标准交易条款
株式会社TOK（“TOK”）销售的任何产品，以及 TOK 提出的任何报价，均受以下附加条款和条件的约束，并且买方在知情且最终同意的情况下接受这些条款和条件。任何与本条款和条件不一致的其他条款和条件，对 TOK 不具有约束力，也不适用于 TOK 的任何销售或报价。对于买方在任何沟通中提出的相反或附加条款，TOK 未予以反对的行为，并不构成对这些条款的放弃或补充。
1. 售价
价格由 TOK 与买方协商确定。TOK 保留在不事先通知的情况下变更价格的权利。价格可能会受到最低订购量费用和批量折扣的影响。
价格在任何时候都可能受到汇率波动、人工费用以及材料成本的影响。
2. 交货
承运人由 TOK 指定。交货条件为 “EXW”，并按照最新修订的《2020 年国际贸易术语解释通则》（INCOTERMS 2020）进行解释，交付至买方工厂或买方指定地点，所有费用均由买方承担。若由 TOK 的供应商直接发货至买方工厂，则买方需承担所有运费、运输及相关费用，TOK 将就此向买方开具发票。买方需负责支付所有动产税及其他税费、关税和手续费、消费税、罚金、评估费，以及与产品储存和运输相关的所有运输费用、保险费用及其他附带费用。买方应在 TOK 要求时并在交货前支付所有关税、手续费、评估费、罚金、费用及相关运输费用。除非双方另有约定，产品的付款方式为电汇。承运人不应视为 TOK 的代理人。TOK 对任何承运人延误不承担责任。产品交付至承运人后，TOK 对灭失风险的责任即告终止。若因不可抗力或其他超出 TOK 控制范围的原因导致交货延迟或无法交货，TOK 不承担任何损害赔偿或罚金责任。若产品在风险转移至买方之前毁损，本协议即视为无效，TOK 在此情况下免除一切义务。
3. 付款
产品的货款应由买方预付给 TOK，但关税、所有税费及相关费用、罚金、评估费和相关运输费用除外，这些费用应在收到 TOK 的发票后即到期并支付。对于逾期未付款项，可按适用法律允许的最高限度收取滞纳金和利息。所有催收费用及相关支出均由买方承担并履行支付义务。
4. 赔偿限制条款
IN NO EVENT WILL TOK OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE TO THE BUYER FOR ANY CLAIMS OR DAMAGES IN EXCESS OF AMOUNTS PAID BY THE BUYER TO TOK FOR THE PRODUCT OR SERVICES RELATING TO THE PRODUCT SPECIFIED HEREIN. TOK SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, OR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF TOK OR ITS AUTHORIZED
REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
5. Warranty
TOK warrants to Buyer that all of its products shall be free from initial defects in material and workmanship during normal use and service for a period of ninety (90) days from date of consumer purchase. TOK must be notified in writing of all warranty claims and all such claims must be made within this time period. Merchantability and fitness for a particular purpose are disclaimed to the fullest extent of law. All weight resistance descriptions on any product are for general reference only and are not guaranteed or specific for any purpose. Warranty claims and product returns are subject to TOK’s Return Materials Authorization (RMA) procedures. This limited warranty does not apply to product that has been abused, damaged, altered or misused by any person or entity after title passes to Buyer. TOK’s sole obligation, and Buyer’s sole remedy, is for TOK to replace and send such replacement to Buyer freight prepaid as soon as commercially reasonable and practicable. Buyer shall return products covered by this warranty freight prepaid after completing a failure report and obtaining a RMA number from TOK to be displayed on the shipping label. Customer shall bear all of the risk, and all costs and expenses, associated with products that have been returned to TOK for which there is no defect found. No agent, employee or representative of TOK has any authority to bind TOK to any representation of warranty concerning the goods sold to Buyer, unless specifically included within these terms and conditions; any such representation is not deemed a part of the basis of this transaction and shall not in any way be enforceable against TOK.
6. No Returns
After TOK has sent the order confirmation, TOK shall not accept requests for cancellations, returns, exchanges, or refunds, including situations due to the Buyer’s error in product selection or order unless
7. Disputes
Any dispute, controversy or difference of opinion as to whether any of the Product are defective which the parties are unable to resolve by negotiation, shall be resolved by final and binding arbitration in Tokyo, Japan in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association. Each party shall bear its own expenses and costs of the arbitration.
8. Liability for Damages to TOK
Buyer understands that upon TOK’s acceptance of Buyer’s order, TOK will incur substantial expenses and suffer significant losses if Buyer subsequently breaches its agreement to purchase the Product. In the event of any default by Buyer, Buyer shall be liable for all damages suffered by TOK and shall indemnify TOK against and be responsible for all of TOK’s obligations to any third parties involved in supplying the Product.
9. Relationship
The relationship created between Buyer and TOK shall be strictly that of customer and supplier. Neither party is constituted an agent or legal representative of the other party for any purpose whatsoever, and neither party is granted any right or authority hereunder to assume or create any obligation, express or implied, or to make any representation, warranties or guarantees on behalf of the other party.
10. Property Rights
All rights, proprietary rights, patents, trademarks, service marks, copyrights, trade secrets, and any other intellectual property rights that exist in or arise from the product and its technology shall at all times remain to TOK. Buyer acknowledges and agreesthat any acts contained in this Agreement will not be construed as transfers, grants, options, licenses, and any other assignments of any rights, titles and interests to Buyer or its agents.
11. Waiver
A waiver by either party of a breach of any of the terms hereof by the other party shall not be deemed a waiver of any subsequent breach.
12. Choice of Law and Jurisdiction
This Agreement, and any dispute arising from the relationship between the Parties hereunder, will be governed by the laws of Japan, excluding its conflict of law rules. The Parties knowingly, voluntarily and irrevocably consent that all matters and disputes relating to and arising from this Agreement shall be exclusively brought in the Tokyo District Court of Japan.
13. Severability
If any of the terms or conditions hereof are held void or unenforceable, such terms or conditions will be treated as severable, leaving the remainder of the terms and conditions valid and enforceable.
14. Attorneys’ Fees
In any action or proceeding involving the enforcement or interpretation hereof, each party shall be responsible for its own attorneys’ fees and all costs and expenses incurred in connection therewith.
15. Interest and Collection Costs
Any amount not paid by Buyer when due shall bear interest at the highest legal rate permitted by applicable law. All costs of collection and enforcement of any judgment shall be awarded.
16. Use of Standard Forms
For purposes of convenience only, the parties shall be free to use their standard business forms in connection with the transactions contemplated by this Agreement. However, this Agreement shall take precedence over any invoices, quotations, purchase orders or other standards forms of Buyer. Any terms contained in such standard forms that are inconsistent with the terms herein shall be of no force or effect.
17. Successors in Interest
This Agreement shall be binding upon and inure to the benefit of the parties and shall not be assigned by either party without the prior written consent of the other party.
18. Entire Understanding
This Agreement constitutes the entire agreement between TOK and Buyer and shall supersede any other prior agreements, whether oral or written, express or implied, as they pertain to the product and services ordered, and shall supersede any conflicting provisions of Buyer’s purchase order and written acknowledgment. This Agreement may not be changed or modified except as specifically and mutually agreed upon in writing by both parties.
