GENERAL TERMS & CONDITIONS
1. Precedence of Terms. These general terms and conditions shall apply to this Contract, except that provisions set forth on the face hereof shall take precedence over any inconsistent or contrary provisions set forth in these general terms and conditions.
2. Quality and Quantity. Seller shall not be responsible for any damage to or deterioration in the quality or loss in weight or units of the Goods during transit or due to natural causes.
3. Shipment. Shipment within the time stipulated on the face hereto shall be subject to the availability of vessel’s space. In case FCA or FOB INCOTERMS apply to this Contract and Buyer fails to obtain space in time to fulfill the stipulated shipment date, Buyer shall be responsible for all costs, expenses and damages resulting directly or indirectly therefrom, including, without limitation, all increases in freight and insurance charges, losses, and other damages incurred by Seller prior to or after such failure by Buyer. The date of the Bill of Lading or the Waybill shall be conclusive evidence of the date of shipment.
4. Risk of Loss and Transfer of Title. Risk of loss of or damage to the Goods shall pass from Seller to Buyer in accordance with the INCOTERMS set forth on face hereof. Title to and the right to possess the Goods shall be retained by Seller until Seller has received the full contract amount due to Seller pursuant to this Contract.
5. Payment. Buyer shall pay Seller for the Goods by means of telegraphic transfer in immediately available funds to such bank account as designated by Seller or a confirmed, irrevocable letter of credit without recourse documentary credit, in favor of Seller and with terms any satisfactory to Seller. If Buyer desires to pay Seller by means of a letter of credit, Buyer shall establish such letter of credit at least 30 days prior to the shipment date (and if more than one shipment date is specified on the face hereof, 30 days prior to the first shipment date). The letter of credit shall (i) cover the full contract amount (ii) be established through a prime-bank immediately after the date of this Contract, (iii) be negotiable on sight draft, and (iv) be valid for negotiation of the relative draft for at least fifteen (15) days after the end of the last month in which the Goods are shipped.
The letter of credit shall authorize reimbursement to Seller for any expenses incurred by Seller on account of Buyer pursuant hereto, and shall authorize partial payment against partial delivery. Any bank charges arising in connection with payment hereunder shall be borne by Buyer. If Buyer fails to satisfy any payment terms of this Contract, Seller at its sole discretion and at Buyer’s expense and risk may resell all or any part of the Goods on account of Buyer, hold all or any part of the Goods on account of Buyer, cancel all or any part of this Contract and/or claim any damages resulting from such breach.
In the event of late payment of any amount due hereunder, Seller shall, in addition to any other remedy it may have hereunder or pursuant to applicable law, be entitled to receive interest at the maximum rate allowed by law in the country of Buyer or fourteen point six percent (14.6%) per annum, whichever is greater, on such late payment until payment is received in full.
6. Increased Costs. Any new, additional or increased freight rates, surcharges (bunker, currency, congestion or other surcharges), taxes, customs duties, export or import surcharges or other governmental charges, or insurance premiums, which may be incurred by Seller with respect to the Goods after the conclusion of this Contract, shall be for the account of Buyer and shall be reimbursed to Seller by Buyer within a reasonable time on demand.
7. Force Majeure. In the event of any Act of God (including, but not limited to,) earthquake, fire and flood, prohibition of exportation, refusal to issue export license, war, blockade, revolution, insurrection, civil commotion, riots, mobilization, strikes, lockout, plague, other epidemics, pandemics, destruction of goods by earthquake, fire, flood or any other causes beyond the control of Seller, Seller shall not be liable for failure to deliver all or any portion of the Goods or any other breaches of this Contract which resulting therefrom and Seller may, at its option, extend the time of shipment or delivery of the Goods or terminate unconditionally and without liability of this Contract to the extent so affected or prevented.
8. Cancellation. If Buyer fails to carry out any of the terms of this and/or any other contract with Seller, or in the event of the death, bankruptcy or insolvency of Buyer, liquidation or modification of the corporate reorganization of Buyer or nonpayment for any shipment, Seller shall have the right to cancel this and/or any other contract with Buyer or to postpone the shipment, or to stop the Goods in transit, and Buyer shall indemnify, defend and hold Seller harmless from all losses, costs, and expenses resulting from Seller taking any such actions.
