UBS Ltd Standard Terms and Conditions

All orders placed with Unique Broadband Systems Ltd. (“UBS”) are subject to these terms and conditions and all additional terms and conditions presented on or accompanying a UBS Quotation, Order Acknowledgment (collectively, "Order Form") or Invoice. UBS specifically rejects all provisions in Buyer’s printed forms or purchase orders. No obligations shall be binding on UBS unless specifically agreed to in writing by UBS. Within this document: (a) "Product" will mean equipment and goods manufactured and sold by UBS to Buyer; (b) "Software" will mean the UBS proprietary software and firmware provided by UBS to Buyer, either separately or as part of a Product; and (c) "Service" will mean any service provided by UBS to Buyer.

1. ORDERS. All orders are subject to written acceptance by UBS, in its sole discretion, even if taken elsewhere by a salesperson, selling agent or representative. After acceptance of Buyer’s order, UBS will be paid at its standard rates for any agreed to changes including any changes in drawings, designs, specifications and shipment or Service dates.
2. PRICE. Unless otherwise stated in an Order Form, prices quoted for the Product and/or Software only, not including any Services (or any expenses associated with installation and start-up costs), will remain valid for thirty (30) days from Quotation date. Errors or omissions in price are subject to correction. Unless otherwise stated freight, customs fees, duties, freight forwarder fees, consular fees, taxes however designated and all other costs after shipment are to be paid by Buyer. Prices are in U.S. Dollars unless otherwise quoted by UBS.
3. PAYMENT. Unless otherwise stated in an Order Form, terms of payment are 50% down payment with order, balance due when available for shipment ; payable at UBS’s discretion through irrevocable letter of credit or 100% net cash. Invoices will be rendered as shipments are made. Late charges of the lesser of (i) 1.5% per month (18% per year) or (ii) the maximum permitted by law, on outstanding balances will be charged.
4. SHIPMENT/SERVICE. Shipment and Service dates are estimated in good faith but are not guaranteed by UBS. After an order is accepted, Buyer may not change shipment and Service dates without UBS’s written consent. UBS will not be held liable for any late delivery or similar charges. Shipments will be made F.O.B. UBS’s shipping point. Orders may be tendered in partial shipments.
5. TITLE, RISK OF LOSS AND INSURANCE. Title, risk of loss and insurance responsibilities pass to Buyer upon INCOTERMS 2000.
6. CANCELLATION/CHANGES. If Buyer cancels or changes an order in whole or in part, Buyer agrees to pay for all Services, Vendor commitments and work in progress for the portion canceled or changed including a cancellation fee as determined by UBS. UBS reserves the right to cancel an accepted order in whole or in part if, in UBS’s judgment, Buyer’s financial condition does not justify the terms of payment specified.
7. INSPECTION. UBS will inspect Products prior to shipment in accordance with its normal practices. UBS reserves the right to charge for other inspections or tests requested by Buyer.
8. LICENSES AND PERMITS. It is Buyer’s responsibility to procure import and/or export licenses and comply with U.S. and other applicable import and/or export regulations if Buyer intends to export or re-export Products and/or Software.
9. PACKING. Products will be packed or packaged for shipment in accordance with standard commercial practices. UBS will charge a reasonable fee for packing and/or packaging for export shipment or to comply with Buyer’s instructions.
10. TECHNICAL DATA. All drawings, data, designs, tooling, equipment, procedures, engineering changes, inventions, manufacturing information, Vendor sources, know-how, computer software and all parts thereof, and all other information, technical or otherwise which was developed, made or supplied by UBS as part of or in the production of any Product or Software or the performance of any Service sold, rendered or licensed hereunder will be and remain the sole property of UBS (or its licensor, if any).
11. SOFTWARE. Buyer agrees that Software is hereby licensed (not sold) subject to the terms set forth in the applicable Software license. Buyer acknowledges that the Software contains information and trade secrets proprietary to or licensed to UBS. No change, modification, defacement, alteration, reverse engineering, disassembly, decompilation or reproduction of such Software or disclosure of programming content to other parties is allowed without the express written consent of UBS. Software is unpublished and any copyright notices placed thereon will not be deemed to constitute publication. Buyer agrees to require compliance with all terms of the applicable Software license by any future user of the Software.
12. INFRINGEMENT. UBS will indemnify Buyer from any damages awarded by a court (including reasonable attorney fees) resulting from infringement of U. S. patents, trademarks or copyrights in connection with the purchase or use of UBS designed Products and/or Software. If Buyer is prevented from using any UBS designed Product or Software by injunction or court order because of such infringement, UBS will, at its expense and election, either: (a) obtain the right for Buyer to continue using such Product or Software; (b) replace such Product or Software with a non-infringing substitute; (c) modify such Product or Software to make it non-infringing; or (d) grant Buyer a credit for such Product or Software in accordance with UBS's depreciation policy. UBS will solely control and defend or settle, at its option, any action or suit for which it is responsible hereunder. Buyer must promptly notify UBS of any claim of infringement for which UBS is responsible and cooperate fully in the defense of any such claim.
