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Sino-German standard Contract commission

时间：2010-07-18 11:27:27 来源：作者：

MODEL TERMS OF CONTRACTS FOR SALE OF GOODS

For Sales Between German and chinese Firms and Corporations

Contract Number:

Date of Signing of Contract:

Place of Signing of Contract:

Seller:________________________________

Address:________________________________

Country of Incorporation:_______________________________

Telex:_________________________________________

Fax:______________________

Buyer:______________________________

Address:______________________________

Country of Incorporation:________________________

Telex:_____________________________

Fax:_______________________________________

The Buyer and the Seller, through friendly negotiation, have signed this Contract on a basis of [ ]FOB or [ ] CFR or [ ] CIF or [ ]FCA or [ ] CPT or [ ] CIP and agreed to the terms and conditions stipulated below.

1. Name of Commodity:

2. Specifications/Quality:

[ ] As detailed in an Annex to this Contract (if required under the specific case)

3. Units:

4. Quantity:

[with ( )% more or less both in amount and quantity allowed at [ ] the Seller’s ,or [ ] the Buyer’s option]

5. Unit price FOB/CFR/CIF/FCA/CPT/CIP:___________

6. Total Amount:

[If the delivered quantity is more or less than ()% of the quantity ad defined in item 4, the price shall be adjusted correspondingly.]

7. Country of Origin and Country of Manufacture:

8. Shipping mark:

9. 1 Time of Shipment:___________

9. 2 Port of Shipment:_________

9. 3 Port of Unloading:_________

9. 4 “On-deck” shipment [ ] is ,or [ ] is not allowed.

9. 5 Transhipment [ ] is ,or [ ] is not allowed.

9. 6 Partial shipment [ ] is ,or [ ] is not allowed.

9. 7 [ ] Container shipment

9. 8 Final destination: ________________

9. 9 Freight Forwarder/Agent at port of unloading:____________

10. Terms of Payment

Seller’s Bank Account:________________

Buyer’s Bank Account:________________

10. 1 Method of Payment

(1) Letter of Credit

[ ]10.1.1 (This Paragraph shall be [ ] maintained or [ ] deleted)

( )percent of the total contract price, i.e.___ shall be paid by the Buyer to the Seller not later than 30 days after Date of effective-

ness against presentation to the Buyer of an irrevocable letter of guarantee issued by _____(Bank’s name) in the amount of _____in favor of the Buyer. The L/C shall be valid until [ ] ( )days after delivery date, in case of partial shipment delivery date of the last shipment

[ ] ( ) date of arrival of the last shipment in the port of unloading [ ] ( ) months after the date of arrival of the goods at the port of unloading

The amount of L/C shall be reduced automatically and proportionally in accordance with the shipments made by the Seller.

[ ] 10.1.2 Sight payment

The Buyer shall,

[ ] ( ) days prior to the first day of the time of shipment specified in this Contract,

[ ] within ( ) days after the signing of this Contract, establish in favor of the Seller an irrevocable letter of credit available by.

[ ] sight payment,

[ ] negotiation,

issued by _________(Bank’s name), by

[ ] telex,

[ ] SWIFT,

[ ] mail,

[ ] brief telex and mail in the amount of ______the contents of which shall be in conformity with the terms of this Contract, and the letter of credit shall be valid for presentation of documents in the locality of the beneficiary-----months after issuing date of the letter of credit.

The statement “ this credit is subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500” shall be contained in the letter of credit.

[ ] 10.1.3 Deferred Payment

The Buyer shall,

[ ] ( ) days prior to the first day of the time of shipment (the date of shipment). specified in this Contract.

[ ] within ( ) days after the signing of this Contract, establish in favor of the Seller an irrevocable letter of credit available by

[ ] acceptance

[ ] deferred payment

[ ] negotiation

after [ ] sight

[ ] the date of B/L of Airway Bill or Railway Consignment Note, or Multimodal Transport Document

[ ] presentation of documents issued by ______(Bank’s name), by

[ ] telex,

[ ] SWIFT,

[ ] mail,

[ ] brief telex and mail

in the amount of ________

the contents of which shall be in conformity with the terms of this contract, and the letter of credit shall not be valid for presentation of documents in the locality of the beneficiary ____months after issuing date of the letter of credit.

