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Medical Device Sales
I. Common trading patterns of export of medical devices
According to whether domestic medical device manufacturers have export operation qualification, the transaction mode can be divided into two types:
Category 1: If the manufacturer is also qualified for export operation, the manufacturer may directly enter into an international purchase contract with the overseas buyer and export the compliant medical devices; The trading enterprises participating in the transaction may provide services by means of intermediary contracts or consulting contracts, assisting the trading parties in arranging supply of goods, supervising quality inspection, organizing logistics, customs clearance and other auxiliary work.
The second without export business qualification of the manufacturing enterprise, the manufacturing enterprises need to have medical equipment business license and export business qualification of export enterprise medical equipment purchase contract, and procurement by the export enterprise and the foreign trade contracts, and export companies and logistics companies, such as customs clearance agent made by a contract logistics, customs a power of attorney complete the transaction.
(2) Prevention of contractual risks of export of medical devices
Manufacturers, especially those exporting themselves, tend to focus on a large number of risks in the trading process of high-risk products such as medical devices. For themselves, they mainly consider the risk of preventing international disputes and recovery of medical accidents, and for the counterparties, they mainly check their ability to pay.
Export enterprises require overseas buyers to provide the main certification, namely the commercial registration certificate and other main certification documents of the other party, which is the most basic risk audit. In case of inconsistency between the actual purchaser and the payment party, the actual purchaser shall be required to issue the letter of authorization for payment and other documents to prevent the compliance risks of domestic foreign exchange settlement and export tax refund in advance.
The rights and obligations of both parties should be clearly stipulated in the procurement contract, especially the identification and acceptance of quality defects and the way to assume the responsibility for medical accidents. In addition, the contract should not only pay attention to the accuracy of English legal translation, but also pay attention to the consistency between the terms of trade, price and payment, delivery time, quality standards, commodity inspection requirements, liquidated damages, third-party liability, force majeure and other provisions.
1. Delivery time
Although production has been gradually resumed in China, the supply of epidemic products is still uncertain. In order to avoid the liability for late delivery, it is better for the trade contract to agree on the delivery date within a flexible time period and subject to the prior notice of the exporter.
2. Terms of payment
In a trade contract, the parties to the contract shall specify the specific method of payment for cross-border payments. In view of the development of the epidemic and the instability of the demand for medical devices, in order to avoid the overseas buyer losing the payment ability or purchasing demand after the arrival of the goods at the port of destination, the export enterprise may limit the time of telegraphic transfer balance payment or adopt credit enhancement measures to non-recurrent customers in the trade contract.
L/C (letter of credit) is one of the common credit enhancement measures. Payment by L/C during the epidemic is subject to the risk of failure due to force majeure. In accordance with article 36 of the Uniform Customs and Practice for Documentary Credits (UCP600), the bank, upon resumption of its business due to force majeure, will not undertake to pay or negotiate letters of credit that have expired during the period of disruption. Therefore, when using l/C for payment, in order to avoid the situation that the issuing bank refuses to honor the overdue L/C due to the epidemic situation as a force majeure, the export enterprise should submit the documents as far in advance as possible and urge the presenting bank to send the full set of documents to the issuing bank as soon as possible. At the same time, it should also stipulate the specific remedies in the trade contract.
3. Force Majeure
It is clearly stipulated in the contract that the epidemic situation constitutes a cause of force majeure, and if there is a causal relationship between the epidemic situation and the non-performance, the other party of the contract may apply the force majeure clause to the epidemic situation to exempt the corresponding legal liability. Though the China Council for the Promotion of International Trade is due to the outbreak cannot supply enterprises upon proof of force majeure specified in the contract, but in practice, a foreign court and arbitration institutions will still according to the actual circumstances of the case to determine the application of the force majeure clause, is unable to fulfill the contract obligations between the force majeure and whether a direct causal relationship in the eyes of the law.
In areas where the epidemic has developed, if the overseas purchaser can fully foresee the sustainable development of the epidemic or the government control measures are known, the government control measures caused by the epidemic development cannot be considered as force majeure. If an overseas buyer purchases goods under the development of the epidemic situation and signs an international procurement contract, the export enterprise shall expressly stipulate in the contract that the buyer shall bear the relevant risks and exclude the force majeure caused by the epidemic situation in which the buyer performs its obligations.
At the same time, for bulk sales, it is suggested that export enterprises take out export credit insurance to avoid or reduce the losses caused by the buyer's refusal to accept the goods or pay for the goods. If the risks mentioned above cannot be covered by the export credit insurance coverage, the export enterprise may try its best to negotiate the terms of the contract to make the expressions conform to the claims conditions of the export credit insurance.
4. Entry into force of the Contract
A valid international trade contract must be formally confirmed by the parties to the contract and must meet the agreed conditions of entry into force or have reached the date of entry into force. It is worth noting that, different from domestic legal person, foreign legal person does not necessarily have a legal representative, and its signer should issue a letter of authorization or other documents certifying that it has the right to sign. The signature of the authorized signer is generally more effective than the seal of the foreign company.