    UBS has no obligation or liability under this Article for any claim based on: (a) use of any Product or Software with equipment, devices or programs not designed by UBS; (b) use of any Product or Software in a manner other than for which it was intended; (c) modification of any Product or Software; or (d) UBS’s adherence to Buyer’s instructions or directions, in which case Buyer will hold UBS harmless from any loss, damage or expense (including reasonable attorney fees) resulting therefrom.
13. RETURNS. Claims for non-conforming orders must be submitted within thirty (30) days from shipment date. Products and Software may not be returned without prior authorization from UBS. Authorized returns may be subject to a restocking charge with transportation charges paid by Buyer.
14. WARRANTY.
    1. UBS warrants each new Product (excluding software products) manufactured and sold by UBS against defects in material and workmanship, under normal use and service, for a period of one (1) year from the date of shipment from UBS's plant, when operated in accordance with UBS's operating instructions. This warranty shall not apply to tubes, fuses, batteries or bulbs or repaired products. UBS warrants that in all quotations for UBS Product that are subject to FCC rules, either: (a) the UBS Product complies with all FCC rules governing such Product; or (b) the UBS Product will comply with all FCC rules governing such Product before delivery of the Product to the Buyer.
    2. UBS warrants that UBS designed Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of shipment from UBS's plant.
    3. Warranties are valid only when and if (a) UBS receives prompt written notice of breach within the period of the warranty, (b) the defective Product is properly packed and returned by the Buyer (transportation and insurance prepaid), and (c) UBS determines, in its sole judgment, that the Product is defective and not subject to any misuse, neglect, improper installation, negligence, accident, or (unless authorized in writing by UBS) repair or alteration. UBS's exclusive liability for any personal and/or property damages (including direct, consequential or incidental) caused by the breach of any or all warranties, shall be limited to the following (in UBS's sole discretion): (a) repairing or replacing (in UBS's sole discretion) any defective parts free of charge (F.O.B. UBS's plant), and/or (b) crediting all or a portion of the purchase price to the Buyer.
    4. Equipment furnished by UBS, but not bearing its trade name, shall bear no warranties other than the warranties extended by the manufacturer at the time of delivery to the Buyer. NO WARRANTIES OR CONDITIONS, WHETHER STATUTORY, EXPRESSED OR IMPLIED, AND NO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OTHER THAN AS SPECIFIED HEREIN, SHALL APPLY TO THE PRODUCTS AND SOFTWARE FURNISHED HEREUNDER. BUYER AGREES NOT TO USE THE PRODUCTS OR SOFTWARE IN RESPECT OF THE OPERATION OF ANY AIRCRAFT OR A NUCLEAR POWER PLANT [OTHER?]
15. LIMITATION OF LIABILITY. Should UBS breach in a material respect any provisions of this Agreement or the Order Form or any other contract between UBS and Buyer, UBS's sole and exclusive liability to the Customer, or any third party, shall be at UBS’s option, to use reasonable efforts to cure the breach at its expense, or failing that, the return of fees paid to UBS for work directly related to the breach which shall not in any event exceed the total agreed price for the specific Product, Software or Service less the purchase price for any items delivered and accepted. IN NO EVENT SHALL UBS BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE LOSS, DAMAGE OR EXPENSES (INCLUDING LOST PROFITS OR SAVINGS) FOR BREACH OF ANY OF THE PROVISIONS OF ANY AGREEMENT (OR IN ANY OTHER WAY RELATED TO THIS AGREEMENT), INCLUDING WITHOUT LIMITATION, PROVISIONS REGARDING WARRANTIES AND CONDITIONS, GUARANTEES, INDEMNITIES, AND INFRINGEMENT, SUCH EXCLUDED DAMAGE TO INCLUDE BUT NOT BE LIMITED TO, COSTS OF REMOVAL AND REINSTALLATION OF PRODUCTS OR PARTS, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF USE. THE TOTAL LIABILITY OF UBS SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE DAMAGE. THESE LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION, INCLUDING TORT/NEGLIGENCE, AND BREACH OF CONTRACT.
16. INDEMNIFICATION. Buyer shall indemnify and hold harmless UBS, its employees and agents, from and against any claim, action, loss damage or liabilities (or actions in respect thereof that may be asserted by any third party) that may result from any third party claims arising out of or relating to UBS's Product(s), Software, Services or performance under the Agreement or any use by the Buyer of any Product(s), Software, Services and will reimburse UBS for all expenses (including counsel fees) as incurred by UBS in connection with any such action or claim.
17. GENERAL PROVISIONS.
    1. UBS reserves the right to subcontract any obligation hereunder.
    2. No waiver will be valid unless in writing and no waiver granted will release Buyer from subsequent strict compliance herewith.
    3. UBS is not liable for failure or delay in fulfilling its obligations under these Terms and Conditions due to causes beyond its control.
    4. The laws of the Province of Ontario, Canada will apply to all transactions hereunder. Any action hereunder will be brought solely in the Province of Ontario, Canada Any claim, except for nonpayment, will be brought within one (1) year of shipment or completion of Services, and Buyer will be liable for any collection costs or attorney fees.
    5. These Terms and Conditions together with UBS’s Order Acknowledgment constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any prior or contemporaneous agreement or representation written or oral. Any amendment hereto must be written and signed by UBS.