Chapter 1: General Terms
AGASTA CO., LTD. (hereinafter referred to as the "Company") has created a service named "PicknBuy24.com" (hereinafter referred to as the "Service" and the website of the Service shall be hereinafter referred as the "Service Website"), an internet service content to offer vehicle data of Japanese used car stores to the people permitted to utilize the Service (hereinafter referred to as the "User(s)") and also to receive orders from the User(s) and to sell. The Company hereby establishes the following rules and regulations (hereinafter referred to as the "Terms") for the User(s).
Article2: Scope of and Changes to the Terms
1. The Terms apply to the Company and to the User(s) of the Service. Both the Company and the User(s) shall strictly adhere to the Terms in a sincere manner.
2. Where changes are made to the Terms, the Company will notify the User(s) of such changes.
If the User(s) does not indicate that he or she does not accept changes when he or she next uses the service, or within one week of notification of said changes, the User(s) will be deemed to have accepted the changes.
3. Where one or more Articles or parts of Articles contained within the Terms is deemed ineffective or not executable, the remainder of the Articles or parts of Articles will remain fully in force. The Company and/or the User(s) will legitimize the Article or part of Article deemed ineffective or not executable and revise it as necessary in order to facilitate enactment. Both parties will work toward achieving the original objective, as well as legal and economic impact, of the concerned Article or part of Article.
Article 3: User Notification
Notification: (1) Mail, (2) Fax, (3) the Service Website (Location undecided)
1. Except where otherwise stipulated in the Terms, the User(s) is notified by the Company via e-mail, via facsimile, via general postings on the Service Website, or by other means deemed appropriate by the Company.
2. Where notification as described in 1 above is carried out by e-mail, said notification is deemed complete when the e-mail is sent to the User's e-mail address.
3. Where notification as described in 1 above is carried out by facsimile, said notification is deemed complete when the facsimile is sent to the User(s)'s facsimile number.
4. Where the notification in 1 above is carried out via general postings to the Service Website, said notification is deemed complete once it has been posted to the Website and the User(s) accessing the Service can view the posting.
5. Once notification has been completed, any information contained in said notification is effective immediately.
6. The User(s) is under obligation to peruse notification from the Company made by e-mail without delay. User perusal e-mail is defined as the User(s) displaying the mail delivered to their server on their screen, carefully reading the content, and verifying that it has been understood.
Article 4: Applicable Laws, etc.
1. The enactment, validity, execution, interpretation, etc. of the Terms are subject to the laws of Japan.
2. The original English document pertaining to these Terms takes legal precedence.
No changes in enactment, validity, execution, interpretation, etc. are effective with respect to translation of the document into other languages.
Article 5: Court Holding Jurisdiction
1. Should any disputes between the User(s) and the Company occur with regard to the Service and/or any contracts concluded through the Service, the parties concerned agree to attempt to settle any such disputes in a sincere manner through discussion.
2. If the dispute(s) cannot be resolved through discussion between the parties concerned, it shall be decided by arbitration by The Japan Commercial Arbitration Association.
Article 6: Prerequisites for Utilizing the Service
1.The User(s) is responsible for obtaining the equipment necessary to utilize this Service, including communications equipment, software, relevant Internet services, etc.
2. Access to the Service Website is permitted only to the User(s) who has the qualification to utilize the Service (hereinafter referred to the "Member Qualification"). The Member Qualification shall be obtained as provided in Article 8.
Article 7: Making Changes to Registration Information
1. Should changes occur in registered user information such as name, address, telephone number, facsimile number, email account and other information provided to the Company at the time of registration, the User(s) must report any such changes to the Company immediately.
2. The Company is not liable for any damages incurred by the User(s) or a third party
due to failure to inform the Company of the changes in user information noted above.
3. Where the User(s) neglects to inform the Company of changes in registered information, the User(s) understands that the Company will deem any notification sent to have been received by the User(s) at the time it is supposed to be received, even if said notification returns to the Company as undeliverable, as the notification will be sent as indicated in the information previously provided to the Company by the User(s).
