general terms and conditions (“terms”)
Acniti LLC, having its principal place of business at 1-2-9 Nyoidani, Minoh Osaka, Japan (“ACNITI”) and the customer or distributor (“you”) agree that, unless expressly amended in writing by ACNITI, these Terms comprise the sole terms and conditions of the contract between ACNITI and you (“contract”), irrespective of anything that may be implied or expressed to the contrary on your enquiries or orders.
These Terms supersede all other terms, conditions and agreements and apply to all future transactions between ACNITI and you.
In these Terms, “FOB” and “FCA” has the meaning given in Incoterms 2010; “Products” means the products designated by ACNITI as the products dealt under these Terms from time to time; “Services” means all technical advice and support from ACNITI; “you” means ACNITI’s customer or distributor. If you are more than one, these Terms bind each of you jointly and severally.
A quotation by ACNITI is an invitation to you to do business with ACNITI. A quotation does not constitute an offer. Unless it states otherwise, a quotation will remain open for acceptance for thirty (30) days from its date, after which time you must deem it withdrawn. Any alteration to a quotation is effective only if altered in writing by ACNITI.
Your order(s) will be accepted by ACNITI either when ACNITI communicates its acceptance to you, or when ACNITI takes steps to fill your order, irrespective of whether those steps are communicated to you.
3 DESIGN AND SPECIFICATIONS
- Acniti may amend the design, data, illustrations, drawings, specifications of weight, dimensions, performance, consumption, lifetime, construction or technical information (“designs and specifications”) in respect of any of the Products and Services at its discretion from time to time.
- You shall accept the Products with any design and specification amendments unless those amendments constitute material alterations that change the characteristics of the Products.
- You shall advise ACNITI of all relevant and applicable statutory or other codes or standards required at law to be observed which may affect the designs and specifications or end use of the Products.
- Designs and specifications provided by ACNITI in any offer are estimates only unless otherwise expressed in writing.
- Designs and specifications made available to you by ACNITI are to be treated as confidential information unless they can be proven to have been available to you before you received them from ACNITI; designs and specifications and must be used by you for the purpose only for which they were provided.
- Subject to clauses 4(b) and (d), ACNITI will use the best endeavors to supply Products in accordance with the designs and specifications.
- All prices exclude the costs of delivery, packing, loading and offloading of the Products which shall be at your sole expense (FOB or FCA Japan or another place as designated by ACNITI). Any increase in the cost of manufacture and/or supply of the Products and /or Services between the date of the order and the date of delivery or supply shall be borne by ACNITI. Unless otherwise agreed in writing, all prices are exclusive of Tax and other government duties, levies or taxes in respect of the Products and the Services, and these will be charged at the rates applying at the time of delivery.
- Subject to clause 1, the price charged to you shall be the price ruling as at the date of ACNITI’s acceptance of your order. All prices are subject to alteration by ACNITI to reflect price ruling as at the date of ACNITI’s acceptance of your order. Prices published in ACNITI’s price lists and catalogues are recommended prices only; you accept that ACNITI is under no obligation to sell the Products to you at the recommended prices.
- If any statutory tax, duty, tariff or charge (“charge”) is levied on the Products and this charge has been overlooked by ACNITI when calculating the price to you, then you must pay the charge as well as the price for the Products, and the contract price for the Products will be increased accordingly.
- ACNITI may change the prices for the Products at any time.
5 DELIVERIES OF THE PRODUCTS
- Delivery of the Products will be affected when they are delivered to your nominated logistics provider at ACNITI's warehouse.
- If you do not take delivery of the Products when ACNITI notifies you to do so, you shall pay for all costs incurred by ACNITI for storage, detention, double cartage or similar causes. If you require special packaging of the Products, ACNITI will pass on to you all additional costs, charges and expenses it incurs on your behalf.
- Subject to clause 8, you will extend the time for delivery for a reasonable period if delivery is delayed because of a force majeure. ACNITI will notify you as soon as is practicable of any anticipated delays in delivery.
- You will accept delivery of the Products in partial shipments.
- When you ask ACNITI to deliver the products by courier’s service, like DHL, UPS, FedEx and others, shipping conditions will be DAP. When you opt for a shipping insurance ACNITI will obtain one on your behalf with the respective courier’s service.
