Posted by : junaiding Senin, 25 Juni 2012
Contract of Sale
Company name, representative, address
– hereinafter Seller –
Company name, representative, address
– hereinafter Purchaser –
hereby conclude the following contract of sale:
Subject matter of the contract, export licence, import licence
- The Seller hereby sells the Purchaser ………………. new ........ ; Colour: ......... ; Size: ... ; Serial no.: ........
- The two parties to the contract agree that the detailed product specifications attached to this contract as Appendix 1 shall define the quality of the subject matter of the contract. Appendix 1 also lists both the instructions to be provided with the goods and the additional equipment for the goods including all spare parts. There is no obligation to transfer rights of use, copyright or licences etc. This agreement on quality shall not constitute a guarantee of durability and/or quality on the part of the Seller. The Seller has not given the Purchaser any durability or quality guarantees.
- The Seller shall take all reasonable measures to obtain an export licence if one is necessary. The Seller cannot guarantee that such an export licence will be issued. The Seller is not aware of any circumstances which could preclude the issue of an export licence. The Seller shall obtain the documents required for export at its own cost.
- The Seller shall only bear the risk of subsequent refusals of export authorisation if and to the extent that such a refusal would have been clear upon careful examination at the time the contract of sale was concluded. In the event of a dispute, the Seller must prove that it carried out all appropriate and necessary measures for such an examination.
- The Purchaser shall be responsible for obtaining an import licence should one be required. The Purchaser shall bear all costs relating to such a licence. Reference is made to Section 14 of this contract in full for details of this matter.
Freedom of the goods from legal restrictions and third party rights
- There are no legal or other circumstances relating to the goods which could restrict its use pursuant to Appendix 1. The goods are in particular free from rights in rem, security interests and other third party rights; from copyright, patent and other third party rights relating to intellectual property, and from proprietary rights.
- The Seller is not aware of any circumstances which could cause restrictions as defined in (1) above. It has ascertained that there are no adverse registered rights in the Federal Republic of Germany or in the European Union. The Seller has no obligation to obtain further information on this matter.
- In the event of disputes or uncertainty concerning existing rights or the exercise of such rights by third parties, the Seller shall, in addition to its other duties, also have an obligation to give the Purchaser all documents at its disposal required for clarification of the legal situation and to provide the Purchaser with all information to which the Seller has access for the purposes of clarification and for contesting claims by third parties.
- The period of limitation for legal defects shall be defined in accordance with the period of limitation for pursuant to Section 13 of this contract.
- This contract shall not constitute grounds for the exercise of any third party rights relating to or arising from legal defects.
Purchase price and terms of payment
- The purchase price to be paid by the Purchaser amounts to € ………………………… (amount in words: ……………………… euros) (q) The purchase price shall be transferred to the bank account of the Seller, account number …, sort code …. at …, within 10 calendar days of receipt of the goods supplied and of the invoice. Any costs for the transfer etc. shall be borne by the Purchaser. The Purchaser shall pay all costs necessary to ensure that the full purchase price is credited to the given bank account without deductions within a further 10 calendar days.
- Should the Purchaser fall into arrears, the Seller shall have the right to charge default interest of 8 percentage points above the main refinancing rate of the European Central Bank (ECB). The Seller reserves the right to claim further damages for default. (3) The Purchaser shall bear the costs of carriage from delivery as defined in Section 8 of this contract and the costs of shipping insurance. Any customs duties, fees, taxes and other charges shall be borne by the Purchaser unless otherwise agreed in this contract.
- The Purchaser shall only have the right to offset performance against other claims, the right of retention or the right to refuse performance if and to the extent that the counterclaim, right of retention or right to refuse performance is uncontested, legally effective or in dispute but ready for a ruling. This does not affect Section 10 (6) in the case of defects in the delivery.
- Should it become apparent after conclusion of the contract that the Seller's right to receive the purchase price is at risk due to the Purchaser's lack of solvency (for example as a result of a petition for insolvency), the Seller shall have the right under the statutory provisions of the law chosen to refuse performance and, if necessary with a period of notice, to rescind the contract (Section 321 BGB [German Civil Code]). In the case of contracts for the manufacture of non-tradable goods (custom-made items), the Seller may rescind with immediate effect; this does not affect statutory regulations allowing the Seller to dispense with this notice period.
Proof of payment and securities for the purchase price
- The Purchaser shall send a copy of the bank transfer receipt or equivalent record of the bank transfer to the Purchaser on the day of the transfer both by standard post and by e-mail or fax.
