§ 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

§ 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

§ 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

§ 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

§ 1 Period of Delivery and Performance 

In these terms and conditions (Terms) the words below have the following meanings:
Agreement has the meaning given at clause 2.3.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means a day which is not a Saturday, Sunday or public holiday in Sydney, New South Wales, Australia.
Claim means a claim, action, proceeding, judgment or demand made or brought by or against a person, however arising and whether present, unascertained, future or contingent.
Commencement Date means the date for commencement of performance of the Services, as set out in an Order Form.
Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party and, in the case of the Contractor as the Disclosing Party, includes these Terms and the Prices, but excludes information that:

(a) the Receiving Party can prove by contemporaneous written documentation was in the lawful possession of the Receiving Party before the Disclosing Party had any dealings with the Receiving Party or was independently generated by the Receiving Party or on its behalf;

(b) is in the public domain otherwise than as a result of a breach of this agreement or any other obligation of confidentiality owed to the Disclosing Party; or

(c) was legally and properly obtained by the Receiving Party from any other source without restriction on further disclosure.

Consequential Loss means:

(d) any loss of revenue or profits, loss of actual or anticipated savings, and loss of opportunity; and

(e) any loss that does not flow naturally and directly from the relevant breach, negligence or other act or omission.

Consumer has the meaning given in the Australian Consumer Law.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Contractor means UNITY Consulting Australia Pty Ltd ABN 39 675 825 984 of Level 5, 20 Bond Street, 2000 Sydney, NSW.
Customer means the entity or individual named in an Order Form that has engaged with the Contractor for the supply of Services.
Customer Materials means all documents, information, items, designs, specifications, instructions or materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Contractor in connection with the Services.
Defective Services means any Services performed by the Contractor which do not meet the requirements set out in an Order Form.
Defects Warranty Period means the period of 7 days commencing from the date of completion of performance of the Services under an Order Form by the Contractor. 
Expense means any additional expense or cost incurred by the Contractor in connection with the performance of the Services, such as for travel or accommodation.
Force Majeure Event means any event which is beyond the reasonable control of Contractor and includes viruses, pandemics, epidemics, public health emergencies and governmental actions, laws and regulations taken in response to same.
Insolvency Event means: (a) in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; (b) in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; (c) in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property means all rights conferred under statute, common law or equity in any jurisdiction, whether existing now or in the future and whether or not registered or registrable, in relation to trade marks, copyright, patents, patentable inventions, designs, trade secrets, circuit layouts, programming tools, object code, source code, methods, techniques, recipes, formulae, algorithms, modules, libraries and database rights, together with the right to apply for the registration or grant of any such intellectual property, and Intellectual Property Rights has a corresponding meaning.
Loss means any loss, liability, cost, expense, damage or payment however arising, whether present, unascertained, future or contingent and includes direct loss and Consequential Loss.
Order Form means a document agreed between the parties as set out in clause 2.2.
Personnel means, in relation to a party, that party’s the employees, contractors, agents and subcontractors.
PDH Services means services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Price means the price payable for the Services specified in an Order Form.
Privacy Law means any privacy or related law or regulation applicable to the Services or the parties.
Representative means, in relation to each party, that party’s authorised representative under the Agreement as either set out in an Order Form or as agreed between the parties.
Services means management consulting for innovation and transformation to be provided by Contractor to Customer as detailed in an Order Form.
Tax or Taxes means any tax, excise, levy, duty, charge, fee, or deduction which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts.
Term has the meaning given in clause 3.

§ 2 Period of Delivery and Performance 

2.1
These Terms apply to and govern the supply and performance of Services by the Contractor to the Customer.

2.2
If the Customer wishes to procure Services from the Contractor on these Terms, the parties must agree and execute an order form document setting out the Services, the timeframes for performance of the Service (if any) and the Price for the Services (an Order Form).

2.3 
The agreement between the parties will be comprised of the following documents:
(a) an Order Form, including any schedule or attachment to the Order Form; and
(b) these Terms,
(together, an Agreement), and in the case of any inconsistency between the Order Form and these Terms, the Order Form will take precedence to the extent of the inconsistency (unless the parties specifically agree otherwise in a particular instance). 

