GENERAL TERMS AND CONDITIONS FOR SALE
OF PRODUCTS OF KYB ASIAN PACIFIC CORPORATION LIMITED. Ver.1(20230801)

Acceptance of Terms

Definitions

Sale and Purchase.

Ordering

• Purchase Orders. To purchase Products hereunder, Buyer shall issue a purchase order (“Buyer’s Purchase Order”), which shall specify the type and quantity of the Products ordered, the applicable Specifications code, Purchase Price, desired delivery date(s), the number or code of Quotation that the Buyer’s Purchase Order is based on, and other terms necessary for the sale and purchase of Products. Buyer shall place a Buyer’s Purchase Order with Seller at least three (3) calendar months prior to the desired delivery date.
• Rejection of Purchase Orders. The Buyer’s Purchase Order becomes binding only when Seller provides Buyer with written acceptance of such Buyer’s Purchase Order signed by the authorized representative of Seller (“Order Confirmation”). For the avoidance of doubt, Seller shall have the right to either accept or reject such Buyer’s Purchase Order at its sole discretion and regardless of any prior communication. Upon acceptance by Seller of the Buyer’s Purchase Order, such Buyer’s Purchase Order shall be deemed to constitute a firm order (such accepted Buyer’s Purchase Order and Order Confirmation shall be collectively referred to “Purchase Order”), which shall not be cancelled or changed by Buyer thereafter for any reason without Seller’s prior written consent.

Purchase Price

• Purchase Price. The amount, payment term and invoicing of the Purchase Price and any other cost shall be subject to the Purchase Order for the relevant Products.
• Tax. Unless otherwise specifically provided in the Quotation, the Purchase Price is exclusive of any applicable goods and services tax (“GST”) or other government charge or duty, which Buyer shall be additionally liable to pay at the rate and in the manner from time to time prescribed by law. If exemption from taxes is claimed, Buyer must provide a certificate of exemption. The Purchase Price shall be net of any withholding tax payable by Buyer, and in no event shall Buyer be entitled to withhold or deduct any such tax from the Purchase Price.
• Adjustment. Seller reserves the right to make reasonable adjustments of the Purchase Price (to be mutually agreed in writing) in the event of changes in laws, regulations and other relevant standards or significant increase of the cost of raw materials, labor, energy, transportation, etc., after the acceptance of the Purchase Order.

Terms of Payment

• Payment Method. Buyer shall pay the Purchase Price in accordance with the payment terms under the Purchase Order. All payments shall be made in the currency designated in the Purchase Order. by wire transfer of immediately available funds to the bank account designated by Seller in writing from time to time. Time is of the essence in respect of payment of the Purchase Price.
• Late Payment Interest. In the event the full amount of any invoice issued by Seller under these Terms and the Purchase Order is not paid by Buyer when due, any unpaid shall bear interest from the due date until paid in full, at an interest in accordance with the notification about the interest percentage separately provided by Seller.
• Even after the acceptance of the Purchase Order, Seller reserves the right to suspend performance or withhold delivery under a Purchase Order if Seller in its reasonable opinion determines that Buyer’s credit worthiness is unsatisfactory or that Buyer will not be able to pay the amounts due and payable under the Purchase Order or if Buyer fails to make payment of any amount due and payable.

Shipment and Title/Risk

• Delivery Terms. Products shall be delivered in accordance with the delivery terms under the Purchase Order. In the event the Purchase Order does not designate any delivery terms, Products shall be delivered Ex-Works (Incoterms).
• Risks of Loss. Unless otherwise agreed in writing between the Parties, risk of damage to or loss of the Products shall pass to Buyer as soon as they are delivered to Buyer.
• Title. Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Terms, title in the Products shall not pass to Buyer until Seller has received in cash or cleared funds payment in full of the Purchase Price and all other goods agreed to be sold by Seller to Buyer for which payment is then due.

