In these Conditions, unless the contrary intention appears:
"Affiliate" means an entity that (a) controls a Party; (b) is controlled by a Party; or (c) is controlled by an entity that also controls a Party; where "control" includes direct or indirect control.
"Anti-Corruption laws" means the US Foreign Corrupt Practices Act, the UK Bribery Act, the UBS Group Policy Against Corruption, and any other anti-corruption laws and regulations relevant to the appointment or the provision of the Goods and/or Works.
"Confidential Information" means all information disclosed in connection with this Contract (whether before, on or after the date of this Contract, whether verbally, in writing, electronically or by any other means, whether directly or indirectly and whether or not marked "Confidential") by UBS or any of its Affiliates or any person on UBS' behalf, including but not limited to information relating to UBS' or any of its Affiliates' business affairs, operations, processes, intentions, projections, market opportunities, suppliers, clients, potential clients, marketing activities, sales, software, computer and telecommunications systems and personnel.
"Contract" means the Purchase Order and these Conditions.
"Contract Sum" means the price and rates for the Goods and/or Works as specified in the Purchase Order.
"Goods" means any goods, materials or products supplied by the Supplier to UBS as stated in the Purchase Order (refer to Description).
"Intellectual Property Rights" means, to the extent that any of the following are recognised in any jurisdiction, any intellectual property and/or proprietary rights whether registered or unregistered, legal or beneficial, including copyrights, patent rights (including applications for patent productions), publicity rights, trade secret rights, registered or otherwise protected trademarks, trade names and service marks and protections from trademark dilution.
"Marks" means all trade marks, trade names, trade symbols and slogans used or capable of being used or adapted in connection with UBS' business.
"Party or Parties" means either UBS or the Supplier or both.
"Purchase Order" means the purchase order from UBS to the Supplier that is specified to be subject to these Conditions, whether issued in writing or electronically and which in the latter case shall be valid without signature.
"Principal Agreement" means the agreement between UBS and the Supplier (or their respective Affiliates) for the supply of the Goods and/or Works under which such Goods and/or Works shall be ordered (if any).
"Supplier" means the supplier which is supplying the Goods and/or Works, as named in the Purchase Order.
"UBS" means the UBS entity which is buying the Goods and/or Works, as named in the Purchase Order (refer to Invoice To).
"Works" means all the works and services to be performed by the Supplier, whether in connection with the Goods (including delivery of the Goods, installation, support, maintenance, and any other scope of works which may be described on any sketches, drawings, specifications as instructed by UBS) or unconnected to the Goods.
Other defined terms (if any) are set out in the Purchase Order.
(1) These Conditions are legally binding between the Parties. Performance, in whole or part, by the Supplier of the Works shall be deemed to be conclusive evidence of the Supplier's acceptance of these Conditions. This Contract may not be varied, withdrawn, cancelled or deferred by the Supplier. UBS may vary, withdraw, cancel or defer this Contract upon seven (7) days' written notice to the Supplier.
(2) Subject to Clause 1(3), these Conditions override and take the place of any other terms or conditions emanating from or referred to by the Supplier, including but not limited to any terms and conditions contained in any delivery note, invoice or other document issued by the Supplier.
(3) These Conditions are to be read in conjunction with the Principal Agreement (if any). Except as otherwise expressly provided in these Conditions, the Principal Agreement shall prevail in the event of any inconsistency between these Conditions and the Principal Agreement.
2. Contract Sum
The Contract Sum is fixed and shall be deemed to include performance, manufacture, supply, installation, delivery and off-loading, packaging, labeling, carriage, insurance, royalties, license fees, overtime, testing and commissioning, manpower charges, and all other charges, taxes, duties and impositions, and is not subject to alteration, unless otherwise agreed in writing by the Parties. If under any applicable law UBS is required to make any payment under this Purchase Order subject to a tax deduction or withholding tax, then UBS shall be entitled to deduct such amount from the amount payable to the Supplier.
(1) Unless specified otherwise in the Purchase Order, UBS shall pay the Contract Sum within thirty (30) days after receipt of an appropriate invoice, subject to the satisfactory delivery, condition and quality of the Goods and/or completion of the Works by the Supplier, in each case without prejudice to any early payment discount or other benefit that may be agreed.
(2) Invoices must bear the official UBS Purchase Order number and date of issue. The Supplier shall send invoices to the address specified on the Purchase Order (refer to Invoice To).
