輸出契約書-裏面
長光正明 Copyright © Masaaki Nagamitsu 2009
| GENERAL TERMS AND CONDITIONS 1 INCREASED COST: If Seller's cost(s) of performance is(are) increased after the date of this Contract by reason of increased freight rate(s), tax(es) or other governmental charge(s), or insurance premium(s) for War & S.R.C.C. risks, such increased cost(s) is(are) entirely on the account of Buyer. 2 PAYMENT: (1)Buyer shall pay the full contract price plus all banking charges outside Japan, including advising charges, regardless of being charged within or outside Japan, and shall not be entitled to offset any of them against the contract price. (2) If and when Buyer is to establish a Letter of Credit in favor of Seller, such Letter of Credit shall be (i) Irrevocable and Unrestricted(freely negotiable by any bank), (ii) established by a prime bank satisfactory to Seller immediately after the conclusion of this Contract, (iii) valid for a period of 7 days or over for negotiation after the date of shipment and expire thereafter in Japan, (iv) in strict compliance with the terms and conditions of this Contract, (v) available for sight draft(s) to cover the full invoice amount, and (vi) acceptable for transhipment and partial shipment. Failure of Buyer to furnish such Letter of Credit as specified above shall be deemed a breach of this Contract, and Seller, without prejudice to any of the remedies stipulated herein, shall have the option(s) to (i) cancel the whole or any part of this Contract, (ii) defer the shipment of the Goods and hold them for Buyer's account and risk, and/or, (iii) resell the Goods for Buyer's account. (3) If and when payment is to be made by D/P, D/A, or Remittance, and if Seller has reason to suspect that due and full payment will not be made, Buyer shall, upon Seller's request, furnish adequate assurance/security satisfactory to Seller, or Seller may suspend the shipment of the Goods or stop them in transit in addition to the rights and remedies stipulated in Clause 9 hereof. 3 SHIPMENT: In case of FOB, FCA or any other trade terms under which Buyer has to secure or arrange shipping space, Buyer shall provide the necessary shipping space and give Seller shipping instructions in a timely manner. In case of CIF, CIP or any other trade terms under which Seller must provide the necessary shipping space, shipment within the time stipulated on the face hereof shall be subject to the availability of shipping space. The date of the Bill of Lading, Sea Waybill, Air Waybill or any other similar transport documents shall be conclusive evidence of the date of shipment or delivery. In case the Goods shall be carried by air, risk of loss of the Goods shall pass from Seller to Buyer upon delivery of the Goods to the carrier or its agent for transportation. Each lot of partial shipment or delivery, if allowed, shall be regarded as a separate and independent contract. 4 INSURANCE: Where Seller is to effect insurance at its own expense, such as in case of CIF or CIP, such insurance shall (i) cover one hundred and ten percent (110%) of the invoice amount, (ii) be against marine risks only, and (iii) be Free from Particular Average, F.P.A. (Institute Cargo Clauses) or on equivalent terms. Any additional insurance requested by Buyer shall be on Buyer's account and its premium shall be added to the invoice amount for which the Letter of Credit/Terms of Payment shall provide accordingly. If Buyer shall provide insurance under D/P or D/A payment terms, Buyer shall inform Seller of his insurance policy/certificate number, the name(s) of the insurance company(ies) and other necessary information well in time for the scheduled shipment. 5 CLAIM: No claim of any kind or nature shall be raised by Buyer under this Contract unless made in writing to be accompanied by full particulars of the claim and the evidence thereof certified by sworn surveyor(s) within fifteen(15) days after the arrival of the Goods at the destination specified on the face of this Contract or in the transport document. Seller shall have the option in full settlement of such claim to repair the defective goods, replace with conforming goods or repay the purchase price. In any event, Seller shall not be responsible to Buyer for any incidental, consequential, or special damages.注１ 6 WARRANTY: UNLESS EXPRESSLY STIPULATED ON FACE OF THIS CONTRACT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE FITNESS AND SUITABILITY OF THE GOODS FOR ANY PARTICULAR PURPOSE AND/OR MERCHANTABILITY.注２ 7 PATENT: TRADE MARK, ETC.: Buyer shall hold Seller harmless from, and shall waive any claim against Seller for, any liability for infringement of patent, utility model, design, trade mark, brand, pattern, copyright, or other industrial property rights in the Goods whether in the Buyer's country or any other country, provided however that Seller shall be liable for any such infringement in Seller's country if the above mentioned rights so infringed are not designated or selected by Buyer. Nothing herein contained shall be construed as a transfer of any such industrial and/or intellectual property rights in the Goods, and such ownership and right shall be expressly reserved to the true and lawful owner(s) thereof. 