Production, Assembly and Acceptance

• Specifications. In these Terms, “Specifications” shall mean the specifications of the Products that are provided or determined by Seller or, if the Product is a product that is specifically designed and/or manufactured for Buyer, the specifications of the Products that have been agreed between Seller and Buyer in writing. Any change to the Specifications shall be subject to Seller’s written consent and necessary adjustment of the Purchase Price.
• Production and Delivery. Seller shall manufacture the Products in accordance with the Specifications and the Purchase Order. Seller shall make commercially reasonable efforts to deliver the completed Products to Buyer, and Buyer shall take such delivery, no later than the delivery date set forth in the Purchase Order.
• Acceptance Test and Final Acceptance. Upon the delivery of the Products pursuant to Section 8.2 (“Delivery”), Buyer shall immediately conduct the Acceptance Test and shall notify to Seller its results in writing within fourteen (14) calendar days from the date of the Delivery. If Buyer notifies Seller in writing within such fourteen (14) calendar days that the Products fails to meet the requirements set forth in the Specifications during the Acceptance Test and Seller determines that such failure is caused by a breach of the Purchase Order or these Terms by Seller and not by an act or omission of Buyer or of a third party, then Buyer shall be deemed to have rejected non-conforming Products and Seller shall remedy such failure in accordance with Section 9.3.1. If Seller does not receive such rejection notice from Buyer within such fourteen (14) calendar days period or if Seller determines that the relevant failure is caused by an act or omission of Buyer or of any third party, then Buyer shall be deemed to have accepted such Products in accordance with the Purchase Order and these Terms (such acceptance, “Final Acceptance”) and, notwithstanding anything to the contrary herein, shall be barred from asserting any claims for breach of warranty with respect to such Products, except for material latent defect that could not be discovered through the Acceptance Test.

Warranty

• Warranty. Seller only warrants (i) that the Products will substantially conform to the applicable Specifications for a period of one (1) year from the date of Delivery, unless otherwise provided for in the applicable Specifications, and (ii) that title to the delivered Products will be free and clear and without any liens or encumbrances of any type or kind. THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND OTHER THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER KNOWN TO SELLER OR NOT) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH OTHER WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED BY SELLER AND WAIVED BY BUYER.
• Exceptions to Warranties. The product warranty set forth in Section 9.1(i) shall not apply (a) to non-conformities or other defects resulting from normal wear and tear, (b) to any Products that are (i) modified, operated or maintained in any manner other than in accordance with the Specifications or operating manuals or any instructions provided by Seller, or (ii) non-conforming to the Specifications or otherwise defective in each case due to misuse, neglect, modification or accident or for any other reason directly or indirectly attributable to the acts or omissions of Buyer, or (c) to any other events that may be described in the Specifications.
• Remedies for Non-Compliance. If any Products fails to comply with any warranty set forth in Section 9.1, then Seller shall, at Seller’s option, and as Buyer's sole remedy and Seller's sole liability, repair, replace or provide a credit for any such defective Products.
• Product Liability. Buyer shall be solely responsible for the use of the Products and all the warnings and instructions for the users of the Products or its products that incorporate the Products. Buyer shall indemnify and hold harmless Seller in full against all losses, costs, damages, charges and expenses incurred by Seller arising out of or in connection with any use of the Products by Buyer or for Buyer’s products. Even when Seller is held liable for any product liability about the Products, its aggregate liability shall be subject to the limitation on liability provisions of Section 10.

Limitation on Liability

Intellectual Property Rights

• Ownership. All Intellectual Property Rights: (i) subsisting in the Products, the Specifications and/or the Technical Documents; and/or (ii) arising in connection with the performance of Seller's obligations under the Purchase Order or these Terms (together, "Seller IP") are the exclusive property of Seller (and to the extent not in existence at the Effective Date, shall vest exclusively in Seller upon creation). Buyer acknowledges that, without prejudice to the limited license granted in Section 10.3 below, nothing in the Purchase Order or these Terms shall transfer or otherwise grant any rights in Seller IP to Buyer.
• Validity. Buyer undertakes that neither Buyer, nor any of its affiliates, directors, officers or employees shall contest the validity or ownership of any Seller IP (or challenge any registration or application for registration made by or on behalf of Seller in connection therewith).
• Technical Documents. Subject to the rights and obligations of the Parties regarding Confidential Information, Seller hereby grants Buyer a limited and non-exclusive license to use the Technical Documents solely in connection with the operation, maintenance and repair of the Products for Buyer’s internal use. Buyer shall be entitled to make such internal copies of the Technical Documents as are necessary for such purposes, provided always that: (i) all copies of the Technical Documents must remain at Buyer's Facility at all times; and (ii) Buyer shall not disclose or transfer the Technical Documents (or any copy thereof) to any third party without the prior written consent of Seller.

