Terms and Conditions Agreement

Effective Date: 18/12/2024

Introduction

This Terms and Conditions Agreement ("Agreement") is a legally binding contract between Bonsai Collectors株式会社 ("Company," "we," "us," or "our") and you ("User," "you," or "your"). This Agreement governs your access to and use of our Platform and Services. By clicking "I Agree," accessing, or using our Platform or Services, you acknowledge that you have read, understood, and agree to be bound by this Agreement, including our Privacy Policy, which is incorporated herein by reference. If you do not agree to these terms, you must not access or use our Platform or Services.

Age Requirement

You must be at least 18 years old or the age of majority in your jurisdiction to use our Services. By agreeing to these terms, you represent and warrant that you meet this age requirement.

Definitions

  • "Platform": The online interface provided by the Company, accessible via our website or application, for Users to create and manage their bonsai collections.
  • "Services": The features and functionalities offered through our Platform, including bonsai tree catalog access, collection management, Maintenance Services, and Rental Products.
  • "Maintenance Services": The ongoing care, upkeep, and management services provided by the Company for the bonsai trees owned by the User.
  • "Subscription": The recurring payment plan chosen by the User for the Maintenance Services of their bonsai collection.
  • "Dashboard": The User-specific interface on the Platform where Users can view details about their bonsai collection, including locations, maintenance schedules, and payment history.
  • "Rental Products": Bonsai trees or other products that Users can rent through our Platform, subject to specific rental terms.
  • "Abandoned Bonsai": Bonsai trees owned by Users who have failed to pay the required Maintenance Fees or have neglected their obligations, resulting in the bonsai being considered abandoned under this Agreement.
  • "Maintenance Fees": The fees associated with the Maintenance Services provided for the bonsai trees.
  • "Force Majeure": Events beyond the reasonable control of the Company, including but not limited to natural disasters, war, acts of terrorism, pandemics, government actions, or other unforeseeable circumstances.

User Obligations

By using our Platform and Services, you agree to:

  • Account Information: Provide accurate, current, and complete information during registration and keep your account information up-to-date.
  • Account Security: Maintain the confidentiality of your account credentials and be responsible for all activities that occur under your account.
  • Lawful Use: Use the Platform and Services only for lawful purposes and in compliance with all applicable laws and regulations.
  • Prohibited Activities: Refrain from:
    • Misusing the Platform (e.g., hacking, introducing viruses).
    • Violating intellectual property rights.
    • Harassing, abusing, or harming other Users.
    • Engaging in fraudulent or unauthorized activities.
  • Compliance with Policies: Adhere to all Company policies, including this Agreement and our Privacy Policy.

Purchasing and Payment

  1. Purchasing Bonsai Trees

    • Selection and Purchase: Users may purchase bonsai trees by selecting from the available catalog on our Platform.
    • Payment Methods: Payment must be made in full at the indicated price via accepted payment methods, including credit card or bank transfer.
    • Ownership Transfer: Users become the owners of the bonsai trees upon successful payment and confirmation by the Company.

  2. Subscription for Maintenance Services

    • Mandatory Maintenance: Users are required to subscribe to Maintenance Services for each bonsai tree they own.
    • Non-Cancellable Maintenance Fees: Maintenance Fees cannot be canceled while you remain the owner of the bonsai tree.
    • Billing Cycle: Maintenance Fees are billed on a recurring basis as per the plan selected by the User.
    • Payment Methods: Maintenance Fees can be paid via credit card or bank transfer.

  3. Rental Products

    • Rental Agreement: Users may rent bonsai trees or other products, subject to separate rental terms provided at the time of the transaction.
    • Rental Period and Renewal: Details about the rental period, renewal options, and termination are specified in the rental agreement.
    • Responsibility for Loss or Damage: Users are responsible for any loss or damage to the Rental Products during the rental period.

  4. Payment Processing

    • Secure Payments: Payments are processed securely through our third-party payment providers.
    • Payment Information: Users are responsible for maintaining valid and up-to-date payment information on their account.

  5. Payment Failures

    • Notification of Failed Payments: In the event of a declined payment, the User will be notified and must provide an alternative payment method promptly.
    • Consequences of Non-Payment: Failure to pay Maintenance Fees may result in the bonsai tree being classified as an Abandoned Bonsai.

