Note regarding use of this document: This terms and conditions (“T&C”) shall apply to anyone in possession or use of batteries (“Product”) developed by Toyotsu Binter Automotive Parts Pte. Ltd. (“Party A”).

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Capitalized terms used herein but not otherwise defined will have the meaning ascribed to them in Section 4 of this T&C. Party A and you shall be referred to herein as each a “Party”, and collectively, the “Parties”.

1. Specific Liability Limitations and Exclusions

         Party A shall not be liable to you under any of the following circumstances:

(a)  any damage to the Product resulting from your negligent actions or omissions (including without limitation, loose wiring, failure to provide reasonable and necessary maintenance, improper installation of the Product, operation of the Product in an overcharged or undercharged condition, use of non-approved connector cables, etc.);

(b)  any damage to the Product resulting from further use of the Product despite the discovery of a defect;

(c)  any Product charged by systems other than the original equipment type battery charter or charging systems not approved by Party A;

(d)  any Product that has been exposed to extreme temperatures,

(e)  any Product that has its manufacturing date codes destroyed or tampered with;

(f)  deterioration of any Product by reason of normal wear and tear (including without limitation rust or stains);

(g)  missing accessories or external parts of the Product, unless such claim is made within 3 days from the purchase date of such Product;

(h)  general maintenance, routine servicing and cleaning, updating or upgrading of software, installation of additional software or applications, product demonstration, or any other services other than those specified in this T&C;

(i)  cost of transportation, shipping fee, service calls, battery installation or recharging of the Product;

(ii)  any other damage to the Product not resulting from a defect in materials or workmanship of the Product; and

(iii) any use of the Product outside its product specifications.

2. General Liability Limitations and Exclusions

(a)  ALL PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND YOUR USE OF SUCH PRODUCTS IS SOLELY AT YOUR OWN RISK. PARTY A DOES NOT MAKE, AND HEREBY DISCLAIMS, (I) ALL EXPRESS WARRANTIES WITH REGARD TO THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE PRODUCTS PROVIDED HEREUNDER WILL BE ERROR-FREE, OR COMPLETELY SECURE; AND (II) ANY AND ALL IMPLIED WARRANTIES WITH REGARD TO THE PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

(b)  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS T&C, IN NO EVENT WILL PARTY A BE LIABLE TO YOU FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES (EXCEPT YOU SHALL BE LIABLE FOR ANY FEES OR OTHER AMOUNTS OWED TO PARTY A FOR SUPPLYING THE PRODUCTS TO YOU); (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(c)  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PARTY A’S TOTAL LIABILITY TO YOU IN THE AGGREGATE FOR THE ENTIRE TERM (AND REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO (I) THE SUPPLY OF PRODUCTS TO YOU OR (II) THIS T&C (INCLUDING ATTORNEY’S FEES) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO PARTY A FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE.  AS A FURTHER LIMITATION, PARTY A’S MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO PRODUCTS OFFERED OR PROVIDED BY PARTY A FOR A NON-RECURRING CHARGE ONLY SHALL NOT EXCEED THE AMOUNT OF THE FEE FOR SUCH PROVIDED ON THE OCCASION GIVING RISE TO THE CLAIM.

(d)  THE LIMITATIONS SET FORTH IN SECTIONS 2(b)-(c) WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.

(e)  You waive the right to bring any claim against Party A arising out of or in any way relating to the sale of the Products to you or this T&C more than one (1) year after (i) the original purchase date of the Product or (ii) the termination of any agreement (“Agreement”) in relation to the sale of the Products to you (whichever is earlier). Each Party recognizes and agrees that the warranty disclaimers, limitations of liability, exclusions and remedy limitations set out in this T&C are materially bargained for by Party A and you and such disclaimers, limitations of liability, exclusions and remedy limitations are reasonable in the circumstances.

Notwithstanding anything to the contrary in these this T&C, you hereby undertake in favor of Party A that you shall fully indemnify Party A against all losses, liabilities, damages, costs (including reasonable legal costs), claims, expenses, demands, actions and proceedings which may be suffered, incurred or made against Party A as a result of or in connection with your such breach of any terms and conditions herein and/or by any negligent act or omission of the Customer.

 

3. Miscellaneous

(a)  Party A reserves the right to amend or modify this T&C without giving any prior notice

(b)  This T&C shall be governed by and construed in accordance with the laws of Singapore.

 

4. Definition

Affiliate: As to a Party, means any entity controlling, controlled by, or under common control with such Party, where the term “control” and its correlative meanings, “controlling,” “controlled by,” and “under common control with,” means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in an entity.