Because of the different types of licensing contracts, their contract terms and contents have the same parts, but they also have their own special parts.
Terms and contents
The same-sex clauses and contents of various licensing contracts are as follows:
(1) Name and number of the contract. The name of the contract should accurately reflect the content, nature and characteristics of the contract. Such as "XXX patent license contract". The contract number is a specific symbol to identify the contract, which reflects the licensor's country, the licensee's name and department, and the year of signing.
(2) the time and place of signing the contract. The signing time is the date when both parties formally sign the contract, and the signing place is often related to the signing time. The time and place of signing a contract often involves the entry into force of the contract, the application of the law and the payment of taxes.
(3) The legal name and address of the party concerned. This is indispensable for communication, and it is also one of the bases for determining the jurisdiction of the court and applying the law when there is a dispute between the two parties.
(4) In view of the frequent use of the phrase "in view of ……", it is named. It is a narrative clause, which is used to explain the background, intention and purpose of both parties, especially to explain the legality of licensor's technology or rights, as well as licensee's experience and ability to accept technology.
5] Definition clause. In order to make the contract concise and clear, the following words are usually defined: important nouns and terms related to the subject matter of the contract; Important nouns and terms with different understandings or ambiguities in the laws or practices of various countries; Important technical terms; Terms and terms that appear many times in the contract and need to be simplified. It should be noted that defined terms and terms should have a safe and consistent meaning when they appear in the same contract terms.
(6) The content and scope of technology transfer. This is the core part of the whole contract and the basis for confirming the rights and obligations of both parties. Main provisions: specific technical name, specifications, required performance and technical indicators; The mode of transfer (including the design data of the contract products and the scope and content of production technical data), the responsibilities and obligations of the supplier in technical training and technical services, the specific times and methods of training, the scope and treatment conditions of technical services, the objectives to be achieved, and the fields in which the licensee can use technology to manufacture, sell and export the licensed products; How to use trademarks, and so on.
Once the exchange technology is improved and developed. During the term of the contract, both the supplier and the recipient can make some new improvements or developments on the originally transferred technology. Generally speaking, the ownership of improved and developed technologies should belong to the party that improves and develops them. Both sides should undertake the obligation of continuously exchanging this improved and developed technology. The exchange method of this improved or developed technology should be clearly stipulated in the contract. Generally speaking, the terms of providing improved and developed technology by licensor to licensee are called "providing technical assistance", and the terms of providing improved and developed technology by licensee to licensor are called the principle of cost reciprocity and consistent exchange period.
Deliver technical documents. This clause includes the time, place and method of delivery of technical documents, the requirements for packaging of technical documents, the remedial measures for short damage of technical documents, and the measurement system for technical documents' words and technical parameters.
(9) Technology price and payment. Technology price refers to the monetary expression of the technology use fee that the technology receiver is willing to pay for the technology use right and the supplier can accept. Different from the pricing of tangible goods, technical pricing is a complex problem, which depends on many factors, mainly including the direct cost of the supplier to complete the exchange; Expected profit of the supplier; The life cycle of technology and the cycle stage of technology; The number of sales technical services provided by the supplier; The purpose and scope of technology use; The degree of authorization from the supplier to the recipient, the supplier's guarantee of technology and the recipient's acceptance ability; Technology supply and demand; Economic benefits of technology; The political environment and property rights protection of the receiving country. .
The payment method of technical price is also different from tangible goods. There are three common ways: one is lump-sum payment. That is, the technical use fee, technical data fee and technical service fee are calculated and added in one lump sum, and the total amount is paid in one lump sum or by installments. The second is commission payment. That is, after the technology is implemented, according to the output or sales volume of the contract products or the profits obtained year by year, a certain proportion is extracted as the technical price. The third is the entry fee plus commission payment. That is, when the contract comes into effect or the recipient receives the technical data, the agreed amount will be paid first, and then the commission fee will be paid year by year.
⑽ guarantee. This clause is mainly to safeguard the interests of the licensee and strengthen the responsibilities of the licensor. It includes two contents: right guarantee and technical guarantee. Rights guarantee mainly means that Licensor guarantees that it is the legal owner of the transferred technology and has the right to transfer the technology without infringing the rights of any third party within the territory stipulated in the contract. Technical guarantee refers to the supplier's guarantee that the provided technology is safe and practical and can produce qualified contract products. In the guarantee clause, the content of technical guarantee is mainly stipulated. The protection of rights is mainly stipulated in the viewing clause and the infringement clause.