According to whether domestic medical device manufacturers have export operation qualification, the transaction mode can be divided into two types:
Category 1: If the manufacturer is also qualified for export operation, the manufacturer may directly enter into an international purchase contract with the overseas buyer and export the compliant medical devices; The trading enterprises participating in the transaction may provide services by means of intermediary contracts or consulting contracts, assisting the trading parties in arranging supply of goods, supervising quality inspection, organizing logistics, customs clearance and other auxiliary work.
The second without export business qualification of the manufacturing enterprise, the manufacturing enterprises need to have medical equipment business license and export business qualification of export enterprise medical equipment purchase contract, and procurement by the export enterprise and the foreign trade contracts, and export companies and logistics companies, such as customs clearance agent made by a contract logistics, customs a power of attorney complete the transaction.
(2) Prevention of contractual risks of export of medical devices
Manufacturers, especially those exporting themselves, tend to focus on a large number of risks in the trading process of high-risk products such as medical devices. For themselves, they mainly consider the risk of preventing international disputes and recovery of medical accidents, and for the counterparties, they mainly check their ability to pay.
Export enterprises require overseas buyers to provide the main certification, namely the commercial registration certificate and other main certification documents of the other party, which is the most basic risk audit. In case of inconsistency between the actual purchaser and the payment party, the actual purchaser shall be required to issue the letter of authorization for payment and other documents to prevent the compliance risks of domestic foreign exchange settlement and export tax refund in advance.
The rights and obligations of both parties should be clearly stipulated in the procurement contract, especially the identification and acceptance of quality defects and the way to assume the responsibility for medical accidents. In addition, the contract should not only pay attention to the accuracy of English legal translation, but also pay attention to the consistency between the terms of trade, price and payment, delivery time, quality standards, commodity inspection requirements, liquidated damages, third-party liability, force majeure and other provisions.
1. Delivery time
Although production has been gradually resumed in China, the supply of epidemic products is still uncertain. In order to avoid the liability for late delivery, it is better for the trade contract to agree on the delivery date within a flexible time period and subject to the prior notice of the exporter.
2. Terms of payment
In a trade contract, the parties to the contract shall specify the specific method of payment for cross-border payments. In view of the development of the epidemic and the instability of the demand for medical devices, in order to avoid the overseas buyer losing the payment ability or purchasing demand after the arrival of the goods at the port of destination, the export enterprise may limit the time of telegraphic transfer balance payment or adopt credit enhancement measures to non-recurrent customers in the trade contract.
L/C (letter of credit) is one of the common credit enhancement measures. Payment by L/C during the epidemic is subject to the risk of failure due to force majeure. In accordance with article 36 of the Uniform Customs and Practice for Documentary Credits (UCP600), the bank, upon resumption of its business due to force majeure, will not undertake to pay or negotiate letters of credit that have expired during the period of disruption. Therefore, when using l/C for payment, in order to avoid the situation that the issuing bank refuses to honor the overdue L/C due to the epidemic situation as a force majeure, the export enterprise should submit the documents as far in advance as possible and urge the presenting bank to send the full set of documents to the issuing bank as soon as possible. At the same time, it should also stipulate the specific remedies in the trade contract.
3. Force Majeure
It is clearly stipulated in the contract that the epidemic situation constitutes a cause of force majeure, and if there is a causal relationship between the epidemic situation and the non-performance, the other party of the contract may apply the force majeure clause to the epidemic situation to exempt the corresponding legal liability. Though the China Council for the Promotion of International Trade is due to the outbreak cannot supply enterprises upon proof of force majeure specified in the contract, but in practice, a foreign court and arbitration institutions will still according to the actual circumstances of the case to determine the application of the force majeure clause, is unable to fulfill the contract obligations between the force majeure and whether a direct causal relationship in the eyes of the law.
In areas where the epidemic has developed, if the overseas purchaser can fully foresee the sustainable development of the epidemic or the government control measures are known, the government control measures caused by the epidemic development cannot be considered as force majeure. If an overseas buyer purchases goods under the development of the epidemic situation and signs an international procurement contract, the export enterprise shall expressly stipulate in the contract that the buyer shall bear the relevant risks and exclude the force majeure caused by the epidemic situation in which the buyer performs its obligations.
At the same time, for bulk sales, it is suggested that export enterprises take out export credit insurance to avoid or reduce the losses caused by the buyer's refusal to accept the goods or pay for the goods. If the risks mentioned above cannot be covered by the export credit insurance coverage, the export enterprise may try its best to negotiate the terms of the contract to make the expressions conform to the claims conditions of the export credit insurance.
4. Entry into force of the Contract
A valid international trade contract must be formally confirmed by the parties to the contract and must meet the agreed conditions of entry into force or have reached the date of entry into force. It is worth noting that, different from domestic legal person, foreign legal person does not necessarily have a legal representative, and its signer should issue a letter of authorization or other documents certifying that it has the right to sign. The signature of the authorized signer is generally more effective than the seal of the foreign company.
