Content Guru K.K. – Terms and Conditions of Purchase

These Terms and Conditions may only be varied with the written agreement of Content Guru K.K. (“Content Guru”). No terms or conditions put forward at any time by the Supplier shall form any part of the Contract.

1. DEFINITIONS

‘We’, ‘Us’ and ‘Our’ means Content Guru.

‘You’ and ‘Your’ means the person, firm or company to whom the Purchase Order is addressed and any employees, sub-contractors or agents of said person, firm or company.

‘Goods’ means the materials, articles, works and/or services described in the Contract.

‘Defective Goods’ means Goods that are defective, damaged, or otherwise not fully and strictly conform to the requirements under the Contract (including the requirements under the Contract with respect to quality and quantity)

‘Package’ means any type of package including bags, cases, cylinders, drums, pallets and other containers.

‘Authorised Officer’ means our employee authorised, either generally or specifically, by us to sign our purchase order.

‘Authorised’ means signed by one of the authorised officers.‘Purchase Order’ means our authorised purchase order containing a reference to these Terms and Conditions of Purchase.

‘Order Amendment’ means our authorised order amendment or series of order amendments, each order amendment having precedence over any earlier order amendment.

‘Contract’ has the meaning given in Condition 2 below.

‘Price’ has the meaning given in Condition 3 below.

2. CONTRACT

2.1 You agree to sell and we agree to purchase the goods in accordance with the Contract. The Contract shall comprise (in order of precedence)(i) any order amendments;

(ii) the purchase order;

(iii) these Terms and Conditions of purchase; and

(iv) any other document (or part document) referred to on the Purchase Order.

2.2 The Contract shall not include any of your conditions of sale. However, should this Contract be held by a court of competent jurisdiction to include your terms and conditions of sale then in the event of any conflict or apparent conflict these Terms and Conditions of Purchase shall always prevail over your terms and conditions of sale.

2.3 Delivery of goods or submission of an invoice to Content Guru in response to a Purchase Order or order of amendment will mean that you have accepted the terms and conditions of this Contract.

3. PRICE

3.1 You will sell us the goods for the price stated in the Contract. If no price is stated in the Contract then the price shall be a fair price, taking into account prevailing market conditions. The price shall include the costs and expenses for storage, packing, insurance, delivery, installation, testing (as appropriate) and commissioning but shall exclude consumption tax.

3.2 Unless otherwise agreed in writing by Content Guru, you will render a separate invoice in respect of each consignment delivered under this order. Consumption tax, where applicable, shall be shown separately on all invoices as a strictly net extra charge.

4. VARIATIONS

We have the right, before delivery, to send you an order amendment adding to, deleting or modifying the goods. If the order amendment will cause a change to the price or delivery date then you must suspend performance of the Contract and notify us without delay, calculating the new price and delivery date at the same level of cost and profitability as the original price. You must allow us at least 10 working days to consider any new price and delivery date. The order amendment shall take effect then but only if our Authorised Officer accepts in writing the new price and delivery date within the time you stipulate. If an Authorised Officer fails to confirm the order amendment within the time you stipulate then performance of the Contract shall immediately resume as though the said order amendment had not been issued (except that we may still exercise our right of cancellation in accordance with Condition 5.)

5. OUR RIGHT OF CANCELLATION

In addition to our other rights of cancellation under this Contract, we may cancel the Purchase Order and any order amendment at any time by sending you a notice of termination. You will comply with any instructions that we may issue with regard to the goods.

6. QUALITY AND DESCRIPTION

The goods shall

i. conform in every respect with the provisions of the Contract;

ii. be capable of all standards of performance specified in the Contract;

iii. be fit for any purpose made known to you expressly or by implication and in this respect we rely on your skill and judgement;

iv. be new unless otherwise specified on the Purchase Order; and be of sound materials and skilled and careful workmanship;

v. correspond to their description or any samples, patterns, drawings, plans and specifications referred to in the Contract;

vi. be of satisfactory quality; and

vii. comply with any current legislation;

7. WORK ON OUR PREMISES

If the Contract involves any works or services which you perform on our premises then the following conditions shall apply:

a. You shall ensure that you and your employees, your sub-contractors and their employees and any other person associated with you will adhere in every respect to the obligations imposed on you by Industrial Safety and Health Act and the Labor Standards Act of Japan and any other applicable legislation.

b. You shall ensure that you and your employees, your sub-contractors and their employees and any other person associated with you will comply with any regulations that we may notify to you in writing.

8. PROGRESS AND INSPECTION

8.1 You shall at your expense provide any programmes of manufacture and delivery that we may reasonably require. You shall notify us without delay in writing if your progress falls behind or may fall behind any of these programmes.

8.2 We shall have the right to check progress at your works or the works of sub-contractors at all reasonable times, to inspect and to reject goods that do not comply with the Contract. You agree to have your sub-contractors reserve such right for us.

