Memorandum of Understanding
(hereinafter called “*****Company”)
(hereinafter called “*****Company”)
Akron hereby appoints 自分の会社名 as its distributor for the sales and service of *****Company’s products ************* name ***************** (hereinafter called “Product”) for Morita’s own use and 自分の会社名 accepts such appointment.
自分の会社名 hereby confirms that 自分の会社名 shall not sell Product individually to third party in Japan.
Unless otherwise agreed in the individual sale and purchase contract, 自分の会社名 shall pay for the Products on T/T within sixty (60) days after the B/L or AWB date. However, when the delivered product was a rejected article, 自分の会社名 temporarily stops paying, and confers on measures of a rejected article.
自分の会社名 will solicit business and promote the sales and service of Product to customers within Japan and will maintain and provide the necessary personnel and facilities to accomplish these purposes.
This Agreement shall be effective from the date of this Agreement until the expiration of twelve (12) consecutive months from such date.
The Confidential Agreement below is made between 相手の会社名 (hereinafter referred to as Party A) and 自分の会社名 (hereinafter referred to as Party B) to
enter into the Distributor Agreement in Japanese market.
Article 1 (Definition)
In this Agreement, “Confidential” shall mean information of Party A’s technical, business and other information which is indicated as “Confidential” by Party A to Party B. As following information shall be exceptional.
1. Information already owned before Party A gives Party B.
2. Information generally known before Party A gives Party B.
3. Information officially known through no fault of Party B’s responsibility
after Party A gave Party B
4. Information that is obtained by third person who has authority with no regard to obligation of maintenance of confidentiality.
Article 2 ( Obligation of maintenance of confidentiality)
Party B shall maintain confidentiality except prior consent of Party A in writing, and shall not transfer or disclose to third person
Article 3 (Objective of use)
Party B shall use Confidential Information only for propose to examine Distributor Agreement and shall not use for other objectives.
Article 4 (Expiration)
This Agreement shall be effective until the contract of Distributor Agreement.
Regarding maintenance of confidentiality after that, Part A and Party B shall use newly revised Distributor Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by Party A and Party B in duplicate, each party retaining one original.
Party A :相手の会社名
「機密保持契約」でも、Intellectual Property Rightsが発生する可能性がある場合は下記のように条項を追加した方がいいと思います。下記はサンプルです。
Agreement of Confidential Information and Intellectual Property Rights
Of (商品名) project
In consideration of our from time to time disclosing to each other information relating to our respective businesses, including, without limitation, information relating to Intellectual Property Rights, details of our respective customers, business practices, pricing and methodologies, whether in writing, orally or by any other means (“Confidential Information”), we each undertake to the other that:-
1. In this agreement the following expressions shall have the following meanings:
1.1 “商品名” means in respect of each party the Intellectual Property Rights owned by or otherwise in the possession of that party relating to the Technology as at the date of this agreement;
1.2 “商品名” means all Intellectual Property Rights resulting from the Work;
1.3 “INTELLECTUAL PROPERTY RIGHTS” means all patents, copyrights, database rights and design rights (whether registered or not and all applications for any of the foregoing), and all rights of confidence in the Know How whensoever and howsoever arising for the full term thereof and all renewals and extensions thereof;
1.4 “KNOW HOW” means information, data, know how or experience whether patentable or not including but not limited to all design or manufacturing techniques, operating instructions, machinery designs, raw material or products specifications, drawings, blue prints, and any other technical and commercial information relating to research, design, development, manufacture, assembly, use or sale;
1.5 “PROJECT” means the project for the development and improvement of the Technology;
1.6 “TECHNOLOGY” means all technology relating to this project including without limitation that related to the design, manufacture and use of equipment for such purpose; and
1.7 “WORK” means the work to be carried out by each party in relation to the Project.
2. Confidential Information received by either of us from the other shall not be provided or disclosed by the receiving party to any person other than the receiving party’s professional advisers, financiers and insurers and its employees involved in the evaluation of the purpose of the disclosure.
3. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care that it regularly employs to safeguard its own confidential information from unauthorised use or disclosure.
4. The rights and obligations of the parties with respect to Confidential Information disclosed under the terms of this agreement shall survive termination of this agreement for a period of （年数） years from the date of first disclosure of such Confidential Information.
5. The obligations of confidentiality imposed by this agreement shall not apply to any Confidential Information that:
5.1 is rightfully received from a third party without accompanying markings or disclosure restrictions;
5.2 is or becomes publicly available through no wrongful act of the receiving party;
5.3 is already known by the receiving party as evidenced by documentation bearing a date prior to the date of disclosure and not marked “Confidential”;
5.4 is approved for release by an authorised representative of the disclosing party;
5.5 is in the public domain; or
5.6 it is required to be disclosed by law or the rules of any applicable regulatory organization.
6. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information.
7. Confidential Information and all copies thereof shall remain the property of the disclosing party and shall be destroyed or returned as requested by the disclosing party. If the disclosing party requires confidential information to be destroyed, then the other party must use all reasonable efforts to erase all Confidential Information from any computer, word processor or other devise containing such information. Where Confidential Information has been destroyed or erased, confirmation shall be given in writing that such destruction or erasure has taken place.
8. No failure or delay in exercising any right, power or privilege under this agreement will operate as a waiver, nor will any single or partial exercise preclude any further exercise or the exercise of any right, power or privilege under this agreement or otherwise.
9. The Confidential Information will not be used in any way, manner or form whatsoever in connection with any matter falling outside the scope of what is permitted in accordance with this agreement.
10. It is acknowledged that there is no responsibility for the accuracy or completeness of the Confidential Information, and that no representation, or warranties, express or implied, are to be made as to the accuracy or completeness of the Confidential Information.
11. Nothing in this agreement shall bind either party to enter into any further agreement however the parties acknowledge that it is their intention to enter into a formal agreement whereby it is their present intention that they will agree to collaborate in the Project. Save as set out in this agreement, neither party shall have any liability to the other if the terms of such further agreement is not entered into.
12. This agreement will be governed by and construed in accordance with *Japanese Law.
Signed for and on behalf of 相手の会社名
Signed for and on behalf of 当方の会社名
Supply and Purchase Agreement
This Agreement, made and entered into this day of , 2017 , by and between 自分の会社名 duly organized and existing under the laws of Japan, having its principal place of business 自分の住所, Japan (hereinafter referred to as “BUYER”) and 相手の会社名 , a corporation duly organized and existing under the laws of , having its principal place of business at (hereinafter referred to as “SELLER”)
WHEREAS, BUYER is engaged in the business of, among other things, manufacture and sale of various kinds of worldwide and desires of having SELLER supply BUYER with the Products as hereinafter defined;
WHEREAS, SELLER is engaged in the business of, among other things, manufacture of the Products as hereinafter defined; and
WHEREAS, SELLER is desirous of manufacturing and selling the Products to BUYER and BUYER is desirous of purchasing the Products for use in products manufactured by BUYER in the Territory.
NOW, THEREFORE, it is agreed between the parties as follows:
Article 1. Definitions
1.1 “Products” as used herein shall mean products as described in EXHIBIT I attached hereto.
1.2 “Territory” as used herein shall mean Japan and other countries as agreed in writing from time to time between the parties.
Article 2. Sale and Purchase
2.1 SELLER hereby agrees to manufacture and sell to BUYER, and BUYER hereby agrees to purchase from SELLER, the Products during the term of this Agreement under the terms and conditions set forth herein.
2.2 SELLER shall not, during the term of this Agreement, directly or indirectly sell or supply the Products in any of their versions or derivatives and/or their respective spare parts to any person in the Territory other than BUYER. BUYER shall use the Products for use in products manufactured by BUYER in the Territory and shall not resell the Products to any person.
Article 3. Individual Contract
3.1 Unless otherwise agreed, the provisions of this Agreement shall be applicable to each individual sale and purchase contract for the Products to be made between the parties during the term of this Agreement.
3.2 An individual sale and purchase contract shall be deemed concluded and become binding when a purchase order issued by BUYER is accepted by SELLER in accordance with the provisions of this Article.
3.3 BUYER shall from time to time send a purchase order by facsimile. SELLER shall reply to BUYER on acceptance or rejection of the order by facsimile within five (5) days after receiving the order.
3.4 A purchase order shall be deemed accepted by SELLER if SELLER fails to reply to BUYER in accordance with Article 3.3 hereof.
3.5 SELLER shall use its best efforts to accept any reasonable purchase order placed by BUYER.
Article 4. Price
4.1 The parties shall from time to time agree on the price at which the Products are sold to BUYER in a form of price list. The price list effective from the date hereof until the day before the first anniversary of the date hereof is attached hereto as EXHIBIT II attached hereto. Six (6) months prior to every anniversary of the date hereof the parties hereto shall discuss and agree to the price list applicable for the following year, taking account of changes in the production cost, freight, rate of exchange between Japanese yen and other currencies concerned, market conditions and other factors which may affect the price of the Products.
4.2 Unless otherwise indicated on the price list or a purchase order, the prices for the Products shall be quoted on the basis of FOB port and the method of payment provided in Article 5 hereof.
4.3 For each sale and purchase contract, the price list effective upon the date of issuance of a purchase order shall be applicable.
