GENERAL TERMS AND CONDITIONS
NATIVE INSTRUMENTS Japan K.K. (also called "Native Instruments" in the following). As of December 2012
The following is a translation of the Terms and Conditions for the Native Instruments KK in Japan. If you’re not in Japan, please select the appropriate terms and conditions for your area here.
§ 1 General
1. Our deliveries, services, and offers are made solely on the basis of these General Terms and Conditions. They are a component of all contracts that we conclude with our contractual partners (also called "Customer(s)" in the following) for the deliveries or services we offer. They also apply to all future deliveries, services, or offers to the Customer, even if they are not agreed to again separately.
2. We do not accept opposing or deviating terms and conditions of the contractual partners unless we have expressly agreed to their validity in writing.
3. These General Terms and Conditions are also applicable in the event that we carry out a delivery without reservation with the knowledge of these opposing or deviating terms and conditions of the Customer.
§ 2 Offer, Order, Offer Documents
1. All of our offers are subject to change and are non-binding insofar as they are not expressly labeled as binding in writing or have received a certain deadline for acceptance. The order of the Customer is an offer to us to conclude a contract for purchase. With our receipt of the Customer's order we will send a written or electronic order confirmation first that confirms our receipt of the order insofar as the subject of the order is not a software download. This order confirmation is not an acceptance of the Customer’s offer yet; rather, it merely confirms that we have received the order. Therefore, the contents of the order confirmation are not binding for us. This applies in particular insofar as the order confirmation contains incorrect information on account of automated processing (for example errors in prices or calculations). A binding contract only arises when we ship the ordered product to the Customer and the shipment to the Customer has been confirmed by means of a written or electronic shipping confirmation. In the event of a software download, a binding contract only arises with the receipt of the goods or the invoice, depending on which occurs first. Our written or electronic confirmation of shipment or, in the case of downloads, invoice, is solely authoritative for the scope of delivery. Ancillary agreements or changes require our written or electronic confirmation for their validity.
2. Changes to the subject of delivery, in particular those of a technical nature, remain reserved insofar as (i) the subject of delivery is not significantly changed and the changes are not unreasonable for the Customer or (ii) we have not expressly agreed in writing with the Customer that the information about the subject of the delivery or service is binding.
Insofar as nothing else is expressly agreed in writing, information about the subject of the delivery or service as well as the related representations are not guaranteed by us. Such information and representations are not a description of the target quality without our express written or electronic agreement. Without another written or electronic promise from us, this concerns merely a non-binding description or labelling of the delivery or service from which minor and insignificant deviations are allowed. This applies in particular even if such information is included in our brochures or price lists or we provide information about technical data and the characteristics of the goods on our informational pages in the internet. In the event that we have agreed to the target quality of the delivery or service with the Customer in a binding manner, changes by us remain allowed to the extent that they take place on account of compulsory legal requirements and are reasonable for the Customer. In the event that they are unreasonable, the Customer has the right to withdraw from the contract. Further going claims are excluded.
3. Insofar as we have made an offer to the Customer that has been expressly designated as binding, we are bound to it for 2 (two) weeks insofar as nothing else has been expressly communicated in writing.
4. We retain all rights, in particular copyrights, to any and all documents, illustrations, etc. provided to the Customer. The Customer may only use them in the scope of the contractually intended purpose.
5. Insofar as the Customer is not legally competent, we assume that the agreement of his legal representative is at hand for the order he makes or that the Customer brought about the ordered service with money that his legal representative made available to him or which was provided with the legal representative's approval by a third party for this purpose or for free disposal.
§ 3 Prices, Conditions of Payment
1. The prices agreed between us and the Customer apply only for the scope of delivery and service in our respective shipping confirmation. Any additional or special performances will be charged separately.
Insofar as our contractual partner is a merchant within the meaning of the Japanese Commercial Code and we have not expressly agreed to something else in writing, the prices are in Japanese Yen ex works Teckwah Tokyo Warehouse (Incoterms 2010) without the statutory value-added tax and packaging.