- If you make a claim on the insurance policy, the claim must made directly to the courier company. Based on their terms and conditions a payout will be made. When the courier company does not pay out, for what ever reason, ACNITI assumes no responsibility as ACNITI has obtained this shipping insurance policy on your behalf.
- If you make a claim on your insurance policy for indemnity in respect of the Products, and at the time of that claim you have not paid ACNITI all of the money that you owe it in respect of those Products, you assign to ACNITI all of your entitlements in respect of those Products so that ACNITI will be entitled to receive directly from your insurer that part of the indemnity proceeds paid in respect of those Products.
7 DELAYS & CANCELLATIONS
- You acknowledge that the Products you buy from ACNITI are made overseas.
- ACNITI will do all things reasonable to have the Products delivered, or the Services provided to you by the date requested by you, but ACNITI will not be liable to you for any loss or damage that you suffer if delivery of the Products or Services are late or if delivery of the Products or Services is not affected at all.
- If ACNITI is prevented from delivering the Products and Services (or any part thereof) as a result of acts of god, wars, insurrection or internal disturbances, fire, floods, accidents, breakdowns of plant or machinery, unavailability of or delays in shipping, transport strikes, lock-outs of workmen, shortages or embargoes by suppliers of fuel, power or raw materials, priority for supplies claimed by Japanese Governments, or any other overseas government, or any other event beyond the control of ACNITI (“force majeure”), then:-
- any delay in delivery of the Products or Services as a result will not entitle you to any cause of action against ACNITI;
- if the delay continues for more than 60 days, ACNITI and you will each have the option to cancel all outstanding obligations under the contract provided that written notice is given to the other by the party exercising its cancellation option;
- If you or ACNITI cancel the contract:
- you shall pay for all Products already delivered to you; and
- you shall pay for all Products appropriated to the contract by ACNITI at the time you exercise your option to cancel if those Products are marked “not returnable” or if those Products are not included in ACNITI’s general range of product as listed in ACNITI’s price list at the time that your order is placed; and
- ACNITI shall as appropriate either: -
- Credit your account with the invoice value of the Products cancelled; or
- Return any monies that you have paid in respect of the Products provided that those monies were not designated for Products of the type described in clause 8 (c)(iii)B above.
- ACNITI may in its discretion also cancel the contract if: -
- You (through your nominated logistics provider) do not take delivery of the Products for 30 days after you are notified that they are available for collection;
- You fail to make payment pursuant to these Terms after having been given 7 days’ written notice to remedy your failure to pay;
- An administrator is appointed, an application to wind you up is filed, notice of an intention to pass a resolution to wind up is given, a receiver and/or manager is appointed over any or all of your assets, any of your directors commits an act of bankruptcy or appoints a controlling trustee, or an analogous procedure or step is taken in any jurisdiction;
- You become insolvent or are unable to pay your debts as they fall due, suspend making payment of any debts or, by reason of actual or anticipated financial difficulty, you commence negotiations with one or more of your creditors with a view to rescheduling any indebtedness.
- If ACNITI cancels the contract, ACNITI may resell the Products.
- Subject always to clauses 9(b) and 9(f), you shall pay for all Products you receive from ACNITI so that ACNITI receives your money. The payment terms for the Products shall be, at ACNITI’s discretion, by any of the following modes:
- You shall pay for the Products in advance in Japanese Yen by telegraphic transfer remittance to the account designated by ACNITI;
- You shall pay for the Products in cash, in Japanese Yen, on the delivery date of the Products.
- ACNITI’s express or implied approval of any credit facility on your behalf may be revoked by ACNITI at any time.
- If you become insolvent, enter into any arrangement with your creditors, a receiver, liquidator or statutory manager is appointed over any of your assets or you are in default under any agreement with us, all amounts you owe to ACNITI will become immediately due and payable.
- If you are a customer to which sub-clause 9(a) applies, and you do not pay the amounts you owe by the due date(s) then, without prejudice to any of ACNITI’s other rights and remedies under the contract: -
- You shall pay interest on all the amounts due and payable to ACNITI compounding at the rate of 1.5% per month. Such interest will be calculated from the date that each amount you owe ACNITI becomes due and payable and will continue to accrue until all the monies you owe are received in cleared funds by ACNITI; and
- You shall pay all costs, charges and expenses (“costs”) incurred by ACNITI in enforcing or attempting to enforce any of its rights under the contract (including recovering any damages or unpaid amounts) including all legal costs ACNITI incurs with its lawyers, which costs you must pay on an indemnity basis.