Article 5. Shipment
5.1 Unless otherwise agreed in writing, SELLER shall effect shipment at port in accordance with the delivery schedule agreed in each individual sale and purchase contract.
5.2 Unless otherwise agreed in the individual sale and purchase contract, the delivery terms for all shipments shall be FOB as defined in the latest Incoterms of the International Chamber of Commerce. Both title to and risk of loss of the Products shall pass from SELLER to Buyer at the time of shipment of the Products by the SELLER.
5.3 SELLER shall send to BUYER by express airmail immediately after shipping the Products non-negotiable sets of shipping documents which shall include an invoice, packing list (measurement list) and a bill of lading.
5.4 In the event that shipment of the Products to BUYER should be delayed for more than ten (10) days after the agreed shipping date, then BUYER shall be entitled to a discount at the rate of ten percent (10%) of the price for the Products as damages. If BUYER proves that its loss and damage incurred by the failure in timely shipment exceeds the amount of the above ten percent (10%), SELLER shall also compensate for such loss and damage upon request of BUYER.
5.5 Notwithstanding anything herein contained to the contrary, if shipment of the Products to BUYER should be delayed for more than two (2) weeks after the agreed shipping date, then BUYER shall be entitled to forthwith cancel the individual sales and purchase contract and to claim compensation for any loss and damage incurred by the failure in timely shipment.
Article 6. Packaging
SELLER shall make shipment of the Products duly packaged for transportation. SELLER shall be responsible for any damage or loss of the Products which may be caused due to any faulty packaging.
Article 7. Inspection
7.1 Before shipment SELLER shall implement the product management and the product inspection according to the quality standards provided in Article 9 at SELLER’s premises.
7.2 Upon receipt of the Products BUYER shall make appearance inspection of the Products with regard to the packaging, the quantity and apparent damage of the Products and notify SELLER within seven (7) days of the results of passing or failing.
7.3 BUYER agrees to make inspection of the Products in accordance with BUYER’s own internal procedures before the Products are used for BUYER’s products, which shall be no later than twelve (12) months after receipt of the Products; provided that BUYER’s such inspection shall not relieve SELLER from its warranty obligations provided herein.
7.4 If any faulty packaging, shortage in quantity or damage of the Products should be found in the course of the inspection provided in Article 7.2 or if any defect of the Product should be found in the course of the inspection provided in Article 7.3, and if such faulty packaging, shortage in quantity or damage of the Products or the defect of the Products should be deemed caused before the shipment, BUYER shall be entitled to return the Products for prompt replacement at SELLER’s cost and to compensation for any cost and expenses, including, but not limited to, the cost incurred in connection with the return of the Products and additional inspection for the replaced Products.
Article 8. Payment
8.1 Payment for the Products shall be made in currency.
8.2 Unless otherwise agreed in the individual sale and purchase contract, BUYER shall pay for the Products on T/T within sixty (60) days after the notice provided in Article 7.2. However, when the delivered product was a rejected article, the BUYER temporarily stops paying, and confers on measures of a rejected article.
Article 9. Quality Standards
Upon conclusion of this Agreement, SELLER shall submit to BUYER for its approval SELLER’s quality management standards, inspection method and the specifications for the Products (hereinafter referred to as the “Quality Standards”).
Article 10. Warranty
10.1 SELLER hereby warrants that the Products shipped to BUYER are free from defects as to the designing, material used and the workmanship as well as that the Products meet the Quality Standards. Any Products which fail to meet the Quality Standards shall be regarded as defective Products. In case of breach of the warranty, whether claimed by BUYER, BUYER’s customers or any third party, SELLER agrees to repair or replace the defective Products at SELLER’s cost and to bear any cost and expense incurred by BUYER for or in connection with such breach of warranty. The warranty provided in this Article 10.1 shall continue for twenty-four (24) months from the date of receipt of the Products provided in Article 7.2. However, the warranty continues after twenty-four(24) months when there is a latent defect in the delivered products.
10.2 SELLER hereby agrees to indemnify and hold BUYER harmless against and from any losses, obligations, liabilities, cost and expenses, including legal and other fees, arising from any claim of a third party for death or personal injury caused by use of the Products.
10.3 SELLER hereby agrees to indemnify and hold BUYER harmless against and from any losses, obligations, liabilities, cost and expenses, including legal and other fees, arising from any claim of a third party regarding the Products for infringement of any patent, trademark, design, copyright or any other industrial property rights.
