商务合同--复习资料.doc

1、解释贸易术语 P462、如何降低外汇风险 How to reduce the risk of foreign exchange? P69the seller can pay in the currency of his or her own country or more stable and relatively stronger currencyThe buyer can pay in weak or soft currencyPayment in a unit of account (such as a special drawing right SDR)Use of a factorUse of forward and options contracts in a process known as hedging3.为什么保护知识产权很重要？P71-P72 +后果Why the protection of intellectual property is very important?Unique designs, methods, names, and symbols constitute industrial and intellectual property. The exclusive rights to such property are valuable. For example, a name can serve not only to distinguish your goods are services but also to extend the buyers trust to your entire product or service line.If another trader use your name or copy your design without your consent, you may lose not only sales but also the value of your reputation. You may even lose your exclusive rights to your name, work, or design. So the contractual protection of your exclusive rights to your industrial and intellectual property is very important.4、合同纠纷解决 要扩展 (page 113) Contract dispute resolution 1) Communication, waiver, modification and negotiation 沟通、豁免、修改、谈判Communication between you and your foreign business partner is essential to keeping the relationship. 你们和你的外国商业伙伴之间的交流是保持关系是至重要原因的。Negotiation, followed by written confirmation of any waiver or modified contract term, is the most effective means of resolution in terms of cost and time谈判,紧随其后的书面确认任何放弃或修改合同期内,最有效的手段是在成本和时间方面决议2) Mediation调解The process of Mediation is in essence a negotiation that is facilitated by an object third person.调解的过程,本质上是一次借助于一个对象是第三人的谈判Advantages and disadvantages: the focus of mediation is on the future relationship of the parties.优点和缺点:调解的焦点是对未来双方的关系。This process is informal, relatively easy and fast, and less costly than arbitration or trial.这个过程被非正式的、相对简单和快速,仲裁费用少于或审判。Procedures: the parties typically choose a mediator or are referred to mediation by a court before litigation is pursued.3)Arbitration 仲裁Arbitration is an adjudicatory process that is held before an object third party who renders a decision based on the adversarial presentations of the disputing parties. 仲裁是一个评判过程举行前呈现一个第三方的对抗性的演讲The process of arbitration is controlled by laws, rules, and regulations specific to the forum chosen for the arbitration. Thus the procedures will vary depending on the forum selected by the parties仲裁的过程的控制是由法律、规则和特定规定。因此,程序将取决于法庭当事人选择4)LitigationLitigation is costly, time consuming, and even if ultimately resolved in your favor still does not address a primary concern. The courts of many countries are biased in favor of their own nationals, and foreigners rarely, if ever, obtain satisfaction. The best advices is to avoid litigation altogether诉讼是昂贵的,耗时的,即使最终解决有利于你，但是诉讼仍然没有解决当事人主要关心的问题。很多国家的法院诉讼都有利于自己的公民而不利于国外公民，如果可以的话，皆大欢喜的情况，最好的建议完全是为了避免诉讼5、如何使合同条款更加严谨？ How to tighten your clauses? P88 10选66、仲裁与诉讼的比较Advantages to arbitration 仲裁的优势1、 It is less expensive and faster than a court trial2、 The parties tend to have more control over the choice of the decision makers3、 Many of the rules governing procedures and admission of evidence are relaxed in arbitration proceedingsDisadvantages to arbitration 仲裁的不足1、 In many countries, arbitration is unavailable or is just being developed2、 The relatively low cost of arbitration when compared with trial proceedings does not mean that arbitration is cheap3、 The arbitration will resolve past differences, but often will not build a continuing relationship Litigation to Advantages 诉讼的优势1、 In many countries , the court systems are well-developed and effective, you may just get a quick and fair trial2、 You may even be a awarded costs and attorneys fees as the winning party3、 You may find that enforcement is fairly easyDisadvantages to litigation 诉讼的不足1、Litigation is more expensive and slower than arbitration2、The parties tend to have less control over the choice of the decision maker3、Many of the rules governing procedures and admission of evidence are strict in Litigation7、卖方/买方的隐形成本 P16P19 一、The Buyers Hidden Costs 买方的隐形成本1) International shippingP162)Customs clearanceIf the seller is not responsible for clearing goods through customs, you will be.3) InsuranceYou should consider obtaining against the risk of loss of damage to the goods in transport, particularly if a substantial amount of money is involved 4) Interruption of businessYou should consider whether you will have any interruption in your own business when the goods arrive, whether for training, installation. Testing, maintenance, or otherwise5) Hospitality CostWhether you are buying goods or services, you may incur costs for entertaining a visiting seller6) Third Party Expenses7) Lost sales or production DelaysIf satisfactory goods do not arrive or services are