The statement “this credit is subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500” shall be contained in the letter of credit.

(2) Collection

[ ] 10.1.4 Document Against Payment (D/P)

After shipment, the Seller shall deliver a sight bill of exchange drawn on the Buyer together with the required documents to the Buyer through a Bank. The Buyer shall effect the payment immediately upon the presentation of the bill of exchange and the required documents.

[ ] 10.1.5 Document Against Acceptance (D/A)

After shipment, the Seller shall deliver a bill of exchange drawn on the Buyer, payable ____days after sight together with the required documents to the buyer through a bank for acceptance. The Buyer shall accept the bill of exchange immediately upon the first presentation of the bill of exchange and the required documents and shall effect the payment on the maturity date of the bill of exchange.

(3) Remittance

[ ] 10.1.6

The Buyer shall,

[ ] within ___ days after the receipt of the required documents,

[ ] within ___ days after the date of the Bill of Landing.

Pay the invoice value of the goods to the Seller’s account with a bank designated by the Seller by means of

[ ] T/T(Telegraph Transfer),

[ ] M/T(Mail Transfer),

[ ] D/D(Demand Draft).

10.2 Documents Required

The following documents shall be prepared by the Seller and submitted to the Buyer:

1. Bill of exchange drawn on

[ ] ____(Bank’s name, on L/C basis)

[ ] the Buyer ( on collection basis)

2. Transport document (select one of the following):

[ ] 1) clean on board ocean bill of landing made out to

[ ] order, or

[ ] to order of ___ and blank endorsed marked freight

[ ] prepaid/paid, or

[ ] to collect

notifying [ ] consignee, or

[ ] _____

[ ] 2) non-negotiable sea waybill made out to ____marked

freight [ ] prepaid/paid, or

[ ] to collect

notifying _______

[ ] 3) multimodal transport document

[ ] 4) air transport document (airway bill/ air consignment note)

[ ] 5) railway transportation document

[ ] 6) courier and post receipts

3. Other document (s)

1) commercial invoice

2) [ ] insurance policy

[ ] insurance certificate

3) quality inspection certificate/inspection report/ analysis

certificate issued by ______

4) [ ] certificate of origin

[ ] FORM A (GSP)

5) packing list

6) weight list

7) [ ] notice of shipment

[ ] shipping advice

Documents 1 to 7 _____in originals and - copies

4. Other documents (if required):______

11. 3 Banking Charges

Depending upon the method of payment selected pursuant to Clause

10.1 above, the Buyer shall bear all banking charges incurred in the country of

[ ] L/C issuing bank (in case of payment by L/C)

[ ] Collecting bank (in case of payment by D/P or D/A)

[ ] Remitting bank (in case of payment by remittance), and the seller shall bear all banking charges incurred outside such country, unless otherwise agreed by the parties.

11. Terms of Delivery

11.1 Packaging

All goods shall be packaged to prevent damage from dampness, rust , moisture, erosion and shock, and shall be suitable for

[ ] ocean transport, on deck/not on deck

[ ] multimodal transport.

[ ] container transport

The Seller shall be liable for any damage and loss of the goods attributable to inadequate or improper packaging.

The measurement, gross weight, net weight of each package and any necessary cautions such as “Do not Stack Upside Down”, “Keep Away From Moisture”, “Handle With Care”, “Hook-on Point” shall be stenciled on the surface of each package with fadeless pigment, whenever necessary.

If the goods to be shipped include any flammable, hazardous or dangerous materials, the Seller shall indicate on the surface of each package appropriate cautions with respect to the special care for the transport and handing thereof as well as the identification numbers of other indications required under customary international practice and/or regulations applicable to such materials, if any.

