binding) made via a fixed price or time incurred. Consulting and other services by UNIQUE, if nothing further is agreed in the Customer Contract, are always remunerated in line with the time incurred. The level of the hourly/daily rates is taken from the agreed prices in the written order confirmation.
5.2 UNIQUE’s written order confirmation is decisive for the scope of the delivery and setting the remuneration by a fixed price or as time incurred. If this varies from the order or Customer’s purchase order it is still decisive if the Customer does not contradict it without delay or accepts services from UNIQUE without restriction.
5.3 All prices are net and exclude any supplements and the relevant statutory value added tax and any other taxes. Supplements may include in particular travel expenses, accommodation costs, additional food costs, telecommunications costs, printing costs, copying and postal costs. Net prices for the delivery of goods are understood as including normal packaging and exclude shipment costs and/or costs for transport insurance – if such has been concluded for the individual case – if nothing further has been expressly stated.
5.4 UNIQUE is entitled to issue sub-invoices and to demand partial payments.
5.5 For fixed price agreements – if nothing further has been agreed – sub-invoices will be issued as incurred for the fixed price each week or fortnight. If UNIQUE is remunerated by an agreed hourly rate, UNIQUE is entitled to issue intermediate invoices for the services provided each week or fortnight.
5.6 Invoices are due for payment at the latest 14 days after the invoice date if the relevant invoice does not state a different due date. The receipt of the payment by UNIQUE is key to deciding whether the payment was received prior to the due date. If the Customer has delayed payment of the invoice, the default interest is 0.03% per day over the outstanding amounts until such payments have been settled in full. If payment is not received by the due date, UNIQUE is entitled to terminate the Customer Contract without notice.
5.7 UNIQUE reserves the right to reject bank acceptance drafts, cheques or bills of exchange. They are only ever accepted on account of performance.
5.8 The Customer is only entitled to offset or retain payment if the counterclaims have been determined in a legally binding manner or have been expressly recognized by UNIQUE.
6 Granting of usage rights
6.1 UNIQUE is entitled to exclusive usage and sale rights to any work results that are subject to intellectual property rights (e.g. trademarks, copyrights, patents, utility patents or registered designs) created by UNIQUE whilst carrying out the work or providing the services.
6.2 In the event the work and/or services rendered by UNIQUE under a Customer Contract are protected by any intellectual property rights that are owned by UNIQUE, UNIQUE shall provide Customer a nonexclusive, non-transferable license to such right, but only insofar, for the duration and to the extent as required, in the reasonable opinion of UNIQUE, for the purpose stipulated in the relevant Customer Contract.
7 Warranties for Defects
7.1 With regard to the services provided UNIQUE is not liable for the economic or other success of the service desired by the Customer.
7.2 In cases of material defects to the services/goods, UNIQUE may select subsequent improvement or delivery. Exchanged parts are transferred to the ownership of UNIQUE without compensation. If UNIQUE does not correct faults of which it is aware within an appropriate, written subsequent period or two attempts at subsequent improvement fail, the Customer is entitled either to withdraw from the Customer Contract or to demand an appropriate discount. If the Customer chooses to withdraw from the Customer Contract due to legal or material defects following a failed attempt at subsequent fulfilment, it will not be entitled to damages resulting from the defect unless binding compulsory legal provisions state something to the contrary. Warranty claims lapse one year after acceptance or transfer of the goods or services if nothing to the contrary is stipulated by binding legal provisions. The defect must be notified without delay if nothing contrary is stipulated by binding legal provisions.
7.3 Warranty claims against UNIQUE are excluded if the Customer makes changes or intervenes in the services/goods provided or uses these improperly. The warranty is not waived if the Customer can prove that the changes, interventions or improper usages are not connected to the asserted defect.
7.4 Warranty claims are only applicable to the Customer as a direct contractual partner of UNIQUE and cannot be assigned.
8.1 If nothing further is stated in these T&C or applicable binding legal provisions, all claims for damages and expenses by the Customer against UNIQUE, its entities, legal representatives and/or vicarious agents are excluded, no matter their legal basis.
8.2 UNIQUE shall only be liable for negligent breaches of this Agreement. The maximum amount of UNIQUE’s liability shall at all times and under all circumstances be the existing insurance coverage of UNIQUE (currently RMB 5.000.000 for each individual claim, with a maximum of RMB 5.000.000 per year). In the event of a reduction in the amount of insurance coverage UNIQUE shall immediately inform Customer.
8.3 UNIQUE shall not be liable for any of the following: indirect or consequential losses; loss of profits, business, business opportunities, contract, anticipated savings, revenue, turnover, reputation or goodwill; wasted expenditure (including management time); nor loss under any contract.
8.4 The above restrictions on liability do not apply to (a) intentional or grossly negligent conduct of UNIQUE, (b) bodily damage or damage to health which can be attributed to UNIQUE, and (c) deceitful failure to disclose defects by UNIQUE.
8.5 UNIQUE is not liable for the loss of data if the damage would not have occurred if the Customer had undertaken proper data backup for which it is responsible. Proper data backup can be assumed if the Customer backs up its data records in machine-readable form at least once a day and therefore guarantees that this data can be restored at reasonable cost. The liability of UNIQUE for the loss of data is restricted to the typical cost of restoration that would have occurred if proper data backups were made.
9 Retention of title
9.1 UNIQUE reserves the title on all services/goods supplied until complete fulfilment of all claims of UNIQUE from the current business relationship. Before transferring the title, the goods may not be pledged or subjected to any mortgage or lien. Further sales are only permitted within the framework of a proper business process. In case of further sale of conditional commodities, the Customer assigns its full purchase price claim on conclusion of the contract against the purchaser to UNIQUE.