Confidentiality

• Definition. As used herein, the term “Confidential Information” shall mean all information and material disclosed or otherwise provided by Seller to Buyer in the course of and prior to performing the Purchase Order and these Terms. “Confidential Information” does not include information which Buyer can establish with a written evidence that: (a) is generally known and available in the public domain through no fault of Buyer; (b) was known to Buyer at the time of disclosure; or (c) is disclosed with the prior written approval of Seller.
• Restrictions on Use. Buyer shall not use the Confidential Information for any purpose other than the performance of the Purchase Order or these Terms. Buyer shall not disclose Confidential Information to any third parties without prior written consent of Seller. Buyer shall maintain Confidential Information with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but using no less than reasonable care under the circumstances. Any copies of the Confidential Information shall be identified as belonging to Seller and prominently marked “Confidential”.
• Exceptions. Buyer may disclose Confidential Information (a) to its directors, officers and employees who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to non-use and non-disclosure) no less strict than those required by these Terms; or (b) as required by applicable laws, provided that, in such event, Buyer shall promptly notify Seller to allow intervention (and shall cooperate with Buyer) to contest or minimize the scope of the disclosure (including application for a protective order) to the extent legally permissible.
• Return of Confidential Information. Upon request of Seller, Buyer shall, at Seller’s option, return or destroy all documents and materials containing any Confidential Information and copies thereof. In addition, Buyer shall promptly destroy any electronic or otherwise non-returnable embodiments of the Confidential Information.

Force Majeure

• Seller shall not be liable for any delay in delivery or other performance under the Purchase Order and these Terms which is due to unforeseen circumstances, or to causes beyond its control, including, without limitation, earthquake, typhoon, flood, fire, war, act of God or the public enemy, nuclear disaster, disease, accident, strike, insurrection, riot, embargo, change of laws or regulations, the failure of third parties (such as suppliers and subcontractors) to perform their obligations (an “Event of Force Majeure”). Performance shall be deemed suspended during, and extended for, such time as it is delayed as a result of an Event of Force Majeure, and thereafter the other Party shall accept performance hereunder.

Termination

• Termination for Default. If either Party fails to perform, in any material respect, any of its obligations hereunder or under any Purchase Order, and if such default continues for a period of thirty (30) days after the date the defaulting Party first receives written notice of such default from the other Party, then Buyer (if Seller is the defaulting Party) or Seller (if Buyer is the defaulting Party) shall have the right to terminate the Purchase Order effective immediately upon written notice to the defaulting Party at any time after such thirty (30) days period.
• Other Termination. Either Party may terminate the Purchase Order, effective immediately upon written notice to the other Party, if: (a) the other Party shall (i) commence any case, proceeding or other action relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts; (ii) commence any case, proceeding or other action seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets; or (iii) make a general assignment for the benefit of its creditors; (b) there shall be commenced against the other Party any case, proceeding or other action of a nature referred to in clause (a) above; or (c) the other Party shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due.
• Acceleration. In the event that any of the events listed in Sections 14.1 and 14.2 above occurs in respect of the Buyer, all obligations of the Buyer under the Purchase Order or these Terms shall be accelerated and become immediately due and payable.
• Effect of Termination. Sections 6.2, 7.2, 7.3, 9.2, 10, 11.1, 12, 14.4, 14.5, 15 and 16 shall survive any termination of the Purchase Order.
• Survival of Liability. Termination of the Purchase Order for any reason shall not release either Party from any liability or obligation which has already accrued as of the effective date of such termination, and shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, which a Party may have hereunder, at law, equity or otherwise or which may arise out of or in connection with such termination.

Notices

• Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under the Purchase Order or these Terms shall be in writing and in English and shall be provided by one or more of the following means and shall be deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by facsimile, on the date of transmission with receipt of a transmittal confirmation, or (c) if by international courier service, on the third (3rd) Business Day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed in writing to the sender by such courier service. All such notices, requests, demands and other communications to Seller shall be addressed as follows:

  If to Buyer:	The address or facsimile number provided in the Purchase Order
  If to Seller:	[KYB Asian Pacific Corporation Limited] Address: 4345 Bhiraj Tower at BITEC, Unit 1209-1211, 12th Fl. Sukhumvit Road, Bangnatai Sub-District, Banga District, Bangkok 10260 Telephone: +66(0)2300-9777 Facsimile: +66(0)2300-9778 Attention: Aftermarket Sales Department

  or to such other address or facsimile number as a Party may have specified to the other Parties in writing delivered in accordance with this Section 15.

