1. Applicability
1.1 The present General Conditions of Sale and Supply (“GCS”; version as available at https://www.dksh.com/jp-en/general-conditions-of-sale-and-supply-dksh-mes-japan on the date of confirmation by DKSH) shall govern all orders (“Orders”) placed with DKSH Market Expansion Services Japan K.K. (“DKSH”) by the Customer (“Customer(s)” means each person or entity that enters into an agreement with DKSH about the supply of Products or provision of Services by DKSH to Customers) for products (“Products”) or services (“Services”), whether or not customized, to the exclusion of all other terms. Deviations from these GCS – in particular any application of the purchasing terms and conditions of Customers of DKSH – require DKSH‘s explicit written acceptance. Supply of Products, provision of Services or acceptance of payments without reservation shall not constitute DKSH’s acceptance of conditions varying from these GCS.
2. Offers/contracts
2.1 Queries of DKSH, even if designated as offers, are not binding and shall be understood as invitations to make an offer.
2.2 A contract shall only be formed and enter into force upon the issue of DKSH’s written order confirmation (including e-mail) or the execution of an order by DKSH.
2.3 No order may be canceled unless DKSH consents to such cancellation in writing (including e-mail).
2.4 If the Customer requests short term delivery/performance to which DKSH agrees, the Customer accepts that the invoice together with these GCS shall form the basis of the respective contract.
3. Purchase price/payment
3.1 Unless otherwise agreed, all prices quoted by DKSH shall be understood in the currency as specified in the respective contract between the Customer and DKSH and net EXW (Incoterms as in force at the time of the conclusion of a contract). All prices for Services shall be as provided in the contract.
3.2 Value-added tax shall be payable separately in the statutory amount in effect on the invoice date.
3.3 The prices do not include additional charges, e.g. for packing, transport, freight or customs duties, which may be charged in addition to the price quoted.
3.4 DKSH reserves the right to modify prices before shipment in case of substantial changes to the respective basis of calculation (in particular cost of materials and work as well as exchange rate fluctuations etc.) between the conclusion of a contract and the agreed date of delivery. The Customer will be informed about such price changes, if any, as soon as possible.
3.5 Unless otherwise agreed by the Customer and DKSH in writing, the Customer shall effect payment to DKSH within 30 (thirty) days of the date of the invoice (“Due Date”), without any right of set-off or counterclaim by the Customer.
3.6 If payment has not been received by the Due Date, late interest shall be applied automatically without prior notice at a per annum rate of 8% above the prevailing Bank of Japan’s base rate, from the Due Date until payment in full has been received. DKSH also reserves the right to file further claims for losses incurred through the payment default e.g. lawyer costs, administration fees etc.
3.7 Notwithstanding anything to the contrary herein or in a contract between DKSH and the Customer, DKSH may (a) treat any contract as repudiated and/or suspend deliveries of Products and/or performance of Services without liability to the Customer, (b) claim damages from the Customer, and (c) accelerate and make immediately due the payment of any outstanding sums in case of the Customer’s bankruptcy, insolvency, moratorium, reorganization or any other situation that, in DKSH’s sole discretion, adversely affects the financial position of the Customer.
4. Transfer of benefits and risks
4.1 The transfer of benefits and risks to the Customer shall occur according to the provisions of the respective contract and the Incoterms as specified therein.
5. Delivery
5.1 DKSH will use reasonable endeavors to deliver Products and/or perform Services by the dates set forth in the relevant contract, but such dates shall be treated as approximate only. DKSH shall notify the Customer as soon as practicable in case of delay.
5.2 The Customer is obligated to accept deliveries regarding Orders made even if the respective deliveries occur with delay. The Customer shall have no right to cancel the respective contract and/or demand damages.
5.3 Unless otherwise agreed by the parties in writing, partial shipments or partial deliveries are permitted.
5.4 Discrepancies in quantities of up to 10%, calculated on the basis of the entire quantity to be delivered and not the individual partial quantities actually delivered, shall be permissible.