11.2 Terms of Shipment

11.2.1 If shipment is made under the terms of CFR or CIF, the Seller shall, not later than ( ) days before the time of shipment, inform the Buyer by Telex, or Fax of the name, nationally, age and other details of the carrying vessel as well as the contract number for each shipment. The shipment shall not be effected without the confirmation from the Buyer with respect to the acceptability of the vessel; provided that, the Buyer shall not unreasonably withhold such confirmation . The Buyer shall confirm the vessel, by telex, or fax, within 3, latest 5 working days, otherwise ,the vessel shall be regarded as confirmed.

11.2.2 If shipment is made under the term of FOB, the Buyer shall book shipping space in accordance with the time of shipment stipulated in this Contract. The Seller shall, at least ( ) days before the date of shipment stipulated in this Contract, advise the Buyer by Telex, Fax or Cable of the Contract number, the package numbers, the total weight and volume and the date when the goods should be ready for shipment at the port of shipment. The Buyer shall, at least ( ) days before the estimated date of arrival of the vessel at the port of shipment, notify the Seller of the name of the vessel, the estimated date of arrival and the contract number for the arrival has to be changed, the Buyer or its shipping agent shall advise the Seller in time, however not later than ( ) days prior to the scheduled date of arrival, to make necessary arrangement Should the vessel fail to arrive at the port of shipment within ( ) days after the arrival date advised by the Buyer, the Buyer without prejudice to any other claims of Seller under this Contract and the provisions of the Incoterms, shall bear all actual expenses, including, the storage expenses and interest charges, calculated from the ( ) day thereafter.

The Seller shall be liable for any dead freight or demurrage, should they fail to have the quantity of the goods ready for loading in time as stipulated, if the carrying vessel has arrived at the port of shipment as advised.

11.2.3 If shipment is made under the terms of FOB,CFR,CIF or FCA, the Seller shall, immediately upon the completion of the loading of the goods, provide the Buyer and the consignee appointed by the Buyer, with notice of shipment by Telex, Fax or Cable. The notice shall include the contract number, name of commodity, quantity , net and gross weight measurements, invoiced value, bills of lading number, sailing date and the estimated date of arrival at the port of unloading.

If shipment is made under the term of FOR or CFR, should the Seller fail immediately to provide the shipment notice to the Buyer and/or the consignee appointed by the Buyer, and the Buyer can not procure the insurance in time, the Seller shall be responsible for any damage to and/or loss of the goods incurred in the course of transport.

11.2.4 (This clause shall be [ ] maintained or [ ] deleted)

Upon completion of loading , the Seller shall send to the Buyer one duplicate copy of each of the following documents together with the shipment

(1) ocean bill of lading (or other transport document as per clause 10.2, item2)

(2) commercial invoice (shipping lot no. to be indicated in case of partial shipment)

(3) pacing list

(4) weight list/quantity list

(5) certificate of origin

(6) quality inspection certificate/inspection report/analysis certificate issued by __________

11.2.5 Within ( ) working days after the date of actual shipment, the Seller shall airmail one copy of each of the documents mentioned in the preceding clause to the Buyer, or the consignee appointed by the Buyer.

11.2.6 Time of shipment is subject to timely issuance of the L/C as set forth in Clause 10. Delivery Date shall mean the B/L date, date of Airway bill or the date of Railway consignment Note, date of multimodal transport document.

12. Insurance

If shipment is made under the term of FOB, CFR or FCA or CPT insurance shall be procured by the Buyer.

If shipment is made under the term of CIF or CIP, insurance shall be procured by the Seller for 110% of the invoice value against [ ] F.P.A, or [ ] W.P.A, or [ ] All Risks. Additional insurance shall include:

___________________

13. Warranty (Select 13.1 or 13.2 respectively)

[ ] 13.1 The seller shall warrant that all goods delivered by the Seller in quality, specification and packaging shall conform to the contract stipulations. The warranty period shall remain in effect until the expiration of

[ ] ( )months after the delivery date, in case of partial shipment after the delivery date of the last shipment;

[ ] ( ) months after the date of the completion of unloading of the goods at the port of unloading, latest however

[ ] ( )months after the delivery date;

[ ] ( )months after the date of the arrival of the goods at the destination but in no circumstances exceeding ( ) months after the date of completion of unloading of the goods at the port of unloading.