4. Supplier's Performance of the Works
(1) The Supplier represents and warrants that it shall carry out the Works in a professional and timely manner with the skill, care and diligence reasonably to be expected of a professional firm experienced in the execution of like works with an adequate number of competent personnel who have the necessary technical skills, qualifications, experience, certifications and training to execute and complete the Works. The Supplier further represents and warrants that it has obtained and/or shall make available to UBS all licenses, clearances, consents, registrations and authorizations necessary for its performance of the Works.
(2) The Supplier shall carry out the Works to suit the requirements of the UBS and shall not cause any delay or inconvenience to UBS.
(3) The Supplier shall co-ordinate the performance of the Works and co-operate with any of UBS' other consultants, contractors or suppliers in accordance with instructions given by UBS. The Supplier acknowledges that UBS and its Affiliates may use third party contractors (who shall be subject to appropriate obligations of confidentiality) to assist it in managing its supply and procurement activities and notwithstanding any provision in any Principal Agreement or otherwise, the Supplier consents to the processing by such contractors of such information relating to the Supplier, this Contract, the Principal Agreement or otherwise, as UBS may from time to time deem necessary.
(4) The Supplier shall carry out the Works in a clean and orderly manner. The Supplier shall remove all debris, rubbish and other waste material upon completion of the Works (or where the Works are to be carried out over a period of time, such removal to take place daily). The Supplier shall thoroughly clean the relevant premises upon completion so that it is fit for occupation and use by UBS or its Affiliates.
(5) The Supplier shall comply with the provisions of any relevant laws, regulations, rules, ordinances, codes and trade practices relating to the performance of the Works. The Supplier shall also adhere to other instructions relating to the Works as may be notified by UBS.
5. Delivery, Inspection and Packaging of Goods
(1) The Supplier shall deliver the Goods to the place of delivery specified in the Purchase Order (refer to Ship To) on or before the delivery date specified in the Purchase Order. Delivery to any carrier (which shall act as agent for the Supplier) shall not constitute delivery to UBS. UBS is not bound to accept delivery of any Goods in part or by instalments. UBS may, at its option and without prejudice to its other rights, reject any Goods delivered either in excess of or deficient in quantity, defective or inferior in quality or not conforming with the description of Goods specified in the Purchase Order or other instructions as notified by UBS. The Supplier shall have the option to (a) require UBS to return the Goods to the Supplier at the Supplier's risk and expense or (b) collect the Goods at the Supplier's risk and expense. The Supplier shall reimburse any payment already made to the Supplier or reimburse UBS in full for the cost of repair and/or replacement carried out by UBS or any third party at the direction of UBS.
(2) Time shall be of the essence.
(3) UBS may, at any time before or after delivery, inspect the Goods. The Supplier shall remain fully responsible for the Goods and the Works and such inspection shall not relieve the Supplier of any of its obligations or prejudice UBS' rights, including but not limited to the right of rejection.
(4) All Goods must be adequately protected for transport. The Supplier shall bear all packing and transport costs and expenses.
(5) The Supplier shall send to UBS written notification of the dispatch of Goods, including the date of dispatch.
(6) Where the Works include installation of the Goods, the Supplier shall follow all instructions given by UBS. Such installation shall take place and be completed on or before the delivery date (as stated in the Purchase Order) or such other date as agreed between the parties in writing.
6. Property and Risk
Property in the Goods shall pass to UBS on payment of the invoice or on delivery of the Goods, whichever first occurs. The Goods shall remain at the Supplier's risk (including, without limitation, the risk of deterioration in transit) until they have been safely delivered to UBS. If UBS rejects any Goods pursuant to its right to do so under Clause 5(1), the property and risk therein shall remain with or thereupon revert to the Supplier.
7. Title, Quality and Rejection
(1) The Supplier represents and warrants that (a) the Supplier has the right to sell the Goods (which shall remain the absolute property of the Supplier until property therein passes to UBS) free of any charge, lien or other encumbrance; (b) UBS will enjoy quiet possession of the Goods; and (c) the Supplier has obtained and/or shall make available to UBS all licenses, clearances, consents, registrations and authorizations necessary for the purchase of the Goods by UBS.
(2) The Supplier shall ensure that the Goods and/or Works correspond strictly with the description of Goods and/or Works as specified in the Purchase Order, representations, descriptions, advertisements, brochures, drawings, specifications and samples made or given by the Supplier and/or stipulated by UBS and are in every respect fit for any purpose which UBS has expressly or by implication made known that it required, are of merchantable quality (if applicable), and are in compliance with any applicable national or international standards, applicable safety and technical requirements and regulations and other applicable legal requirements.
(3) The Supplier shall, when delivering the Goods and/or Works, provide such operating and other instructions and information about the risk to life, health or safety arising out of the handling, storage and use of the Goods and/or Works.
