Terms and Conditions

1. Interpretation

The definitions and rules of interpretation in this clause apply in these Terms and Conditions (these T&Cs).

1. 1.1 Definitions:

   "Agreement" means an agreement formed by each order placed by the Customer and the Proforma Invoice (as defined below in this clause) issued by Kosei as set forth in clause 2.

   "Customer's Premises" means address of Customer’s premise described on the order.

   "Expenses" means any and all costs incurred at and after the time of delivery of the Products in accordance with clause 4.2.

   "Invoice" means an invoice raised by Kosei in accordance with clause 6.3.

   "Kosei’s Premises" means 1-12 Higashi Koraibashi Chuo-ku Osaka 540-0039.

   "Local Regulations" means any applicable laws, regulations, statutes, enactments, orders, guidelines, including all secondary legislation in force from time to time in the countries or regions.

   "Products" means the products set out in the Proforma Invoice as amended from time to time in accordance with clause 10.

   "Proforma Invoice" means an order confirmation document sent by Kosei to the Customer, agreeing to fulfil the order and identifying the relevant order, and the Customer shall pay accordingly.

   "Warranty" has the meaning ascribed to it in clause 3.1.

   "Working Day" means a day on which banks are ordinarily open for business in the City of Osaka.

2. 1.2Reference to a clause, paragraph or Schedule is to a clause, paragraph or Schedule of or to these T&Cs, unless the context requires otherwise.
3. 1.3A reference to one gender includes a reference to the other gender.
4. 1.4Words in the singular include the plural and in the plural include the singular.
5. 1.5A reference to a person includes an incorporated or unincorporated body.
6. 1.6A reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
7. 1.7Unless the context otherwise requires, the words including and include and words of similar effect shall not be deemed to limit the general effect of the words which precede them.
8. 1.8The headings in these T&Cs are for ease of reference only and shall not affect its construction or interpretation.

2. Order process

1. 2.1An order placed by the Customer shall be treated as an offer by the Customer to contract with Kosei, but shall not be binding on Kosei or the Customer until accepted by Kosei in accordance with clause 2.2. Kosei may, at its sole discretion, accept any amendment to the order after acceptance.
2. 2.2Kosei shall, at its sole discretion, either (i) reject the order, (whether before or after giving the Quote) by giving written notification of such rejection to the Customer or (ii) accept the order (following the acceptance of the Quote by the Customer) using the Proforma Invoice, and such Proforma Invoice shall be treated as acceptance of the Customer's order.

3. Warranty

1. 3.1Kosei warrants that all Products sold by Kosei to the Customer pursuant to the Agreement (i) are genuine products and are not unlawful counterfeits, and (ii) at the point of collection of the relevant Products from Kosei’s Premises, will be free from any material defects which will or are likely to have a material detrimental impact on the ability of the Customer to resell the Products (the "Warranty").
   All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in the Agreement are excluded from the Agreement.

4. Delivery of the Products

1. 4.1The Customer shall be responsible for (and shall pay) all Expenses (including any expense detailed in the Proforma Invoice) relating to the Products, and Kosei shall not in any way be responsible for (and shall not pay) the Expenses unless otherwise agreed between the parties. Notwithstanding any other provision of these T&Cs or any order placed by the Customer, Kosei shall not be required to release the Products to any carrier for delivery unless and until the Proforma Invoice in respect of the Products and any other payment due from the Customer in accordance herewith (including any tax described in clause 6.4 and transportation costs described in clause 9.1) have been paid in full by the Customer.
2. 4.2Delivery of the Products shall be arranged based on terms of EXW (Incoterms 2020 (as amended)).
3. 4.3Kosei shall pack the Products into parcels with necessary materials.
4. 4.4The Customer shall receive/accept the Products which have become available to the Customer in accordance with the Agreement. Should the Customer refuse to receive/accept the Products or fail to notify Kosei of any necessary condition or instruction for delivery, then Kosei may store, dispose of or sell out the Products to any third party at its sole discretion. In any of such cases, the Customer shall bear all additional expenses (including the storage cost) and Kosei shall not in any way be responsible therefor.
5. 4.5Pursuant to each relevant provision of these T&Cs, the parties acknowledge as follows:
   1. 4.5.1Delivery of the Products:
      Delivery of the Products shall be arranged based on terms of EXW (Incoterms 2020 (as amended)) (as set forth in clause 4.2). For the avoidance of doubt, the Products shall be deemed to have been delivered to the Customer once the Products have been loaded at Kosei’s Premises onto the transport of the carrier appointed to deliver the Products to the Customer (as set forth in clause 9.1).
   2. 4.5.2Risk of loss for the Products:
      Risk of loss for the Products shall pass to the Customer at the time of delivery of the Products in accordance with clause 4.2 (as set forth in clause 9.1).
   3. 4.5.3Title to the Products:
      Title to the Products detailed in the Proforma Invoice shall pass to the Customer after Kosei has received payment for the Products in full owed by the Customer to Kosei and the Products have been delivered in accordance with clause 4.2 (as set forth in clause 9.2).
   4. 4.5.4Liability and expense:
      Kosei shall not incur any liability or expense after delivery of the Products in accordance with clause 4.2 (as set forth in clause 5.4).