5.5 If the Customer fails to accept delivery of Products, DKSH may in particular, but not exclusively (i) store Products and charge the Customer for the costs of storage, or (ii) upon reasonable notice to the Customer, sell Products at the price readily available and charge the Customer for any difference between the contract price and the price actually realized, plus storage and selling costs.
6. Retention of title
6.1 Products sold by DKSH remain DKSH’s property until DKSH’s claims for payment and other rights against the Customer resulting from any contract within the framework of the business relationship between DKSH and the Customer have been satisfied (“Reserved Goods”). The Customer shall support DKSH with all measures necessary to protect ownership of DKSH; by concluding a contract, the Customer in particular allows DKSH to carry out registrations and reservations in public registries, books and the like according to the applicable laws of a country and to comply with all respective formalities at the cost of the Customer. By agreeing to these GCS, the Customer consents upon request to execute and furnish to DKSH any and all documentation necessary for the perfection and maintenance of DKSH’s security interest in the Reserved Goods.
6.2 For as long as a Retention of Title is in force, the Customer shall handle the Products in such a way that they remain identifiable as DKSH’s property. The Customer shall maintain the Products and, following delivery, insure them against all customary risks, both at its own expense.
6.3 In the event of any failure on the part of the Customer to pay DKSH on time, DKSH reserves the right of immediate repossession of all Products delivered. The Customer hereby grants DKSH and its employees, agents or subcontractors the irrevocable right to enter any and all premises in which Products are located, without prior notice, for this purpose.
6.4 If the Customer processes, combines or mixes the Reserved Goods with other goods, DKSH acquires joint title pro rata, to that part of the goods representing the invoiced value of the Reserved Goods in relation to the total value of the other goods that have been processed, combined or mixed.
6.5 If the Reserved Goods are combined or mixed with products of the Customer or of any third party to a new product of which the Reserved Goods represent an ancillary part, the Customer hereby and forthwith assigns all its rights with regard to such new products to DKSH. If the Customer combines or mixes the Reserved Goods with products of any third party to a new product in return for compensation, the Customer hereby and forthwith assigns to DKSH its right to compensation against such third party.
6.6 The Customer shall be entitled to resell DKSH’s Reserved Goods in the ordinary course of its business subject to DKSH’s retention of title. If, upon such resale, the Customer does not receive the full purchase price in advance or upon delivery of such goods, the Customer shall agree on retention of title with its customer in accordance with these conditions. The Customer hereby and forthwith assigns to DKSH its claims arising from such resale and its rights arising from the said agreement on retention of title. Upon DKSH’s request, the Customer shall give notice of such assignment to its customer(s) and provide DKSH with all information and documentation necessary to enforce DKSH’s rights against those customers. Notwithstanding such assignment, the Customer shall be entitled to collect the claims arising from such resale as long as the Customer fulfils its obligations and liabilities towards DKSH.
6.7 Should the total amount of security interests granted to DKSH exceed the total amount of DKSH’s claims, DKSH shall, upon the Customer’s request, release individual securities which DKSH deems appropriate. DKSH’s invocation of retention of title shall not imply withdrawal from the pertaining contract, unless DKSH expressly issues prior written notice of this.
7. Packaging material
7.1 DKSH shall not take back packaging and transport material unless a legal duty to do so exists under applicable law.
7.2 The Customer agrees to dispose of the packaging and transport material at its own expense.
8. Inspection
8.1 Immediately upon delivery of Products and on completion of performance of Services, the Customer shall inspect the Products/Services for defects and deficiencies.
9. Complaints/Notification of defects
9.1 The Customer must notify DKSH of any complaints about the delivered Products and/or Services, in particular of any shortages or defects, promptly upon delivery and in no event later than fourteen (14) days of delivery of Products and/or performance of Services or, in case of hidden defects, immediately after their discovery and at the latest within six (6) months of delivery of Products and/or performance of Services. In case of noncompliance with this provision, the Products and Services are deemed to be approved and accepted by the Customer and all rights and claims related to such Products and/or Services shall be deemed waived.