(1) The Supplier shall keep strictly confidential the Confidential Information unless such information:
a) is or becomes generally available in the public domain otherwise than as a result of a breach of this Contract;
b) becomes lawfully available to the Supplier from a third party free from any confidentiality restrictions;
c) is known to or is in the Supplier's possession prior to disclosure under this Contract other than arising out of any confidentiality restriction;
d) is disclosed by the Supplier pursuant to an order of court of competent jurisdiction or in compliance with the provisions of any law or regulation in force from time to time, provided that UBS shall be given as much notice as is practicable so that a protective order may be sought by UBS, and provided further that the Supplier shall not disclose more information than what was required under the circumstances and no more; or
e) is disclosed to a third party pursuant to UBS' prior written authorization.
(2) Without limiting the generality of the foregoing, the Supplier undertakes and agrees:
a) to protect and safeguard the Confidential Information against unauthorized use, publication or disclosure;
b) not to use any of the Confidential Information except for the purposes in accordance with this Contract; and
c) not to, directly or indirectly, in any way, reveal, report, publish, disclose, transfer or otherwise use any of the Confidential Information except as specifically authorized in writing by UBS.
(3) The Supplier understands and agrees that the Confidential Information is or may be protected by applicable law and hereby irrevocably commits that it will comply with all applicable confidentiality laws, regulations and obligations.
(4) The Supplier shall inform its staff of the Supplier's confidentiality obligations under this Contract and shall, on UBS' request, have its staff sign specific confidentiality agreements as may from time to time be required by UBS. Further, the Supplier shall only disclose Confidential Information to its staff on a "need-to-know" basis and used only in accordance with and for the purposes of this Contract.
(5) The Supplier understands and agrees that payment of monetary damages may not be sufficient pursuant to applicable laws and that UBS or any of its Affiliates shall be entitled to seek injunctive and other appropriate equitable remedies in the event of a breach or threatened breach of this Clause.
(6) All records, documents, drawings and other items containing such Confidential Information and all copies and extracts made or required by the Supplier from UBS shall remain the property of UBS and be returned to UBS on demand upon expiry/termination of this Contract.
(7) This Clause 8 shall survive the expiry/termination of this Contract.
9. Damage or Loss in Transit
(1) The Supplier undertakes at its own expense to repair or replace Goods lost or damaged in transit and delivery will not be deemed to have taken place until the defective part of the Goods have been remedied and/or made good to the satisfaction of UBS.
(2) If the Supplier is evidently unable to supply the Goods and/or Works, or UBS anticipates the Supplier may not deliver the Goods and/or Works on or before the delivery date (as stated in the Purchase Order) with valid reason, UBS may purchase those Goods and/or Works from third parties and require the quantity ordered from the Supplier to be reduced or cancelled. The Contract Sum shall be reduced proportionately and UBS shall not be liable for any additional penalty, forfeitures or charges in relation to the reduction in quantities ordered.
10. Assignment and Sub-Contracting
The Supplier may not assign, transfer, subcontract or otherwise dispose of any of its rights or obligations under this Contract without the prior written consent of UBS, but nothing in this Contract shall prevent or restrict UBS from assigning all or any of its rights or obligations hereunder to any Affiliate or to any legal entity which succeeds to all or part of the business or assets of UBS.
(1) The Supplier shall be deemed to be in default under this Contract if:
a) the Supplier is in material or persistent breach of any condition of this Contract and, if the breach is capable of being remedied, has failed to remedy it within seven (7) days after service of a written notice requiring it to be remedied; or
b) the Supplier or any of its assets is subject to any form of winding up, administration, receivership, insolvency proceedings, arrangements with creditors generally, enforcement of security or legal process or repossession; or
c) the Supplier repudiates the Contract or wholly or partially suspends performance of the Works or fails to or expresses clearly or indicates through its actions or omissions not to proceed with the Works diligently, expeditiously or to the reasonable satisfaction of UBS; or
d) fails to observe the obligations placed on it by any statute, regulations, rules, codes or trade practices.
(2) If Clause 11(1) applies, UBS may at any time (at its discretion and without prejudice to its other rights) provide the Supplier with three (3) days' written notice to:
a) suspend any further performance of the Works under this Contract;
b) terminate, cancel or rescind this Contract;
c) recover from the Supplier any amounts already paid by UBS in relation to Works, the performance of which is suspended or is no longer to take place; and
d) set off any indebtedness of UBS to the Supplier against any indebtedness of the Supplier to UBS, in each case on any account whatsoever.