§ 3 Commencement

The Contractor will perform the Services on and from the Commencement Date, until the sooner of:
(a) if any end date is specific in an Order form, that date;
(b)the completion of the Services; or
(c) the date this Agreement is terminated in accordance with clause 17 or otherwise by operation of law,
(the Term).

§ 4 Representatives

4.1
Each party shall nominate a Representative as that party’s sole contact person and representative for matters relating to the Agreement, and providing directions, notices, consents or otherwise under the Agreement.

4.2
A party must ensure that its Representative has the authority to bind that party in relation to directions, notices and consents given in connection with this Agreement.  A party shall be entitled to rely on as binding on the other party any direction, notification, consent or otherwise given by the other party’s Representative.

§ 5 Performance of Services

5.1
During the Term, the Contractor must perform the Services:
(a) with due care and skill; and
(b) in accordance with all applicable laws,
and must use reasonable endeavours to meet the requirements and timeframes (if any) set out in an Order Form.

5.2
Unless the parties specifically agree otherwise, if any Services have been performed prior to the Term, those Services will be governed by the terms of this Agreement.

5.3
The Contractor will ensure that all Contractor Personnel employed or engaged by it to perform the Services will be suitably qualified and skilled to perform the Services.

5.4
The Contractor may substitute or replace any Personnel employed or engaged by it to perform the Services, provided that at all times the Contractor Personnel will be suitably qualified and skilled to perform the Services.

5.5
The Customer must:
(a) provide all necessary Customer Materials, assistance and information to the Contractor as reasonably required by the Contractor to perform the Services; and
(b) if any Services are to be performed at sites or premises
owned or controlled by the Customer, provide the Contractorand its Personnel (at no charge) with access to such sites or premises and such other facilities and equipment as the Contractor reasonably requires in order to perform the Services. 

5.6
If the Contractor’s performance of its obligations under the
Agreement is prevented or delayed by any act or omission of the Customer or the Customer Personnel, then, without prejudice to any other right or remedy the Contactor may have, the Contactor will be entitled to an extension of time to perform its obligations equal to the length of the delay caused by the Customer. 

§ 6 Changes

6.1 
If either party wishes to propose a change or variation to the scope or performance of the Services under an Order Form (Change), that party must provide written notice to the other party setting out:
(a) details of the proposed Change; and
(b) any impact on Price, timeframes, specifications or other
details of the Order Form,
(a Change Request).

6.2 
On receipt of a Change Request, the parties will cooperate
promptly, reasonably and in good faith to agree the details of a Change Request, including any impact on the Order Form and proposed effective date of the Changed Services.

6.3 
Neither party is bound to any Change until such time as the parties have each agreed and executed a written Change Request.

6.4 
If the performance of the Services under a particular Order Form is, in the Contractor’s reasonable and good faith opinion, impossible or impractical due to the need for a Change, and the parties have not agreed a Change under this clause 6 within a reasonable time following the Contractor issuing a Change Request, then the Contractor may, by written notice to the Customer:
(a) cease performance of the Services until such time as the parties can agree a Change Request; or
(b) terminate the Agreement. 

6.5 
If the Customer proposes a Change Request, and the Contractor, acting reasonably and in good faith, is required to spend a significant amount of time scoping the requested Change, the Contractor may charge the Customer for its time spent on such works, provided that: 
(a) the Contractor must notify the Customer of the likely cost of such works, calculated by reference to the Contractor’s thenstandard time and materials rates; and
(b) the Contractor must not commence any such works or
charge the Customer, until the Customer has agreed to pay
the amount set out at clause 6.5(a). 

§ 7 Defective Services

7.1
Subject to the provisions in this clause 7, the Contractor will, at its sole cost, rectify any Defective Services notified to the Contractor by the Customer within the Defects Warranty Period. 

7.2
To be entitled to the remedy under clause 7.1, the Customer must notify the Contractor in writing of the Defective Service as soon as reasonably practicable, but in any case, within 14 days of the Customer becoming aware of the Defective Services.

7.3
The Contractor’s liability to rectify any Services which are alleged to be Defective Services is subject to the Contractor being provided with the reasonable opportunity by the Customer to inspect any allegedly Defective Services and determine if those Services are defective.