⑾ Other terms. In addition to the above clauses, there are also clauses and contents in the license contract, such as "claim, force majeure, taxes and fees, legal application and dispute settlement, contract term, writing and signature, and contract annex". These contents are similar to general commodity sales contracts, and will not be repeated here.
The special terms of various licensing contracts are the terms that must be stipulated according to the specific characteristics of the subject matter of the contract.
The special clauses of a patent licensing contract include patent clauses and patent reservation clauses.
Patent clause
This clause shall specify the legal status of the transferred patented technology, and list the patent number, the country of patent application, the application time and the effective period. If it is a patent being applied for, it is necessary to specify in the contract how the rights and obligations of both parties will change with the application results in the future, and so on. Patent reservation clause. Most countries stipulate that the patentee must pay an annual fee to maintain the validity of the patent right. Therefore, it should generally be stipulated in the contract that the licensor has the obligation to pay the annual fee according to law in order to maintain the validity of the transferred patent; If the patent fails to pay the annual fee, the contract will be terminated. In the patent licensing contract, there should also be provisions on the use, infringement and disposal of patent marks.
The special terms of the trademark license contract mainly include: the content and characteristics of the trademark, the legitimacy and effectiveness of the trademark; The form in which the recipient uses the trademark; Management of trademark identification; About product quality supervision and so on.
Main special clauses
The special terms of the proprietary technology license contract mainly include: initial confidentiality agreement, confidentiality clause and acceptance clause. The initial confidentiality agreement is mainly a confidentiality agreement reached by both parties in technical negotiations, which guarantees that the recipient has the obligation to keep all technical secrets obtained from the supplier confidential within a certain period of time when the technical trade contract is not reached. Confidentiality clause is the stipulation of confidentiality responsibility and measures in the transaction order contract reached by both parties.
Inspection and acceptance clause
The "delivery" process of technology trade is actually a process of transferring and imparting technical knowledge, experience and skills from the supplier to the recipient. In addition to handing over technical data, it is more important to "deliver" it to the recipient in the form of words and deeds. Has the "delivery" been completed? Does the delivered "goods" meet the contract requirements? In technology trade, these problems can only be solved by reviewing contract products. Therefore, in the terms of inspection and acceptance, the following main contents must be made clear: product model, specification and quantity, contents, standards, methods and times of inspection and acceptance, place and time of inspection and acceptance, allocation of key special test instruments and equipment, arrangement and responsibilities of personnel participating in inspection and acceptance by both parties, burden of inspection expenses, handling of inspection results, attribution of responsibility for unqualified inspection, and attribution of economic and legal responsibilities. Technical service and consultation is also a common way of technical trade in international technical trade practice. Because of its extensive content, scope and form, the contents of its contracts are also different. But generally speaking, technical services and consulting contracts mainly include the following aspects.
(a) the subject matter of the contract
Mainly explain the contract project name, service content and the final problems to be solved or technical requirements to be achieved.
(2) Requirements and forms of services
This clause shall specify the number, level, qualification, work progress, work place and treatment conditions of the technical personnel dispatched by the Trustee, the number, qualification, training time, place, method and treatment conditions of the trainees received by the Entrusting Party, the time, place and method of providing information or reports by the Trustee, and the time limit for completing technical services and consultation.
(3) the responsibilities of both parties
The entrusting party shall truthfully introduce the situation and provide convenience for the service party to conduct on-the-spot investigation; Pay technical service consulting fees as required; Accept each other's work on time. The service provider shall try its best to serve the other party; Timely submission of reports; Answer the questions raised by the other party in time; Keep secrets for each other, and so on.
(4) Acceptance and handling of the consultation report
If it is consulting service, the service provider shall provide consulting report within a certain period after the end of the consulting report period, and both parties shall hold a defense meeting, and the service provider shall answer the questions or questions raised by the entrusting party. If data errors or other problems are found in the report, the deadline for correction shall be specified and the final deadline for acceptance report shall be determined.
5] Other terms.