inadequate, you may lose your own sales or you may have to delay your own production8) Temporary FacilitiesIf a shipment is late, you may have to retain an empty storage facility for the imminent but uncertain arrival of the goods9) Replacement Goods or ServicesA delay in performance may require you to pay for replacement goods for services二、The Sellers Hidden Costs 卖方的隐形成本1) Product AdaptationsInternational markets may require modification of your goods of service to follow national laws or consumer cultural preferences2) International ShippingP183) Customs ClearanceDepending on the deal you are able to make, you may be responsible for clearing goods through customs in your own country and possibly through customs in the country of importation4) InsuranceYou should consider obtaining insurance against the risk of loss or damage to the goods in transport, at least until the goods are delivered to the buyer5) Third-Party Expenses6) Temporary Facilities7) Mitigation ExpensesIf a contract for the sale of goods fails completely, you will have to find a new buyer8、卖方如何保护自己的知识产权？ sellers protection against infringement P73小标题下 The seller how to protect their intellectual property?（1）First, Make the application to register. Never voluntarily allow sales of your goods in a country where you have not applied to register your intellectual property with a government agency.(2)Your contract should specify that you have registered or have a pending registration of the property rights in the buyers country.(3)Add an incentive for the Buyers help in stopping infringement.(4)Make a liquidated damages clause.(5)Seller should know the Buyers business background before making the sale.(6)Seller must be certain to follow the progress of the buyers sales.9、什么情形下的合同是无效合同？in what circumstances it is an invalid contract ？1）One party induced conclusion of the contract though fraud of duress, thereby harming the interests of the state2）The parties colluded in bad faith, thereby harming the interests of the state, the collective or any third party3）The parties intended to conceal an illegal purpose under the guise of a legitimate transaction4）The contract harms public interests5）The contract violates a mandatory provision of any law, of administrative regulation53条Excluding one party a liability for personal injury caused to the other partyExcluding one party liability for property loss caused to the other party by its intentional misconduct or gross negligence 合同法第五十二条有下列情形之一的，合同无效：（一）一方以欺诈、胁迫的手段订立合同，损害国家利益；（二）恶意串通，损害国家、集体或者第三人利益；（三）以合法形式掩盖非法目的；（四）损害社会公共利益；（五）违反法律、行政法规的强制性规定。第五十三条合同中的下列免责条款无效：（一）造成对方人身伤害的；（二）因故意或者重大过失造成对方财产损失的10、合同翻译SALES CONTRACT (ORIGINAL)This Sales Contract is made by and between the Sellers and the Buyers whereby the Sellers agree to sell and the Buyers agree to buy the undermentioned goods according to the terms and conditions stipulated below: 本销售合同由卖方和买方之间,卖方同意出售,买方同意购买下述货品根据如下条款:Name of the commodity, Specifications, Packing term 商品的名称、规格、包装术语Quantity Unit price Total Amount White Rice, Long-shaped Broken Grains ( max.) 25% Admixture ( max.) 0.25% Packed in gunny bags of 50 kilos each 1 000 M/T USD 200 per M/T CIF New York USD200,000.00Say Two hundred thousand US Dollars only. Shipment3%moreorlessatSellersoptionandthepriceshallbecalculatedaccordingtotheunitprice 唛头：ShippingMark To be designated by the Sellers / At the Sellers option or N/M 由卖方设计或者没有唛头保险条款： Insurance 在FOB, CFR 合同下，保险条款可订为： To be covered by the Buyer.在CIF 合同下，保险条款可订为： Insurance to be covered by the Sellers for 110% of the invoice value against W.P.A / All Risks / War Risk including shortage in weight as per and subject to the Ocean Marine Cargo Clauses of the Peoples Insurance Company of China dated Jan. 1, 1981. If other coverage or an additional insurance is required, the Buyers must have the consent of the Sellers before shipment, and the additional premium is to be borne by the Buyers.保险保险由卖方按发票金额的110%投保水渍险/一切险/战争风险,包括重量短缺按并受海洋运输货物保险条款中国人民保险公司承保的日期为1981年1月1日。如买方欲增加其他险别或超过上述保额时须于装船前征得卖方的同意，所增加的保险费由买方承担。装运条款： Shipment Time of Shipment: during Feb./Mar. 2005 in two equal monthly lots 装运时间：在2005年2月或者三月这两个月内Port ofloading / shipment: 装货港/装运港Port ofdestination: London. Transshipment at Hong Kong allowed. 目的港：伦敦。允许在香港转船。The carrying vessel shall be provided by the sellers. Partial shipment and transshipment are allowed. After loading is completed, the seller shall notify the buyers by cable of the contract number, name of commodity, name of the carrying vessel and date of shipment.载运船只由卖方应提供。允许分批和转船。装运完成后,卖方应以电报通知买方合同号、商品名称、名称运载船只和货物的装运日期。付款条件： TermsofPayment The Buyers shall open with a bank acceptable to the Sellers an Irrevocable Sight Letter of Credit to reach the Sellers 30 days before the month of shipment, valid for negotiation in China until the 15th day after the month of shipment. (Export)买方应开立以卖方所接受的银行不可撤销即期信用证于装运月份前30天送达达卖方,在中国议付有效期至装运月份后第15天。