I. Identification of Technology Development Contract
Article 330 of the Contract Law stipulates the definition of a technology development contract: "A technology development contract refers to a contract concluded between the parties on the research and development of new technologies, new products, new processes or new materials and their systems."
Technology development contracts include entrusted development contracts and cooperative development contracts. Entrusted development contract is a technology development contract concluded by one party entrusting the other party with research and development work and providing corresponding research and development funds and remuneration.
A cooperative development contract is a technology development contract concluded by the parties concerned for joint research and development.
According to the Rules for the Identification of Technology Contracts implemented since 200 1, the conditions for the identification of technology development contracts are as follows:
(1) has clear scientific research and technology development objectives;
(two) the subject matter of the contract is the technical scheme that the parties have not mastered when concluding the contract;
(3) R&D work and its expected results have corresponding technological innovation contents.
Second, the contents of a technology development contract should include
(1) name of development project. The name of the development project should use concise and accurate words as far as possible, and can reflect the technical characteristics of the project, and pay attention to supplementing the project content.
(2) development content. The development content is directly related to the performance of the contract, so both parties to the contract should make an agreement as accurately, in detail and comprehensively as possible. For those with more or more complicated contents, arrangements should be made by levels and projects according to the research and development stage or plan. The final research and development results and their manifestations should also be stated in the contract.
(3) development planning. You can make a master plan, an annual plan or a quarterly plan. If the research and development content is complex and changeable, the plan should be more detailed and rigorous. Each phased plan should also describe the technical problems to be solved and the goals to be achieved, with the focus on making the R&D process more reasonable and smooth.
(4) Development expenses and their payment. The total amount of research and development funds and the source of development remuneration should be clearly defined. Some technology development contracts do not distinguish between funds and remuneration, which are collectively referred to as R&D expenses. But from the legal point of view, funds and remuneration are different, so we should pay attention to the distinction in practical application.
(5) Ownership of equipment, equipment and materials purchased with development funds. In order to avoid or reduce disputes in the actual implementation process, both parties to the contract should reasonably divide the property ownership in the R&D process. The list of equipment, materials and materials owned by one party or * * * can be listed in detail as an annex to the contract.
(6) Time limit, place and method of performance. It is also a substantive clause that a contract should have. Clarifying this content is helpful to control the development progress and can also be used to judge whether it constitutes a breach of contract.
(7) Risk responsibility. Including the subject of responsibility, the proportion of sharing, and the way of undertaking. Because of the uncertainty of research and development, once it fails, who will bear the responsibility and the economic losses caused by it must be explained clearly.
(8) Ownership and sharing of development achievements. The ultimate goal of R&D work is to achieve results, and the ownership and interests after the results are the ultimate pursuit of the parties. The ownership and distribution of rights should be clearly defined, including copyright, patent right, non-patented technology use right and how to use the transfer right.
(9) Acceptance of development results. It is necessary to clearly define the acceptance criteria and methods, through which it can be determined whether the research and development results meet the objectives of the parties. Finally, the acceptance certificate and documents shall be issued by the acceptance party as the basis for contract acceptance. In practice, due to the high burden of proof of the trustee, the implied acceptance clause can be agreed here.
(10) Calculation method of liability for breach of contract or compensation for losses. The liability for breach of contract generally appears in the form of liquidated damages, and the parties shall agree on liquidated damages in a fixed or proportional way, including the calculation method of compensation after the loss occurs.
Third, other places that should be focused on.
(1) Pay attention to the written confirmation. In the process of technology development and implementation, the customer changed the adjustment requirements, which may affect the workload or implementation time. It is recommended to confirm these changes by written letter, which may involve workload or may affect the delivery time of software. Or even through the work email, it is necessary to specify the change requirements, relevant time points and other contents in the email, and ask the entrusting party to confirm.
(2) Pay attention to written work reports. Every work done by the developer in the entrusting party should be recorded in writing and confirmed by the entrusting party, so as to prevent the entrusting party from not approving the developer's work in case of disputes. Even if it is an email report, it is necessary to write clearly what work has been done, and you can't take a few words.
(3) post-training and maintenance
Especially for R&D achievements with complicated operation and high professional requirements, technical training and professional training should be given to relevant professional and technical personnel. If the contract has been terminated or dissolved and the parties still need technical cooperation or technical guidance, a technical consultation or technical service contract may be concluded separately.
(4) Confidentiality of commercial information
If the parties request not to disclose the commercial information exchanged in the process of technology development, they may agree on confidentiality clauses or sign confidentiality agreements to protect the information. The key is that the confidentiality provisions should be specific and clear, that is, the confidential content, the information that should be kept confidential, the scope of confidential personnel, the confidentiality time, and the confidentiality responsibility. Even all materials and information provided to the developer can be used as an attachment to the confidentiality clause. It should be pointed out that the confidentiality clause is not affected by the termination of the contract. Regardless of whether the contract is changed, dissolved or terminated, all parties to the contract can continue to undertake the confidentiality obligations stipulated in the confidentiality clause.
Tangible goods have uniform standards, while technology-developed products don't, so disputes are easy to arise in the process of contract performance. Therefore, enterprises should try to be clear and comprehensive when signing a contract, and pay attention to retaining evidence in the process of contract performance to avoid risks in later litigation.