10. The Customer’s rights in case of defects
10.1 Subject to the limitations on its liability set out herein, and unless otherwise agreed in writing, DKSH warrants that the Product shall comply with the specifications provided in the relevant contract. DKSH warrants that the Services shall be performed with reasonable skill and care. SUCH WARRANTIES ARE PROVIDED TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. A warranty of DKSH shall be excluded in particular in case of defects or deficiencies of the Products delivered due to (i) non-authorized, inappropriate or improper use of Products by the Customer or third parties, or (ii) negligent application of the Products by the Customer or third parties, or (iii) other reasons beyond the control of DKSH.
10.2 Where a valid and timely claim in respect of Products or Services is based on a breach of the warranty set forth in clause 10.1 and is submitted to DKSH in accordance with clause 9, DKSH may, at its discretion, replace, repair, re-perform or modify the Products or Services or any part thereof, or refund the full or partial price thereof, as applicable. All further claims of a Customer, including in particular any sort of damage claims, are excluded as far as permissible under applicable law.
10.3 Any return of Products to DKSH in connection with a warranty claim can only be done upon DKSH’s prior written permission and respective instructions. Shipping costs are to be paid by the Customer. Any return of Products shall occur for the account and risk of the Customer.
11. Limitation of liability
11.1 All kinds of breaches of contract and their legal consequences as well as all claims of the Customers, irrespective of the legal grounds they are based upon, are exclusively controlled by these GCS.
11.2 IN NO EVENT SHALL DKSH NOR ANY OF ITS AFFILIATES OR EMPLOYEES BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO ANY CONTRACT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN ANY EVENT DKSH’S MAXIMUM CUMULATIVE LIABILITY TO THE CUSTOMER SHALL BE LIMITED TO THE INVOICE VALUE OF THE GOODS SUPPLIED AND/OR SERVICES RENDERED UNDER THE RELEVANT CONTRACT.
11.3 This exclusion of liability shall not be valid as far as it is contrary to mandatory law.
12. Confidentiality
12.1 The Customer shall treat all Confidential Information (as defined below) strictly confidential and shall not disclose Confidential Information, or cause or allow it to be disclosed, to any third party or use Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under these GCS or a contract between DKSH and the Customer. The Customer shall disclose Confidential Information only to those of its officers and employees who need to know Confidential Information in connection with the fulfillment of these GCS or a contract between DKSH and the Customer and who are bound by confidentiality obligations at least as restrictive as those contained in this clause. In any event, the Customer remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.
12.2 “Confidential Information” means any information contained in a contract between DKSH and the Customer and any information provided by or on behalf of DKSH to the Customer (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to the Customer at the time of disclosure as demonstrated by the Customer’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of the Customer, (iii) has been rightfully received by the Customer from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by DKSH for release or (v) is independently developed without benefit of the Confidential Information.
12.3 this clause 12 shall survive the termination or expiration of any agreement(s) between DKSH and the Customer (including, but not limited to, these GCS) by five (5) years.
13. No Assignment
13.1 The Customer shall not be entitled to assign its contractual status or any of its rights and obligations under these GCS or Customer’s contractual status between DKSH and the Customer without DKSH’s prior written consent.
14. Compliance with laws
14.1 Unless otherwise agreed in writing, the Customer shall be responsible for compliance with statutory and regulatory requirements relating to export, import, transport, storage and use of the Products and/or Services.
14.2 Insofar as the performance of a contract by DKSH would result or would likely result in the infringement of national, foreign or international (re-)export control laws or other laws, DKSH shall be entitled to rescind the respective contract.
14.3 If export control checks are required, the Customer will provide DKSH immediately upon request with all information pertaining to the final recipients, destination and purpose of the products to be supplied by DKSH as well as any related export control restrictions.