- The Purchaser shall conclude a loan insurance policy for the benefit of the Seller to cover the sum of the purchase price. The insurance policy is enclosed as Appendix XX.
Provision of goods for inspection
- The Seller shall make the goods available for inspection. The date on which, specific duration for which, place at which and manner in which the goods are to be provided shall be governed by the enclosed Appendix Xy. The goods shall not be packaged before inspection.
- On the day the goods are provided for inspection, the Purchaser shall, in accordance with the provisions of Appendix Xy, have the opportunity to inspect the goods for the defined period at the given place. The Purchaser shall use all possible and suitable methods of inspection to ensure that recognisable defects are discovered before the product is put into use.
- The parties shall draw up a joint record of the inspection and its findings. This record shall be signed by both parties.
- The costs of the inspection incurred by the Seller shall be borne by the Seller.
- As soon as the Purchaser has signed the record to confirm in writing that the goods are in proper condition or that there are no visible defects, the Seller shall package the goods in the presence of the Purchaser. The parties both assume that the packaging is suitable and in good condition and meets all requirements necessary to ensure safe transport. Should the parties realise beforehand that this is not the case, they shall select another form of packaging.
- The due and proper nature of the packaging shall also be recorded in the inspection record and confirmed in writing with the signature of each party.
- The costs of packaging incurred by the Seller shall be borne by the Seller. All packaging with the exception of pallets shall become the property of the Purchaser.
Documents to be issued
- The Seller has an obligation to obtain and provide to the Purchaser the documents listed in Appendix 3 attached.
- Appendix 3 also defines which documents are to be provided and when. Should the time of issue stated be the same as the date for the provision of goods for inspection, the documents may be issued at the place of inspection together with the goods. This should be recorded in the record of inspection.
Duty of information to the Purchaser
- The Seller shall inform the Purchaser of all circumstances of which it is aware which could prevent the due and proper fulfilment of the Seller's obligations.
- The Purchaser shall be informed immediately as soon as such circumstances are discovered and at the latest within a period of 24 hours. Information shall be send both by standard post and by either e-mail or fax.
- Should the Purchaser express concerns regarding the Seller's conditions in writing or by e-mail or fax, the Seller must respond immediately by either e-mail or fax and by standard post within a period of 24 hours.
Terms of delivery, delivery deadline, delivery default
- Delivery shall be made free alongside ship on …………………. at the latest in the port of ……….. (FAS in accordance with current Incoterms). The Purchaser shall name the ship to which delivery is to be made by ………………. at the latest.
- The Seller shall inform the Purchaser immediately, stating the expected new delivery time, if it cannot adhere to the binding delivery deadlines agreed above for reasons beyond its control - in particular natural disasters and similar cases of force majeure, sovereign interventions, strikes or industrial action - (non-availability of the service). Should the service not be available by the new delivery deadline, the Seller shall have the right to rescind the contract in part or in full; any payment already made by the Purchaser shall be refunded by the Seller immediately. Non-availability of service as defined in this sub-section is understood in particular as failure on the part of the Seller's suppliers to delivery punctually should the Seller have concluded a hedging transaction. This does not affect the statutory rights of rescission and cancellation and the statutory regulations governing the settlement of contracts should there be no duty of performance under the law chosen (e.g. if performance and/or subsequent performance is impossible or unreasonable), nor does it affect the Purchaser's rights of rescission and cancellation pursuant to this contract.
- Delivery default shall be defined according to the statutory regulations of the law chosen, but shall only occur following a warning by the Purchaser. Should the Seller default on delivery, the Purchaser may demand a fixed rate of compensation for default. The fixed rate for damages shall amount to 0.5% of the net price (value of the delivery) for each full calendar week of default, however no more than 5% of the value of the late delivery. The Seller shall bear the burden of proof that the Purchaser has suffered no or considerably less damage than the fixed rate above.
- Should the Purchaser culpably breach its contractual duty of cooperation or should it default on acceptance, the risk of accidental loss or accidental damage to the subject matter of the contract shall be transferred to the Purchaser as soon at the time of default on acceptance.
- Under the provisions of the law chosen, the Seller shall be liable if delivery default is a result of wilful or grossly negligent breach of the contract on its part; this includes wilful and grossly negligent breaches by its representatives and agents. Under the provisions of the law chosen, the Seller shall also be liable should delivery default result from culpable breach of a major contractual obligation on its part or on the part of its representative or agent; in such a case, the liability of the Seller shall be limited to foreseeable contractual damages.
- This shall not affect the Purchaser's statutory right to bring further claims for delivery default under the law chosen.