5. Import and export licenses and compliance with laws

1. 5.1The Customer is responsible for obtaining, at its own cost, such export and import licences and all other consents and licences in relation to the Products as are required from time to time and, if required by Kosei, the Customer shall make those licences and consents available to Kosei prior to placing any order.
2. 5.2The Customer warrants and represents that the Customer:
   
   1. 5.2.1holds all licences, consents and permissions required by the Local Regulations or otherwise in order for it to validly and lawfully perform the Agreement;
   2. 5.2.2enters into and validly executes the Agreement; and
3. 5.3In no event shall Kosei be involved in and responsible for the manner in which the Products are (i) advertised and/or marketed and (ii) sold on by the Customer. The Customer acknowledges and agrees that, in both cases (i) and (ii), the Customer is solely responsible for ensuring that all Local Regulations are fully complied with.
4. 5.4The Customer acknowledges and agrees that the Customer shall be solely responsible for ensuring that no breach or potential breach of any Local Regulations will occur, and that Kosei shall not incur any liability or expense after delivery of the Products in accordance with clause 4.2.

6. Prices and payment

1. 6.1The Customer shall pay Kosei for the Products in accordance with the provisions of this clause 6.
2. 6.2The price applicable to each order shall be in the currency specified by Kosei for the Products in the Proforma Invoice.
3. 6.3The Customer shall pay to Kosei the total amount of each Invoice in such currency as is stated in the Proforma Invoice by telegraphic transfer to the bank account notified to the Customer by Kosei in writing from time to time by the date specified by Kosei in the relevant Proforma Invoice or Invoice (the "Due Date"), regardless of whether the Products have already been delivered and title to the Products has already passed to the Customer.
4. 6.4All amounts of money referred to in the Agreement shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to Kosei, the Customer shall increase the sum it pays to Kosei by the amount necessary to leave Kosei with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
5. 6.5All amounts due to Kosei under the Agreement shall become due immediately if either (i) the Agreement is terminated or novated despite any other provision and/or (ii) any Invoice properly submitted by Kosei is not paid by the Customer on or before the Due Date.
6. 6.6The Due Date shall be of the essence and no payment shall be deemed to have been made until Kosei has received payment in cleared funds.
7. 6.7If the Customer does not make payment on or before the Due Date, interest shall be payable on the overdue amount at the rate of 14.6% per annum or the rate of the statutory maximum percentage, whichever is lower, from time to time. The interest shall be payable at this rate, whether before or after any judgment is made by Kosei against the Customer, until the date on which payment in cleared funds is received in full, including all accrued interest.
8. 6.8The Customer shall make all payments due under the Agreement without any deduction by way of set-off, counterclaim, discount or otherwise, unless otherwise agreed in writing between the parties.

7. Return

1. 7.1Any cases of returns from the Customer shall not be accepted by Kosei based on the Act on Securing Quality, Efficacy and Safety of Products Including Pharmaceuticals and Medical Devices (Act No. 145 of 1960) excluding the cases if the Products are kept in Japan.

8. Adverse events and recalls

1. 8.1If in any cases of adverse events associated with the use of the Products sold by Kosei, the Customer shall notify Kosei promptly after being made aware of such event. Both parties shall cooperate with the manufacturer(s) if necessary.
2. 8.2Kosei shall notify the Customer in the event that the Products sold by Kosei become subject to recall as promptly as possible after being made aware of the event. The Customer shall take actions on its own responsibility.

9. Title and risk of loss

1. 9.1Risk of loss for the Products shall pass to the Customer once the Products have been loaded at Kosei’s Premises onto the transport of the carrier appointed to deliver the Products to the Customer (i.e. at the time of delivery of the Products in accordance with clause 4.2) (irrespective of whether the transportation for the Products has been arranged by Kosei or the Customer). If requested by the Customer, Kosei may appoint a carrier and pay for the transportation costs in advance, provided that the Customer shall not object to such carrier and transportation costs and shall reimburse Kosei for the transportation costs at the time of payment for the Products in accordance with clause 6.
2. 9.2Title to the Products detailed in the Proforma Invoice shall pass to the Customer after Kosei has received payment for the Products in full owed by the Customer to Kosei and the Products have been delivered in accordance with clause 4.2.