14.4 In all instances, the Customer must comply with (re-)export control regulations of Japan, the European Union and the United States. Furthermore, the Customer shall comply with all the applicable Export Compliance Laws and Regulations in connection with the purchase of DKSH’s Products and/or Services and in connection with the resale of such Products and/or Services to the Customer’s clients/customers. For the sake of clarity, “Export Compliance Laws and Regulations” shall mean any applicable laws and regulations regarding economic sanctions, prohibitions, import, transfer, or export restrictions imposed by the United Nations (U.N.), the United States (U.S.), the European Union (E.U.) and by any other applicable country, including but not limited to Japan. This includes, but is not limited to:
- applicable laws and regulations regarding import, export and re-export, transfer restrictions related to military and dual-use commodities/products, software and technologies, chemical precursors (drugs and explosives), dangerous chemicals and pesticides, substances that deplete the ozone layer, etc.; and
- applicable laws, regulations, United Nations Security Council resolutions, and other international sanctions, sanctions of Switzerland, the United Kingdom, the European Union, the U.S. Specially Designated and Blocked Persons List (SDN), the U.S. Export Administration Regulations (EAR) that impose trade restrictions and embargoes and prohibit certain dealings with the governments, legal entities, companies, and nationals of the countries named therein; and
- applicable laws and regulations prohibiting transfers of products, services, software or technology that will directly or indirectly support nuclear explosive activities, unsafeguarded nuclear activities, nuclear fuel cycle activities, nuclear propulsion activities, or the design, development, production, stockpiling, or use of chemical weapons, biological weapons, missiles, rocket systems or unmanned aerial vehicles.
14.5 The Products and/or Services purchased by the Customer from DKSH shall be purely used by the Customer’s customer/clients for civilian end-uses by civilian end-users. Therefore, the Products and/or Services shall not be used by the Customer itself and the Customer’s customer/clients in the design, development, production, manufacturing of military applications, nuclear, space launch vehicles, satellites, armored vehicles, unmanned aerial vehicles (UAV), target drones, reconnaissance drones, or the launch or operation of any ballistic missile systems, rocket systems, sounding rockets, cruise missile systems, or any missile delivery system for weapons of mass destruction, unless where the aforementioned applications are agreed in advance by DKSH and by the competent authorities in writing. Moreover, the Products and/or Services purchased by the Customer from DKSH will not be used for and/or in connection with, internal repression, human rights violations, production of chemical or biological weapons of mass destruction, any military or paramilitary organization, armaments, nuclear technology, or weapons.
14.6 The Customer shall in no event and by no means, commercialize, export or re-export the Products and/or Services purchased from DKSH, through direct or indirect means, to:
- any legal entities/companies and persons on the Sanctions List of Japan, Switzerland, the United Kingdom, the European Union, the United Nations or on the U.S. Specially Designated and Blocked Persons List (SDN); and
- any legal entities/companies and persons on the U.S. Consolidated Screening List (CSL) in case the Products and/or Services are subject to the U.S. Export Administration Regulations (EAR), without having obtained the relevant license under the U.S. EAR.
14.7 Furthermore, the Customer shall always be responsible for compliance with all applicable laws and regulations related to anti-bribery, anti-corruption, conflict of interest laws, rules or regulations of similar purpose and effect, including, without limitation the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997, sec. 322ter et seq. Swiss Criminal Code and sec. 4a Swiss Act against Unfair Competition, the US Foreign Corrupt Practices Act 1977 as amended from time to time, the UK Bribery Act 2010, and sec. 299 et sqq., sec. 331 et sqq. German Criminal Code, the German Act on Combating European Bribery, and the German Act on Combating International Bribery (hereafter collectively “Anti-Corruption Laws”).