Transfer of risk, collection, default on acceptance
- The risk of accidental loss and accidental damage to the goods shall be transferred to the Purchaser upon delivery as defined in Section 8 (1) of this contract (FAS). If collection has been agreed, risk shall be transferred at the time of collection. The statutory regulations under labour and transportation contract law of the law chosen by the parties also apply accordingly to the collection agreed. The same applies to handover or collection if the Purchaser is in default with acceptance.
- Should the Purchaser default on acceptance, should it fail to fulfil a duty of cooperation or should delivery by the Seller be delayed for other reasons for which the Purchaser is responsible, the Seller shall have the right to demand compensation for the damages this causes including for the additional costs (e.g. storage costs). It shall charge a fixed rate as compensation amounting to EUR … per calendar day starting from the delivery deadline. This does not affect the Seller's right to prove and claim for further damages or the statutory rights of the Seller under the law chosen (in particular the reimbursement of additional costs, reasonable compensation, cancellation of the contract); the fixed-rate compensation shall however be deducted from the sum of further monetary claims. The Purchaser shall retain the right to prove that the Seller has suffered no or significantly less damage than the fixed rates above.
Retention of title
- The Seller shall retain ownership of the goods sold until payment in full of all current and future claims of the Seller arising from the contract of sale and the ongoing business relationship (secured claims).
- The goods subject to retention of title may neither be pledged to third parties nor assigned as securities until the secured claims have been paid in full. The Purchaser shall inform the Seller in writing immediately if and to the extent that third parties have access to or use the goods belonging to the Seller.
- In the event of the Purchaser breaching the terms of the contract, in particular of its failure to pay the purchase price due, the Seller shall have the right under the statutory regulations of the law chosen to rescind the contract and demand the return of the goods on the grounds of retention of title. Should the Purchaser fail to pay the purchase price due, the Seller may only exercise the aforementioned rights if it has already set the Purchaser a reasonable deadline for payment and this deadline has expired without effect, or if the statutory regulations under the law chosen do not require such a deadline to be set.
- The Purchaser shall have the right to resell and/or process goods subject to retention of title in the course of ordinary business. If it does so, the following provisions shall apply: (a) Retention of title shall cover the full value of all products resulting from processing, mixing or combining the goods of the Seller, although the Purchaser shall be considered the manufacturer. Should third parties' retention of title remain in the event that the goods are processed, mixed or combined with the goods of the said third parties, the Seller shall acquire a share of ownership in the products equal to the value of the products of the Seller which have been processed, mixed or combined. The same provisions shall apply to the resulting product as to the goods supplied under retention of title. (b) The Purchaser hereby assigns as security all receivables due from third parties as a result of the resale of the goods or of the product in full or to the amount of any share in ownership on the part of the Seller pursuant to the sub-section above. The Seller hereby accepts this assignment. The obligations of the Purchaser pursuant to (2) shall also apply to receivables assigned. (c) Both the Purchaser and the Seller shall have the right to collect such receivables. The Seller undertakes not to collect the receivables provided the Purchaser meets it payment obligations to the Seller, does not default on payment and does not apply for insolvency and the Purchaser's ability to pay is not affected in any other way. If this is not the case, the Seller may, however, demand information from the Purchaser on the receivables assigned and the parties from whom they are due and require the Purchaser to provide all information necessary for collection, to issue the corresponding documents and to inform the debtors (third parties) of the assignment. (d) Should the realisable value of the securities exceed the claims of the Seller by more than 10%, the Seller shall release securities of the Seller's choice at the request of the Purchaser.
Claims for defects on the part of the Purchaser
- The rights of the Purchaser to claim for material and legal defects (including incorrect and incomplete delivery, incorrect assembly and incorrect or incomplete assembly instructions) are governed by statutory regulations of the law chosen by the parties unless otherwise agreed below. No provisions of this contract shall affect the special statutory regulations of the law chosen relating to final delivery of the goods to a consumer (recourse against suppliers pursuant to Sections 478 and 479 BGB).
- The Seller's liability for defects arises first and foremost from the agreement reached on the quality of the goods. Agreements on the quality of the goods are defined as all product specifications designated as such (including those of the manufacturer) given to the Purchaser before its order or similarly included in the contract.
- Should no agreement have been reached on quality, a judgement must be made under the statutory regulations of the law chosen as to whether or not the goods are defective (Section 434 (1) sentence 2 and 3 BGB). The Seller shall, however, not be liable for public statements made by the manufacturer or other third parties (for example statements in publicity).
