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This Sales Agreement (this “Agreement”) is entered into effective on [March 1st, 2025] (the “Effective Date”) between WARMGLOW Co., Ltd., a company having its head office at 4th Fl., Nagasawa Bldg., 12-8 Azuma-cho, Hachioji City, Tokyo, Japan (the “Seller”) and The Buyer, any party who has deemed these terms to be acceptable and agreed to their accordance via our Website agreement (collectively the “Parties” or individually the “Party”). References to https://auc.warmglow.ltd/auth/sign-up
WHEREAS, Buyer desires to purchase vehicles from Seller from time to time based on Individual Contracts (as defined below), and Seller desires to sell such products to Buyer in such manner;
NOW, THEREFORE, the Parties mutually agree to enter into this Agreement in accordance with the terms and conditions stated herein.
For purposes of this Agreement, including any Exhibits, the following terms shall have the following meanings:
1.1 “Delivery Date” shall have the meaning set forth in Article 5.1.
1.2 “Individual Contract” shall have the meaning set forth in Article 2.3.
1.3 “Products” shall mean vehicles marketed by Seller as listed in Exhibit “A”.
2.1 The Buyer shall purchase from the Seller and the Seller shall sell to the Buyer the Products. The specific sales transactions shall be performed through the execution of Individual Contracts as explained below.
2.2 From time to time, the Buyer will place orders for the Products to the Seller by facsimile or email, specifying the Product names, quantities, prices, requested delivery date, ship-to address, etc. The Seller will inform the Buyer, by facsimile or email, whether or not it is able to accept each order and issue the drafts of the Individual Agreement as defined below, Proforma Invoice and the Purchase Order within [5] business days after its receipt of the order. The Seller shall not unreasonably reject or delay acceptance of any order. If the Seller accepts an order and the Buyer accepts such drafts, they express each intention to agree the sales and purchase by email or other manners.
2.3 The Parties’ exchange of Individual Agreement, Proforma Invoice and the Purchase Order shall create a contract for the sale and purchase of the subject Product(s) in accordance with the agreed-upon order terms (an “Individual Contract”).
2.4 The Parties intend for this Agreement to set forth terms and conditions applicable to all Individual Contracts. Therefore, (i) the terms and conditions of this Agreement shall be deemed to be incorporated into each Individual Contract, and (ii) the Purchase Order used by the Parties in connection with the formation of the Individual Contracts shall not contain preprinted purchase terms and conditions. For any given Individual Contract, if the Parties mutually desire to apply terms and conditions that are inconsistent with those in this Agreement, they shall state such terms and conditions in the Purchase Order for the subject Individual Contract, and such terms and conditions will supersede those in this Agreement as to the subject Individual Contract.
Prices for the Products quoted by the Seller to Buyer shall be in principle CIF terms (Incoterms 2020) from the Seller’s shipping facility, provided that the Parties may agree to other terms as FOB or C&F. The Seller shall to the best of its capacity provide Buyer with an advance notice of any price increase, and any orders placed by the Buyer before the effective date of the price increase shall be at the pre-increase price should the price increase be contingent on the Seller. Any price decreases shall be effective immediately and shall also be applied to any pending orders for the subject Products that have not yet been shipped by the Seller. In case the cost for the transportation or changes of the plan of the Products may incur an additional cost, the Parties may agree to adjust such amount in the payment for the balance by the Buyer.
4.1 The Seller shall deliver the Products under the Individual Contracts to the carrier as selected by the Seller at the point of delivery designated in the Individual Contract on or before the promised delivery date. On or before the date the Products are delivered to the carrier (the “Delivery Date”), the Seller shall send the Buyer a copy of the [Commercial] invoice for the Individual Contract by facsimile or email. The Seller will inform the Buyer by facsimile or email as soon as possible, but in no event less than [3] business days prior to the scheduled delivery date, of any possible delay in the delivery of the Products for an Individual Contract. The Buyer agrees that the Delivery Date may be changed by the events over which the Seller cannot control, including the weather conditions on sea or accidents to the carrier, which is operated by a third party shipping company and therefore outside of the reasonable control of the Seller.