10.4 The provision of this Article 10 shall survive expiration or any termination of this Agreement.
Article 11. Secrecy
11.1 Each party shall keep secret any and all information disclosed by the other party in confidence, including, but not limited to, product specifications, drawings, manufacturing processes, sales terms, marketing information, and conclusion and terms and conditions of this Agreement, and shall not disclose or divulge the same without prior written consent of the other party.
11.2 The provision of this Article 11 shall survive expiration or any termination of this Agreement.
Article 12. Force Majeure
12.1 Except otherwise specifically provided herein, neither party hereto shall be liable for its failure in performing whole or part of this Agreement, individual sale and purchase contracts, or any other agreement made in connection with this Agreement if such failure is due to fire, flood, earthquake, strikes, labor disputes or other industrial disturbances, moratorium, inevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, acts of central or local government, riots, insurrections or any other causes beyond the control of the party (hereinafter referred to as “Force Majeure Event”).
12.2 If a Force Majeure Event has continue for a period of three (3) months, either party may terminate this Agreement and cancel the unperformed individual sale and purchase contracts.
Article 13. Term of Agreement
This Agreement shall come into force on the date first written above and, unless earlier terminated, remain in force for a period of three (3) years. This Agreement shall be automatically renewed and continued from year to year unless either party gives to the other a notice not to renew this Agreement at least three (3) months before the end of the term then in effect.
Article 14. Termination
14.1 Either party may forthwith terminate this Agreement without payment of any compensation by giving a written notice of termination to the other party:
i) if the other party becomes insolvent or petition in bankruptcy or for corporate reorganization or for any similar relief is filed by or against the other party, or receiver is appointed with respect to any of the assets of the other party, or liquidation proceeding is commenced by or against the other party;
ii) if the whole or an important part of business of the other party is transferred to a third party by agreement, order of court or otherwise; or
iii) if the other party defaults in payment for the Products or otherwise default in any of the provisions of this Agreement and fails to make the payment or remedy the default within sixty (60) days after a written notice is given requesting to make the payment or remedy the default.
14.2 Termination of this Agreement under the Article 14.1 shall be without prejudice to and the right to terminate shall be additional to any right and remedy available to the terminating party under the provisions of this Agreement, law, statute or otherwise.
14.3 The provision of this Agreement shall, in the event of expiration or termination, continue to apply to the rights and obligations of the parties existing under this Agreement or individual sale and purchase contract, at the time of termination or expiration of this Agreement; provided, however, that BUYER shall have an option to cancel without any liability the purchase order accepted but not performed before such termination or expiration.
Article 15. Notice
Unless otherwise provided in this Agreement, any notice made in connection with this Agreement or performance under this Agreement shall be sent to the following addresses or such other addresses as the parties may notify each other from time to time, by registered airmail, return receipt requested. Either party may give any such notice by facsimile or e-mail, provided that such notice shall be deemed given only if and when receipt of the facsimile or e-mail is acknowledge by the receiving party.
Article 16. Non-Waiver
Except as specifically provided herein, the waiver from time to time by either party of any of their rights or their failure to exercise any remedy shall not operate or be construed as a continuing waiver of same or of any other such party’s rights or remedies provided in this Agreement.
Article 17. Privity
The relationship between SELLER and BUYER under this Agreement are those between a seller and a buyer and SELLER shall in no way be a representative or agent of BUYER and have no authority to act or assume any obligation on behalf of BUYER.
Article 18. Assignment
Neither party shall assign, pledge or otherwise dispose of its right or delegate its duty under this Agreement without a prior written consent of the other party. This shall not, however, prohibit the merger or consolidation of either party into or with a third party if the survivor of or the new company formed by the merger or consolidation shall expressly assume the obligations of the party hereto merged or consolidated.
Article 19. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Japan.
Article 20. Arbitration
Any and all disputes arising from or in connection with this Agreement or any transaction conducted under this Agreement, including, but not limited to, any individual sale and purchase contract, shall be settled by mutual consultation between the parties hereto in good faith as promptly as possible. In case of failure of such amicable settlement, any and all such disputes shall be settled by arbitration in Osaka, Japan in accordance with the Commercial Arbitration Rules of Japan Commercial Arbitration Association. The award of the arbitration shall be final and binding upon the parties hereto.
Article 21. Amendment
This Agreement may be amended only by a written instrument signed by duly authorized representatives of both parties and expressly stating that it is an amendment to this Agreement.
Article 22. Complete Agreement
This Agreement supersedes and cancels any and all previous agreements, contracts or understandings between the parties hereto relating to the Products and expresses the complete and final agreement of the parties hereto in respect thereof.
Article 23. Severability
In the event that any provision of this Agreement or the application thereof to any person, property or circumstances shall be held to any extent to be invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons, properties or circumstances other than those as to which it has been held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Agreement the day and year first written above.