- The Purchaser may only bring claims for defects if it has met its statutory duties to inspect goods and give immediate notice of defects [Untersuchungs- und Rügepflichten] pursuant to the law chosen (Sections 377, 381 HGB [German Commercial Code]). The Seller must be notified in writing immediately should defects be discovered during the inspection or at a later time. Immediate notification is defined as notification sent within two weeks. Irrespective of the duty to inspect goods and give immediate notice of defects, the Purchaser must also send notification of obvious defects (including incorrect or incomplete deliveries) within two weeks of delivery. The Seller shall not be liable for defects not reported should the Purchaser fail to carry out a proper inspection and/or send notification of defects.
- Should the goods delivered be defective, the Purchaser may first choose whether to have the defect remedied (repair) or to demand the delivery of non-defective goods (replacement). Should the Purchaser fail to state which of the two options it chooses, the Seller shall have the right to set a reasonable deadline for it to do so. The right to choose an option shall be transferred to the Seller if this deadline expires without the Purchaser stating its choice.
- The Seller shall have the right to make subsequent performance due conditional upon the Purchaser paying the purchase price owed. The Purchaser shall, however, have the right to retain a share of the purchase price appropriate to the defect in question.
- The Purchaser must give the Seller sufficient time and opportunity for subsequent performance; it must in particular provide the goods in question for inspection. Under the statutory regulations of the law chosen, the Purchaser must return defective goods to the Seller if replacement goods are provided.
- The necessary costs of inspection and subsequent performance, in particular the costs of carriage, transport and travel costs and the costs of labour and materials, shall be borne by the Seller if the goods are indeed defective. If, however, a Purchaser request for the remedy of defects is found to be groundless, the Seller shall have the right to reclaim the costs incurred from the Purchaser.
- In emergencies, for example should there be a safety risk or should measures be required to prevent excessive damage, the Purchaser shall have the right to remedy the defect itself and claim the actual costs necessary for such work. The Seller must be informed immediately of such work by the Purchaser, if possible before it is carried out. The Purchaser shall not have the right to undertake such remedial work if the Seller would have had the right to refuse subsequent performance to remedy the defect in question under the statutory regulations of the law chosen.
- Should subsequent performance fail or should the reasonable deadline for subsequent performance to be set by the Purchaser expire without effect or the statutory regulations not require such a deadline, the Purchase shall have the right to rescind the contract of sale or reduce the purchase price. It shall not, however, have the right to rescind the contract if the defect is insignificant.
- The Purchaser may only claim damages or the refund of wasted expenditure in accordance with the provisions of Section 12 of this contract; all other such claims are excluded.
- Unless otherwise defined in this contract, the Seller shall be liable for the breach of contractual and non-contractual obligations as defined under the applicable statutory regulations of the law chosen.
- The Seller shall be liable for damages no matter what the legal grounds in the case of intent and gross negligence. In the case of ordinary negligence, the Seller shall only be liable; a) for damage to life, limb and health; b) for damages arising from the breach of a major contractual obligation (an obligation whose fulfilment is necessary to the due and proper implementation of the contract and compliance with which the contractual partner expects and has a right to expect); the liability of the Seller in such cases shall however be limited to foreseeable typical damages.
- The limitations of liability defined in (2) above do not apply if the Seller has maliciously concealed a defect or given a guarantee for the quality of the goods. The same applies for claims brought by the Purchaser under the Produkthaftungsgesetz [German Product Liability Act].
- The Purchaser may only rescind or cancel the contract for a breach of obligation other than defects if the Seller is responsible for the breach. A free right of cancellation on the part of the Purchaser (in particular pursuant to Sections 651, 649 BGB) is excluded. The statutory requirements under the law chosen apply.
Statute of limitations
- In derogation of Section 438 (1) No. 3 BGB, the general period of limitation for claims for material and legal defects shall be one year from delivery. In the event that collection has been agreed, the period of limitation shall begin upon collection.
- Should, however, the goods be a structure, or an item which is usually used for a structure and which has caused the defect in the structure (construction material), the period of limitation shall be 5 years from delivery in accordance with the statutory regulations (Section 438 (1) No. 2 BGB). This shall not affect special statutory regulations for third party claims for surrender in rem (Section 438 (1) No 1 BGB) in the case of malice on the part of the Seller (Section 438 (3) BGB) or claims for recourse against suppliers in the case of final delivery to a consumer (Section 479 BGB).
