日本のアパレル企業であるCompany Yは、ベトナム企業であるCompany Xから繊維製品の購入を予定している。当該取引に際して、 Company Yは、Company Xとの間で、販売契約（基本契約）を締結する予定である。
問題 1 （販売契約における個別契約の成立）
Article ● Master agreement and Individual Agreements
1. This Agreement specifies the basic terms of the sales of the products of Company X, which apply to the individual transaction agreements entered into through consultation between the parties (the “Individual Agreements”), and Company X and Company Y shall comply with and perform in good faith both this Agreement and the Individual Agreements.
2. Company X and Company Y may, in the Individual Agreements, exclude some of the terms specified in this Agreement, or specific terms that differ from those of this agreement.
3. Company Y submits to Company X, at least 60 days in advance of Company Y’sdesired delivery date, an order form (in Company X’s designated format) specifying the order date, product name, unit price, order volume, delivery date, delivery location, method of payment and other details based on the inquiries by Company Y.However, Company X may refuse to accept an Individual Agreement submitted my order form at its own discretion based on its production status.
問題 1 （販売契約における個別契約の成立）
Company Yとして販売契約（基本契約）中の以下の個別契約の成立に関する条項をよりよいものにするにはどのようにしたらよいでしょうか？
Article ● Master agreement and Individual Agreements
1. This Agreement specifies the basic terms of the sales of the products of Company X, which apply to the individual transaction agreements entered into through consultation between the parties(the “Individual Agreements”), and Company X and Company Y shall comply with and perform in good faith both this Agreement and the Individual Agreements.
2. Company X and Company Y may, in the Individual Agreements, exclude some of the terms specified in this Agreement, or specific terms that differ from those of this Agreement. Where the terms of an Individual Agreement differ from those of this Agreement, the terms of the IndividualAgreement will prevail.
3. Individual Agreements will be executed upon Company X’s provision of an order receipt company Y following Company Y’s submission, [at least 60 days in advance of Company Y’sdesired delivery date, ]of an order form (in Company X’s designated format) specifying the order date, product name, specifications, unit price, order volume, delivery date, delivery location, method of payment and other details based on the inquiries by Company Y. [However, CompanyX may refuse to accept an Individual Agreement submitted my order form at its own discretion based on its production status.
1. Company Y shall inspect the Products delivered by Company X (“Inspection”) without delay within ten days after delivery of the Products in accordance with Article.
2. Company Y shall send to Company X a receipt (for Products that pass the Inspection provided for in 1 of this Article) or a notice (regarding Products in which shortfall is discovered) within 2 business days after the delivery of the Products. However, if Company X does not receive such notice (regarding Products in which shortfall or the like is discovered) from Company Y within 2 business days after the delivery of the Products, then it will be deemed that all of the delivered Products passed the Inspection.
3. If a shortfall or surplus is discovered upon Inspection as provided for in 1 of this Article, Company X shall deliver the remaining Products or reclaim the surplus Products within the period specified by Company Y.
4. Company Y may accept delivery of Products that fail the Inspection provided for in 1 of this Article but that Company Y considers usable (“Special Acceptance”).
問題２ （販売契約における検収）
Company Yとして販売契約（基本契約）中の以下の検収に関する条項をよりよいものにするにはどのようにしたらよいでしょうか？
Article ● Inspection and Acceptance
1. Company Y shall inspect the Products delivered by Company X (“Inspection”) based on the criteria designated by Company Y, including determining whether the Products meet the quality criteria provided for in the Article without delay within ten days after delivery of the Products in accordance with Article.
2. Company Y shall send to Company X a receipt (for Products that pass the Inspection provided for in 1 of this Article) or a notice (regarding Products in which a defect, the shortfall is discovered) within 2 business days after the delivery of the Products. [However, if Company X does not receive such notice (regarding Products in which shortfall or the like is discovered) from Company Y within 2 business days after the delivery of the Products, then it will be deemed that all of the delivered Products passed the Inspection.]
3. If a shortfall or surplus is discovered upon Inspection as provided for in 1 of this Article, Company X shall deliver the remaining Products or reclaim the surplus Products within the period specified by Company Y; if a malfunction, defect, deterioration, or the like is discovered in the Products, COMPANY X shall repair or replace the Products at no cost to COMPANY Y within the period specified by COMPANY Y.
4. Company Y may accept delivery of Products that fail the Inspection provided for in 1 of this Article but that Company Y considers usable (“Special Acceptance”).
1. If Company Y discovers that the Products delivered to it by Company X are soiled, broken, or otherwise defective, Company Y may request the following after notifying Company X of such defect, unless the Products have been damaged due to gross negligence on the part of Company Y after delivery:
(i) Sorting and repair of the defective Products Company Y may instruct Company X to sort and repair the defective Products.
(ii) Payment of sorting and repair expenses for the defective Products If Company Y sorts and repairs the defective Products itself or through a third party, Company Y may charge Company X for the parts, work, and other expenses necessary with respect thereto.
2. If Company X requests that the defective Products be returned, the parties shall consult regarding how to carry out such return.