9.2 If the Customer has delayed payment in full or part, stops payments or there is other justified doubt about its ability to pay or creditworthiness, it is no longer entitled to utilize the goods. UNIQUE can in such cases withdraw the Customer’s recovery authorization from the recipient of the goods. UNIQUE is then entitled to demand information about the recipient of the goods, to inform this person of the transfer of claims to UNIQUE and to recover the Customer’s liability from the recipient of the goods.
10 Customer Cooperation
10.1 The Customer is aware that UNIQUE depends on Customer cooperation to provide the services that are covered by the Customer Contract. The Customer is obliged to provide all documents and information that are required to carry out the services covered by the Customer Contract in good time and in full and to provide appropriate access to its rooms and systems to employees and any subcontractors or vicarious agents of UNIQUE who have been instructed to provide the services covered by the Customer Contract for the purposes of implementing the requested services to the extent necessary to implement the Customer Contract.
10.2 As part of its duty of cooperation the Customer is obliged in particular on request by UNIQUE employees who are instructed to provide services, to provide suitable rooms without charge and in good time where the documents, work resources or data media can be stored safely.
10.3 All Customer cooperation duties are provided without charge, if nothing further has been expressly agreed.
10.4 If the Customer does not adhere to its cooperation duties, or does not do so in good time, UNIQUE can set the Customer an appropriate period to fulfil its cooperation duties. If the cooperation duties are not fulfilled within the period set by UNIQUE, UNIQUE is entitled to terminate the Customer Contract. Any such termination does not affect other claims by UNIQUE.
11.1 The contractual parties are obliged to treat any information and/or knowledge on internal business or operational matters that is subject to nondisclosure and of which they become aware concerning the other contractual party and/or their business partners in the strictest confidence and not to make them accessible to third parties during the contractual period and two years after it ends. This obligation does not apply if the contractual party who is obliged to maintain confidentiality proves that it was aware of the information before the cooperation with the other contractual partner, was informed of it by authorized third parties or became aware of it without this being the responsibility of the contractual party that is obliged to maintain confidentiality.
11.2 It is clear that the non-disclosure duty does not apply to work produced by the Customer or services provided by the Customer unless these contain information that requires nondisclosure as stated in Number 11.1.
12 Rights of Third Parties
The Customer is responsible for not infringing the rights of third parties if UNIQUE performs a Customer Contract as per its requirements. In the event that UNIQUE is held liable by a third party the Customer is obliged to indemnify UNIQUE for these claims. The indemnification duty also refers to all costs borne by UNIQUE with regard to claims by a third party.
13 Final Provisions
13.1 The Customer is not entitled to transfer or assign these T&C and/or any Customer Contract (or any part hereof or thereof) to any third party unless UNIQUE agrees to this transfer or assignment in advance in writing.
13.2 Individual variances and/or additions to the rules in these T&C and/or any Customer Contract must be in writing. The right of UNIQUE to the unilateral modification of its T&C as stated in Number 1.4. remains unaffected by this.
13.3 UNIQUE may terminate any Customer Contract in writing without prior notice for good cause. Good cause shall, amongst others, be deemed as given if insolvency proceedings are filed or opened against the Customer or insolvency proceedings are rejected due to lack of assets, or there is a change of control of the Customer. In the event of such termination, UNIQUE shall be entitled to remuneration for the work and/or services already performed and it may invoice Customer therefor immediately.
13.4 Any formal notice or communication by UNIQUE shall be deemed received by the Customer if sent, at the election of UNIQUE, by courier to the Customer’s address as registered with the Administration of Industry and Commerce or its address as specified in the Customer Contract, or by email to an email address of the Customer as specified in the Customer Contract.
13.5 Should a provision of these T&C and/or any Customer Contract be or become void, illegal or unenforceable, the validity of the remaining provisions hereof or the relevant Customer Contract shall in no way be affected. In such case the void and/or illegal and/or unenforceable provision shall be replaced by a relative provision coming as close as possible to the commercial content and purpose of these T&C or the relevant Customer Contract.
13.6 The Customer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these T&C or any Customer Contract.
13.7 These T&C are made out in English and Chinese. Should any conflict between the English version and the Chinese version arise, the English version shall prevail. In the event an executed English version of a Customer Contract is available, such English version shall prevail over any other language version.
13.8 These T&C and each Customer Contract, shall be governed by and construed in accordance with the substantive law in force of the People’s Republic of China, without recourse to its conflict of laws rules; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall also not apply.
13.9 Any and all disputes arising from or in connection with these T&C and/or any Customer Contract shall be submitted for arbitration to the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) in accordance with SHIAC’s rules of arbitration then in force. Any Party initiating an arbitration proceeding shall give notice to the other Party in writing. Each Party shall appoint one arbitrator, while the third presiding arbitrator shall be chosen by the other two arbitrators and be of a nationality other than the Parties involved. The arbitration award shall be final and binding upon both Parties and either Party may apply to a court of jurisdiction for enforcement of the award. Unless otherwise stipulated in the arbitration award, the arbitration expenses and fees (including attorney fees) shall be paid by the losing Party. The language of the arbitration shall be English.
These Terms and Conditions have been agreed and entered into in Shanghai, Putuo District and shall apply to all current and future agreements between the Customer and Unique Business Consulting (Shanghai) Co. Ltd.
UNIQUE 客户 Customer
签字和盖章/ Signature and Chop 签字和盖章/ Signature and Chop
日期 / Date: 日期 / Date:
Copyright © 2019-2020 UNIQUE Consulting Group. All rights reserved.
No. 1226, Shenbing South Road
Minhang District, Shanghai, China
Room 803, Chevalier House
45-51 Chatham Road South, Tsim Sha Tsui
Kowloon, Hong Kong S.A.R.
T: +86 138 1762 9715