[ ] ( ) months after the date of acceptance certificate signed by both parties however not exceeding ( ) months after the date of arrival of the goods at the port of unloading.

[ ] 13.2 The Seller shall warrant that the quality, specifications and packaging of the goods delivered by the seller pursuant to this Contract shall conform to the contract stipulations. The Seller shall make no warranty as to the fitness of the goods thereof for any particular purposes or environments, except as stipulated in this Contract or as expressly or impliedly made known to the Seller at the time of signing this Contract,.

The warranty period shall remain in effect until the expiration of

[ ] ( ) months after the delivery date. In case of partial shipment after the delivery date of the last shipment;

[ ] ( ) months after the date of the completion of unloading of the goods at the port of unloading, latest however [ ] months after the delivery date;

[ ]( )months after the date of the arrival of the goods at the destination but in no circumstances exceeding ( )months after the date of completion of unloading of the goods at the port of unloading.

[ ] ( ) months after the date of acceptance certificate signed by both parties however not exceeding ( )months after the date of arrival of the goods at the port of unloading.

13.3 In the event that the goods are found to be in breach of the said warranty and so notified during the term of the warranty in accordance with clause 17.1 and the cause of such breach is attributable to the Seller, the Buyer has the right to lodge claims against the Seller. The Buyers rights and the Sellers obligations under this warranty shall be settled in accordance with Clause 17.

The Seller’s warranty shall be excluded in case of deviation of the manufacturer’s written instructions or other cases of improper use or normal wear and tear in respect of the goods or parts of the goods which are subject to normal wear and tear by nature.

14.1 Pre- delivery inspection (Select one of the following , i.e.14.1.1 or 14.1.2 respectively)

[ ] 14.1.1 The Seller shall, before the time of shipment, apply to the inspection organization for the inspection of the quality, specifications, quantity, weight ,packaging and requirements for safety and sanitation/hygiene of the goods in accordance with

[ ] the stipulations of this Contract or

[ ]------------------------------------------------------standards

The inspection certificate issued by the said, inspection organization shall be an integral part of the documents to be presented for payment.

Inspection Organization:

In China: a)_____Import & Export Commodity Inspection Bureau of the People’s Republic of China.

b)_____________

In Germany:__________

(to be inserted if the inspection is required by mandatory regulations)

[ ] 14.1.2 For Inspection by Manufacturer

The Seller shall before the time of shipment, provide the Buyer with the inspection reports signed by the manufacturers on the quality ,specification, reports signed by the manufacturers on the quality, specification, quantity, weight, packing and requirements for safety and sanitation/hygiene of the goods in accordance with

[ ] the stipulations of this Contract, or

[ ] ---------------------------------------------------------------standards.

The said inspection reports shall be and integral part of the documents to be presented for payment.

14.2 Inspection upon Arrival

For the purpose of warranty and other claims, the Buyer shall have the right to apply to the inspection organization for the inspection of the goods after the arrival of the goods

[ ] at the port of unloading

[ ] at the final destination

Inspection Organization:

In China:_______ Import & Export commodity Inspection Bureau of the People’s Republic of China

In Germany:_________

(according to Buyers option or Germany law).

The Buyer shall give a notice of inspection to the Seller within sufficient time to enable Seller’s presence before such inspection is conducted. The Seller may, on its own option and at his own expenses, be present at the inspection, The inspection can be conducted if the Seller is absent despite of timely notification by the Buyer.

The Buyer shall conduct the inspection in accordance with the stipulations of 17.1 a) of this Contract.

