These Terms of Consignment (hereinafter referred to as these “Terms”) stipulates terms for use of services that Valuence International Limited and its subsidiaries jointly provide in regard to buying and/or selling of goods (hereinafter referred to as “Services”).
Client is required to agree to these Terms in order to use Services.
Part 1 General Provisions
Article 1. Basic Agreement
The purpose of these Terms is to set out basic matters regarding Client’s use of Services provided by Valuence.
In order to use Services, Client must consent to these Terms in advance.
When Client applies for Services in accordance with the usage procedures stipulated by Valuence, Valuence shall deem that Client consented to these Terms.
Article 2. Definitions
The following terms are defined to have the following meanings in this Agreement:
1. “Valuence” means Valuence International Limited.
2. “Client” means any client that will use Services.
3. “Parties” means both Valuence and Client.
4. “GSBA” means a membership based on-line auction hosted by an affiliated company of Valuence.
5. “Goods” means the goods that Client consigns to Valuence in regard to Services.
Part 2 Business of Consumption Purchase
Article 3. Outline of Services
Outline of Services that Valuence will provide is as follows:
1. Valuence will receive consignment of Goods, put them up for sales at GSBA and sell such Goods.
2. A Consignment Agreement for each Goods will be finalized between Parties when Client applies for use of Services by procedures designated by Valuence.
3. If Goods are sold at GSBA, a Sales and Purchase Agreement will be concluded between Valuence and Client at the point of sales of Goods. The consideration for such agreement will be the amount calculated in accordance with the hammer price.
4. In regard to the previous paragraph, Valuence does not guarantee sales of Goods at GSBA, and the title of Goods remains with Client until it is sold at GSBA.
5. In this Agreement, Client is a party in regard to its relationship with Valuence, but Client will not be a party to the selling of Goods at GSBA.
Article 4. Application for Use of Service
1. In regard to the use of Services, Client shall carry out procedures specified by Valuence when it consigns individual Goods to Valuence, and each individual Consignment Agreement for such Goods shall be finalized upon receipt of notice of Valuence’s acceptance of such consignment. Client may set a reserve price for sales of Goods in regard to such consignment, and Valuence will respect Client’s intention when carrying forward auction procedures.
2. In regard to the previous paragraph, Client shall deliver each individual Goods to Valuence by either method (“Method A” or “Method B”) described below , and transfer of such Goods shall be finalized by the completion of delivery. Client shall bear all costs of delivery.
1. Method A:Valuence shall exhibit Goods at GSBA with only product data provided by Client , and if Goods are sold at GSBA , Client consigns Goods to Valuence for shipment to the successful bidder (Valuence will send Goods to successful bidder after inspecting). In this Method , reference date of payment is the day Goods inspection is completed (Valuence shall send notice to Client about result of Goods inspection).
2. Method B:Client consigns Goods to Valuence before the auction at GSBA , and Valuence exhibit Goods at GSBA after inspection.
3. Client will provide all invoices with Incoterms FOB.
Article 5. Examination and Restriction of Goods
1. When Valuence receives delivery of Goods in accordance with paragraph 2 of the previous article, Valuence shall conduct examination of quality and/or quantity of Goods in accordance with Valuence’s criteria.
2. In regard to the previous paragraph, if Valuence determines that delivered Goods does not satisfy the product line criteria of Valuence, Valuence shall notify Client thereof within seven (7) days from receipt of delivery. In such case, within seven (7) days after Client receives such notice, Client may take measures such as exchange of the consigned Goods by advance notice to Valuence.
3. In regard to the previous paragraph, if Client does not make any reply to Valuence in regard to the handling of Goods that does not satisfy the criteria, or if Valuence and Client agree thereto, Valuence shall consider that application to use Services in regard to such Goods was cancelled, and return such Goods. Client shall be responsible for any cost of returning such Goods.
Article 6. Management and Sales of Goods
1. In regard to Goods delivered from Client, Valuence shall appropriately manage and store such Goods in accordance with Valuence criteria. When storing Goods, Valuence shall assume no responsibility for deterioration with age or other similar matters.
