Both parties agree in the international sales contract
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The claim clause refers to the agreement between the parties in the international sales contract on what responsibility one party should bear and what rights one party can enjoy to make up for losses in case of breach of contract.
Chinese name
Claim clause
Type
clause
Definition
Agreement between the parties on the international sale of goods
The following three contents shall be specified in the claim clause:;
1. Claim period
The claim must be made within the time limit specified in the applicable law or the time limit agreed in the contract. If the claim is overdue, it can be considered that the injured party has waived the claim for compensation from the other party. The defaulting party also has the right to refuse any claim it has made later based on the fact that the other party has not made a claim for compensation for losses within the time limit.
2. Claim basis
There must be two bases.That is, the factual basis and the legal basis. The so-called factual basis means that the party must provide evidence of the other party's breach of contract when making a claim. This evidence must be conclusive and effective, and generally both parties clearly stipulate in the contract;The so-called legal basis means that the time when the aggrieved party makes a claim, the method of adducing evidence, the remedy required or the amount of compensation required must conform to the provisions of the national law or international conventions of the responsible party, or conform to the spirit of international conventions.
3. Claim method
(1) The clause of "Discrepancy and Claim" is concluded for the quality, quantity or package delivered by the seller does not conform to the contract. For example, the buyer must raise any objection to the shipment of goods within 30 days after the goods arrive at the destination port listed in the bill of lading, and must provide an inspection report issued by a notary recognized by the seller.If the goods have been processed, the buyer will lose the right to claim compensation.The Seller shall not accept any claim within the liability scope of the insurance company or the shipping company.
(2) The difference between the penalty clause and the "objection and claim" clause is that the penalty clause only applies to the seller's delayed delivery or the buyer's delayed receipt of goods, and the calculation method of the penalty is specified in the clause.For example, if the seller fails to deliver the goods on time, the buyer may agree to postpone the delivery if the seller agrees that the paying bank will deduct the penalty from the payment negotiated or directly paid by the buyer.The penalty for delayed delivery shall not exceed 5% of the amount of delayed delivery.The penalty shall be charged 0.5% of the amount of delayed delivery every 7 days. If it is less than 7 days, it shall be calculated as 7 days.If the Seller fails to deliver the goods more than 10 weeks according to the shipment date specified in the Contract, the Buyer has the right to cancel the Contract and require the Seller to pay the above-mentioned penalty for delayed delivery.
Notes for signing
Announce
edit
Disputes and claims often occur in the process of international trade, which directly affect the economic interests of both trade parties. The perfection of the claim clauses in the contract is the key to the success of the injured party.Signed atInternational Trade ContractIn addition to the following conditions, the above two claim clauses shall be formulated, and the arbitration clause shall also be fully considered, with the institution applying for arbitration in case of dispute between both parties specified.
1. The commodity inspection clauses in the import contract cannot be omitted
When entering into import contracts with foreign businessmen, domestic enterprises should pay particular attention to specifying commodity inspection clauses, because commodity inspection is a very important part in the process of import sales of goods.When the villain exercises the corresponding rights according to the commodity inspection clauses, it not only provides a guarantee for accepting the goods that meet the quality requirements, but also provides the necessary basis for rejecting the goods or claiming for compensation due to the quality problems of the goods.In general commodity sales contracts, most of them only sign objection and claim clauses, which are combined with inspection and quarantine clauses.
The terms include:
(1) Specify specific quarantine items
According to the characteristics and use requirements of imported goods, specific inspection items shall be specified, such as imported raw materials. According to the needs of domestic production and use, detailed physical and chemical main items such as quality, specification and composition shall be specified, even including the specific data of up and down ranges, so as to facilitate the check and acceptance upon arrival.For another example, for imported agricultural products, sometimes the production year should be specified to prevent suppliers from submitting old products for many years, even indicating the color, or providing standard samples for comparison and acceptance.
(2) Clarify the inspection standards for imported goods
Generally speaking, international standards or foreign advanced standards shall be adopted as far as possible.Since the international inspection standards are revised every 3 to 5 years, attention should be paid to the timeliness of standard formulation, and the latest version should be used as far as possible to prevent the use of outdated versions.For the reference standard code, the version year of the code shall be indicated correctly.If there are sampling and inspection methods in the inspection standard, the sampling method and inspection method shall be specified.
(3) Specify the inspection place, inspection time and inspector
The place of inspection shall generally be the place of delivery.For example, for delivery alongside the ship, the goods are inspected at the port of shipment, for delivery on board, the goods are inspected at the port of departure VI, and the goods are inspected at the port of destination.
Both parties can also agree to inspect the goods at another place when they become pawns.The reasonable time for inspection is agreed upon by both parties, usually after delivery.In the absence of an agreement, if the issue is involved due to a dispute, the reasonable time limit may be determined in accordance with relevant laws or practices.In accordance with the provisions of Chinese laws and international trade practices, the parties shall generally stipulate in the import contract that the inspection of goods shall be completed by the Chinese official inspection agency or an internationally recognized third-party inspection agency.However, the completion of commodity inspection shall not be deemed as the goods accepted by the Buyer.The Buyer shall be deemed to have accepted the goods only after a reasonable period of time has elapsed since the completion of the inspection.
(4) Specify the claim period, including the validity period of the claim and the warranty period
The valid period of claim refers to the time limit for the buyer to claim compensation from the seller when the buyer fails to provide the goods as agreed in the contract.The agreement on the validity period of the claim shall be determined according to the characteristics, transportation, inspection and quarantine conditions of the imported VI goods, and the general goods are 40 days, 60 days, and 90 days.For commodities with large quantity, complex technology and long testing time, the validity period of claims can be appropriately extended to 120 days, 160 days and 180 days.Another important issue to clarify the claim period is the start time of the claim period.According to the international trade practice, the time for calculation is divided into the loading date, the import date, the arrival date and the unloading completion date.The unloading completion date is the most reasonable and beneficial to the buyer.The warranty period refers to the time limit for the buyer to claim against the seller for quality problems of imported goods found in storage or use after accepting the seller's goods.
Generally, one year or one and a half.The starting date should preferably be "calculated from the date of inspection, acceptance and use after the buyer's receipt" or "calculated from the date of completion of installation and commissioning".
2. Penalty clause
Penalty clauses include the method and amount of compensation for losses, such as stipulating that all expenses (including inspection fees) and losses caused by all returns or claims shall be borne by the Seller.Especially in the contract of buying and selling bulk commodity machinery and equipment, penalty clauses are generally signed.The content mainly stipulates that if one party fails to perform its obligations under the contract, it shall pay a certain amount of agreed penalty to the other party to compensate for the loss of the other party.This is generally applicable to the delayed delivery of the Seller.Both parties also agree on the amount of compensation in advance according to the length of delay, and stipulate the maximum penalty amount at the same time.