7.4
The Contractor will have no liability to rectify any allegedly
Defective Services if the alleged defect arises:
(a) due to an act or omission of the Customer or Customer
Personnel; or
(b) the Contractor performing the Services in compliance with the Customer’s specifications or instructions, where a defectcould not have been avoided while complying with such specifications or instructions. 

§ 8 Price and payment

8.1
In consideration of the performance of the Services by the
Contractor, the Customer must pay to the Contractor the Price set out in an Order Form, in accordance with this clause 8 (unless the parties have agreed alternative payment terms in a particular Order Form).

8.2
The Contractor may also charge Expenses in connection with the performance of the Services, provided that all Expenses have been notified to the Customer and approved by the Customer prior
to them being incurred. 

8.3
The Contractor will issue an invoice for Services performed
pursuant to an Order Form on a monthly basis.  The Contractor may also provide with each invoice, a performance report providing additional detail as to the Services against which the invoice relates.

8.4
The Customer must raise any issues with any invoice or
performance report provided by the Contractor within 14 days from the date of that invoice.

8.5
The Customer must make full and final payment of each invoice within 30 days from the date of that invoice. 

§ 9 GST

9.1
Unless otherwise expressly stated in writing in an Order Form, all amounts payable by the Customer in connection with an Order Form do not include an amount for GST. If GST is payable on any supply made by the Contractor, this will be included as a separate line item on an invoice, and the Customer must pay to the Contractor, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required to reimburse or indemnify the
Contractor for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Contractor will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Contractor in respect of the reimbursement or payment. 

9.2
This clause does not merge on completion or termination of the Agreement. 

9.3
In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.

§ 10 Non-solicitation

10.1
The Customer must not, without the prior written consent of the Contractor, at any time from the Commencement Date until the date which is six months following the expiry or termination of the Term, canvass, solicit, interfere with or entice away, or attempt to canvass, solicit, interfere with or entice away, from the Contractor or employ or engage or attempt to employ or engage any person who is, or has been, engaged as Personnel of the Contractor
(Employee). 

10.2
Breach of clause 10.1 by the Customer will render the Customer liable to pay to Unity, on demand, liquidated damages equal to 50% of the Employee’s total annual remuneration. 

10.3
The parties agree that activities of general solicitation for
employment which are placed in good faith, such as on jobs websites or general advertisements, and any Personnel of a party responding to same, will not be considered a breach of clause 10.1. 

§ 11 Intellectual Property Rights 

11.1
Each of the Contractor and the Customer will own, and will continue to own, all Intellectual Property Rights subsisting in any materials, documents or information (and including the Customer Materials, in relation to the Customer only) it: 
(a) provides or makes available to the other party under, or in connection with an Agreement; and 
(b) which are developed independently from the Agreement, (together, Background IP).

11.2
Each party grants to the other party a non-exclusive, worldwide, royalty free licence to use its Background IP for the purposes of performing its obligations and exercising its rights under the Agreement.

11.3
The licence in Background IP granted under clause 11.2 can only be transferred or sublicensed with the prior written consent of the owner of the Background IP.

11.4 
If, in the course of performing the Services for the Customer under an Agreement, the Contractor has developed any Intellectual Property (Developed IP), then unless otherwise agreed between the parties in writing, the Contractor will own the Developed IP, on and from the date upon full payment of the remuneration.

11.5 
Subject to full and final payment of the Price by the Customer to the Contractor, the Contractor grants to the Customer a nonexclusive, irrevocable, worldwide, royalty-free licence to use the Developed IP solely in connection with the Customer’s internal business purposes, or for any
other purpose agreed between the parties in an Order Form.

§ 12 Infringement claims

12.1
Each party warrants that the use by the other party of its
Background IP as contemplated under an Agreement will not infringe, or cause the other party to infringe, the Intellectual Property Rights of any third party. 

12.2
Subject to clause 12.3, the Contractor warrants that: 
(a) the Services as performed by the Contractor under an
Agreement; and 
(b) the granting of the licence under clause 11.5 in the
Developed IP from the Contractor to the Customer, and the
Customer’s use of the Developed IP as permitted under
clause 11.5, will not infringe the Intellectual Property Rights of any third party (Infringement Claim). 