2. The sales period of Goods to be conducted by Valuence for Services will be thirty (30) days, and the Consignment Agreement for each individual goods shall terminate by the expiration of the term of such agreement, regardless of the result of auction at GSBA.
Article 7. Assignment of Rights to Goods
1. In regard to Goods consigned to Valuence from Client, a Sales and Purchase Agreement at the amount of hammer price multiplied by 95% will be concluded between Valuence and Client at the point when Goods is sold at GSBA, and a Sales and Purchase Agreement for Goods will be concluded thereafter between Valuence and the successful bidder.
2. In regard to the previous paragraph, Client will be a party to this Agreement but will not be a contract party in regard to the Sales and Purchase Agreement at GSBA.
Article 8. Payment of Sales Price
1. In regard to the previous paragraph, when Goods are sold at GSBA, Valuence shall report to Client, the name of Goods, number of Goods sold, sales price, commission fee and other necessary information, within five (5) days from the sale of Goods.
2. Valuence shall pay such sales price (adding the amount of tax according to the applicable tax system) by remittance to the bank account of a banking organization designated by Client, within fourteen (14) days from the reference date according to the method referd in the Article 4; provided, however, that if the last day of the payment due date falls on a holiday of such banking organization, the immediately preceding business day of such banking organization will be deemed to be the payment due date.
3. Currency accepted for payments for Services shall be limited to Japanese Yen, U.S. Dollars, Hong Kong Dollars and Singapore Dollars.
Article 9. Handling of Unsold Goods
1. In regard to Services, if Goods consigned by Client is not sold at GSBA and the individual Consignment Agreement is terminated by the expiration of the contract period, Valuence shall return such Goods to Client. Client shall be responsible for any cost of returning such Goods.
Article 10. Burden of Expense
Valuence shall be responsible for any cost that arises from Valuence’s obligations under these Terms, and Client shall be responsible for any cost that arises from any other matters.
Part 3 Miscellaneous
Article 11. Confidential Information
11.1 "Confidential Information" shall mean all information which is managed by each Party and disclosed by either Party (“Disclosing Party”) to the other Party (“Receiving Party”) to execute this Agreement during the term of this Agreement.
11.2 Notwithstanding the preceding paragraph, information that falls under any one of the following items shall not be Confidential Information.
(1) Information which was already in the possession of Receiving Party at the time of disclosure.
(2) Information which was already publicly available at the time of disclosure.
(3) Information which becomes publicly available after the time of disclosure without any fault of the Receiving Party.
(4) Information which is received by Receiving Party from an unrelated third party with no confidentiality obligations.
(5) Information which is independently developed or created by Receiving Party, not based on Confidential Information.
Article 12. Duty of Non-Disclosure
12.1 Each Party shall keep the confidential information of the other party confidential and shall not disclose to any third party.
12.2 Notwithstanding the provisions of the preceding paragraph, in the following cases, Receiving Party may disclose confidential information to a third party only to the extent necessary to execute this Agreement. Disclosure by such third party is prohibited.
(1) Where there is prior written consent of Disclosing Party. Provided, however, Receiving Party shall impose a confidentiality obligation equivalent to this Agreement on the third party who is the other party of the disclosure, and shall be responsible for the performance of the obligation by the third party.
(2) Where a disclosure request based on laws and regulations, or a disclosure request by a government agency or court is made. Provided, however, Receiving Party shall notify Disclosing Party of such disclosure to the extent reasonably possible.
(3) Disclosure to a third party who bears confidentiality obligation such as an attorney or a tax accountant. Provided, however, in this case, Receiving Party shall also impose a confidentiality obligation equivalent to this Agreement on the third party and shall be responsible for the performance of the obligation by the third party.)
12.3 Receiving Party shall disclose Confidential Information to its employees and officers who need to know in order to execute this Agreement.