10. Changes

1. 10.1Kosei may immediately give written (including email) notice to the Customer, when Kosei elects to alter the Products, provided that the alteration does not materially adversely affect the quality of the Products.
2. 10.2Kosei may, on giving written notice to the Customer, elect to alter the Products otherwise than in accordance with clause 10.1. Where the Customer has placed an order and Kosei has accepted that order using the Proforma Invoice, and the Products contained in that order are varied in accordance with this clause 10.2, the Customer may cancel the part of the order that relates to the varied Products only.

11. Confidentiality

1. 11.1Each party undertakes to keep confidential and use only for the purposes of the Agreement all information (written or oral) concerning the business and affairs of the other party, which each party has obtained or received as a result of discussions leading up to entry into the Agreement, or which each party has obtained during the course of the Agreement (the "Confidential Information"), except any information that is:
   
   1. 11.1.1already in the possession of the receiving party at the time of disclosure through no breach of this clause 11;
   2. 11.1.2already in the public domain at the time of disclosure or enters the public domain after disclosure through no breach of this clause 11;
   3. 11.1.3obtained from any duly authorized third party without bearing any confidentiality obligation; or
   4. 11.1.4independently developed by the receiving party without referring to or using the Confidential Information.
2. 11.2Neither party may disclose or divulge the Confidential Information to any third party without the prior written consent of the other party. Notwithstanding the foregoing, each party may disclose the Confidential Information to the extent necessary to fulfil a disclosure obligation imposed by law or to comply with an order of a government organ having legal authority, provided that the other party is notified in advance.
3. 11.3Each party undertakes to take all steps that are necessary from time to time to ensure compliance with the provisions of this clause 11 by its employees, agents and subcontractors.

12. Duration and termination

1. 12.1Either party (the "Terminating Party") may terminate the Agreement by giving written notice to the other party if any of the following events occurs:
   1. 12.1.1the other party commits a breach of the Agreement and such breach (in the case of a breach capable of remedy) has not been remedied within thirty (30) days of the receipt by the other party of a notice specifying the breach and requiring its remedy;
   2. 12.1.2a winding-up order or bankruptcy order is made against the other party;
   3. 12.1.3the other party passes a resolution or makes a determination for the other party to be wound up (without a declaration of solvency/except for the purposes of amalgamation or reconstruction, the terms of which have been previously approved in writing by the Terminating Party);
   4. 12.1.4an administrator or an administrative receiver has been appointed for the other party;
   5. 12.1.5being a partnership, in addition to the above, suffers bankruptcy orders being made against all of its partners;
   6. 12.1.6an incumbrancer takes possession, or a receiver, manager or administrative receiver is appointed, of the whole or any part of the other party's assets;
   7. 12.1.7the other party ceases or suspends payment of any of its debts, or is unable to pay its debts within the meaning of filing the insolvency;
   8. 12.1.8any arrangement, compromise or composition in satisfaction of its debts is proposed or entered into;
   9. 12.1.9the other party ceases, or threatens to cease, to carry on business; or
   10. 12.1.10any event analogous to those described in clause 12.1.2 to clause 12.1.9 occurs in relation to the other party in any jurisdiction in which that other party is incorporated, resident or carries on business.

13. Anti-Social Forces

1. 13.1The Customer represents and warrants that it, its officers, directors, employees, agents, and any other persons acting on its behalf:
   1. 13.1.1are not and have never been an organized crime group, a related company or association of an organized crime group, or any other anti-social force ("Anti-Social Forces") or a member of Antii-Social Forces;
   2. 13.1.2do not have any close relationship with Anti-Social Forces;
   3. 13.1.3do not use Anti-Social Forces in an effort to gain unlawful benefit for themselves or any third party, or to cause damage to any third party; or
   4. 13.1.4do not provide funds or any other form of assistance to Anti-Social Forces.
2. 13.2The Customer covenants that it will not, either by itself or through any third party:
   1. 13.2.1make violent demands;
   2. 13.2.2make inappropriate demands that exceed what is legally permissible;
   3. 13.2.3in relation to transactions, engage in violent or threatening behaviour;
   4. 13.2.4obstruct Kosei’s business or damage Kosei’s credibility by spreading false information or by using fraudulent means or force; or
   5. 13.2.5commit any acts equivalent to those set forth in the preceding clauses.
3. 13.3If the Customer breaches any of the representations and warranties in clause 13.1 or the covenants in clause 13.2, or if it is discovered that any of representations in clause 13.1 were false when made, Kosei may immediately terminate this Agreement without any notice. In such case:
   1. 13.3.1the Customer shall forfeit the benefit of time in relation to all obligations owed to Kosei;
   2. 13.3.2the Customer shall be liable for all damages incurred by Kosei as a result of such breach or false representation; or
   3. 13.3.3Kosei shall not be liable for any damage caused to the Customer by such termination.
4. 13.4The Customer agrees to notify Kosei immediately if it becomes aware of any violation of the representations and warranties in clause 13.1 or the covenants in clause 13.2 , or if it is subject to any investigation or inquiry related to Anti-Social Forces.

