› General Terms of Sale
General Terms of Sale
1. Purchase and Sale
These General Terms of Sale (the “GTS”) set forth the general terms governing transactions concerning the sale and purchase of a car or cars (“Cars”) at the website http://sbimotor.com/ (the “Site”) by the person who purchases Cars using the Site (the “Buyer”) from SBI Africa Co., Ltd (“SBI”). By negotiating with SBI over the purchase of Cars, the Buyer will be making an offer. SBI may then issue an invoice containing substantially the terms of such offer from the Buyer (the “Invoice”), and such issuance shall constitute SBI’s acceptance of the Buyer’s offer. The Invoice and the GTS combined shall constitute a contract between the Parties (the “Contract”). SBI and the Buyer shall be referred to individually as a “Party” and collectively as the “Parties”.
(1) The Buyer shall make full payment of the Purchase Price indicated in the Invoice (the “Purchase Price”) no later than 3 business days after the date SBI issues the Invoice. The payment shall be made by the following methods:
(i) by telegraphic transfer (“T/T”) of funds to the bank account designated by SBI on the Invoice;
(ii) by using PayPal or MoneyGram;
(iii) by establishing an irrevocable letter of credit (“L/C”) issued or confirmed by a bank acceptable to SBI, and payable in Japan; or
(iv) with cryptocurrency, only if SBI gives prior written approval (including email). The type of cryptocurrency available for payment, the applicable exchange rate, and/or the account to which the Buyer transfers cryptocurrency shall be separately designated by SBI.
The Buyer’s obligation to make such payment will be satisfied (a) in the case of payment by T/T of funds to the bank account or by cryptocurrency (as described in (i) and (iv) above), on the date the payment is credited to the abovementioned SBI account and (b) in the case of payment by PayPal, MoneyGram, or using a L/C (as described in (ii) and (iii) above), on the date SBI receives the Purchase Price subject to the terms and conditions of each such payment method provided by the relevant service providers (including banks) and/or as provided in the L/C itself.
(2) If the Buyer fails to pay the Purchase Price for the Cars in accordance with the Contract, Buyer shall pay to SBI as liquidated damages and not as a penalty, overdue interest at the rate of the lower of fourteen point five percent (14.5%) per annum or the maximum interest rate permitted by the usury laws of Buyer’s country, calculated from the due date for such payment until the actual date of payment on the basis of a 360 day year.
(3) If Buyer’s failure to make payment or otherwise perform its obligation hereunder is reasonably anticipated, SBI may demand Buyer to provide, within a reasonable time, adequate assurance satisfactory to SBI of the due performance of the Contract and withhold shipment or delivery of the undelivered Cars.
(4) Buyer shall pay any amount specified in the Contract without availing itself of the benefit of any right of set-off, counterclaim, recoupment or other similar rights which the Buyer may have against SBI, which rights shall be exercised in separate proceedings between the Parties.
(5) All amounts to be paid under the Contract, including the Purchase Price for the Cars, shall be paid in United States dollars or in cryptocurrency separately designated by SBI if SBI approves subject to Section 2(1).
3. Delivery and Shipment
(1) Upon receipt of payment from the Buyer, SBI shall ship the Cars within a commercially reasonable time to a third-party carrier that will deliver the Cars to the Buyers designated location (the “Carrier”), subject to the Carrier’s terms. The place of delivery will be agreed in the Invoice. The title to and ownership of the Cars transfer concurrently with the transfer of risk of loss as provided in the Invoice. The Carriers’ schedules are approximate, and SBI will not be liable for Carrier delay, error, or non-performance. The Buyer must comply with applicable import laws and procedures, including limits to car age, class, and drive side. SBI will not be liable for noncompliance of such applicable import laws and procedures or denied entry. On receiving shipment, the Buyer understands that they should check and refill the engine oil, radiator coolant, fuel, and other vehicle fluids.
(2) SBI shall release the original transportation documents only upon full payment of the Purchase Price by the Buyer. SBI will not be liable for any losses arising from damaged, delayed, erroneous, lost, non-amended, non-issued, or retained documents.
Without prejudice to SBI’s rights and remedies, if the Buyer breaches any of the terms of this Agreement, including without limitation the payment of the Purchase Price detailed in Section 2, SBI may, by written notice to Buyer, (1) terminate the Contract, (2) delay or suspend shipment or delivery of the Cars, or stop the Cars in transit, or (3) resell the Cars or hold the Cars at the Buyer’s risk and account.
5. Increased Costs
Any new, additional or increased freight rates, surcharges (bunker, currency, congestion or other surcharges), taxes, customs duties, export or import surcharges or other governmental charges, or insurance premiums, which may be incurred by SBI with respect to the Cars after SBI issues the Invoice, shall be borne by the Buyer, and the Buyer shall reimburse SBI within a reasonable time on demand.
SBI may choose to insure the Cars until the point where the risk of loss transfers to the Buyer as agreed in the Invoice. If the Buyer requests insurance in excess of the above, the Buyer shall bear the cost for such insurance.
7. Export Inspection
Export inspection by Japanese sworn surveyors, manufacturers, or by SBI shall be considered final in respect of quantity, quality, specification and conditions of the Cars. If the Buyer requests any additional or special inspection of the Cars in Japan before shipment, the Buyer may appoint an inspector subject to SBI's prior approval, and the Buyer shall bear all inspection expenses thus incurred.