- The above periods of limitation for purchase shall also apply to contractual and noncontractual claims for damages on the part of the Purchaser arising from a defect in the goods unless a shorter period of limitation would apply under the standard statutory statute of limitations (Sections 195, 199 BGB). This does not affect the periods of limitation pursuant to the Produkthaftungsgesetz. All other claims for damages on the part of the Purchaser pursuant to Section 12 of this contract shall be governed solely by the statutory periods of limitation under the law chosen.
Import licence, import authorisation and export costs
- The Purchaser shall obtain the import licence and all necessary permits, licences or other documents required for import to the country of use and for any transport through third states. The Purchaser shall bear the risk of any refusal of import authorisation effective at the time the contract of sale is concluded.
- The Purchaser shall only bear the risk of subsequent refusals of import authorisation if and to the extent that such a refusal ought to have been expected following careful examination at the time the contract of sale was concluded. In the event of disputes, the Purchaser must prove that it undertook all necessary and appropriate measures for such an examination.
- Any costs, customs duties or charges etc. which arise in relation to the export and import of the goods shall be borne by the Purchaser. This shall not apply if and to the extent that such costs, customs duties or charges etc. are covered by the Seller as part of the procurement of the documents necessary for export authorisation.
Shipment and insurance
- The Purchaser shall ensure that shipment is carried out by suitable transport personnel. It shall bear the costs of shipment and loading after delivery pursuant to Section 8 of this contract.
- Additional measures shall be put in place to prevent damage in transit and allow any such damage to be discovered. The packaged goods shall in particular be fitted with transportation or shock sensors.
- The Purchaser shall take out shipping insurance at its own cost. This policy shall cover the purchase price of the goods or the current value of the goods if this is higher; the sum insured shall not be limited by weight.
- The Purchaser shall ensure that the goods arrive at their place of use by …. at the latest. The Purchaser shall inform the Seller by standard post and by e-mail or fax of the set date of arrival as soon as this is certain. It shall also in the same way, it shall also inform the Seller of any delay in the arrival of the goods.
- The language of this contract is English. Any copies etc. of this contract or other correspondence drafted in other languages are translations only and shall not constitute binding contractual documents.
- All correspondence must be in English. Communications and notifications in other languages shall be disregarded.
- All information, specifications, drawings and other data which one party provides to the other either verbally or in writing shall constitute trade secrets which must be treated confidentially. Such data may not be disclosed to third parties unless it is public knowledge or known to the party bound by confidentiality through other legally admissible channels. It may only be disclosed to employees of the parties if and to the extent that such disclosure is necessary for the fulfilment of this contract.
- The parties shall also comply with all regulations for the protection of intellectual property and the provisions of the applicable data protection legislation.
Choice of law and competent court
- This contract and all legal relationships between the Seller and the Purchaser shall be governed by the law of the Federal Republic of Germany to the exclusion of all international and supranational (contract law) legal systems, in particular of the United Nations Convention on Contracts for the International Sale of Goods. The conditions and effects of retention of title pursuant to Section 10 of this contract shall, however, be subject to the law of the place in which the item in question is stored should the law chosen by the parties be inadmissible or invalid and overridden by German law.
- If the Purchaser is a merchant [Kaufmann] as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the sole competent court for all disputes arising directly or indirectly from the contractual relationship, including international disputes, shall be the court of 56068 Koblenz am Rhein (Germany) . The Seller shall, however, also have the right to bring actions before a court in the Purchaser's place of general jurisdiction.
- This contract is valid together with Appendices 1 - XXX, which are an integral part of the contract. By signing this contract, both parties confirm that the contract including appendices covers a total of XX pages and is complete; the signature of the contract by each party shall include its initialling of each individual page.
- Changes or supplements to this contract shall only be effective if made in writing. The cancellation of this requirement must also be in writing.
- This contract shall enter into effect upon its signature by both parties to the contract.
- By signing, the signatory confirms that it is authorised to conclude this contract. Section 179 BGB shall apply should the party not be authorised.
- Should current or future provisions of this contract be or become invalid or infeasible in full or in part, this shall not affect the validity of the remaining provisions. The same shall apply should an omission be discovered in the contract. An appropriate rule is in such a case to be applied in place of the ineffective or unworkable provisions or to cover the omission which comes as close as legally possible to what the parties wished or what they would have wished in accordance with the aim and purpose of the contract had they considered the point upon conclusion of the contract or at the time of adding a supplementary provision. This shall also apply if a provision is invalid due to the scope of performance or time set down in the contract (set period or deadline); in such a case, a legally admissible scope of performance or time (period or deadline) which comes as close as possible to that intended shall be deemed to have been agreed.
Executed this ______________ day of ________________, 20___.
(Company name) (Company name)
(Typed or printed name) (Typed or printed name)