  6. Taxes and Fees

    • User Responsibility: Users are responsible for all applicable taxes, duties, or other governmental fees associated with their purchases and subscriptions.

  7. Refund Policy

    • No Refunds: All sales and Maintenance Fees are final and non-refundable unless otherwise required by applicable law or expressly stated in this Agreement.

Service Description

  1. Platform Services

    • Self-Service Tool: Our Platform provides a self-service tool for creating personalized bonsai collections.
    • Bonsai Profiles: Users can access detailed profiles for each bonsai tree, including information on origin, care instructions, and maintenance history.

  2. Service Availability

    • No Guarantee of Uninterrupted Service: We strive to keep the Platform and Services available at all times but do not guarantee uninterrupted access.
    • Maintenance and Technical Issues: Service availability may be affected by technical issues, maintenance, or Force Majeure events.

  3. No Warranties

    • "As Is" Basis: The Platform and Services are provided "as is" and "as available," without warranties of any kind, either express or implied, to the fullest extent permitted by law.

Cancellations and Resale

  1. Non-Cancellation of Maintenance Fees

    • Mandatory Maintenance Fees: Maintenance Fees cannot be canceled while you remain the owner of the bonsai tree.
    • Essential Services: Maintenance Services are essential for the health and wellbeing of the bonsai trees.

  2. Placing Bonsai for Sale

    • Initiating a Sale: Users wishing to discontinue Maintenance Services must place their bonsai tree "for sale" through their Dashboard.
    • Setting Selling Price: The User may set a selling price, and the bonsai will remain listed until purchased by another party.
    • Continued Maintenance: Maintenance Fees must continue to be paid until the bonsai tree is sold.

  3. Failure to Pay Maintenance Fees

    • Classification as Abandoned Bonsai: If a User fails to pay the Maintenance Fees when due, the bonsai tree will be classified as an Abandoned Bonsai.
    • Notification and Grace Period: The Company will notify the User of the missed payment and provide a grace period of 30 days to remedy the default.

  4. Handling of Abandoned Bonsai

    • Company's Rights: If Maintenance Fees remain unpaid after the grace period, the Company may, at its discretion:
      1. Purchase the Bonsai
        • Market Value Purchase: The Company may purchase the bonsai tree from the User at its fair market value, as determined by the Company.
      2. Offer the Bonsai at Auction
        • Auction Process: The Company may place the bonsai tree up for auction.
        • Proceeds Distribution: Proceeds from the sale, minus any outstanding Maintenance Fees and applicable costs, will be remitted to the User.

  5. Dormant Accounts

    • Definition of Dormancy: If the User fails to respond, pay, or deposit additional funds within three (3) months, the account will be considered dormant.
    • Abandoned Bonsai Status: All bonsai trees in a dormant account may be classified as Abandoned Bonsai and handled as described above.

  6. Ownership Rights

    • Relinquishment of Rights: By failing to pay Maintenance Fees and allowing the bonsai to become an Abandoned Bonsai, the User relinquishes ownership rights to the extent permitted by applicable law.
    • Legal Compliance: The Company will comply with all legal requirements for handling abandoned property.

Selling and Reselling of Bonsai Trees

  1. Eligible Sellers and Origin of Trees

    1. Bonsai Collectors and Gardens (Vendors): Bonsai Collectors and approved Gardens ("Vendors") may list bonsai trees for sale on the Platform. Vendors are subject to separate vendor contracts, verification processes, and compliance requirements.
    2. Users as Sellers: Users may also sell bonsai trees on the Platform, provided that:
      • The bonsai tree was originally purchased through the Platform from either Bonsai Collectors or a Vendor; and
      • The bonsai tree remains under the custody, maintenance, and documentation of a professional Garden or Bonsai Collectors as specified herein.

      No User may list for sale any bonsai tree not previously acquired through the Platform.