(出口) By Irrevocable Letter of Credit for 90% the total invoice value of the goods to be shipped, in favor of the Sellers, payable at the issuing bank against the Sellers draft at sight accompanied by the shipping documents stipulated in the Credit. The balance of 10% of the proceeds is to be paid only after the goods have been inspected and approved at the port of destination. (Import) 以发票金额90%对待运的货物对卖方有利的不可撤销信用证，开证行支付在卖方即期装运单据规定下的信贷。 10的收益的平衡，在货物抵达目的港检查核准完才能支付。 （进口）By confirmed, irrevocable Letter of Credit in favor of the Sellers payable at sight against Presentation of shipping documents in China, with partial shipments and transshipment allowed. The covering Letter of Credit must reach the Sellers 15 days before the contracted month of shipment and remain valid in the above loading port until the 15th day after shipment, or the Sellers reserve the right to cancel the contract without further notice and to claim against the Buyers for any loss resulting there from. 在中国，以卖方为受益人，保兑的、不可撤消的信用即期装运单据,允许分批和转船。该信用证必须在装运月份的前15天送达卖方，必须在装运港直到装船后15天保持有效,或没有另行通知,卖方有权取消合同,并控告买方由此产生的任何损失To be effected by documentary draft under D / A terms.在承兑交单下生效Payment shall be made by documentary draft to be payable under D / P terms. 付款条件应在D / P条件下制成可支付跟单汇票交货条件：Delivery Terms Certificates of Quality, Quantity, Weight and Origin are required. The Buyers have the right to have the goods reinspected by the Guangzhou EntryExit Inspection and Quarantine Bureau of the Peoples Republic of China at the port for discharge. The relevant Inspection Certificates may serve as the basis of any claim to be lodged by the Buyers against the Sellers.品质、数量、重量和原产地证书是必需的。买方有权在广州出入境检验检疫局中华人民共和国卸货港对货物再检查。相关的检验证书可以作为买家对卖家任何索赔的基础。检验条款：CommodityInspection It is mutually agreed that he Certificate of Quality and Weight issued by-(e.g.: China Entry-Exit Inspection and Quarantine Bureau) / surveyor at the port of shipment shall be (taken as the basis of delivery. ) / part of the documents to be presented for negotiation under the relevant weight of the cargo. The reinspection fee shall be borne by the Buyer. The claim with the cargo, if any, shall be lodged to the Seller within -days after arrival of the cargo at the port of destination.双方同意以装运港（eg：中国出入境检验检疫局/检验机构）签发的品质和重量检验证书作为（交货依据/有关信用证项下议付所提交的单据的之一）。买方有权对货物的品质和重量进行复检。复检费由买方承担。买方对于装运货物的任何索赔，应于货物到达目的港后天内向提出。索赔条款：DiscrepancyandClaim Any claim by the Buyers regarding the cargo shall be supported by survey report issued by a surveyor approved by the Seller and lodged within 45 days after the arrival of the cargo at the port of destination. The Seller will not consider claims in respect of matters within responsibility of insurance company or shipping company.买方对于货物的任何索赔，必须提供经卖方同意的公证机构出具的公证报告，并于货物抵达目的港后45天内向卖方提出。属于保险公司或轮船公司责任范围内的索赔，卖方不予受理。Should the Seller fail to make delivery on time, the buyer shall agree to postpone the delivery on the condition that the Seller agrees of pay a penalty which shall be deducted by the paying bank at the time of payment. The rate of penalty is charged at 0.5% of the total value of the cargo whose delivery has been delayed for every week, odd days less than a week should be counted as a week. But the total amount of penalty shall not exceed 5% of the total value of the cargo involved in the late delivery. In case the Seller fail to make delivery 10 weeks later than the time of shipment stipulated on the contract, the Buyer shall have the right to cancel the contract and the Seller shall still pay the aforesaid penalty to the Buyer without delay.如果卖方不能按合同规定的时间（如期）交货，在卖方同意由付款行从议付货款中扣除罚金的条件下，买方可同意延期交货。罚款可由付款银行在付款时扣除。罚金按照每一周收取延期交货部分金额的0.5，不足一周按一周计算。如卖方未按合同规定的装运期交货，延期10周后，买方有权撤销合同，并要求卖方支付上述延期交货罚金。品质、数量异议索赔条款：Quality / Quantity Discrepancy and Claim In case the quality and/or quantity / weight are found the Buyers to be not in conformity with the Contract after arrival of the goods at the port of destination, the Buyers may lodge claim with the Sellers supported by survey report issued by an inspection organization agreed upon by both parties, with the exception, however, of those claims for which the insurance company and/or the shipping company are to be held responsible. Claim for quality discrepancy should be filed by the Buyers within 30 days after arrival of the goods at the port of destination, while for quantity/weight discrepancy claim should be filed by the Buyers within 15days after arrival of the goods at port of destination. The Sellers shall, within 30 days after receipt of the notification of the claim, and reply to the Buyers.货到目的港后，买方如发现货物品质（及/或数量/重量）与合同不符，除属于保险公司及/或船公司的责任外，买方可以凭双方同意的检验机构出具的检验证书向卖方提出异议，品质异议须于货到目港之日起30天内提出，数量/重量异议须于货到目港之日起15天内提出。卖方应于收到异议通知书后30天内答复买方。索赔期限：Validityof Claim The Buyers have the right to lodge claims for all losses sustained within 60 days after discharge o