(3) UBS is entitled to terminate this Contract at any time by giving not less than three (3) days' written notice to the Supplier.
(4) In the event that the Supplier fails to deliver the Goods and/or complete the Works by the applicable delivery date, the Supplier shall be liable to pay delay compensation of 1% of the Contract Sum for each day of delay to UBS in addition and without prejudice to UBS' rights to recover any other damages from the Supplier.
12. Intellectual Property
(1) The Supplier warrants that all Goods and/or the Works do not infringe any Intellectual Property Rights. The Supplier indemnifies UBS against any claims against UBS in respect of such Intellectual Property Rights.
(2) All Intellectual Property Rights created by the Supplier under this Contract shall promptly be disclosed to UBS and shall vest in UBS upon creation. The Supplier shall do everything necessary (including without limitation assignment) to ensure UBS' ownership of such Intellectual Property Rights.
3) For the avoidance of doubt, all Marks will remain the absolute property of UBS. The Supplier shall not use the Marks unless necessary for the proper performance of the Works and upon the prior written consent of UBS.
(4) The Supplier shall not remove any material (including without limitation any document, disc or other medium) containing any of the Confidential Information or Intellectual Property Rights from UBS without the express written consent of UBS. In the event that such consent is granted, the Supplier undertakes not to duplicate, copy or assimilate any Confidential Information or Intellectual Property Rights into any other form except as necessary for the proper performance of the Works. The Supplier undertakes upon the completion and/or termination of the Works, whichever is the sooner, to return and/or at the request and instruction of UBS destroy all such materials. The Supplier acknowledges that the provisions relating to Confidential Information shall apply in full to all Intellectual Property Rights governed by this Contract.
(5) This Clause 12 shall survive the expiry/termination of this Contract.
13. Indemnity and Insurance
(1) The Supplier shall be responsible for any liability, loss, expense, cost, damage or claim (unless occasioned solely by the wilful act or misconduct of UBS) in respect of (a) injuries (whether fatal or otherwise) to any person (whether employed by the Supplier or not) and (b) any real or personal property (whether belonging to UBS or otherwise) arising from the execution or performance of the Works and the Supplier shall indemnify fully and hold UBS harmless against the same.
(2) Any plant, equipment or material brought to UBS' premises by the Supplier shall be entirely at the Supplier's risk. UBS shall not be responsible for any loss of or damage to such plant, equipment or material arising from any cause, unless occasioned solely by the negligence of UBS.
(3) The Supplier shall make good entirely at its own cost and indemnify UBS against any loss or damage occasioned by any wilful act or omission, default, failure, misconduct, fraud or any negligence of the Supplier, its employees, agents or sub-contractors to any property (whether real or personal and whether belonging to UBS or otherwise).
(4) The Supplier hereby undertakes to take out and maintain adequate insurance cover with a reputable insurance company approved by UBS against liability which the Supplier may incur under this Clause or otherwise under this Contract. The Supplier will disclose all applicable insurance policies and ensure that UBS and its successors and assignees are covered. Upon UBS' request, the Supplier shall provide UBS with documentary evidence including the details of such insurance policy, confirmation that all of the Supplier's liabilities under this Contract are covered by the policy, the receipts evidencing payment of premiums and the insurance certificate.
(1) The Supplier undertakes to replace or rectify any Goods which shall be or become defective and make good any damage or loss, within:
a) the warranty period specified in the Principal Agreement (if applicable); or
b) if the Principal Agreement does not provide for a warranty period or if there is no Principal Agreement - one (1) year or the period stipulated in the product warranty provided by the Supplier, whichever is longer.
The Supplier shall bear all carriage charges for the return of faulty items. The Supplier undertakes to rectify any workmanship which shall be or shall become defective and to make good any damage or loss which results from such defects within the applicable warranty period.
(2) The Supplier shall re-execute at its own cost any Works not executed or performed or delivered in accordance with this Contract.
(3) The Supplier further warrants that if the Goods have been procured by the Supplier through import, all necessary import procedures (including but not limited to obtaining all necessary permits, license, approvals and consents and going through all necessary registrations and filings) have been conducted by the Supplier for the purchase of the same by UBS.
(1) Neither Party's rights shall be prejudiced or restricted by any concession, indulgence or forbearance extended to the other Party.
(2) No waiver by either Party of any breach by the other shall operate as a waiver of any other subsequent breach.
(3) Each Party's rights under these Conditions are in addition to any other rights which that Party may have in law or equity.
(4) If the Supplier comprises two (2) or more persons, their obligations are joint and several.