- All payments you make will be applied by ACNITI first against any interest or other costs accruing on your account. You must provide a payment and remittance advice indicating what invoices your funds are to be applied to. If you do not do so, then ACNITI reserves the right to apply funds received from you in any way it sees fit and in such case, you must accept ACNITI’s account reconciliation as accurate.
- No set off
If you are involved in any dispute with ACNITI, you shall still pay all amounts due to ACNITI. You must not withhold payment of any amounts because of any claims (warranty or otherwise) that you may allege against ACNITI. You shall not set off or “contra” the monies that you owe ACNITI with any other amounts that you allege are owing to you by ACNITI, whether for pending or approved warranty replacements or otherwise.
9 RETENTIONS OF TITLE
- Subject to clauses 10(b) to 10(f) inclusive, ACNITI authorizes you to on sell, apply or install the Products if it is the ordinary course of your business to do so.
- Until ACNITI receives full payment in cleared funds for all Products it has ever sold to you:-
- Title and property in the Products remain vested in ACNITI and does not pass to you;
- You shall hold the Products as custodian for and in trust for ACNITI;
- You shall keep all Products supplied and delivered to you by ACNITI separate from your other property and in a manner, that makes it easy for ACNITI to identify them; and
- You irrevocably grant to ACNITI the authority to enter into and upon all premises that you own or occupy, whether ACNITI’s entry is for the purpose of an inspection or repossession of the Products.
- If you sell, dispose of, use or apply the Products before you pay ACNITI for them in cleared funds, you shall hold all monies resulting from your sale, disposal, use or application of the Products on trust for ACNITI.
- ACNITI may trace all monies you receive on trust on its behalf.
- If you insert, install, affix or incorporate the Products with other Products belonging to any other person (including your Products) before you pay ACNITI in cleared funds for all monies that you owe to it, so that ACNITI’s Products become part of another’s Products, you authorize ACNITI to dismantle and remove its Products from the other Products, if this is possible without causing irreparable damage to the other person’s products.
- You grant to ACNITI a lien on all of your goods in ACNITI’s possession. The value secured by that lien is the amount that you owe ACNITI from time to time.
- You acknowledge and agree that by accepting these Terms, you grant ACNITI a security interest over the Products and their proceeds (by virtue of the retention of title in clause 10(b)(i) above).
- You undertake to:
- do all acts and provide ACNITI on request all information ACNITI requires to register a financing statement or financing change statement on the Personal Property Securities Register; and
- advise ACNITI immediately in writing of any proposed change in your name or other details on the Personal Property Securities Register.
- You waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest
- You must not assign any of your rights, title or interest in the contract without the prior written consent of ACNITI.
11 ASSIGNMENTS OF DEBT
- In consideration of ACNITI’s agreement to supply the Products to you on credit and ACNITI’s undertaking to reimburse to you any mark up or any other service or delivery fee you charge to your customers in respect of those Products, you assign to ACNITI the whole of the sale price of those Products, less your mark up or any other service or delivery fee you charge to your customers in respect of those Products, immediately after you sell them to your customers (“the assigned debt”).
- You shall hold any monies paid to you by your customers on trust for ACNITI.
- Notwithstanding the assigned debt, ACNITI will always be entitled to bring an action against you for the price of the Products if you do not pay by the due date(s), or for any loss or damage ACNITI suffers as a result of your failure to pay in accordance with these Terms.
- If any part of the assigned debt is paid to or received by you on or after the day that you sell the Products to your customers, you acknowledge that you receive and hold those monies on trust for ACNITI. You shall pay this money to ACNITI immediately.
- You promise ACNITI that, if and when requested by ACNITI, you will sign any further documents and do all further acts as ACNITI may reasonably require to more perfectly assure the assigned debt to ACNITI.
- Upon ACNITI’s request, you shall deliver to ACNITI possession and control of any documents relating to or proving the assigned debt. ACNITI, jointly and severally with you, will be responsible for the control, management and collection of the assigned debt on and from the assignment date.