14. Force majeure

1. 14.1Neither party shall be liable to the other party, or be deemed to be in breach of the Agreement, by reason of any delay in performing, or failure to perform, any of its obligations under the Agreement if the delay or failure was beyond that party's reasonable control (including without limitation fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout or other industrial action, act of God, war, warlike hostilities or threat of war, terrorist activities, accidental or malicious damage and any prohibition or restriction by any government or other legal authority which affects the Agreement and which is not in force on the date of the Agreement).
2. 14.2A party claiming to be unable to perform its obligations under the Agreement (either on time or at all) in any of the circumstances set out in clause 14.1 shall notify the other party of the nature and extent of the circumstances in question as soon as practicable.
3. 14.3This clause 14 shall cease to apply when such circumstances have ceased to have effect on the performance of the Agreement and the party affected shall give notice to the other party that the circumstances have ceased.
4. 14.4If any circumstance set forth in clause 14.1 to either party continues for more than thirty (30) days, the other party shall be entitled to terminate the Agreement by giving to the other party not less than seven (7) days prior notice in writing.

15. Entire agreement

1. 15.1The Agreement and the documents referred to in it constitutes the entire agreement between the parties in connection with its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding or undertaking (in each case whether written or oral) given or made before the date of the Agreement by or on behalf of the parties and relating to its subject matter.
2. 15.2Neither party has relied on any statement, representation, agreement, understanding or promise made by the other party except as expressly set out in the Agreement.

16. Waiver of rights based on misrepresentation

1. 16.1Each party unconditionally waives any rights it may claim damages against the other party on the basis of any oral or written statement made by the other party or by its legal advisers (whether made carelessly or not) that is not set out or referred to in the Agreement (or for breach of any warranty given by the other party not so set out or referred to), unless such statement or warranty was made or given fraudulently.
2. 16.2Each party unconditionally waives any rights it may have to seek to rescind the Agreement on the basis of any statement made by the other party (whether made carelessly or not), unless such statement was made fraudulently.

17. Limitation of liability

1. 17.1In no event Kosei’s liability to the customer shall exceed the total amount paid to Kosei by the Customer for the services hereunder in respect of:
   1. 17.1.1death or personal injury caused by its negligence (including negligence of its employees, agents or contractors);
   2. 17.1.2fraud and/or fraudulent misrepresentation; or
   3. 17.1.3liability which may not otherwise be limited or excluded under applicable law;
2. 17.2Subject to clause 17.1, Kosei's total liability in contract, tort (including negligence), breach of a statutory duty, misrepresentation or otherwise in relation to the Agreement shall be limited to 100% of the price of the Products to which the claim relates, as detailed in the relevant Proforma Invoice.
3. 17.3Kosei shall not be liable to the Customer for:
   1. 17.3.1any indirect, special or consequential loss or damage;
   2. 17.3.2loss of data or other equipment or property;
   3. 17.3.3economic loss or damage;
   4. 17.3.4incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
   5. 17.3.5any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, even if Kosei is advised in advance of the possibility of any such losses or damages.
4. 17.4Kosei shall not be liable for any losses arising from the Customer's shipping, storage or handling of the Products including (without limitation):
   1. 17.4.1wilful damage;
   2. 17.4.2the Customer's negligence, or that of its agents or employees;
   3. 17.4.3failure to follow storage conditions notified to the Customer by Kosei from time to time;
   4. 17.4.4any alteration of the Products; or
   5. 17.4.5Any defect in the Products which does not amount to a breach of the Warranty.
5. 17.5The Customer shall, without delay after receiving the delivery of the Products, inspect their quantity and contents at the Customer's Premises in accordance with the inspection method separately discussed between the parties, and accept the Products which have passed the inspection. In the event of any shortage in the quantity of the Products or any defect in the Products, the Customer shall notify Kosei to that effect with the detailed information (e.g. quantity of the shortfall, type/form of the defect, etc.) within five (5) Working Days of receipt of the Products. Without such notice from the Customer, Kosei shall not incur any liability for the shortage or defect.
6. 17.6Upon receipt of the notice from the Customer in accordance with clause 16.5 and upon acknowledgement of such shortage or defect by Kosei as notified by the Customer, Kosei shall deliver the shortfall or replacement at its own expense to the Customer. Upon acknowledgement of any excess in quantity of the Products, Kosei shall have the Customer dispose of such excess at the expense of Kosei.