4.3 The Parties agree the ownership of the Products and the risks thereon shall be passed from the Seller to the Buyer upon time of purchase, vehicles being sold on a As-Is basis from wholesale, private sellers and/or auction places unless otherwise specified. The Seller cannot accept responsibility for defective or otherwise faulty merchandise, but will do its professional duty to fairly and transparently represent the vehicle for the Buyer before purchase. Buyer is at their own rights to request additional details, inspections, and otherwise investigate the merchandise with the Seller (with or at cost). The Buyer is responsible for making the purchase decision on any displayed merchandise, and Seller is solely responsible for mediating that transaction.
5.1 The Buyer shall pay the invoices for the Individual Contracts within [14] days after its receipt of the invoice. Payments will be made by telegraphic transfer to a bank account designated by the Seller, or through Payment portals PayPal or Wise. Each Party shall be responsible for any fees charged by its bank in connection with such telegraphic transfers.
PayPal: https://www.paypal.com/paypalme/warmglow
Wise: Wise.com/pay/business/warmglow
5.2 Any such amounts not paid by the due date shall accrue interest at the rate of [5%] per calendar month, simple interest. In case of such delay by the Buyer, the Seller can terminate this Agreement or relevant Individual Contracts at once.
5.3 The Buyer agrees to pay the amount in the invoices as denominated in Japanese Yen.
6.1 This Agreement shall be effective from the Effective Date for an initial term of [2] years. Thereafter, it shall be automatically renewed for successive [2] year renewal terms, unless either Party provides notice of non-renewal to the other Party at least [5] days prior to the end of the initial term or any subsequent renewal term. The term of this Agreement shall be subject to the termination provisions listed below.
6.2 If either Party commits a material breach of any of its obligations under this Agreement and fails to correct such breach within [3] days after receiving notice of the breach from the non-breaching Party, the non-breaching Party shall have the right to terminate this Agreement effective immediately upon written notice to the breaching Party. However, any such notice of termination must be given by the non-breaching Party within [2] days after the expiration of the [3] day period referenced above. If not given within that time, the non-breaching Party’s right to terminate this Agreement by reason of that particular breach shall lapse.
6.3 If either Party is not able to perform its obligations under this Agreement due to a force majeure as described in Article 15 and such force majeure continues in effect for more than [2] months, the other Party shall have the right to terminate this Agreement effective immediately upon written notice to the non-performing Party.
6.4 At the time of the expiration or termination of this Agreement for any reason, if any Individual Contracts have been entered into but not yet delivered and/or paid for, such Individual Contracts shall not be affected by the expiration or termination of this Agreement and shall continue in effect.
6.5 Articles 7.4, 7.5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 will survive the expiration or termination of this Agreement as to all Individual Contracts entered into prior to the effective date of expiration or termination.
7.1 The Seller warrants that the Products will conform to the specifications and descriptions of features to the best of its knowledge, as listed in its catalogs/brochures/website listings at time of purchase. SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In principle. The Parties agree that the Products as described herein is “as they are” or “as-is” basis and such conditions of the Products are provided for in the Individual Contract.
7.2 Any claim by the Buyer alleging a breach of the above warranty shall be made within [3] days after the Delivery Date, in relation to a breach that occurred during the above-referenced warranty period. The Buyer will speak with the Seller to validate details and create a specific plan for this
7.3 With the exception of liability relating to intellectual property, the Seller shall not be liable to the Buyer for any consequential or indirect damages that the Buyer may suffer in relation to the Products, including, but not limited to, lost profits, lost revenues, lost business chance, loss of use of the Products, and loss of use of other products or facilities. In addition, notwithstanding any other provision herein to the contrary, the Seller’s aggregate liability arising from transactions for Products under this Agreement shall not exceed 1/10 of the purchase price of each of the Products[●●]. The Seller shall be liable only if it has gross negligence or malevolent intention to cause damage to the Buyer.
The Seller shall defend and indemnify the Buyer against any claim or legal action brought by a third party alleging that the Buyer’s use of the Products infringes the intellectual property or other proprietary rights of the third party.