- Immediately upon affecting each and every sale of the Products to your customers, you shall do all things necessary to inform your customers of the form and substance of this assignment and you shall do whatever is necessary to enable ACNITI to collect the assigned debt from your customers if so requested by ACNITI.
- ACNITI undertakes not to use or enforce this clause 12 unless and until you are in default of the terms of payment in these Terms.
12 CLAIMS AND RETURNS
- Non-compliance with the contract
You shall inspect the Products immediately upon receipt of delivery. You shall give notice in writing to ACNITI of anything that suggests that the Products delivered, or Services provided do not comply with the terms of this contract within two weeks of delivery of the Products, or you must accept and pay for the Products.
- You may not make a claim under clause 13(a) in respect of the Products delivered or Services provided unless at the time of your claim: -
- all of the Products which are the subject of your claim are intact and still in your possession; and
- no other party has conducted or has attempted to conduct any works to those Products; and
- the Products are still in their original packaging.
- You shall grant to ACNITI full and free access to your premises to enable ACNITI to investigate your claim. An investigation of your claim by ACNITI does not constitute an admission of liability.
- ACNITI will not consider your claim in respect of the Products if: -
- You do not give written notice containing sufficient detail of your claim within two weeks of the date of delivery of the relevant Products; and
- You have not complied with your obligations in this contract, clause 23; and
- You do not supply to ACNITI copies of the relevant invoice(s) at the point that you make your claim; and
- You do not permit an expert nominated by ACNITI to inspect and test the Products, so that the expert may prepare a report on the Products and provide an opinion as to the cause of your claim.
- You may not make a claim under clause 13(a) in respect of the Products delivered or Services provided unless at the time of your claim: -
- Return of Products
- Unless ACNITI has delivered to you the wrong Products, it is not obliged to accept the return of any Products.
- You may not return Products if: -
- They are marked “not returnable”; or
- If they are not included in ACNITI’s general range of product as listed in ACNITI’s price list at the time that your order is placed; or
- The Product has been built or modified to suit your or your customer’s specifications; or
- The Product is damaged as a direct or indirect result of your conduct; or
- The warranty period applicable to those Products has expired.
- All returns: -
- Shall occur within 30 days of the date of delivery. Invoice and delivery note numbers shall be supplied to ACNITI at the point of return; and
- Shall be “as new” and clearly marked with the serial or part number and must be in the original packaging so as to avoid damage; and
- Shall be sent by freight prepaid by you; and
- Will be inspected and tested by ACNITI before a credit note is issued. A credit note will not be issued unless ACNITI is satisfied that the Products are in the same condition that they were in when they were delivered to you and further, ACNITI is satisfied that you have complied with all of your obligations in this clause 13.
- Acniti will deduct a restocking fee of 25% of all items returned.
- When a credit note is issued this will be deducted from the next first invoice sent to you.
- Incorrect Delivery
If ACNITI has delivered the wrong Products, you shall return them using a carrier of ACNITI’s choice and ACNITI will pay for the return delivery costs. If you choose a carrier for returning the wrong Products, you shall pay for all costs of and incidental to delivery incurred when returning any Products to ACNITI.
- ACNITI acknowledges that nothing in this clause 13 applies to any warranty claims made in respect of defective Products.
13 LIMITATIONS OF LIABILITY AND INDEMNITY
- Any representation made by ACNITI in relation to the Products, their use, suitability for your purpose, performance, care, maintenance or application is given in good faith and is believed by ACNITI to be reliable, but it is provided with a disclaimer for any liability or responsibility on the part of ACNITI. You acknowledge that ACNITI may not be aware of your intended end use of the Products.
- Subject only to the extent permissible at law, ACNITI shall not be liable to you for, and you expressly release and discharge ACNITI from any consequential loss, economic loss or any other loss or damage (“loss”) that you incur as a direct or indirect result of: -
- Your purchase, sale, use, installation or application of the Products; and
- Any changes ACNITI makes from time to time to the design or specifications of the Products or to the prices of the Products; and
- Any delay or cancellation of the contract pursuant to clause 8.
- You accept all risk and responsibility for consequences arising from the improper use of the Products. ACNITI shall not be liable under a warranty for any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow ACNITI's instructions, misuse, or any alteration or repair of the Products not authorised by ACNITI.