Article 8: Member Qualification
The Member Qualification will be provided to an individual or a corporate body when they
(ii) provide their required personal information specified on the applicable registration screen, and
(iii) obtain user ID and password.
Article 9: Forfeit of Membership
The Company has the right to revoke the Member Qualification of the User(s) applicable to the following.
1. In case of bankruptcy of the User(s), or when the Company decides the User(s) has the risk of bankruptcy.
2. Where the registration information provided by the User(s) is found to be untrue, inaccurate, or incomplete.
3. Where the User(s) is in breach or violation of the Terms or any other agreements with the Company.
4. In case the Company decides the User(s) is inadequate due to the following circumstances.
(i) Where the User(s) takes any action that infringes on the Company or third party copyrights or other rights, or actions that pose a threat to such rights.
(ii) Where the User(s) takes any action that infringes upon the Company's assets or its privacy, or actions that pose a potential threat to such rights.
(iii) In addition to numbers 1 and 2 above, where the User(s) takes any action that causes loss or damage to a third party or to the Company, or any action that poses a potential threat of such loss or damage.
(iv) Where the User(s) transfers the rights stipulated in the Terms to a third party.
(v) Where the User(s) takes any action resulting in the defamation of a third party or the Company.
(vi) Where the User(s) takes any action that runs counter to public order and morals (including obscenity, prostitution, violence, atrocities, abuse, etc.) or any action deemed by the Company to potentially lead to such violations, or the action of providing information that runs counter to public order and morals to a third party.
(vii) Where the User(s) takes any illegal action or any action related to illegal action, or action that could potentially lead to illegal action.
(viii) Where the User(s) takes any action related to the sex industry or religious proselytizing.
(ix) Where the User(s) utilizes the Service as a third party.
(x) Where the User(s) falsifies or suppresses the Company's or any third party's information through access of the Service.
(xi) Where the User(s) utilizes harmful computer programs such as viruses through the Service or in conjunction with the use of the Service, or provides any such programs.
(xii) Where the User(s) takes any action leading to inconvenience or loss for the Company or a third party, any action that may interfere with the Service, or any action that impede operation of the Service.
(xiii) Where the User(s) utilizes the Service in order to cause significant interference to the use of the Service by other users, either directly or indirectly.
(xiv) Where the User(s) takes any action that may promote any of the above actions including linking to sites that carry out the above actions (including where said actions are carried out by a third party).
(xv) Where the User(s) takes any other illegal action or any action that may potentially lead to illegal actions.
(xvi) Where the User(s) takes any other action deemed inappropriate by the Company.
Article 10: Copyrights
1. The User(s) may not utilize any information or files accessed via the Service by any means whatsoever without the permission of the copyright holder for any purpose besides individual personal use.
2. The User(s) may not, by any means whatsoever, have third parties utilize or disclose information or files obtained through the use of the Service without the permission of the copyright holder.
3. Should any disputes arise due to violation of the rules stipulated in this Article, the User(s) is responsible, financially and otherwise, for the resolution of such disputes.
The Company will not be held liable in any way, and the User(s) will not cause loss to the Company.
Chapter 2: Information Pertaining to Sales Contracts
Articｌe 11: Order
1. The Users can request a Proforma Invoice by clicking the "Order" button on Web-stock list in the Service Website. The User(s) can request more particular information by sending inquiry to the Company separately.
2. Where a Proforma Invoice (and more particular information) is requested according to the procedure described above, it will be forwarded to the User(s) within three business days by e-mail or other means deemed appropriate by the Company. The Proforma Invoice will be displayed in accordance with the required delivery terms.
3. Proforma Invoice will be forwarded to the User(s) as described in Article 3 of these Terms. Note, however, that this information will not be conveyed in the form of general postings on the Service Website.
4. Proforma Invoice will be sent only for the User(s) that completed the required information as stipulated under the rules of the service as required in the Terms. Should the User(s) be unable to obtain a Proforma Invoice due to incorrect or incomplete information, etc., and as a result incurs loss such as damage or conflict, the User(s) is responsible, both financially and otherwise, for resolving any disputes arising. The Company will not be held liable in any way, and the User(s) will not cause loss to the Company.