8. Limitation of Liability
(1) UNLESS EXPRESSLY STATED ON THE FACE OF THE CONTRACT, SBI MAKES NO WARRANTY OR CONIDITION, EXPRESSLY OR IMPLIEDLY, AS TO THE FITNESS OR SUITABILITY OF THE CARS FOR ANY PARTICULAR PURPOSE OR THE MERCHANTABILITY THEREOF. SBI warrants only that the Cars match the descriptions as described on the Site, and the Cars may only be deemed defective if the Cars do not match such descriptions. SBI shall not be liable for any previously disclosed defects in the Cars.
(2) SBI shall not be liable for any death or injury of any person, or for any loss of or damage to any property, arising out of or in connection with any defect or operation of the Cars.
(3) SBI shall not be liable, whether in tort or contract, for any claim by Buyer for any special, incidental, consequential, indirect or exemplary damages.
(4) In no event shall SBI’s total liability on any or all claims from Buyer exceed the: (a) replacement cost of the Cars, (b) repair cost of the Cars, or (c) the Purchase Price, whichever amount is smallest.
The Buyer shall notify SBI of any claim of whatever nature arising under the Contract by registered airmail no later than 3 days after the arrival of the Cars at the destination specified in a bill of lading. Full particulars of such claim, together with a report of the sworn surveyor nominated by the Parties hereto shall be made in writing and forwarded by a registered airmail within 3 days after notification. Otherwise, SBI shall not be liable for such claim.
10. Force Majeure
If the performance by SBI of its obligations hereunder is affected or prevented by force majeure, to include without limitation acts of God, flood, typhoon, earthquake, tidal wave, landslide, fire, plague, epidemic or pandemic, quarantine restrictions, perils of the sea, arrest or restraint by government, rulers, or people, requisition of vessel or aircraft, war or warlike conditions, declared or not, or the threat of the same, blockade, hostilities, revolution, strike, lockout, sabotage, civil commotions, or other civil unrest or labor dispute, explosion, accident or breakdown in whole or in part of machinery, plant, transportation or loading facility, governmental request, guidance, order or regulation, unavailability of transportation or loading facility, bankruptcy or insolvency of any third party that is necessary for the performance of the terms of the Contract, or for any other reason beyond SBI's reasonable control, then SBI shall not be liable for loss or damage, or failure or delay in performing its obligations under the Contract and may, at its option, extend the time of shipment or delivery of the Cars or terminate unconditionally and without liability the unfulfilled portion of the Contract to the extend so affected or prevented.
All disputes, controversies or differences which may arise between the Parties hereto, out of or in relation to the Contract, which cannot be settled by mutual accord without undue delay, shall be finally settled by arbitration in Tokyo, Japan in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration Association. The award rendered by the arbitrator(s) shall be final and binding upon the Parties hereto, and judgment on such award may be entered in any court or tribunal having jurisdiction.
12. Trade Terms
All trade terms provided in the Invoice shall be interpreted in accordance with the latest Incoterms of the International Chamber of Commerce.
13. Entire Agreement
14. Third Party Providers
The Buyer acknowledges that third party service providers, including banks and carriers, are not controlled by SBI, and SBI will not be liable for any loss arising from their use, to the Cars in third party custody, or for third party delay, error, or nonperformance.
The Buyer shall indemnify SBI for any loss arising from the Buyer’s breach of these terms, negligence, wrongdoing, or violation of the Contract or third-party rights or law.
(1) Neither the GTS nor any Invoice may be modified or waived except in writing signed by the duly authorized representative of the Party against whom enforcement of such modification, termination or waiver is sought.
(2) SBI reserves the right to update the GTS at its sole discretion when such updates are (i) considered beneficial to the Buyer, or (ii) not in conflict with the purpose of the GTS, and are considered reasonable in light of the reason for, the changes made and the circumstances in which such updates are made.
(3) SBI will notify the Buyer of any updates by posting notification on the Site or by sending an email or a text message to the Buyer at least thirty (30) days prior to the effective date of such update. The Buyer shall be considered to have agreed to the updated terms and conditions by using the GTS after such effective date.
17. Governing Law
The Contract shall be governed as to all matters, including, validity, construction and performance, by and under the laws of Japan.
The failure of SBI at any time to require full performance by Buyer of the terms of the Contract shall not affect the right of SBI to enforce the same. The waiver by SBI of any breach of any provision of the Contract shall not be construed as a waiver of any succeeding breach of any provision or waiver of the provision itself.
The Buyer shall not transfer or assign their obligations or rights under the Contract without SBI’s prior written consent. SBI may freely assign its rights or obligations under the Contract without the Buyer’s consent.
20. Intellectual Property Rights
The Buyer shall hold SBI harmless from all liability for infringement of patent, trademark, brand, utility model, design, pattern, copyright, or other intellectual property rights in the Cars, whether in Japan or in any other jurisdiction. Nothing herein shall be construed as transferring any patent, trademark, brand, utility model, design, pattern, copyright, or other intellectual property rights in the Cars, all such rights being expressly reserved to the true and lawful owners thereof.