12.3
The Contractor will not be in breach of the warranty at clause 12.2 to the extent the Infringement Claim arises from: 
(a) the use of any Customer-owned Background IP in the
Services or Developed IP; 
(b) any modification, amendment or adaptation of the Services or the Developed IP by the Customer which is not authorised by the Contractor; or 
(c) the Contractor performing the Services in compliance with the Customer’s specifications or instructions. 

12.4
The Customer must: 
(a) notify the Contractor as soon as reasonably practicable if the Customer receives notification of an Infringement Claim; and
(b) provide reasonable assistance and information to the
Contractor in connection with an Infringement Claim (at the Contractor’s cost). 

§ 13 Confidentiality

13.1
A party which receives Confidential Information (Receiving Party) from the other party (Disclosing Party) must:
(a) maintain the confidential nature of the Confidential
Information;
(b) not disclose or otherwise provide the Confidential
Information to any person except under clauses 13.1, 
13.2 and 13.3 or with the prior written consent of the Disclosing Party; 
(c) not use the Confidential Information for the Receiving Party’s own or another’s advantage, or to the competitive
disadvantage of the Disclosing Party; and 
(d) not copy or duplicate or allow the copying or duplication of any Confidential Information. 

13.2
The Receiving Party may disclose Confidential Information to any of its Personnel, legal or financial advisors (Authorised Persons) provided that: 
(a)  the Authorised Person has a need to know and then only to the extent that the Authorised Person has a need to know; and 
(b) before disclosure, the Receiving Party has made the
Authorised Person fully aware of the confidential nature of
the Confidential Information and the terms of this clause 13 and, if requested by the Disclosing Party, the Receiving
Party ensures that the Authorised Person signs a confidentiality deed in a form approved by the Disclosing Party.  

13.3
The obligations of confidence do not apply where the Receiving Party is required by law to disclose specific Confidential Information, provided that the Receiving Party must to the extent practicable in the circumstances give the Disclosing Party reasonable prior notice of any proposed disclosure of Confidential Information including the form and content of the disclosure to be made and must only disclose that part of the Confidential Information which its legal advisers reasonably believe is necessary to disclose. 

§ 14 Privacy and data

14.1
The Contractor warrants that it complies with and will continue to comply with the Privacy Laws in relation to the performance of the Services.

14.2
The Customer must obtain all consents and perform all
notifications and communications required under the Privacy Laws in order to allow the: 
(a) disclosure of information to the Contractor and the
Contractor Personnel; and
(b) Contractor and Contractor Personnel to use such information for the purposes of performing its obligations under the Agreement.

14.3
Where the Customer provides data or information to the
Contractor, the Contractor warrants that it has in place and will maintain during the Term, administrative, physical, technical and organisational safeguards for the protection, confidentiality and integrity of any such Customer data or information.

14.4
Unless otherwise agreed between the parties, the Customer:
(a) is responsible for ensuring the accuracy and integrity of all data provided to the Contractor under the Agreement,
including that all such data has been adequately backed-up; and
(b) must not provide to the Contractor any sensitive data or
information (such as relating to health, medical status, racial or ethnic origin, financial information, or similar).

§ 15 Australian Consumer Law

15.1
If the Customer is a Consumer and the Contractor supplies PDH Services to the Customer:
(a)  the Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, the Customer is entitled: 
(i) to cancel the Services or the Agreement; and 
(ii) to a refund for the unused portion of the Services, or to
compensation for the reduced value of the Services; 
(b) the Customer is also entitled to be compensated for any
other reasonably foreseeable loss or damage. If the failure
does not amount to a major failure, the Customer is entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel the Services or the Agreement and obtain a refund for the unused portion of the Services or Agreement; and 

15.2
If the Customer is a Consumer and any Services supplied by the Contractor to the Customer are non-PDH Services, the Contractor’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non-PDH Services is limited (at the Contractor’s discretion) to:  
(a) the supplying of the Services again; or 
(b) the payment of the cost of having the Services supplied
again. 