2. All invoiced amounts are – unless nothing else is expressly agreed in writing – due without any deduction whatsoever at the latest 30 (thirty) days after the invoice date. Our receipt of the payment is authoritative for payment having been made in a timely manner. Payments are always credited against the oldest still-open invoice. The deduction of a trade discount requires a separate written agreement. If the Customer is a consumer within the meaning of the Japanese Consumer Contract Act (“CCA”), applicable in deviation is that payment obligations – insofar as no other agreement is made expressly in writing – are always to be fulfilled by means of advance payment. Upon receipt of the advance payment and corresponding offer from the Customer who is a consumer within the meaning of the CCA, we will send the notice to accept or not to accept such offer by email, electric confirmation, written notice or any other means to such Customer.
3. If the Customer does not pay by the due date and the Customer is a merchant within the meaning of the Japanese Commercial Code, the remaining outstanding amounts bear interest at the amount of [6%] p.a. from the due date. If the Customer is an end-customer and not a merchant and does not pay any outstanding payments to Native Instruments by the due date, interest at an interest rate of [5%] p.a., calculated from the due date, shall be levied on such outstanding payments.
4. The Customer is only entitled to set off with counterclaims if the counterclaims are established by court of law, undisputed, or recognised by us. Furthermore, the Customer is only allowed to exercise a right of retention insofar as its counterclaim is due and based on the same contractual relationship.
5. Insofar as we have not already agreed to advance payment with the Customer, we are entitled to demand pre-payment or payment of a security by the Customer before we carry out outstanding deliveries if circumstances become known that in our diligent judgment are suited to substantially reduce the creditworthiness of the Customer and which would endanger payment of our open, due claims by the Customer from the respective contractual relationship includes those from other individual orders insofar as they are on the basis of the same legal relationship.
6. Insofar as nothing else was expressly agreed in writing with the Customer, all payments are to be made solely to us in ￥(Japanese Yen).
§ 4 Customs and Duties, Import Value-Added Tax
If the Customer has its domicile abroad (outside Japan) and the subject of the delivery is therefore imported into another country, customs and duties or import value-added tax are collected on which we have no influence and the amount of which we cannot name ahead of time. Such customs or import duties or import value-added taxes are to be borne by the Customer and will not be assumed by us. The Customer is to get in touch with the competent customs office for more information about the customs, import duties, or import value-added taxes arising in the individual cases, because customs regulations vary from country to country. As an importer, the Customer is to comply with the respective local regulations. We reserve the right to simply the customs procedures by making statements about the value in the package towards customs. Customs is, however, also entitled to open packages for the sake of simplicity. We have no influence on this.
§ 5 No Cancellation
No return of goods is acceptable and the Customers may not withdraw its order nor cancel the purchase agreement except for the cases in which Customers may withdraw its order or cancel purchase agreement because of defect liability or liability for breach of contract pursuant to these General Terms and Conditions.
§ 6 Delivery and Delivery Period
1. The beginning of the delivery period assumes the final clarification of all technical questions with the Customer as well as the provision by the Customer of any documents, permits, and authorisations to be obtained by the Customer as well as the receipt of any agreed pre-payment or security, and by payment of the purchase price of the goods by means of advance payment in the case of consumers within the meaning of the CCA. Our shipping confirmation is authoritative for delivery periods. The periods or dates for deliveries and services contained therein are only binding to the extent that a fixed period or fixed deadline is expressly promised or agreed there or if we have expressly confirmed a period or deadline as binding separately in writing or via email. Other periods and deadlines mentioned by us are non-binding.
2. Depending on the kind of subject of the delivery and the manner of sales deliveries occur either by means of physical shipment or by means of download by the Customer.
3. Insofar as the Customer is a merchant within the meaning of Japanese Commercial Code and we have not expressly agreed to something else in writing, the delivery period has been adhered to when we have made the subject of the delivery available at our own plant by the expiry of the deadline and announce readiness to ship to the Customer or have handed it over to the transporting party. In the event of delivery by means of download, the delivery period has been adhered to if we have made it possible for the Customer to download the subject of the delivery by expiry of the period.