- All representations other than those expressly stated in the contract, whether implied by statute, common law, custom of the trade or otherwise, are to the extent that the law permits, expressly excluded.
- You acknowledge that any liability to you will be limited in the case of defective Products only to: -
- Replacement by ACNITI of the Products (and any costs incurred by you in returning the Products to ACNITI); or
- The issue of a credit notes for the invoice value of the Products; or
- The return of any monies that you have paid in respect of the Products, provided that those monies are not paid in respect of Products of the type described in clause 8(c)(iii)B; and
- ACNITI’s assignment to you of the benefit of any of its warranties from its suppliers,
- whichever ACNITI in its absolute discretion considers appropriate.
14 NO REVERSE ENGINEERING, TECHNICAL DATA BELONGING TO ACNITI or it’s partners
The purchaser is deemed to understand that carrying out any kinds of reverse engineering of the purchasing items from the seller are strictly prohibited and the purchaser needs to accept the condition upon order(s) that the purchaser need to accept a claim for compensation to the seller for any kinds of losses which was caused by the reverse engineering of the purchaser. You shall not use, duplicate, copy or disclose any technical data belonging to ACNITI or technical data of its manufacturers to any other person or for any purpose other than for the use, operation or maintenance of the Products.
- Acniti publishes the terms and conditions on their website. Its your responsibility to check from time to time if any changes to these terms and conditions occur.
- Notices to be given by these Terms will be effectively served if they are posted on the website or emailed / faxed or sent by regular postal mail to the relevant party at its last known address or fax number.
- Notices will be effective from the date or time that they should be delivered in the ordinary course of overseas airmail services or facsimile transmissions from Japan.
- Any mistaken fact on any quotation, order, invoice, delivery docket or other document issued by ACNITI in relation to the contract shall not be binding on ACNITI and ACNITI may in its discretion issue such amended document as is required to rectify such mistake. You must comply with ACNITI’s amended document.
17 APPLICABLE LAW & JURISDICTION
- These Terms shall be governed by and construed in accordance with the laws of Japan. All disputes, controversies or differences which may arise between the parities hereto out of or in relation to or in connection with these Terms, or for the breach thereof, shall be finally settled by arbitration to be held in Osaka, Japan in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration Association. The award rendered by the arbitrator(s) shall be final and binding upon you and ACNITI.
- The fact that ACNITI may not enforce strict compliance with these Terms will not be deemed to be a waiver of ACNITI’s rights under these Terms, nor will it prevent ACNITI from subsequently enforcing these Terms.
19 WARRANTY PERIODS
- Unless otherwise stated, the Products sold by you to your customers will be supported by the terms of the relevant ACNITI warranty applicable from time to time. The warranty period for the Products and spare parts is 12 months from the day of shipment.
20 WARRANTY CLAIMS
- If the Products are the subject of a proposed warranty claim, you shall:
- give written notice containing sufficient detail of the alleged defects to ACNITI within 12 months of date of delivery.
- return the Products to ACNITI at the premises where they were dispatched from, using a carrier of ACNITI's choice, at your expense; and
- permit an expert nominated by ACNITI to inspect and test the Products, so that the expert may prepare a report on the Products and provide an opinion as to whether the Products are accepted by ACNITI as defective.
21 EXCEPTIONS TO WARRANTY
- ACNITI’s warranties from time to time do not include the costs of: -
- Disassembling or removing the Products from where the Products may be installed;
- Reinstalling the Products;
- Travel, accommodation and living of ACNITI’s representatives; or
- After hours labor.
- ACNITI may in its discretion decline to honor its warranties if you breach any of your representations in clause 23 below.
22 YOUR REPRESENTATIONS
You represent that: -
- The Products will be cared for and maintained in the manner, process and with the frequency recommended in information distributed to you by ACNITI;
- The Products will be sold for use for purposes reasonably inferred from published information;
- The Products will be properly handled; and
- In the event of a breakdown, you will refrain from repairing or purporting to repair the Products.
If the whole or any part of these Terms is invalid or unenforceable for any reason, the invalid or unenforceable clauses will be severed from these Terms and the validity of the remaining clauses will be preserved.