9. Intellectual Property Rights. Buyer shall defend, indemnify and hold Seller harmless from any and all liability, loss or expense (including reasonable attorney’s fees) arising from or in connection with any actual or alleged infringement of any patent, trademark, copyright, industrial design, registered pattern, trade secret or other similar intellectual property rights used by Seller.
10. Liability of Agent. If this Contract is signed by an agent or on behalf of a principal as Buyer hereunder, whether the principal is disclosed or otherwise, the agent shall be liable not only as agent but also as principal for the performance of the obligations of Buyer under this Contract. This provision shall not affect Buyer’s obligation as principal under this Contract.
11. Construction. The meanings of any term used herein and the obligation of both parties shall be determined in accordance with the Uniform Customs and Practice for Documentary Credit (“UCPDC”) and Incoterms adopted by the International Chamber of Commerce (“INCOTERMS”) in effect on the date of this Contract if any terms defined in the UCPDC or INCOTERMS are set forth on the face hereof. This Contract shall be governed by the laws of Japan without giving effect to any conflicts of laws principles. This Contract shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
12. Inspection. Unless otherwise stated on the face of this Contract, any export inspections by Japanese authorities, Seller’s suppliers or Seller shall be considered as final. When Buyer requires a special inspection by an independently appointed inspector, Buyer shall inform Seller in writing of the name of such inspector at the time of this Contract and such special inspection shall be made promptly upon delivery of the Goods but in any event within two (2) weeks after deliver of the Goods, and all inspection fees and costs in such case shall be borne by Buyer.
13. Warranty. Seller warrants that any Goods delivered hereunder are free from defects in material and workmanship and, if Seller’s specifications are set forth or incorporated by reference on the face hereof, or separately provided Buyer with, will meet such Seller’s specifications.
Unless otherwise specified in Seller’s warranty statement set forth or incorporated by reference on the face hereof, or separately provided Buyer with, for the Goods, Seller’s liability under this warranty is limited to repair or replacement of any Goods delivered hereunder that do not conform to this warranty.
In any case Buyer shall have no remedy for lack of conformity of the Goods, including a latent defect, under this warranty if he fails to notify Seller thereof within six months period commencing on the shipment date of the Goods (and if there are more than one shipment dates, the first shipment date). Such notification shall contain full particulars of such lack of conformity to the extent of Seller’s reasonable satisfaction.
Notwithstanding anything herein contained to the contrary, Seller shall have no liability under this warranty i) for minor deviations from Seller’s specifications (if applicable) that do not affect performance of the Goods, or ii) for any lack of conformity of the Goods caused by misuse, neglect, improper installation, repair, alteration, fair wear and tear, erosion corrosion or accident, including any damage or loss that occurred after the shipment date.
14. Limitation of Liability. EXCEPT AS EXPRESSLY STATED IN SECTION 13, SELLER HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE GOODS, WHETHER EXPRESS, IMPLIED OR STAUTORY (EXCEPT AS TO TITLE) INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES SET FORTH IN ARTICLES 560 TO 570 OF THE JAPANESE CIVIL CODE AND ARTICLE 526 OF THE JAPANESE COMMERICAL CODE. SECTION 13 SETS FORTH THE FULL EXTENT OF SELLER’S LIABILITY TO BUYER OR ANY OTHER PARTY FOR ANY BREACH OF WARRANTY WITH RESPECT TO THE GOODS. NOTHWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, SELLER’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS CONTRACT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTORY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE FULL CONTRACT AMOUNT OF GOODS STATED ON THE FACE HEREOF. SELLER SHALL HAVE NO LIABILITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE, DELIVERY, NONDELIVERY, STOREGE, USE, MAINTENANCE, CONDITION OR POSSESSION OF THE GOODS
15. Arbitration. All disputes or controversies which may arise between the parties hereto, out of or in relation to or in connection with this Contract, shall be negotiated in good faith and settled by agreement of both parties as promptly as possible. If not amicably settled within 14 days after the first negotiation day, such disputes or controversies shall be settled by arbitration in Tokyo, Japan in accordance with the rules of the Japan Commercial Arbitration Association, whose award shall be final and binding upon both parties. All arbitration proceedings shall be held in the English language.