4. We are entitled to refuse handover to the transporting party if secure loading cannot be ensured according to Native Instruments’ standards for loading on account of the condition of the transporting vehicle provided by the transporting party or if, according to our due consideration, it does not satisfy the requirements that must be fulfilled pursuant to the applicable laws and regulations in Japan in order for the vehicle to be operated on public roads. If we refuse handover to the transporting party for the reasons named above, the regulations pursuant to § 7 apply in the corresponding manner.
5. Reasonable partial deliveries or partial services are allowed in a reasonable scope if such is usable by Customer in the scope of the contractual purpose, the delivery of the reminder of the goods is ensured, and no additional expenses or significant additional effort arises for the Customer on account of this. The following applies with regard to shipping expenses: If the Customer is a consumer within the meaning of the CCA, no additional shipping expenses arise for the Customer in the event of partial deliveries. If the Customer is a merchant within the meaning of the Japanese Commercial Code and we have not expressly agreed to something else in writing, in the event of partial deliveries we will charge the shipping expenses at cost.
6. Insofar as we are in arrears with a delivery or service or a delivery or service is impossible, the Customer is entitled to withdraw from the contract pursuant to the statutory provisions. We are only liable for damages in the event of arrears or impossibility pursuant to the provisions in § 9 of these General Terms and Conditions.
7. A force majeure entitles us to delay the delivery or service for the period of the hindrance and a reasonable start-up period or to withdraw in part or whole from the part of the contract not fulfilled yet. Natural catastrophes, strikes, lock-outs, political unrest, or other unforeseeable circumstances that make timely delivery or performance impossible despite reasonable efforts are considered a force majeure. This also applies if the hindrances named above arise at a subcontractor of ours or arise while we are in arrears. We will inform the Customer without delay in the event that a force majeure within the meaning of this § 6 arises. The Customer can demand that we declare within 6 (six) weeks whether we will withdraw from the contract in whole or in part or deliver within a reasonable grace period with regard to the as yet unfilled part of the contract. If we do not make a declaration within the period named by the Customer, the Customer can withdraw from the part of the contract that has not been fulfilled yet.
§ 7 Packing, Shipping, Transfer of Risk and Acceptance of the Goods by the Customer
1. Insofar as not expressly otherwise agreed in writing, we are free to choose the kind of packaging according to our discretion.
2. If the Customer is a merchant within the meaning of the Japanese Commercial Code, the risk of accidental loss and accidental deterioration is transferred to the Customer at the latest with the dispatch of the goods to the shipper, freighter, or person named for shipment by the Customer or at the time of download by the Customer. This also applies in the event of partial deliveries. If the Customer is a consumer within the meaning of the CCA, the risk of accidental loss and accidental deterioration is transferred to the Customer at the latest with receipt of the goods by the Customer – regardless of whether in physical form or by means of download.
3. Furthermore, if the Customer is a merchant within the meaning of the Japanese Commercial Code, it is in acceptance arrears if we have announced readiness to ship and the Customer refuses to take over the goods on the named date or it does not pick the goods up or have them picked up by a transporting party on the named date.
4. If the Customer is unable to accept delivery or if he violates any of his other obligations to cooperate by his fault, we are entitled to request reimbursement of the damage we have incurred from such event, including all potentially incurred extra charges. In this case the risk of accidental loss or accidental deterioration of the subject of purchase is transferred to the Customer. After the setting and fruitless elapsing of a reasonable period, we are also entitled to dispose of the subject of delivery in another manner and make a delivery to the Customer with a reasonably prolonged period.
5. The subject of the delivery will be insured against theft, breakage, shipping damages, fire damages, water damages, and other insurable risks only upon express request of the Customer at Customer’s expense.
§ 8 Warranty
1. Insofar as the Customer is a merchant within the meaning of the Japanese Commercial Code, its claims for defects assume that it adhered to its statutory duties to inspect and make notices of defects in an orderly manner. In this case the Customer must declare any notices of defects to us in writing with exact information about the kind and scope of the defect so that it is possible for us to check whether the notice of defects is just. In particular, the Customer is to inspect the delivered goods without delay after they arrive for shipping damages and note damages found on the delivery slip, have this notification signed by the transporting party, and inform us about this in writing, too.