Article 13. Personal Information
13.1 When Receiving Party obtains or receives personal information collected or held by Disclosing Party, Receiving Party shall use commercially reasonable efforts in order to prevent leakage or other unauthorized use of personal information, and shall not use personal information for any other than the purposes legally permitted.
13.2 Receiving Party shall restrict the access of personal information to minimum employees and officers and shall use only to the extent necessary to achieve the purpose, provided, however, Receiving Party shall not provide or disclose to third parties including re-consignee without prior consent of both Disclosing Party and the individual.
13.3 The Parties shall comply with the provisions of the applicable law for protection of personal information.
Article 14. Ownership of Rights
14.1 All the deliverables arisen in the course of carrying out the operation such as inventions, devices, works, know-how, and trade secrets (hereinafter collectively “Deliverables”), all the intellectual property rights (including all rights stipulated in Articles 22 to 25 of Copyright Act of Japan) pertaining to Deliverables, and ownership of Deliverables shall be decided in consultation between the Parties.
14.2 Each Party shall promptly cooperate with the other party if the other party requests cooperation for such as filing of necessary documents for the application/acquisition procedure of intellectual property rights.
14.3 Notwithstanding the provisions of 16.1 above, if routines, modules, etc. (“Routines”) owned by either Party before the start of the entrustment is included in Deliverables, all intellectual property rights pertaining to the Routines shall be retained to the original holder. In this case, each Party shall grant the other party free license for Routines within the range of use of the Deliverables (including provision to third parties).
14.4 Valuence shall not be responsible for any infringement with regard to the rights of design, trademark, patent, copyright or any other intellectual property rights in any country in connection with Goods which are subject to this Agreement and any disputes or claims arising therefrom shall be settled by Client at its own expenses.
Article 15. Prohibited Matters
15.1 Valuence prohibits Client to conduct any of the following acts when using Services:
1. to violate laws and regulations or public order and morals;
2. to cause nuisance or any act that relates to crime;
3. to grant sublicense to a third party or other similar acts;
4. to allow other people to use Client’s account;
5. to damage or obstruct functions of Valuence’s server or network;
6. to threaten to obstruct the operation of Services;
7. to collect or accumulate information such as personal information relating to other users;
8. to pretend to be another user;
9. to violate or threaten to violate rights of Valuence or a third party;
10. to directly or indirectly provide benefits to antisocial forces in relation to Valuence’s service; or
11. to do any other act that Valuence deems inappropriate.
15.2 In regard to the previous paragraph, Valuence strictly prohibits any consignment from Client of Goods that relates to any stolen goods, counterfeit goods, customized goods or other goods that are deemed inappropriate under normal social conventions (hereinafter referred to as “Illicit Goods”). In the event any goods consigned by Client fall under Illicit Goods, the contract regarding such Goods shall be immediately terminated and Client shall compensate any damage arising to Valuence or any third party therefrom.
Article 16. Compensation for Loss or Damage
16.1 If either Party suffers loss or damage due to the grounds attributable to the other party in connection with this Agreement, the Party may claim loss or damage against the other party only when it is direct and ordinary loss or damage that actually incurred.
16.2 The compensation for loss or damage pursuant to Section 18.1 of this Agreement shall not exceed the total amount of fee received by Valuence under this agreement. Provided, however, that this provision of upper limit will not apply thereto the loss or damage incurred by Valuence is caused by the dispute prescribed in the preceding Article.This article also applies vise versa for both Parties.
Article 17. No Assignment
The legal position of each Party under this agreement shall not be assigned or transferred to a third party without a prior written consent of the other Party.
Article 18. Termination
18.1 Either party may terminate this Agreement immediately by giving written notice to the other party without demand upon the occurrence of any of the following.
(1) If either Party fails to remedy failure (such as (a) failure to comply with obligations on any of Articles in this Agreement and (b) failure to perform part or all of obligations under this Agreement) within first 30 days after receiving demand requiring the remedy from the non-breaching Party.
(2) If either Party is subject to any dispositions by public authority, such as a petition for attachment, provisional seizure, provisional disposition, and statutory auction, or a disposition of tax delinquency.