Others, such as pricing and payment of technical services and consulting; Breach of contract and its handling; The guarantee and guarantee of technical service contracts such as engineering design and product development shall be specified in the contract. The code abbreviation is 1 10 general trade general trade 130 barter trade barter trade 139 tourist shopping goods are used for tourists to order 200 pieces for export under $50,000. Give up the initiative to give up the incoming materials or declare the incoming materials for processing 2 14 incoming materials. Processing and assembly trade imported materials and export goods 243 processing special oil 245 processing special oil 255 processing raw materials domestic pin 255 processing raw materials domestic pin 258 processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials processing raw materials 300 Processed materials are re-exported and returned, imported materials are returned, 320 processing trade equipment is not priced, 345 imported materials provided by foreign investors are reduced or exempted, and 400 finished products are reduced or exempted by tax exemption certificate, and the imported materials and processed products handed over to the customs for processing are voluntarily given up. In the bonded area where finished products are taxed, the processed products are converted into domestic commodities. 445. In the bonded area where manufactured goods are taxed, the processed products are sold domestically. 446 processing equipment is sold domestically, and processing trade duty-free imported equipment is sold domestically. 456 Processing equipment is converted into duty-free imported equipment for processing trade. 466 sets of processing equipment were returned, 500 sets of duty-free imported equipment for processing trade were returned to China. During the supervision period, the equipment used for tax reduction and exemption is carried forward 5 13 compensation trade compensation trade 544 bonded area where imported materials are taxed according to materials, and processed products are taxed according to materials, and bonded area where processed products are sold domestically 6 15 imported goods for production. Jacking finished product production jacking 644 feed parts, domestic feed parts, domestic feed parts, feed parts deep processing, feed parts deep processing, cargo carry-over, feed parts carry-over, feed parts return, original imported parts leave the country, 700 feed parts return, feed parts return, feed parts return, 7 15 feed. Non-counterpart feed processing (non-counterpart contract) 744 finished feed is exempt from delivery or delivery. Certificate of tax reduction and exemption for finished feed products. 8 15 low-value accessories Low-value accessories 844 feed scraps are sold domestically. Under the item of feed processing, the leftovers are sold domestically. Under the item of feed processing, the leftovers are sold domestically. Feed waste is returned to feed processing. Export 865 scraps back. Under the item of processing with supplied materials, leftover materials are re-exported 1 1 10. Trade with Taiwan Province. Direct trade with Taiwan Province 1 139. Bonded oil added by registered means of transport in China. Materials 1200 Customs Clearance of Goods between Bonded Room and Bonded Warehouse 12 15 Bonded Factory 1233 Goods in and out of Bonded Warehouse 1234 Warehouse and Transit Goods in Bonded Zone 1300 Repair Goods. Inbound and outbound maintenance items 1427 unloading processing 1500 leased trade goods with a lease term of less than one year 1523 leased trade goods with a lease term of more than one year 16 16 consignment and consignment trade174/kloc-0. Foreign exchange commodities duty-free products, equipment and articles imported by foreign-invested enterprises as investment 2439 permanent offices public foreign permanent offices import office supplies 2600 temporary import and export goods 2700 exhibits import and export exhibits 2939 exhibition samples imported and exported by Chinese commercial institutions 30 10 sample advertisement A has the right to import and export. Sample advertisement 3039 Sample advertisement B Sample advertisement Non-operating unit import and export 3 100 No cost compensation No cost compensation Goods 3339 Other imports Free other imports Free goods 34 10 Imported goods for contracted projects 3422 Exported goods for contracted projects. 35 1 1 aid materials countries and international organizations aid materials for free 36 1 1 gratuitous military assistance 36 12 donated materials overseas Chinese, compatriots from Hong Kong, Macao and Taiwan, and foreign Chinese donated materials 39 10 has the right to direct military equipment (the right to operate). 3939 Unauthorized military equipment Direct military equipment (unauthorized operation) 40 19 Small-scale border trade (except border trade) 4039 Small-scale trade with Taiwan 4200 Foreign institutions shipped back to our foreign institutions shipped back old public goods 4239 Foreign institutions purchased official supplies from our foreign institutions and shipped them back to China 4400 finished products returned to the processed products directly to 4500. Return Direct Return 4539 Import Overflow and Misdischarged Import Overflow and Misdischarged Goods 456 1 Goods returned due to poor quality, goods in and out of storage due to delayed delivery, etc. 4600 warehousing finished products are returned, and 5000 warehousing finished products are returned. The access area is used for non-actual access to goods inside and outside the area. 50 15 processing area enterprises import materials and parts from abroad and export finished products. Warehousing enterprises in processing zone 5033 import goods from abroad. The finished goods in and out area is used to transfer the non-actual goods in and out of the area 5200. Non-actual inbound and outbound goods inside and outside Area 5300. The equipment access area is used for non-actual access to goods inside and outside the area 5335. Equipment and materials imported from overseas by enterprises in processing zones 536 1. Equipment in the processing zone returned to 9639 sea overseas. Customs clearance, customs sales, overdue undeclared goods, smuggling of illegal goods, 9700 subsequent tax payment without original declaration form, 9739 other trade, other trade, 9800 lease tax, lease of leased trade goods with lease term of one year or more, 9839 reserved diplomatic institutions for resale, domestic or international activities for resale, 9900 others.