2. Insofar as there is a defect in the subject of the delivery, we are entitled according to our own choice – in the event that the Customer is a consumer within the meaning of the CCA: According to the choice of the Customer – to rectification of defects or replacement delivery. In doing so, we are to bear the expenditures necessary for remedy of fulfilment pursuant to the legal regulations.
3. If the Customer is a merchant within the meaning of the Japanese Commercial Code and the Customer makes justified claims for expenses against us in conjunction with the remedy of fulfilment that arise from the use of its own employees or items, then the claims for reimbursement of the Customer are limited to the extent of its own expenses. If the Customer is a merchant within the meaning of Japanese Commercial Code and the expenses necessary for the purposes of remedy of fulfilment are increased because the subject of delivery was brought to a location other than the location of delivery on account of the Customer, additional expenses arising on account of this are to be borne by the Customer.
4. A replacement delivery by us assumes that the buyer returns the defective subject of delivery concurrently and – insofar as the Customer is a merchant within the meaning of the Japanese Commercial Code – pays reimbursement for the value of utilisation. Insofar as the Customer is not a merchant and returns the defective subject of delivery to us, we may, at our sole discretion, claim compensation for the value of utilisation against the Customer.
5. If we are not willing to rectify defects or make a replacement delivery or are unable to do so, or when it would take unreasonable periods of time due to reasons outside our influence, or if rectification of defects fails in a final manner for any other reasons, the Customer is entitled to withdraw from the contract or demand reduction of the purchase price according to its choice. In the event of withdrawal, we are obligated to refund of the paid purchase price only concurrently against return of the defective subject of delivery and payment of reimbursement for the value of utilisation by the Customer.
6. The right to withdraw of the Customer in the event of defects in the goods is excluded in cases in which the Customer is unable to return the received performance and this is not because the return is impossible on account of the nature of the received performance or a defect was only revealed after processing or transformation of the goods. In the event of the delivery of defective goods or in the event of partial deliveries, the Customer is entitled to withdrawal from the entire contract or reimbursement for damages instead of the entire performance pursuant to the regulations of the following § 9 only if it has no interest in the supplied performance from an objective point of view.
7. For significant third-party products that are a component of the subject of delivery or the delivery, for example the software of other manufacturers, our liability is limited to the assignment of the claims to which we are entitled against the manufacturer of the third-party product, except for the case where the CCA is applicable and the Customer incurs damages caused by our gross negligence or wilful misconduct or a latent defect in the product purchased from us. In the event that the CCA is applicable and the Customer incurs damages caused by our gross negligence or wilful misconduct, we may be liable for compensating such damages pursuant to Japanese laws and regulations. In the event that the CCA is applicable and the Customer incurs damages caused by a latent defect in the product purchased from us, the damages which we will be liable to compensate shall not exceed the total amount paid by the Customer for such product. Should the claim made against the manufacturer of the third-party product fail for reasons for which the Customer is not responsible (for example the insolvency of the supplier), then the Customer is entitled to claims on account of defection pursuant to the regulations of this § 8.
8. If the Customer is a merchant within the meaning the Japanese Commercial Code, the following applies in deviation from § 8: If the Customer has sold the subject of delivery to a consumer within the meaning of the CCA (“sale of consumer goods") and the subject of the delivery has to be recalled from the consumer on account of a defect or the consumer has reduced the purchase price, then the Customer can demand, according to its choice, rectification of defects or replacement delivery, withdraw from the contract, or reduce the purchase price. § 8 (4) and (5) do not apply in this case.