Article 12: Payment
1. Where the User(s) wish to purchase the products from the company through the service website, the User(s) shall remit the amount indicated in the Proforma Invoice (described in Article 11) transferred by telegraphic transfer to the Company's Account.
2. The Company utilizes systems required for proper payment processing, including requiring the User(s) to enter the Chassis No., Full name and Telephone No. on the message line.3. The User(s) are responsible for any bank fees incurred in the remittance of funds.
Article 13: Conclusion of Contract
1. The User(s) wishing to purchase products from the Company through the Service shall respond to the Proforma Invoice which the User(s) received from the Company and confirm the purchase (the "Confirmation of the vehicle").
2. The contract between the User(s) and the Company is concluded according to the Terms where the Confirmation of the vehicle is sent to the Company via email.
Article 14: Termination of Contract
1. Even where the contract has been concluded as described in Article 13, the Company reserves the right to terminate the contract;
(i) where the products cannot be delivered for reasons related to import restrictions, guidance or instructions, etc., from the relevant authorities;
(ii) where the User(s) has made false statements or has performed illegal acts, or where it is recognized that the contract is rendered impossible to execute due to actions of the User(s).
2. The Company is entitled to terminate or cancel the contract forthwith by written notice to the User(s) upon the occurrence of any of the following events:
a. In the event the User(s) shall fail to perform any of the terms or conditions contained in the Terms;
b. In the event of the insolvency of the User(s) or in the event a voluntary or involuntary petition in bankruptcy is filed by, against or on behalf of the User(s)
3. In instances as described in 1 and 2 above, any funds remitted or payments made to the Company will be returned to the User(s). Any bank fees arising as a result are paid by the User(s), and the Company pays no interest whatsoever on funds held through the date of refund. Further, where any actual costs arise through the period up until the refund is made, any such costs are the responsibility of the User(s), and the Company bears no such costs whatsoever.
Article 15: Shipment
1. It is the responsibility of the User(s) to research in advance any import regulations in their own country.
2. It is the sole responsibility of the User(s) to abide by any import restrictions,
guidance and instructions from the relevant authorities that arise from neglecting to
proceed as described in (4) above, and the User(s) will not hold the Company liable
in any instance whatsoever. Further, the User(s) is liable for any resultant
damages incurred by the Company, while the Company bears no liability for any such damages.
3. Local clearance and vehicle registration will be arranged by the User(s).
4. In case the contract is terminated on the grounds provided in 3 of this Article 15, the Company shall not refund any deposit or payment made by the User(s).
Article16: Risk and Title
1. Risk of the Products shall pass from the Company to the User(s) when the Products pass the rail of the ocean-going vessel at the port of loading.
2. The Company shall reserve the title to the Products until the full payment for the Products have been made.
Article 17: Refunds
1. Other than the cases provided in 3 of Article 14, refunds are made only where there is a reasonable basis for such action, such as where agreement is not reached on a contract for the payment concerned.
2. Refunds may also be given where both parties agree, even where no reasonable basis as described in 1 above is recognized.
3. Bank fees assessed on remittances related to refunds as described in 1 and 2 above are paid by the the User(s), except where the Company is largely responsible.
Article 18: Product Liability
The Company's sales are based on as-is condition at the time of the sale. The Company bears no liability whatsoever for problems, including failure and/or accidents, with the User(s) purchases of products where such problems arise from breakdown, defects etc. that are the responsibility of the commodity manufacturer. Further, the Company holds no liability for damages so incurred by any third parties.
Article 19: Defect Liability
1. As described in Article 18, once property rights have been transferred, the Company is in no way liable for damages incurred by the User(s), including defects or failure. Further, the Company holds no liability for damages so incurred by any third parties.
2. The Company and the User(s) may agree to conditions other than the above, in which case their agreement takes precedence.