14. Force Majeure

Neither party shall be held responsible for failure or delay to perform all or any part of this Contract due to flood, fire, earthquake, snowstorm, drought, hailstorm, hurricane, or any other events that are beyond the control of the affected party and could not reasonably be expected at the time of the conclusion of this Contract or have been avoided or overcome by such party. However, the party who’s performance is affected by the event of Force Majeure shall give a notice to the other party of its occurrence as soon as possible and a certificate or a document of the occurrence of the Force Majeure event issued by the relative authority or a neutral independent third party shall be sent to the other party not later than ( ) days after its occurrence.

If the event of Force Majeure event continues for more than ( ) days, both parties shall negotiate the performance or the termination of this Contract. If within ( )months after the occurrence of the event of Force Majeure both parties cannot reach and agreement, either party has the right to terminate this Contract. In the case of such a termination either party shall bear its own costs, further claims for compensation in connection with the termination shall be excluded.

16.1 Delay in payment

If the Buyer fails to pay any amount when due, the Buyer shall be liable to pay to the Seller such unpaid amount plus overduo interest. The interest rate shall be calculated as __%per annum from the due to the actual date of payment. Such overdue interest shall be paid upon demand of the Seller.

16.2 Failure to Timely Open the Letter of credit
In the event the Buyer due to reasons within its responsibility fails to open the Letter of Credit on time as stipulated this Contract, unless the parties agreed on a grace period, the Buyer, shall pay a penalty to the Seller. The penalty shall be charged at the rate of ___%of the amount of the Letter of Credit for every ( ) days of delay in opening the Letter of Credit. However, the penalty shall not exceed __% of the total value of the Letter of Credit which the Buyer should have opened. Any fractional days less than ( ) days shall be deemed to be ( ) days for the calculation of penalty.

16.3 Failure to Make Timely Delivery

In the event the Seller due to reasons within its responsibility fails to make delivery of all or any part of the goods (including the documentation agreed upon) on time as stipulated in this Contract, unless the parties agreed on a grace period, the Seller shall pay a penalty to the Buyer.

The penalty shall be charged at the rate of __%of the amount of the delayed goods for every ( ) days or delay in delivering the goods, however, the penalty shall not exceed __% of the total value of goods involved in the late delivery. Any fractional days less than( ) days shall be deemed to be one week for the calculation of penalty.

16.4 Without prejudice to the parties’ rights under Clause 18.1,the indemnities provided for in Clause 16.1 and/or 16.2 and/or 16.3 shall be the sole compensation for the damages caused by such delays.

17. Claims

17.1 Should the quality, specifications, quantity, weight packing and requirements for safety or sanitation/hygiene of the goods be found not in conformity with the stipulations of this Contract, the Buyer shall give a notice of claims to the Seller and shall have the right to lodge claims against the Seller based on the inspection certificate, issued by the inspection organization provided in Clause 14.2 of this Contract and itemizing the reasons for the claims a)within ( ) days from the date of the arrival of the goods at the final destination, provided that such date shall not exceed ( ) days from the date of the completion of unloading of the goods at the port of unloading.

b) Promptly latest within ( ) weeks after malfunctions having been found in case of malfunction or deficiencies during the warranty period.

In the event of the non-conformity and provided the Seller is responsible, the Seller shall promptly, within ( ) weeks/months upon receipt of the Buyer’s notification,

On its own account

[ ] repair or replace such goods or supply the quantity that is deficient. Claims for compensation of damages or replacement definitely fails.

[ ] repair or replace such goods or supply the quantity that is deficient and compensate the Buyer for damages, if any, in accordance with Clause 17.3

[ ] devalue by mutual agreement the goods according to the degree of inferiority, extent of damage and amount of losses suffered by the Buyer if any.

If repair, replacement or devaluation definitely fails within the time limit agreed by the parties, or if the failure by the Seller amounts to a fundamental breach of contract, the Buyer has the right to terminate this Contract.

[ ] In the event that the Buyer does not make such claim within the time limit set forth in Clause 17.1 a)and b), the Buyer shall forfeit its right to make a claim with respect to the quantity deficiency or the apparent quality defect.

17.2 The Seller shall reply to the Buyer’s claim not later than ( ) days after receipt of the inspection certificate by the inspection organization provided in Clause 14.2 of this Contract and the claims shall be regarded as having been accepted, if the Seller fails to replay within the above0 mentioned time limit.