  2. Listing and Information Requirements

    1. Vendors' Information Obligations: Vendors must provide accurate and comprehensive information about each bonsai tree, including but not limited to species, age, origin, health status, and relevant historical data. These requirements are governed by the separate vendor contract.
    2. Up-to-Date ID Card: Each bonsai tree is accompanied by an ID card maintained by the Vendor or the professional Garden responsible for the tree's upkeep. This ID card must be kept accurate and current at all times, reflecting any changes in condition, health, or other material attributes of the bonsai.
    3. As-Is for Resales: Bonsai trees resold by Users are sold "as is," with all information provided via the ID card and the Platform's listings. Bonsai Collectors and Vendors undertake best efforts to keep the ID card and related data accurate, but Users agree that purchases are made based on the information available at the time of sale.

  3. Pricing and Profit Margin Commission

    1. Initial Sales by Vendors and Bonsai Collectors: For initial listings, Vendors or Bonsai Collectors set their own sales prices. Terms regarding Vendor fees or commissions are covered in the separate vendor contract and are not governed by these Terms.
    2. User Resales: When a User lists a bonsai tree for resale, the User may set a new sale price at their discretion. A commission fee of twenty percent (20%) on the profit margin (reselling price minus the original purchase price) is payable to the Platform. Maintenance fees, taxes, or other costs do not factor into the profit margin calculation.
    3. Escrow and Payout: All payments are handled through the Platform's escrow system. Once a sale is confirmed and payment is received from the buyer, the Platform will credit the seller's account balance accordingly, minus any applicable commissions.

  4. No Shipping; Consignment Model

    1. Custody and Maintenance: Bonsai trees listed on the Platform are held under consignment arrangements with professional Gardens or Bonsai Collectors' designated locations. There is no shipping of trees directly between Users or Vendors.
    2. Insurance Coverage: The trees under consignment are covered by a Fiduciary Liability Insurance Agreement between the Gardens and Bonsai Collectors. Buyers may have the option to purchase additional insurance coverage (subject to availability and separate terms).
    3. Future Physical Possession: Should a User take physical possession of a tree in the future, this scenario will be addressed by updated terms at that time.

  5. No Refunds or Cancellations Post-Sale

    1. Finality of Sales: Once the buyer's payment is received and the sale is completed, the transaction is final. No refunds or cancellations are permitted.
    2. Subsequent Resale: A buyer who becomes the owner of a bonsai tree may list it for sale again on the Platform, subject to the Terms herein.

  6. Authenticity and Representation

    1. Vendors' Responsibility: Vendors are responsible for the authenticity and accurate representation of bonsai trees at the initial time of listing.
    2. Continuous Accuracy of ID Card: The professionals maintaining the bonsai (either Bonsai Collectors or the Garden) have a fiduciary duty to update the ID card to reflect the tree's current state, ensuring ongoing accuracy and authenticity.
    3. Platform's Best Efforts: Bonsai Collectors makes best efforts to verify the accuracy of information and to ensure that Vendors meet high standards of care and representation. However, the Platform does not guarantee the accuracy or authenticity beyond the information recorded on the ID card and provided by the Vendor.

  7. Disputes and Mediation

    1. No Post-Sale Refund or Return: Buyers are expected to review all available information prior to purchase. Disputes over quality, authenticity, or condition will not result in a refund.
    2. Mediation by Bonsai Collectors: In the event of a dispute between a buyer and a seller, Bonsai Collectors will act as a mediator to help reach a resolution. However, the Platform cannot guarantee any particular outcome and is not liable for any losses arising from such disputes.

  8. Liability Limitations for Marketplace Sales

    1. Third-Party Responsibility: Sales facilitated through the Platform involve trees owned and maintained by third-party Vendors or Users. Bonsai Collectors is not responsible for the condition, authenticity, legality, or compliance of any tree sold by third parties.
    2. No Guarantee of Condition: Buyers acknowledge that they rely on the ID card and available listing information. Any claims related to misrepresentation or authenticity must be addressed directly with the Vendor or the User who sold the tree, subject to the mediation process stated above.
    3. Indemnification: Users agree to indemnify and hold harmless Bonsai Collectors and its affiliates from any claims arising from their selling or purchasing activities, as outlined in the general Indemnification section of these Terms.

Liability Limitations

  1. Limitation of Liability:

    • Maximum Liability: To the maximum extent permitted by law, the Company's total liability to the User for any claim arising out of or relating to this Agreement or the Services shall not exceed the total amount paid by the User to the Company in the twelve (12) months preceding the claim.