All legal notices relating to this Agreement shall be made in writing and shall be sent by registered or certified mail, with receipt confirmed by a signed return receipt or internet tracking, or by facsimile transmission, to the following respective addresses/facsimile numbers of the Parties or to such other addresses/facsimile numbers as the Parties may designate in writing from time to time in accordance with this Article. If sent by airmail, the notice shall be deemed to be received [7] business days after the date of postmark or on such earlier actual delivery date as is evidenced by the signed return receipt or internet tracking. If sent by facsimile, the notice shall be deemed to be received on the date of transmission. However, if any notice is received or deemed to be received after normal business hours or on a non-business day at the place of receipt, the notice shall be deemed to be received on the following business day.
Seller: Warmglow Co., Ltd.
Address: 4th Fl., Nagasawa Bldg., 12-8 Azuma-cho, Hachioji City, Tokyo, Japan
Attention: [Joe Tachikawa]
Facsimile: [Luke Osterndorf]
Emai: [sales@warmglow.ltd]
No amendment or modification to this Agreement shall be effective unless evidenced by a writing executed by both Parties.
The failure at any time of either Party to enforce or require strict compliance with any provision of this Agreement shall in no way be construed as a waiver of such provision nor in any way be construed to affect the right of such Party to thereafter enforce that or any other provision of this Agreement.
In the event that a court or other tribunal of competent jurisdiction at any time holds that any provision of this Agreement is illegal or unenforceable, such provision shall be severed from this Agreement, and the remainder of this Agreement shall not be affected thereby and shall continue in full force and effect.
This Agreement, including any Exhibits attached hereto, contains the complete and entire understanding of the Parties with respect to the subject matter hereof and supersedes any prior negotiations, agreements, and understandings between the Parties with respect to such subject matter. Each Party specifically acknowledges that the other Party has made no representations or promises (written or oral) inducing execution of this Agreement other than those specifically stated herein.
Notwithstanding anything herein to the contrary, neither Party hereto shall be liable for its failure to perform any of its obligations hereunder if precluded by riot, epidemic, power or communication line outage, war (whether declared or undeclared), terrorist act, fire, flood, tidal wave, earthquake, or other natural disaster, nuclear accident, strike, lockout, or other labor trouble, acts or non-acts of any governmental entity or official, including their order to prohibit of exportation, or any other cause beyond the reasonable control of the Party. If either Party wishes to invoke this provision, it shall promptly notify the other Party in writing of the nature of the force majeure and the affected obligations. The Party invoking this provision shall use its best efforts to minimize the effect of the force majeure.
15.1 Neither Party may assign or grant a security interest in any of its rights or delegate any of its obligations under this Agreement to a third party without the prior written consent of the other Party.
15.2 Subject to the restrictions on assignment contained herein, this Agreement shall insure to the benefit and be binding upon the Parties and their respective successors and assigns.
This Agreement is solely for the benefit of the Parties and their successors and assigns, subject to the restrictions on assignment contained herein, and shall not be construed to confer any rights on any third parties.
All headings in this Agreement are for reference only and shall not be considered in construing the meaning of this Agreement or the intent of the Parties.
All communications between the Parties relating to this Agreement shall be in the English language.
This Agreement as well as all claims arising out of or in connection with this Agreement or the transactions contemplated by this Agreement (including all tort and other non-contract claims) shall be governed by and construed in accordance with the substantive laws of Japan, without regard to any conflict of law principles, as if both Parties were Japanese entities and this Agreement was to be performed entirely in Japan. If any dispute arising out of or in connection with this Agreement or the transactions contemplated by this Agreement (including any tort and other non-contract claims) cannot be amicably resolved by the Parties, the exclusive forum for resolution of such dispute shall be the Tokyo District Court in Japan.
This Agreement may be executed in two counterparts, one signed by each Party, and the two counterparts together shall constitute one complete Agreement. [A facsimile or electronic (scanned) version of an original counterpart shall be given the same effect as the original counterpart.]
Each Party hereby confirms that it has conferred with qualified legal counsel regarding the legal effects of each provision of this Agreement and signals this by checking the box provided within the Auc.Warmglow.LTD website registration page.