問題 ３ (販売契約における瑕疵担保責任）
Company Yとして販売契約（基本契約）中の以下の瑕疵担保責任に関する条項をよりよいものにするにはどのようにしたらよいでしょうか？
Article ● Liability for defects
1. If Company Y discovers that the Products delivered to it by Company X are soiled, broken, or otherwise defective within the warranty period provided for in Article, Company Y may request the following after notifying Company X of such defect, unless the Products have been damaged due to gross negligence on the part of Company Y after delivery; if it is unclear to which of the parties the defect in the Products is attributable, the parties will determine liability through consultation:
(i) Delivery of replacements
Company Y may request that Company X deliver replacements for the defective Products
(ii) Sorting and repair of the defective Products
Company Y may instruct Company X to sort and repair the defective Products.
(iii) Payment of sorting and repair expenses for the defective Products
If Company Y sorts and repairs the defective Products itself or through a third party, Company Y may charge Company X for the parts, work, and other expenses necessary with respect thereto.
(iv) Reduction of price of the defective Products
Company Y may reduce the price of the defective Products in accordance with the written agreement with CompanyX.
2. Company X shall compensate Company Y for any damage incurred by Company Y due to a defect in the Products within the warranty period provided for in Article.
3. If Company X requests that the defective Products be returned, the parties shall consult regarding how to carry out such return.
1. Company X shall pay for the Parts within 7 days after the Acceptance.
2. Company X shall make the payment for the Parts to Company X on a US dollar basis by T/T Remittance.
請負契約のようなイメージ。
問題 ４ (部品有償供給における支払）
Company Yとして、Company Xへの部品の有償供給の支払方法に関するライセンス契約中の以下の条項をよりよいものにするにはどのようにしたらよいでしょうか？
Article ● Payment Terms
1. Company X shall pay for the Parts as follows:
a. Company X shall pay 20% of the total purchase price of the Parts in a Purchase Order, within 7 days from the acceptance of that Purchase Order by Company Y.
b. Company X shall pay 60% of the total purchase price of the Parts in a Purchase Order before the shipment of the Parts in a Purchase Order.
c. Company X shall pay the balance of the purchase price of those Pats within 7 days after the Acceptance.
2. Company X shall make the payment for the Parts to Company X on a US dollar basis by T/T Remittance.
Article ● Representations and warranties by Company Y represents and warrants that:
1. The manufacture of the Products does not infringe the rights, including patents, of any other person in any country within the;
2. Company Y or its contract manufacturer has all the approvals, licenses and permits from the Regulatory Authority in Japan required to manufacture the Products (Company Y and its contract manufacturer shall immediately discontinue the manufacture of the Products if any such approval, license, or permit is suspended, expired or withdrawn); and
3. The manufacturing facilities of Company Y or its contract manufacturer located at the site where the Products will be manufactured have all approvals required by the Regulatory Authorities for the manufacture of the Products and such manufacturing facilities and practices used in the facilities conform to, and shall continue, during the term of this Agreement, to conform to Laws of Japan.
問題 ５ (ライセンス契約における保証範囲）
Company Yとしてライセンス契約中の以下の保証範囲に関する条項をよりよいものにするにはどのようにしたらよいでしょうか？
Article ● Representations and warranties by Company Y represents and warrants that:
1. To Company Y’s knowledge, The manufacture of the Products does not infringe the rights, including patents, of any other person in any country within the;
2. Company Y or its contract manufacturer has all the approvals, licenses, and permits from the Regulatory Authority in Japan required to manufacture the Products (Company Y and its contract manufacturer shall immediately discontinue the manufacture of the Products if any such approval, license, or permit is suspended, expired or withdrawn); and
3. The manufacturing facilities of Company Y or its contract manufacturer located at the site where the Products will be manufactured have all approvals required by the Regulatory Authorities for the manufacture of the Products and such manufacturing facilities and practices used in the
facilities conform to, and shall continue, during the term of this Agreement, to conform to Laws of Japan.
4. EXCEPT AS EXPRESSLY SET FORTH IN THE ARTICLE●, COMPANY Y MAKES NO WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR SPECIAL CIRCUMSTANCE, NOR ANY OTHER WARRANTIES MADE EXPRESS OR IMPLIED. Company Y’s warranties under this Article are not applicable if the Products are modified, altered, or otherwise changed without the prior written consent of Company Y.
In the event that any development or improvement as to the Products, (“Improvement”) are made solely by Company X or jointly by Company X and Company Y hereto, Company X shall promptly disclose to Company Y such Improvement, together with any pertinent technical information and data.
問題 ６ (ライセンス契約における改良技術）
Company Yとしてライセンス契約中の以下の改良技術に関する条項をよりよいものにするにはどのようにしたらよいでしょうか？
Article ● Improvement
In the event that any development or improvement as to the Products, (“Improvement”) are made solely by Company X or jointly by Company X and Company Y hereto, Company X shall promptly disclose to Company Y such Improvement, together with any pertinent technical information and data, and (i) grant to Company Y a royalty-free, non-exclusive, worldwide and perpetual right and license to utilize such Improvement, as applicable and (ii)
upon Company Y’s request, promptly assign and transfer to Company Y, with reasonable charge, the Improvement or Company X’s share in the Improvement. If Company Y makes any application for a patent and/or any intellectual property rights regarding such Improvement, Company X shall provide to Company Y such assistance as requested by Company Y at the cost of Company Y.