14.8 The Customer shall indemnify, defend, and hold harmless DKSH from any and all claims, damages, losses, liabilities, costs and expenses (including but not limited to court costs and attorneys' fees) arising out of any claim, inspection, audit, and etc. by regulatory authorities or other third parties and asserted against DKSH due to the Customer's failure to comply with the aforementioned obligations and agrees to reimburse DKSH for any and all resulting damages and associated expenses, provided that they are the result of the Customer's breach of duty.
15. DKSH’s Code of Conduct
15.1 The Customer and its officers, directors, employees and agents shall comply with all provisions of DKSH’s Code of Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies). Therefore, by placing any order to DKSH and/or by accepting any services from DKSH, the Customer (including its officers, directors, employees and agents) acknowledges to have taken note of DKSH’s Code of Conduct and commits to abide by it and to comply with it.
15.2 DKSH’s Code of Conduct is subject to updates and/or amendments from time to time and the Customer hereby accepts such updates and/or amendments (as made available at https://www.dksh.com/global-en/home/about-us/sustainability#policies, and/or as otherwise notified by DKSH).
15.3 The Customer understands and agrees that DKSH may collect information on the Customer (via due diligence, pre-agreed audits or otherwise) to verify its compliance with DKSH’s Code of Conduct, and the Customer agrees to furnish DKSH with or grant DKSH access to such information as reasonably requested by DKSH from time to time. Where DKSH has reason to believe or suspect that the Customer is in breach and/or falls short of expectations to comply with DKSH’s Code of Conduct, the Customer acknowledges DKSH’s right to turn down business opportunities or to seek discontinuation of the relationship, unless DKSH and the Customer agree on collaborating towards establishing adequate improvement plans and actions to address DKSH’s findings resulting from due diligence, pre-agreed audits or otherwise.
16. Requirement of written form
16.1 No amendments or waiver of any provision of these GCS shall be valid unless made in writing.
17. No waiver
17.1 No failure on the part of either party in exercising any right, power or remedy under these GCS will operate as a waiver thereof.
18. Severability
18.1 In the event that any of the terms or provisions of these GCS is determined to be invalid, illegal, void or in conflict with regulations or rulings of authorities, governmental or other, or otherwise unenforceable, or if any provision or term of these GCS shall become invalid, illegal, void and/or unenforceable at any time hereafter, all other provisions of the GCS shall be severable and shall remain valid, binding and enforceable in accordance with their terms, and the parties agree that a provision which shall be determined to be or which shall become invalid, illegal, void or unenforceable, shall be substituted by another suitable provision which shall maintain the purposes and the intentions of the parties.
19. Force majeure
19.1 DKSH shall not be liable to the Customer for any damage, loss, cost or expense which the Customer may suffer as a direct or indirect result of 1) the supply of Products and/or performance of Services that is prevented, hindered, delayed or rendered uneconomic, or 2) failure in performing any obligation, by any circumstances or events beyond DKSH’s reasonable control such as (without limitation) failure of DKSH’s supplier to deliver, lack of raw material or energy, fire, act of God, interruptions in traffic, or war, riots, acts of terrorism, strikes, lock-outs, order, law, regulation, demand or requirement of any governmental body or agency (“Event of Force Majeure”).
19.2 Any obligations of DKSH under any contract will be suspended for the period of the Event of Force Majeure. If the Event of Force Majeure extends beyond sixty (60) days, each party may terminate the contract with immediate effect upon written notice without any liability to the other, except that the Customer shall remain liable for payment to DKSH for any Products delivered and/or Services performed prior to termination.
20. Governing law / venue
20.1 The contract(s), these GCS and all legal relations between the Customer and DKSH shall be governed exclusively by the laws of Japan to the exclusion of the laws on conflict of laws and of the United Nations Convention on Contracts and the International Sale of goods (CISG) of April 11, 1980.
20.2 Any disputes arising out of or in connection with the contract(s), these GCS or any legal relations between the Customer and DKSH shall be resolved exclusively before the courts in Tokyo, Japan.