3. Except where otherwise specified in the Terms, the Company shall not accept any claim for the vehicle.
4. The condition described on the Service Website shall be carefully examined by the User(s) on his or her own responsibility.
5. The Company shall not be responsible for any damage found after purchase.
Article 20: Cost Burden
1. The Company is in no way liable for costs related to failure or accidents stemming from defects, for defects or failures that are the responsibility of the manufacturer, or for other damages incurred by the User(s) or a third party. The User(s) covers the cost burden required to resolve any such issues.
2. In the extremely rare event that breakdown or other such damages occur as a result of criminal intent or gross negligence on the part of the Company, the Company will pay all repair and compensatory costs involved, regardless of the rules stipulated in 1 above.
3. The Company and the User(s) may agree to conditions other than the above, in which case their agreement takes precedence.
Article 21: Cancellation
1. The User(s) may terminate the contract before the Company delivers the Products to a carrier for shipment to the User(s) with payment to the Company of 10% of the contract amount or US$1,000, whichever is larger.
2. The User(s) may cancel the Products which is ordered other than the line up displayed in the Service with payment to the Company of 30% of the contract amount.
3. The User(s) may terminate the contract after the Company delivers the Products to a carrier for shipment to the User(s) with payment to the Company of general costs accrued at the destination in addition to the full amount of the contract.
Article 22: Returns
1. Where a contract is concluded as stipulated above, the Company will not allow for any returns once the products or property rights on such products have been transferred.
2. Exceptions to the above may occur where the Company is largely responsible.
Chapter 3: Other Important Issues
Article 23: Safeguarding User Information
The Company will not dispose of or disclose information provided to the Company by the User(s) in register as service user, or information that becomes known to the Company through the process of the User(s)'s utilizing the Service, except under the following circumstances.
1. Where the User(s) agrees to the disclosure of limited personal information (user name, address, telephone number, e-mail address, etc.).
2. Where the Company discloses statistics collected on personal information (the type of information where individual the User(s) are not specified) for the purpose of assessing trends in the use of the Service.
3. Where disclosure is required by law.
Article 24: Termination and Suspension of Service
The Company may terminate or suspend operation of the Service under the following circumstances:
1. For regular or emergency system maintenance or work on the Service, or under unavoidable conditions such as a company system failure.
2. Where due to war, civil unrest, rioting, labor disputes, earthquake, volcanic eruption, floods, tsunami, fire, blackout, system failure due to hacking or a computer virus, or other emergency conditions, the Service cannot be operated as usual.
3. Where so restricted or order by a government agency, or where the services of other electronic communications companies have been terminated or suspended.
4. Under any other circumstances where the Company deems temporary suspension necessary to the operation of the Service.
5. The Company will inform the User(s) in advance when operation of the Service is to be terminated or suspended as per the above. Note, however, that this may not be possible in emergency situations.
6. The Company is in no way liable for damages incurred by the User(s) or third parties resulting form termination or suspension of the Service.
Chapter 4: COMPENSATION FOR LOSS
Article 25: Exclusions
1. Except where otherwise specified in the Terms, the Company is in no way liable for damages incurred by the User(s) or third parties through the provision of or delays/changes in, suspension, termination, discontinuance, or abolishment of the Service, leakage or loss of information provided through registration with the Service or other means, or damage otherwise incurred related to the Service.
2. The above may not necessarily apply in cases where there is criminal intent or gross negligence on the part of the Company.
3. The Company makes no guarantees whatsoever in terms of the completeness, accuracy, usability, etc., of the description of the Service, or of information obtained by the User(s) through the Service.
4. The Company makes no guarantees of proper operation of any user equipment or software.
5. The Company is in no way liable for any disputes between the User(s) and third parties that may arise through use of the Service.
6. In addition to the above, the User(s) is liable for compensation of any damages incurred by the Company as a result of his or her violation of the Terms, criminal intent, or gross negligence.
7. Any of the rights and obligations hereunder shall not be assigned by either party without a prior written consent of the other party. In the event an assignment is consented to by the other party, this Agreement shall inure to the benefit of and be binding upon the successor or the assignee.