  2. No Indirect Damages:

    • Exclusion of Certain Damages: The Company shall not be liable for any indirect, incidental, special, consequential, or punitive damages, including loss of profits, data, use, goodwill, or other intangible losses.

  3. Compliance with Law:

    • Non-Excludable Liability: Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.

  4. Force Majeure:

    • No Liability for Force Majeure Events: The Company is not responsible for any failure or delay in performance caused by events beyond its reasonable control (Force Majeure).

Governing Law and Dispute Resolution

  1. Governing Law:

    • Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of Japan, without regard to its conflict of laws principles.

  2. Dispute Resolution:

    • Arbitration: Any disputes arising out of or in connection with this Agreement shall be resolved through binding arbitration under the rules of the Japan Commercial Arbitration Association.
    • Arbitration Location: The arbitration shall take place in Tokyo, Japan, and the proceedings shall be conducted in Japanese.
    • Exception to Arbitration: If arbitration is not available or enforceable, disputes shall be resolved in the courts as specified below.

  3. Jurisdiction:

    • Exclusive Jurisdiction: The courts located in Tokyo, Japan, shall have exclusive jurisdiction over any disputes not subject to arbitration.

Intellectual Property Rights

  1. Ownership

    • Company's IP: All content, features, and functionality on the Platform, including but not limited to text, graphics, logos, images, and software, are owned by the Company or its licensors and are protected by intellectual property laws.

  2. License to Use

    • Limited License: The Company grants Users a limited, non-exclusive, non-transferable license to access and use the Platform and Services for personal, non-commercial purposes.

  3. User Content

    • License Granted to Company: If Users submit content to the Platform, they grant the Company a worldwide, royalty-free, perpetual license to use, reproduce, modify, and display such content in connection with providing the Services.

Privacy Policy

  1. Data Protection

    • Compliance with APPI: The Company is committed to protecting User privacy and will process personal data in accordance with our Privacy Policy and Japan's Act on the Protection of Personal Information (APPI).

  2. Incorporation by Reference

    • Privacy Policy Inclusion: The Privacy Policy is incorporated into this Agreement by reference and is available on www.bonsai-collectors.com.

Modifications to the Agreement

  1. Right to Modify

    • Amendment of Terms: The Company reserves the right to modify this Agreement at any time.

  2. Notification of Changes

    • Advance Notice: Significant changes will be communicated to Users via email or through notifications on the Platform at least 30 days before they take effect.

  3. Acceptance of Modifications

    • Continued Use Constitutes Acceptance: Continued use of the Platform and Services after the effective date of the modifications constitutes acceptance of the revised Agreement.

Termination

  1. Termination by User

    • Closing Your Account: Users may terminate this Agreement by discontinuing use of the Platform and Services and closing their account.

  2. Termination by Company

    • Grounds for Termination: The Company may suspend or terminate a User's account for any breach of this Agreement or for engaging in prohibited activities.

  3. Effect of Termination

    • Cessation of Rights: Upon termination, all rights granted to the User under this Agreement will cease immediately.
    • Outstanding Obligations: The User remains responsible for any outstanding obligations, including unpaid fees.

Indemnification

You agree to indemnify, defend, and hold harmless the Company and its affiliates from any claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees, arising out of or connected with your use of the Platform or Services, violation of this Agreement, or infringement of any third-party rights.

Severability

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

Entire Agreement

This Agreement, including any documents incorporated by reference, constitutes the entire agreement between you and the Company regarding the use of the Platform and Services and supersedes all prior agreements and understandings.

Force Majeure

The Company shall not be liable for any failure to perform its obligations under this Agreement if such failure results from events beyond its reasonable control (Force Majeure).

Notices

All notices or communications required or permitted under this Agreement shall be in writing and delivered to the parties at their registered email addresses or through the Platform's notification system.

Language and Translations

This Agreement is drafted in English. If translations are provided, the English version shall prevail in the event of any inconsistency.

Contact Information

If you have any questions about this Agreement, please contact us at:

Bonsai Collectors株式会社

Address: 103-0023, Tokyo, Chuo-ku, Nihombashi Honcho 2-2-2, YS Building 2F

Email: info [at] bonsai-collectors.com