18. Assignment

1. 18.1The Customer shall not, without the prior written consent of Kosei, assign, transfer, charge or deal in any other similar manner with the Agreement or its rights or any part of them under the Agreement, subcontract any or all of its obligations under the Agreement, or purport to do any of the same.

19. Disputes

1. 19.1Subject as may be provided elsewhere in the Agreement, all disputes, differences or questions arising in relation to the Agreement shall be first referred to an appropriate director of each of Kosei and the Company, who shall meet together and attempt to settle the dispute between themselves (acting in good faith) within one (1) calendar month.
2. 19.2If the dispute may not be settled by the meeting described in clause 19.1 within one (1) calendar month, it shall be referred to the exclusive jurisdiction of the Osaka District Court in the first instance.

20. Cumulative remedies

1. 20.1Each right or remedy of the parties under the Agreement is without prejudice to any other right or remedy of the parties, whether or not such rights or remedies are set out in the Agreement.

21. No partnership or agency

1. 21.1Nothing in the Agreement shall create, or be deemed to create, a partnership, joint venture or legal relationship of any kind between the parties that would impose liability upon one party for the acts or failure to act of the other party, or authorise either party to act as agent for the other party. Save where expressly stated in the Agreement, neither party shall have the authority to make representations, act in the name or on behalf of or otherwise bind the other party.

22. Costs

1. 22.1Except as otherwise provided in the Agreement, each party shall pay its own costs and expenses in relation to the negotiation, preparation, execution and implementation of the Agreement.

23. Severance

1. 23.1The invalidity, illegality or unenforceability of any provision of these T&Cs, or a provision in any other agreement which is identical to one in these T&Cs, shall not affect the other provisions and these T&Cs shall be given effect as if the invalid, illegal or unenforceable provision had been deleted and replaced with a provision with a similar economic effect to that intended by the parties if this can be achieved by another clause.

24. Further assurance

1. 24.1Either party shall, at the request and cost of the other party, use reasonable endeavours to do or procure the doing of all such further acts, and execute or procure the execution (as a deed or otherwise) of all such documents, as may from time to time be reasonably necessary to give full effect to the Agreement and to vest in the requesting party the full benefit of the assets, rights and benefits to be transferred to the requesting party under the Agreement.

25. Amendment and waiver

1. 25.1No variation of these T&Cs shall be effective unless it is made in writing, refers specifically to these T&Cs and is signed by both of the parties.
2. 25.2No waiver of any term, provision or condition of the Agreement shall be effective, except where it is clearly made in writing and signed by the waiving party. No waiver of any particular breach of these T&Cs shall be held to be a waiver of any other or subsequent breach.
3. 25.3No omission or delay on the part of any party in exercising any right, power or privilege under the Agreement shall operate as a waiver by it or of any right to exercise it in future or of any other of its rights under the Agreement.
4. 25.4The rights and remedies arising under, or in connection with, the Agreement are cumulative and, except where otherwise expressly provided in these T&Cs, do not exclude rights and remedies provided by law or otherwise.

26. Third party rights

1. 26.1No person who is not party to the Agreement shall have any right to enforce any term of the Agreement.

27. Governing law

1. 27.1The Agreement shall be governed by and construed in all respects in accordance with Japanese law. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to these T&Cs. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms 2020 (as amended)) shall apply but where they conflict with these T&Cs, these T&Cs shall prevail.
2. 27.2It is the Customer's obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the Products. It is the Customer's obligation to ensure that no Products are exported or imported in violation of the laws of any jurisdiction into or through which the Products are transported during the course of reaching the Delivery Point. Where necessary, the Customer shall inform Kosei at a reasonable time before delivery of any documents which it is necessary for Kosei to provide in order to allow export of the Products in compliance with the laws of any relevant jurisdiction.