17.3 [ ] The Sellers liability under this Contract shall be restricted to direct losses and direct damages. This limitation does not apply in cases of gross negligence or willful misconduct.

[ ] The Sellers liability hereunder or resulting from breach of the Contract shall be limited to a maximum amount of - This limitation does not apply in cases of gross negligence or willful misconduct.

To the extent, one of the above alternatives does not apply:

A party in breach of contract shall be liable for losses incurred by the non-defaulting party as a consequence of such breach, which the party in breach foresaw or ought to have foresaw or ought to have foreseen at the time of conclusion of this Contract in the light of facts and circumstances known to him as a possible consequence of the breach of Contract .

18.1 Except as provided elsewhere, this Contract may be terminated in either of the following cases:

(1) Through mutual written agreement by both parties: or

(2) If the other party for reasons solely within its responsibility seriously fails to perform its obligations within the time limit agreed upon in this Contract. And fails to eliminate or remedy such breach within ( ) days following the receipt written notice thereof from the non-breaching party . In such case the non-breaching party shall give a written notice to the other party to terminate this contract.

18.2 Termination does not affect any right of the terminating party including but not limited to its right to claim compensation for damages resulting from termination thereof in accordance with Clause 17.3

19. Taxes

All taxes in connection with and in the execution of this contract to be levied by the Chinese Government in accordance with the tax laws in effect shall be paid by the [ ] buyer/ [ ] Seller. i.e. the Chinese Party to the present Contract, unless the respective payment shall be made by the German Party according to mandatory taxation laws or regulations of the PR China. All taxes in connection with and in the execution of this Contract to be levied outside PR China’s territory shall be paid by the [ ] Seller/Buyer, i.e. the German Party to the present Contract, unless otherwise provided for by mandatory regulations of the German tax laws. All taxes are subject to the Agreement for the Avoidance of Double Taxation between the PR China and the Federal Republic of Germany.

20. INCOTERMS

Unless otherwise stipulated in this Contract, the terms and conditions of this Contract shall be interpreted in accordance with the “ International Rules for the Interpretation of Trade Terms” (INCOTERMS 2000)provided by International Chamber of Commerce, International Chamber of Commerce Publication

No( )

21. Arbitration

All disputes arising out of or in connection with the present Contract including any question regarding its existence, validity or termination, shall be finally settled by arbitration to the exclusion of the regular courts being competent for a decision in respect of the dispute, The case shall be submitted for arbitration to [ ] China International Economic and Trade Arbitration Commission, arbitration proceedings shall be held in

________P.R. China.

[ ] The German Institution for Arbitration, arbitration proceedings shall be held in _____, Federal Republic of Germany.

[ ]________(other international arbitration institute agreed by Chamber of Commerce Paris or the Arbitration Institute of the Zurich Chamber of Commerce or Hongkong International Arbitration Center).

The arbitration procedure shall be conducted in English and in accordance with the procedural rules of the respective above mentioned arbitration institute selected by the parties.

22. notice

Any notice to be given hereunder shall be in writing and shall be hand-delivered, transmitted by facsimile or telex or sent by express airmail, and shall be deemed given when so hand-delivered, or if transmitted by facsimile or telex, one day after the of such facsimile or telex so transmitted, or if sent by mail when received, to the parties at the addresses specified at the head of this Contract.

23. Miscellaneous

23.1 Annexes shall form an integral part of this Contract.

23.2 The contract is made out in English, documentation in

_____(language).

23.3 Date of Effectiveness

This Contract shall become effective (Date of Effectiveness) [ ] as of the date it has been duly signed by authorized representatives of both parties.

[ ] upon signing and approval by _____if the approval is required by the law. Approval shall be obtained within 30days upon signing by the Buyer and notified to the Seller.

[ ] further conditions:______

The foregoing terms are agreed by both the Buyer and the Seller signing below.

Buyer-----------Date-----------------, __________________

Seller------------Date----------------,___________________

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