§ 16 Liability 

16.1
If the Customer makes a Claim against Contractor which includes a cause of action, other than for a breach of a Consumer Guarantee then, to the extent the Claim, or part of the Claim, does not relate to a Consumer Guarantee, and to the maximum extent permitted by law:
(a) subject to clauses 16.1(b), 16.2, 16.3 and 16.4, the
Contractor’s total aggregate liability arising in connection
with all such Claims will be limited to an amount equal to the total amount actually paid by the Customer under the
applicable Order Form/s relating to the Services that are the subject of the Claim; and
(b) the Contractor will not be liable to the Customer for any
Consequential Loss. 

16.2
The Contractor’s liability set out at clause 16.1(b) is reduced to the extent: 
(a) any such Claim was caused, or contributed to, by an act or omission of the Customer or Customer Personnel; or 
(b) the Customer has failed to take reasonable steps to mitigate its Loss. 

16.3
The limitation of the Contractor’s liability set out at clause 16.1(b) does not apply to: 
(a) the fraud or wilful misconduct of the Contractor or Contractor Personnel; 
(b) personal injury (including death) or property damage;
(c) Claims for loss of or damage to data or information owned by the Customer and provided to the Contractor under the Agreement, provided that the Contractor’s sole liability to the Customer in relation to such Claims will be the cost of restoring such lost or damaged data to the last available back-up. 

16.4
Notwithstanding anything else in this clause 16, but subject to clause 15, the Contractor will not be liable to the Customer for any Claims brought by the Customer after the expiry of the sooner of:
(a) two years after the date the Customer first became aware of the Claim; or 
(b) three years after the date the Agreement expires or has
been terminated. 

§ 17 Termination

17.1
Without limiting either party’s other rights under the Agreement, either party may terminate the Agreement with immediate effect by written notice to the other party:
(a) if the other party is the subject of an Insolvency Event; 
(b) if the other party has breached any term of the Agreement and, if the breach is capable of remedy, has not remedied the breach within 30 days or receiving notice requiring the breach to be remedied; or 
(c) in accordance with clause 18.2.

17.2
On termination or expiry of the Agreement: 
(a) the Contractor will, from the date of termination or expiry, cease performance of the Services; 
(b) the Contractor may issue to the Customer an invoice for
those Services performed by the Contractor up to the date of termination or expiry; and 
(c) all monies owed by the Customer to the Contractor
(including any Prices which have accrued but are unpaid)
will become immediately due and payable. 

17.3
The termination or expiry of the Agreement does not operate to terminate any rights or obligations that by their nature are intended to survive termination or expiration. Each party retains any rights, entitlements or remedies it has accrued before termination or expiry, including the right to pursue all remedies available to either party at law or in equity. 

§ 18 Force Majeure

18.1
The Contractor will not be liable for any failure to perform or delay in performing its obligations under the Agreement if that failure or delay is due to a Force Majeure Event. 

18.2
If a Force Majeure Event under clause 18.1 exceeds 30
consecutive days, the Contractor may terminate the Agreement by providing written notice to the Customer. 

§ 19 Miscellaneous term

19.1
These Terms or the terms in an Order Form may only be amended or varied by a document in writing signed by each party. 

19.2 
Each party must maintain and keep current and complete records relating to the performance of Services under the Agreement, and must, within a reasonable time of receipt of a written request from the other party, provide the other party with access to, or copies of, those records.

19.3 
Neither party may assign, subcontract or otherwise deal with any of its rights or obligations under the Agreement without the written consent of the other party.

19.4 
If any provision in the Agreement is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed without affecting the validity or enforceability of the remaining provisions. 

19.5 
Nothing in an Agreement creates a relationship of employment, agency, partnership or joint venture between the parties. 

19.6 
Notices by a party under the Agreement must be in writing and delivered by hand, prepaid post or email and sent to the address of the receiving party specified in the Agreement (as applicable) or as otherwise notified by the relevant party to the other party. Notices will be deemed to have been received by hand on delivery, by post
within two (2) Business Days of sending (or within five Business Days, if posted to or from a location outside of Australia) and by email one hour after the email (unless the sender knows that email has failed to send).

19.7 
The United Nations Convention on International Contracts for the Sale of Goods is expressly excluded from any Agreement under these Terms. 

19.8 
Each Agreement is governed by the laws in force in New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

Made: 12.07.2024