(3) When a petition for the commencement of bankruptcy, corporate reorganization or civil rehabilitation proceedings, special liquidation or other legal bankruptcy proceedings is filed, or a liquidation proceedings or voluntary liquidation is commenced.
(4) If either Party falls under the circumstance of suspension of payment such as dishonor of negotiable instrument or check which is drawn or accepted by itself.
(5) If either Party acts with willful misconduct, gross negligence or dishonesty.
(6) If either Party harmed or is likely to harm the reputation or credibility of the other party, or caused or is likely to cause serious damage to the other party.
(7) If either Party or any officers of the Party is discovered to be Criminal/Anti-Social Activities or discovered to be involved in Criminal/Anti-Social Activities (a criminal/anti-social organization, a member or affiliate member of a criminal/anti-social organization, a business affiliated with a criminal/anti-social organization, an organization/person which seeks to extort money from corporations by disrupting their shareholder meetings, an organization/person which uses social protest for extortionary purposes, a group of professionals/specialists affiliated with criminal/anti-social organizations, or other organization/person as equivalent thereto).
(8) When status of the property of either Party deteriorates, or there is a reasonable ground to believe that status of the property is likely to deteriorates.
18.2 Client may terminate this Agreement by notifying to Valuence in writing and paying all the outstanding expenses under the scope of this Agreement incurred by Valuence by the time of the notification, if the Client cannot continue the conduct of the entrusted operation under this Agreement .This article also applies vise versa for both Parties.
18.3 If either Parties decide to end this Agreement, need to send the notification 90 days prier to termination.
Article 19. Duration
19.1 This Agreement shall be effective from the date of execution of this Agreement and continue to exist for one year. Provided, however, this Agreement shall be automatically renewed for another one year, unless either Party provides notice of non-renewal to the other Party at least one (1) month prior to renewal date, and the same applies thereafter.
19.2 The following provisions of this Agreement shall survive termination of this Agreement: Article13 (Confidential Information), Article14 (Duty of Non-Disclosure), Article15 (Personal Information), Article16 (Ownership of Rights), Article17 (Compensation for Loss or Damage) and Article24 (Governing Law and Jurisdiction).
Article 20. Entire Agreement
This Agreement contains the complete and entire understanding of the Parties with respect to the subject matter hereof and supersedes, whether oral or written, any prior negotiations, agreements, and understandings between the Parties with respect to the subject matter.
Article 21. Force Majeure
Notwithstanding anything to the contrary contained herein, neither Party shall be liable for its failure to perform any of its obligations hereunder, due to natural disaster, virous or pandemic disease, war, riot, insurrection, terrorist act, amendment or abolition of laws and regulations, order and disposition by public authority, strike, other force majeure, or any other cause beyond the reasonable control of the Party.
Article 22. Good Faith Negotiation
Any matter not stipulated in, or any question arising out of, or in connection with, this Agreement shall be resolved upon consultation in good faith between the Parties.
Article 23. Governing Law and Jurisdiction
23.1 This Agreement shall be governed by and construed in accordance with laws of Hong Kong.
23.2 The Parties shall submit to non-exclusive jurisdiction of Court of Hong Kong over any legal disputes arising out of or relating to this Agreement.
Article 24. Amendment
24.1 Valuence may amend these Terms without prior announcement; provided that, when Valuence judges that amendment of these Terms would be significantly disadvantageous to Client, Valuence shall amend these Terms after a reasonable period after notifying Client of the content of these Terms after amendment.
24.2 The latest Terms shall be published on the website of GSBA, and the latest version shall come into effect as of the time when published.
Article 25. Severability
Matters not provided in these Terms and any doubts arising as to the items provided in these Terms shall be subject to consultation in good faith by both parties and resolved. If any part of these Terms is invalid, such invalidity shall not affect the validity of any other provision of these Terms, and such invalid part shall be replaced by effective provisions that are closest to the purport of the relevant part.
These Terms shall be established on July 1, 2020 and shall come into effect on that day.