8. Should any provision of the Terms be invalid or unenforceable, then such provision shall be given no effect and shall be deemed not to be included within the Terms, but without invalidating any of the remaining terms of the Terms. The parties hereto shall then endeavor to replace the invalid or unenforceable provision by a clause which is closest to the contents of the invalid or unenforceable provision.
For Buyers who purchased with "Extra Warranty" option
No claim shall be accepted unless;
1. The Buyer notifies the Seller of any claim in detail in writing within 14 days after the arrival of the vehicle at the destination specified in the bill of lading;
2. The Buyer sends to the Seller the following documents via e-mail or facsimile within 7days after the notice set forth above is sent: port authority's report of any damage or missing items of the vehicle; a reputable local garage's report and quotation in U.S. dollar currency for repairs; and photos of relevant damages
For Buyers who purchase construction/farm machineries
1. No claim shall be accepted in any case.
For other Buyers
1. No claim shall be accepted unless all of the following requirements are met:
(i) The Buyer purchases the vehicle with Warranty option;
(ii) The FOB amount of the vehicle purchased is above US$1,500
(iii) Claimed damages is above US$300
(the Buyer shall bear up to US$299 as a repair cost per car);
(iv) The age of the vehicle is less than 10 years;
(v) For engine and transmission trouble, the number of miles driven of the vehicle is less 100,000km.
(vi) The Buyer notifies the Seller of any claim in detail in writing within 14 days after the arrival of the vehicle at the destination specified in the bill of lading; and,
(vii) The Buyer sends to the Seller the following documents via e-mail or facsimile within 7days after the notice set forth above is sent: port authority's report of any damage or missing items of the vehicle; a reputable local garage's report and quotation in U.S. dollar currency for repairs; and photos of relevant damages
2. The Seller shall not be liable for any of the following:
(i) Interior damages that are judged as minor, negligible, or invisible;
(including without limitation scratches, cigar burns, stains and cuts);
(ii) Missing or damaged interior equipment
(including without limitation shift knobs, head rests, sun shades, spare tires, jack tool kits, floor mats, cigarette lighter, and remote controls);
(iii) Exterior damages that are judged as minor, negligible, or invisible
(including without limitation scratches, tiny dents, holes and small rust); or
(iv) Snow tires or wheels without wheel lock nuts removed; or,
(v) Any consumables including without limitation oil, fuel, tire tread, air-conditioning gas, etc.
Chapter 5: Special Conditions Applicable to Used Construction/Farm Machineries
2. User(s) acknowledges that at the time User(s) order the used construction/farm machineries pursuant to Article 11 or at the time of remittance of payment amount pursuant to Article 12, the ownership of used construction/farm machineries does not belong to the Company but to a third party owner.
3. Upon confirming the remittance of payment amount pursuant to Article 12, Company will commence the purchasing process of the subject used construction/farm machinery between the third party owner without delay. User acknowledges that if User cancels the order after remitting the payment amount, Company may deem 100% of the amount remitted by User to Company as cancellation penalty and that User is not entitled to claim for any refund.
4. User(s) acknowledge that Company does not guarantee that the Company will obtain ownership of the subject used construction/farm machinery from the third party owner. If Company does not obtain ownership of the subject used construction/farm machinery from the third party owner due to any reason (including but not limited to preceding purchase orders or negative inspection results regarding the machinery), Company will refund 100% of the remitted payment amount to User, but shall be waived from any further liabilities whatsoever.
5. Company will send confirmation to User upon obtaining ownership of the subject used construction/farm machinery from the third party owner. Upon such confirmation, the purchase contract regarding the used construction/farm machinery shall conclude between the User and Company.
6. User acknowledges that the purchase contract regarding the used construction/farm machinery between the User and Company is based on as-is condition of such machinery as of the time such purchase contract has been concluded. User acknowledges and agrees that Company will not accept any claims, including but not limited to any failure of the machinery such as mechanical failure or condition level, in any case unless the condition of the machinery is significantly different from the information indicated on the Service Website due to reasons attributable to Company.