8.3 Any inspection, or approval shall not relieve you from your obligations under this Contract.

9. PACKAGING

Unless otherwise stated in the Contract, all packaging shall be non-returnable. If the Contract states that packaging is returnable, you must give us full disposal instructions before the time of delivery. The packaging must be clearly marked to show to whom it belongs. You must pay the cost of all carriage and handling for the return of packaging. We shall not be liable for any packaging lost or damaged in transit.

10. DELIVERY

10.1 Delivery includes packaging, securing, dispatching, delivering, installing and commissioning the Goods at your expense. The Goods shall be properly packed, secured and dispatched and arrive in good condition at the times and the place or the places specified in the Contract.

10.2 If you or your carrier deliver any Goods at the wrong time or to the wrong place then we may deduct from the price any resulting costs of storage or transport.

10.3 Any access to premises and any labour and equipment that may be provided by us in connection with delivery shall be provided without acceptance by us of any liability whatsoever and you shall indemnify us in respect of any actions, suits, claims, demands, losses, charges, costs and expenses which we may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any of your actions or omissions, or to any act or omission of your sub-contractors.

10.4 Where any access to the premises is necessary in connection with delivery or installation, you shall at all times comply and/or make your sub-contractor comply with the reasonable requirements of Content Guru.

11. LATE DELIVERY

11.1 The time of delivery shall be of the essence and failure to deliver within the promised or specified time shall enable Content Guru (at its option) to release itself from any obligation to accept and pay for the Goods and/or to cancel all or part of the Order, in either case, without prejudice to its other rights and remedies.

11.2 We may also return for full credit and at your expense any goods that in our opinion cannot be used owing to this cancellation. In the case of services, we may have the work performed by alternative means and any additional costs reasonably so incurred shall be at your expense. This shall not affect any other rights we have.

12. PROPERTY AND RISK

12.1 You shall bear all risks of loss or damage to the Goods until they have been delivered, installed and commissioned and shall insure accordingly.

12.2 Ownership of the Goods shall pass to us:

i. when the Goods have been delivered but without prejudice to our right of rejection under this Contract, and

ii. If we make any advance or stage payment, at the time such payment is made, in which case you must as soon as possible mark the Goods as our property.

13. DEFECTIVE GOODS

13.1 If any Goods delivered are Defective Goods, we may reject such delivery and cancel the Purchase Order in whole or in part, and request that you promptly retrieve and replace all such Defective Goods with replacement Goods or properly repaired Goods at your own cost and expense upon our request, or request that you take other proper measures as are requested by us. You shall have no right to make any claim therefor against us, and shall reimburse us for all costs and expenses, if any, incurred by us.

13.2 If we cancel the Purchase Order, you shall promptly repay any monies paid under the Contract without any retention or offset and retrieve at your expense any Defective Goods delivered by you. Cancellation of the Purchase Order under this condition shall not affect any other rights we may have.

13.3 If you do not retrieve the Defective Goods or take such other proper measures in accordance with this Condition 13, we retain the right to deliver to you, sell to a third party, destroy, or in any other way dispose of such Defective Goods at our sole discretion.

13.4 In the case prescribed in Conditions 13.1 to 13.3, we reserve the right to request that you indemnify us against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever caused by the Defective Goods, including damages in lieu of performance and attorneys’ fees.

13.5 Article 526 of the Commercial Code of Japan (including any amendment) shall not apply to this Contract.

14. PAYMENT

Unless stated otherwise in the Contract we shall pay you within 30 days of receipt of a correctly rendered invoice by bank wire transfer to a bank account designated by you in the invoice (the costs for such remittance shall be borne by us). Your invoice must be addressed to the address indicated on the Purchase Order and must quote the full Purchase Order Number. We shall not be held responsible for delays in payment caused by your failure to comply with our invoicing instructions.

15. YOUR WARRANTY

It is expressly agreed between us that:

a. You shall promptly make good at your expense any Defective Goods that we discover during the first 12 months of actual use or 18 months from the date of acceptance by us whichever period shall expire first. Such defects may arise from your faulty design, your erroneous instructions as to use or inadequate or faulty materials or poor workmanship or any other breach of your obligations whether in this contract or at law.

b. Repairs or replacements will themselves be covered by the above warranty but for a period of 12 months from acceptance by us.

c. You will ensure that compatible spares are available to facilitate repairs (where applicable) for a period of at least 5 years from the date of delivery of the Goods.

16. INDEMNITY AND INSURANCE

16.1 You shall indemnify us against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever (if any) which we may incur under any applicable laws, in respect of personal injury to or death of any person or in respect of any loss or destruction of or damage to property (other than as a result of any default or neglect of ourselves or of any person for whom we are responsible) which occurs in connection with any Defective Goods or any other work executed by you under this Contract or is alleged to be attributed to some defect in the Goods.

16.2 This Purchase Order is given on the condition that (without prejudice to the generality of Condition 16.1) you will indemnify us against all loss, costs, claims, demands, expenses and liabilities whatsoever which we may incur either at common law or by statute (other than as a result of any default or neglect of ourselves or of any person for whom we are responsible) in respect of personal injury to or death of any of your or our employees, agents, sub-contractors or other representatives while on our premises whether or not such persons are (at the time such personal injury or deaths are caused) acting in the course of their employment.