Miscellaneous

• Governing Law. These Terms and the Purchase Order shall be governed by and construed in accordance with laws of Thailand, without regard to provisions regarding choice of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
• Dispute Resolution. Any dispute, controversy or claim arising out of or relating to these Terms and/or Purchase Order or the breach, termination or invalidity thereof, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Thailand Arbitration Center for the time being in force and the conduct of the arbitration thereof shall be under the administration of the Thailand Arbitration Center. The seat of the arbitration shall be in Bangkok, Thailand. The arbitration proceedings shall be conducted in English. The award of the arbitration tribunal shall be final and binding upon the disputing Parties, and any Party may apply to a court of competent jurisdiction for enforcement of such award. A Party shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the arbitral tribunal.
• Severability. If any provision in these Terms and the Purchase Order shall be found or be held to be invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of these Terms and the Purchase Order which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by either Party. In such event, the Parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly affects the Parties’ intent in entering into these Terms and the Purchase Order.
• Export Control Compliance. Buyer shall comply with all applicable national and international (re-) export control regulations with respect to any transfer of Products and/or relevant information including without limitation Specifications and Technical Documents to any other third country(ies).
• In the event of any inconsistency between these Terms and other relevant documents, the following order of priority shall apply:
  • Any written agreement between the Parties where the Parties agree that any of the provisions in these Terms should be superseded;
  • The Purchase Confirmation
  • Quotation, so long as referenced by or incorporated into the Purchase Order;
  • These Terms; and
  • The Buyer’s Purchase Order.
• Assignment. Neither Party may assign or transfer any of its rights or obligations under these Terms and the Purchase Order to any third party without the prior written consent of the other Party. Any such assignment or transfer without the prior written consent of the other Party shall be null and void.
• Amendment. No agreement or understanding amending the Purchase Order nor these Terms shall be binding upon either Party unless set forth in a written document which expressly refers to the Purchase Order or these Terms and which is signed and delivered by duly authorized representatives of each Party.
• Waiver. Any waiver by a Party of an instance of the other Party’s noncompliance with any obligation or responsibility herein contained shall be in writing and signed by the waiving Party and shall not be deemed a waiver of other instances of the other Party’s noncompliance hereunder.
• Expenses. Except as otherwise provided herein, each Party shall bear its own costs and expenses incurred by it, including fees and expenses of legal counsel, and other experts, representatives and advisors, in connection with the negotiation and preparation of these Terms and the Purchase Order and the consummation of the transactions contemplated hereby.
• No Beneficiaries. Except as expressly provided in these Terms and the Purchase Order, nothing in these Terms and the Purchase Order is intended to or shall be construed to confer upon or give to any person, firm, corporation or legal entity, other than the Parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
• Relationship of Parties. The Parties are independent contractors. Nothing contained herein or done in pursuance of these Terms and the Purchase Order shall constitute either Party as being the agent of the other Party for any purpose or in any sense whatsoever. Nothing contained herein shall be construed as constituting any relationship with either Party other than that of independent contractor. The entering into of these Terms and the Purchase Order and the performance of Seller's work hereunder shall not be construed as a joint venture by Buyer and Seller nor as a lease, transfer, grant, sale or assignment of Seller's intellectual property rights or other rights in connection with the Products.
• Interpretation; Headings. These Terms and the Purchase Order shall be construed in accordance with its fair language. The rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting these Terms and the Purchase Order. The titles of sections or sub-sections of these Terms are inserted for convenience of reference only and are not to be considered in construing these Terms.
• Contract Language. These Terms, together with the Purchase Order, are made in the English language. In case of any difference in meaning between the English language original version and any translation thereof (if any), the English language original version shall prevail.
• Entire Agreement. These Terms and the Purchase Order constitute the entire agreement between the Parties and shall supersede all previous agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.