(5) The Supplier represents and warrants that it complies with the UBS Responsible Supply Chain Standard which can be found on www.ubs.com. Any breach of this representation and warranty shall entitle UBS to terminate this Contract immediately upon written notice to the Supplier without liability or cost to UBS. In the event of such breach, UBS shall be entitled to full recovery of damages, costs and expenses incurred in relation to such breach and any delay suffered by UBS as a result, including any consequential and indirect losses.
The Supplier shall not, without the prior written consent of UBS, advertise or publicly announce it is providing or has provided any products or services to UBS or otherwise use any name, logo, trade name, trademark, service mark or other information which identifies UBS in the Supplier's marketing and/or publicity activities or materials.
This Clause 16 shall survive the expiry/termination of this Contract.
The invalidity, illegality or unenforceability in whole or in part of any of the provisions in these Conditions or the Contract shall not affect the validity, legality and enforceability of the remaining part or provisions of these Conditions and/or the Contract.
18. Governing Law and Jurisdiction
(1) These Conditions and the Contract are governed by and shall be construed in accordance with the laws of the jurisdiction set out in the applicable Principal Agreement (if any). Any dispute arising out of or in connection with these Conditions and the Contract shall be subject to the exclusive jurisdiction of the courts of, and the parties submit to, such jurisdiction.
(2) In the event that there is no applicable Principal Agreement, these Conditions and the Contract are governed by and shall be construed in accordance with the laws of jurisdiction in which UBS is established. Any dispute arising out of or in connection with these Conditions and the Contract shall be subject to the exclusive jurisdiction of the courts of, and the parties submit to the jurisdiction of, such jurisdiction.
(3) Notwithstanding Clauses 18(1) and 18(2), in the case of Works performed in China, these Conditions and the Contract are governed by and shall be construed in accordance with the laws of China and disputes arising out of or in connection with these Conditions and the Contract shall be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in Beijing for arbitration. Arbitration shall be conducted in English in accordance with the then prevailing rules of CIETAC. The arbitral award shall be final and binding on the parties.
19. Compliance with UBS Group Policy Against Bribery
(1) The Supplier represents and warrants that none of its principals, shareholders, directors, officers or employees is an official, agent, employee, or representative of any national, provincial, or local Government, political party, political candidate or public international organisation, nor are any of them immediate family members ( ie parent, child, spouse, sibling) of such an official, agent, employee or representative. The Supplier shall promptly notify UBS if circumstances during the term of this Contract render the preceding representation and warranty inaccurate with respect to any of the Supplier's personnel. Upon such notification, UBS may impose such restrictions on the participation of such personnel in the performance of the Supplier's obligations as UBS deems necessary to ensure compliance with this clause.
(2) The Supplier represents and warrants that it is aware that it and any person acting on its behalf is familiar with and understands the Anti-Corruption laws and has not and will not violate these laws.
(3) In performance of its obligations under this Contract, neither the Supplier, or any person acting on its behalf, shall (a) authorise the giving of, offer, or give anything of value to a government official, a political party or party official, a political candidate, or an official of a public international organisation for the purpose of influencing or inducing the recipient to obtain, retain, or direct business for or to any person or for the purposes of securing any improper advantage, or (b) authorise the giving of, offer, or give anything of value to any other person with knowledge or firm belief that all or a portion of the payment or gift will be offered, given, or promised, directly or indirectly, to any of the persons described in sub-paragraph (a), for any of the purposes stated in sub-paragraph (a).
(4) The Supplier agrees that neither it nor any of its officers, employees, servants or agents will make, in respect of the conduct of the Works or any other matter provided for in this Contract, any offer, promise, gift or payment of anything of value or give any undue pecuniary or other advantage whether directly or indirectly to or for the benefit of any UBS personnel or any other third party, if to do so would or might violate any law of any relevant jurisdiction.
(5) The Supplier shall not retain any agents, sub-agents, representatives, consultants, or other persons to assist in carrying out the Supplier's duties under this Contract without the prior written consent of UBS.
(6) All payments to the Supplier under this Contract shall be made by wire transfer to the Supplier's account at a bank designated by the Supplier in the jurisdiction is which the Supplier is established. All charges for the Goods and/or Works rendered by the Supplier to UBS will fairly and accurately reflect the facts, activities, and transactions involved.
(7) If the Supplier's performance under this Contract is determined by UBS to be contrary to any of the Anti-Corruption laws or the Supplier's representations set out in this Contract, then this Contract shall be null and void from its inception, and in such event any compensation paid or accrued shall be refunded or forfeited (as the case may be), and no future payment or accruals shall be made by UBS for the Supplier's account.