16.3 You will indemnify us against any and all loss, costs, expenses and liabilities caused to us whether directly or as a result of the action, claim or demand of any third party by reason of any breach by you of these conditions or of any terms or obligations on your part implied by any statue or statutory provision relevant to the Contract or to Goods or work covered thereby, including product liabilities under the Product Liability Act of Japan. This indemnity shall not be prejudiced or waived by any exercise of our rights under Condition 13.

16.4 You shall hold satisfactory and adequate insurance cover with a reputable insurer to fulfil your insurance obligations for the duration of this Contract including public liability. You shall effect insurance against all those risks arising from your indemnity in Condition 16.3. Satisfactory evidence of such insurance and payment of current premiums shall be shown to us upon request.

17. SET-OFF

We may set off our obligations to pay for you against the corresponding amount of our monetary claims against you at any time irrespective of the due date of such claims.

18. CONFIDENTIALITY

18.1 You shall keep confidential, in good faith as a fiduciary, any technical, business or other operational information provided by us orally, or in the form of materials, electronic memory device or other tangible medium, for the performance of the Contracts or which is conspicuously designated as confidential by us (“Confidential Information”).You may not disclose the Confidential Information to a third party other than when it is necessary for the third party to use the Confidential Information for the performance of the Contracts. When we allow a third party to use the Confidential Information for the performance of the Contracts, you shall take all necessary measures to have such third party keep the confidentiality of such Confidential Information, and such third party’ breach of the confidentiality obligation set forth in this Contract shall be deemed your breach of this Contract.

18.2 You shall use the Confidential Information only for the purposes of this Contract.

19. MATTERS BEYOND CONTROL

If either party is delayed or prevented from performing its obligations under this Contract by circumstances amounting to force majeure, such performance shall be suspended. If the obligation cannot be completed within a reasonable time after the due date as specified in the Purchase Order, then the Contract may be cancelled by either party on written notice to the other.

20. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

You warrant that neither the Goods nor our use of them will infringe or be likely to infringe any patent right, registered design right, trade mark right, copyright, utility model right, or other intellectual property right or the business interest protected by the Unfair Competition Prevention Act of Japan, and undertake to indemnify us against all actions, claims, demands, costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any such right or interests..

21. NON-OBSERVANCE OF CONDITIONS

If you breach or fail to observe any provision of this Contract we may give you written notice of such breach or non-observance and you shall have 28 days from receipt of the notice in which to rectify the breach or non-observance. Should you fail to rectify the breach or non-observance, we have the right to give you written notice terminating the Contract with immediate effect.

22. HEALTH & SAFETY

You warrant that all necessary tests and examinations have been made (or will be made prior to delivery of the Goods) to ensure that the Goods are designed and constructed so as to be safe and without risk to the health or safety of persons using the same, and that you have made available to Content Guru adequate information about the use for which the Goods have been designed and have been tested and about any conditions necessary to ensure that when put to use, the Goods will be safe and without risk to health. You shall observe all legal requirements of Japan and relevant laws, regulations and agreements in relation to health, safety and environment, and in particular to the marking of hazardous goods, the provision of data sheets for hazardous materials all provisions and relating to food.

23. YOUR SOLVENCY

If you become insolvent or bankrupt or (being a company) make an arrangement with your creditors or have an administrator appointed or commence to be wound up (other than for the purpose of amalgamation or reconstruction) we may without replacing or reducing any other of our rights terminate the Contract with immediate effect by written notice to you or any person in whom the Contract may have become vested. Any amounts paid to you in advance of delivery will be held by you in trust, and refundable immediately to Content Guru in the above circumstances.

24. ASSIGNMENT AND SUB-LETTING

The Contract shall not be assigned by you nor sub-let as a whole. You shall not sub-let any part of the Contract without our written consent.. The restriction contained in this Condition shall not apply to sub-contracts for materials, for minor details or for any part of which the makers are named in the Contract. You shall be responsible for all work done and Goods supplied by all sub-contractors.

25. WAIVER

A failure at any time to enforce any provision of the Contract shall in no way effect the right at a later date to require complete performance of the Contract, nor shall the waiver of the breach of any provision be taken or held to be a waiver of any subsequent breach of the provision or be a waiver of the provision itself.

26. NOTICE

All notices and communications required to be sent by you or us in this Contract shall be made in writing and sent by express and registered mail and if sent to you to your registered or head office, and if sent to us sent to our Authorised Officer and shall be deemed to have reached the party to whom it is addressed on the next business day following the date of posting.

27. ENFORCEABILITY

If any part of these terms and conditions is held to be unenforceable or invalid for any reason the remainder shall remain in full force and effect.

28. AMENDMENT

No addition, alteration or substitution of these Conditions will bind us or form part of the Contract unless and until accepted in writing by our Authorised Officer.

29. LAW

This Contract shall be subject to Japanese law and the jurisdiction of the Tokyo District Court as the court of first instance.