8 FORCE MAJEURE: Seller shall not be liable for any delay in shipment or delivery, or non-delivery, of all or any part of the Goods, or for any other default in performance of this Contract due to the occurrence of any event of force majeure (hereinafter referred to as "Force Majeure"), including, but not limited to, flood, earthquake, typhoon, tsunami(tidal wave), perils of the sea, fire, explosion or other act of God, prohibition of exportation, embargo or other type of trade control, governmental order, regulation or direction, or quarantine restriction, strike, lockout, slowdown, sabotage, or other labor dispute, war, hostilities, riot, civil commotion, mobilization, revolution or threat thereof, boycotting, accidents or breakdown of machinery, plant, transportation or loading facilities, shortage of petroleum products, fuel, electricity, energy sources, water, other raw materials, substantial change of the present international monetary system or other severe economic dislocation, bankruptcy or insolvency of the manufacturers or suppliers of the Goods, or any other causes or circumstances directly or indirectly affecting the activities of Seller, manufacturer or supplier of the Goods, or radioactive contamination. On the occurrence of any event of Force Majeure, Seller may, by giving notice to Buyer, (i) extend the time of delivery/shipment of the Goods or of performance of other obligations arising under the terms of this Contract, and/or (ii) cancel unconditionally the whole or any part of this Contact, and Buyer shall accept such of the above action(s) as Seller may take. 9 DEFAULT: If Buyer fails to perform any of the terms of this Contact or any other contract with Seller or if Buyer becomes insolvent or bankrupt, or takes any proceedings admitting the inability to pay or meet his obligations, or if Buyer transfers any or all of its business or important assets, or changes his legal status or organization, Seller may, without prejudice to Seller's right and remedies at law, by giving written notice to Buyer, (i) cancel immediately, or reserve the right to cancel, the whole or any part of this Contract or any other contract with Buyer, (ii) delay or suspend shipment or delivery of the Goods, (iii) stop the Goods in transit, (iv) hold and/or resell the Goods for Buyer's account and risk, and/or (v) accelerate any installment or otherwise postponed or deferred payment for shipment already made under this Contract or any other contract with Buyer. In any such event, Buyer shall be liable to Seller for any loss or damage, direct or consequential, incurred as a result thereof. 10 NO ASSIGNMENT: Buyer shall not transfer or assign the whole or any part of this Contract or any of his rights or obligations accruing hereunder without Seller's prior written consent. 11 INDEMNITY: Buyer shall at its own expense indemnify and hold harmless Seller and the directors, officers and employees of Seller from and against any and all losses, damages (actual, consequential or indirect), liabilities, penalties, fines, claims, demands, suits or actions, and related costs and expenses of any kind (including, without limitation, expenses of investigation and recall, counsel fees, judgements and settlements) for injury to or death of any person or property damage or any other loss suffered or allegedly suffered by any person or entity arising out of or otherwise in connection with any defect or alleged defect of the Goods sold by Seller to Buyer under this Agreement, except to the extent such claim is caused by the gross negligence or willful misconduct of Seller.注３注４ The obligation of Buyer provided for in this paragraph shall survive after the cancellation, termination, rescission or expiration of this Agreement. 12 NO WAIVER: No claim or right of Seller under this Contract shall be deemed to be waived or renounced in whole or in part unless the waiver or renunciation of such claim or right is acknowledged and confirmed in writing by Seller. 13 ARBITRATION: Any dispute, controversy or difference which may arise between the parties hereto, out of or in relation to or in connection with this Contract or any breach hereof shall be settled, unless amicably settled without undue delay, by arbitration in Osaka, Japan in accordance with the rules of procedure of The Japan Commercial Arbitration Association. The arbitral award shall be final and binding upon both parties hereof. 14 TRADE TERMS & GOVERNING LAW: Trade terms such as FOB, CIF and any other terms which may be used in this Contract shall have the meanings defined and interpreted by the Incoterms 2000 Edition, ICC Publication No.560, as amended, unless otherwise specifically provided in this Contract. The formation, validity, construction and performance of this Contract shall be governed by and construed in accordance with the law of Japan. 15 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior written or oral agreements between the parties hereto concerning the subject matter hereof. No modifications of this Agreement shall be binding unless executed in writing by both parties hereto. |
注１：いかなる付随的、結果的または特別な損害も
注２：売主が担保責任を免除する旨規定する場合のUCCによる記載方法
UCCによる物品売買における売主の保証責任として、①Warranty of Title（権原担保責任）②Express Warranties（明示の担保責任）③Implied Warranties（黙示の担保責任）の三つある。
②Express Warranties（明示の担保責任）：売主がカタログ、サンプル、説明書、仕様書や口頭などで商品の品質や性能などを提示したり、契約書で保証すれば（これらのことを「明示」という）、その商品が説明したり保証した通りの品質や性能を備えていることの保証責任
③Implied Warranties（黙示の担保責任）：売主が買主に対して、その商品の品質や性能について、たとえ明示的に何らの保証もしていなかったとしても、売主として当然に保証しなければならない保証責任
具体的には⇒Implied Warranty of Merchantability（商品性の黙示保証）商品として通常の使用目的にあった品質や性能などを備えていることの保証
これはさらに売主が買主の商品に対して特別な目的に利用することを知っている場合は⇒Implied Warranty of Fitness for a Particular Purpose（特定目的適合性の黙示保証）特別の使用目的に適合する商品を提供する責任
注３：次の四つに分けて訳す
①Buyer shall at its own expense indemnify and hold harmless Seller and
the directors, officers and employees of Seller
②from and against any and all losses, damages (actual, consequential or
indirect), liabilities, penalties, fines, claims, demands, suits or actions,
and related costs and expenses of any kind (including, without limitation,
expenses of investigation and recall, counsel fees, judgements and settlements)
③for injury to or death of any person or property damage or any other loss suffered or allegedly suffered by any person or entity
④arising out of or otherwise in connection with any defect or alleged defect
of the Goods sold by Seller to Buyer under this Agreement,
注４：gross negligence or willful misconduct重過失又は意図的な違法行為