9. The Customer is then solely entitled to claims for damages pursuant to the regulations of the following § 9.
10. The warranty lapses if the Customer modifies the goods or has a third party modify them without our prior agreement and this makes rectification of defects impossible or unreasonably difficult. In any case, the Customer is to bear the arising additional expenses for rectification of defects on account of the modification. In particular, no liability will be assumed for damages that arose on account of the following reasons:
- Improper use, improper handling;
- Unsuitable operating conditions;
- Improper installation, start up, or use by the Customer or third parties to the extent that the owner's manual or instructions provided by use are not incorrect;
- Modifications on the subject of delivery by the Customer or a third party;
- Improper or negligent handling;
- Opening of the product.
11. If the Customer is a merchant within the meaning of the Japanese Commercial Code, the statute of limitations for claims for remedy of fulfilment, withdrawal, and reduction in price on account of latent defects in the subject of delivery amounts to 6 months from transfer of risk to the Customer. If the Customer is a consumer within the meaning of the CCA, the statute of limitations for claims for remedy of fulfilment, withdrawal, and reduction in price on account of latent defects in the subject of delivery amounts to 1 year from the time of discovery of such defects in deviation from the first sentence of this § 8 (11).
The following regulation in § 9 is applicable to the statute of limitations for claims for damages that involve defects in the subject of the delivery.
§ 9 Damages
1. We may be held liable for damages incurred by a Customer solely from impossibility, arrears, defective or incorrect delivery, breach of contract, or for tortious acts pursuant to the regulations of this § 9. For the rest, any liability for damages is excluded.
2. We may be held liable in the scope of the statutory provisions on account of intentional or grossly negligent actions of our legal representatives or managers, on account of injury to life, limb, or health, and for guaranteed characteristics and pursuant to the provisions of the Japanese Product Liability Act.
3. Furthermore, we may be liable
- For damages from the slightly negligent breach of material contractual obligations by our legal representatives, managers, and other agents;
- For damages that were caused by our simple agents grossly negligently or intentionally without breach of duties material to the contract.
Material contractual duties are those for which fulfilment makes orderly fulfilment of the contract possible in the first place and adherence to which the Customer regularly counts on and may count on.
4. Our liability for damages pursuant to § 9 above is limited to the amount of damages that are typical of the contract and foreseeable.
5. Insofar as our Customer is not an end customer, our liability pursuant to § 9 above is excluded insofar as the Customer has limited its own liability towards its customer in an effective manner. In doing so, the Customer will make its best effort to agree to limitations of liability against its own customers to the extent legally allowed – also for our benefit.
6. Furthermore, in the scope of our liability pursuant to § 9 above, we are not liable for any indirect damages and consequential damages that are a consequence of defects in the subject of delivery.
7. Claims for damages on account of lost profit are excluded in any case.
8. Insofar as we give technical information or act as consultants and this information or advice does not belong to the scope of performance owed by us and contractually agreed, this occurs at no charge and to the exclusion of any liability whatsoever.
9. We are not liable for the loss of data if and insofar as such loss of data is not caused by our wilful misconduct or gross negligence.
10. Insofar as the Customer wishes to make a claim pursuant to the regulation above, the Customer shall inform us and consult with us in a comprehensive manner without delay. The Customer is to give us the opportunity to inspect all the circumstances and causes of the damages incurred and the damage event.
11. The regulation on the exclusion of warranty in § 8 of these General Terms and Conditions applies in the corresponding manner.
12. The time barring period for claims for damages on account of defective delivery amounts to 6 months after transfer of risk if the Customer who is a merchant within the meaning of the Japanese Commercial Code, and 1 year from the time of discovery of such defects if the Customer is a consumer within the meaning of the CCA . The time barring period for claims for damages on account of the breach of other contractual duties amounts to one year after the end of the year in which the claim arose and the Customer gains knowledge of the circumstances founding the claim and gained knowledge of the debtor party or must have gained knowledge of it without gross negligence.
In the event of injury to life, limb, or health, for damages pursuant to the Japanese Product Liability Act, and for those caused by the fraudulent conduct, intention, gross negligence, or negligent breach of material contractual duties within the meaning of § 9 of our legal representatives, managers, or agents, the statutory statute of limitations is applicable in deviation from this.
§ 10 Retention of Title
1. If our Customer is a merchant within the meaning of the Japanese Commercial Code, the goods remain our property until complete payment of all claims from the business relationship including those arising in the future, also from contracts concluded simultaneously or later. This also applies if individual or all of our claims were collected by us in a current account and the balance has been drawn and recognised.
2. In the event of contracts with a Customer which is a consumer within the meaning of the CCA, we retain ownership of the goods until complete payment of the purchase price.
3. If we withdraw from the contract on account of culpable conduct of the Customer in breach of contract, in particular on account of late payment, the Customer is to bear all expenses for repossession of the subject of the delivery by us. After repossession of the goods, we are authorised to dispose of them; the utilisation proceeds are to be set off against the liabilities of the Customer with deduction of reasonable utilisation expenses.
4. In the event of pledging of the goods subject to retention of title or other encroachments by third parties, the Customer is to inform us without delay and make all necessary declarations and inform the third party about the existing ownership circumstances. The Customer may not pledge the subject of delivery or assign it as a security. The Customer is also obligated to treat the subject of the delivery with care; the Customer is especially obligated to insure them itself sufficiently at the original value against loss and damage and destruction, including fire, water and theft.
5. If the Customer is a merchant within the meaning of the Japanese Commercial Code, it is entitled to sell the purchased item in the ordinary course of business; however it already assigns to us all claims in the amount of the final invoiced amount with all ancillary rights that arise for it from the further sale against its customer or third party. The Customer remains entitled to collect this receivable even after assignment. We may collect the receivable ourselves if the Customer is in arrears with its duties to pay us or if the Customer is insolvent or has made an application to open insolvency proceedings. In this case the Customer is obligated to inform us of the receivables assigned and the respective debtors, state all details necessary for debt claim recovery, hand over all documents pertaining and notify the debtors (third parties) of the assignment.
6. We obligate ourselves to release the securities to which we are entitled upon request of the Customer to the extent that the realisable value of our securities with consideration for the assessment deductions typical for banks exceed the value of the claims to be secured by more than 20%; in doing so the wholesale price for goods and the nominal value of claims are to be assumed. The choice of securities to be released is incumbent upon us.
§ 11 License Rights
1. The contents on the Native Instruments website that are labelled as not for sale (in particular audio recordings, pictures, videos), are protected by copyright and intended for demonstration purposes only. They may not be downloaded and/or used in any other way without the agreement of Native Instruments GmbH.
2. Prerequisite for use of the software manufactured by Native Instruments GmbH itself is the agreement to the regulations of the end user license agreement (EULA) of Native Instruments as well as any additional license agreements (including those of third parties as the case may be).
§ 12 Intellectual and Industrial Property Rights
1. Insofar as nothing else has been expressly agreed in writing, we do not warrant that the subject of delivery does not infringe the intellectual and industrial property rights of any third parties in the country of delivery. We are not liable for any damages of Customers or any third party for infringement of intellectual and industrial property rights of the subject of delivery.
§ 13 Data Protection
The order processing is done with the help of automatic data processing. We collect, process, and use personal data of the Customer in the scope of order processing as well as during activation and registration of the software. For order processing we may transmit the personal data of the Customer to third parties that may have their domicile outside of the Japan (for example, service providers in the USA). Furthermore, we save, process, and use the personal data of the Customer in an anonymised or pseudonymised manner in order to continuously improve our offerings for our Customers. Further information about the kind, scope, and purpose of the collection, processing, and use of the personal data of our Customers is contained in our data protection declaration.
§ 14 Legal Venue, Place of Performance
The legal venue and place of performance is Tokyo District Court, Japan. We are entitled, though, to file suit against the Customer at its place of residence or domicile.
§ 15 Applicable Law
All contracts with us are subject to the laws of Japan to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CSIG). The contractual language is Japanese insofar as nothing else is agreed in writing.
§ 16 Final Provisions
Insofar as these General Terms and Conditions determine that declarations of intent or announcements are to occur in writing, the written form is also fulfilled by the use of the text form, i.e. by fax or email.