It is that one party transfers all its technology or technology use right to the other party across the national border and collects the price or use fee; The other party obtains the technology or technology use right and pays the price or use fee, or one party completes a certain task for the other party with technology or technical services crossing the national border and gets paid. A written agreement that the other party accepts the fruits of technical labor and pays remuneration. In short, an international technology transfer contract is an agreement between parties whose places of business are in different countries, aiming at transferring technology.
The contract price clause is actually a concession clause. The use of patents is shown below, and the transfer of other technologies can be referred to.
The pricing of royalties usually considers the following four factors:
(1) The expenses incurred by the supplier in patent research and development, such as the investment in new technology research and development, the expenses of manpower and raw materials during research and development, the expenses of imported equipment and other expenses;
(two) the economic benefits that the transferee can obtain by using the patented technology;
(3) The scope and duration of granting the right to use;
(4) The time and method for the transferee to pay the royalties, etc. According to the above contents, the use fee can be divided into: basic development fee (usually accounting for 60% of the total price), technical service fee, project design fee, technical data fee, project liaison fee and technical training fee.
There are usually three ways to calculate the royalty of a patent license agreement:
(1) lump sum price
Also known as fixed price. In other words, the contract can calculate a fixed amount of royalties in one lump sum, which can be paid by the transferee in one lump sum or in several installments, usually in several installments. The one-time price method is more beneficial to the supplier, but for the transferee, because the royalties include the profits that the transferee can expect to obtain by using the transferee technology, the estimated profits are mostly inaccurate. If the estimate is too high, the transferee will face greater risks. In addition, the technology transferee must bear all the risks of market changes.
When the total price method is adopted, the payment can be completed by one-time payment and installment payment.
One-time payment is usually made after the technical data are delivered and accepted by the transferor. At the same time, the supplier is required to provide the following payment documents: a copy of the export license issued by the country where the supplier is located, a commercial invoice, a sight draft, a list of technical materials, an air waybill for delivering technical materials, and a confirmation of acceptance of technical materials issued by the transferee.
Installment payment is usually based on the progress of contract execution. If you pay in four installments, you will usually make the following arrangements:
A pay the first payment (accounting for 5% ~ 20% of the contract price) after the contract comes into effect. The supplier shall provide the following payment documents: a copy of export license issued by the supplier's country, commercial invoice, sight draft and irrevocable letter of guarantee issued by the supplier's bank.
B pay the second payment (accounting for 35% ~ 50% of the contract price) after delivering the technical data. The supplier shall provide the following payment documents: commercial invoice, sight draft, air waybill for delivery of technical data, and acceptance confirmation of technical data issued by the transferee.
C. To pay the third payment (accounting for 20% ~ 30% of the contract price) after the project is put into production, the supplier shall provide the following payment documents: commercial invoice, sight draft, and confirmation letter issued by the transferee for the formal production of the project.
D. Pay the final payment (accounting for 5% ~ 10% of the contract price) after the warranty period of the contract products expires. The supplier shall provide the following payment documents: commercial invoice, sight draft, and the confirmation of the expiration of the warranty period of the contract products issued by the transferee. The warranty period of the contract products is usually one year, counting from the date when the contract products are officially put into production.
(2) royaltyprice。
Also known as sliding price. That is, it is stipulated in the contract that after the project is completed and put into production, the balance between the output of the contract products and the net sales (usually referring to the sales after deducting the expenses of raw materials, packaging, transportation, insurance, customs duties, sales agents, etc.). ). In order to avoid differences, all parties should clarify the calculation method of net sales. ) or extract a certain percentage of profits (royalty rate) as the use fee. According to the statistics of the United Nations Conference on Trade and Development, most of the royalties in licensing trade are between 5% and 10% of the net sales price of products. The royalty rate can be divided into fixed royalty rate and sliding royalty rate. The former is fixed within the validity period of the contract, while the latter increases or decreases year by year according to the increased net sales. Accordingly, royalties are also divided into fixed royalties and sliding royalties. Royalties are usually inversely proportional to product sales. It is more favorable for the transferee to pay the royalty by royalty. Sometimes, a minimum royalty or a maximum royalty can be set. If the calculated royalty is greater than the minimum royalty, it shall be paid according to the calculated amount; If the calculated royalty is lower than the minimum royalty, the minimum royalty shall prevail. If the calculated royalty is greater than the maximum royalty, it shall be paid according to the maximum royalty; If the calculated royalty is lower than the maximum royalty, it shall be paid according to the calculated royalty.
The initial calculation time of royalties is an important issue. According to international practice, the starting time for calculating the contract royalty price is the expiration of the warranty period of the contract product (usually one year). Royalties shall be paid annually after the warranty period of the contract products expires. In addition, in order to ensure that the transferee provides true data, the supplier shall be allowed to check the accounts of the transferee on the production and sales of the contract products at any time. The Licensee shall provide the Licensor with production or sales information on a regular basis.
Audit fees are generally borne by suppliers.
(3) The one-time price is combined with the royalty price.
Also known as the combination of fixed price and sliding price. That is, it is stipulated in the contract that the fixed price part (also called initial fee or initialPrice) will be paid immediately after the contract comes into effect, and the royalty will be paid within a certain period of time after the project is put into production. So it can also be called "entrance fee plus commission". The admission fee usually accounts for 10% to 20% of the total price, and the commission fee accounts for 80% to 90% of the total price. This pricing method combines the advantages of the first two methods, and the risk is shared by both parties, which is more reasonable, so it has become a common pricing method in international licensing trade.
The payment methods of patent royalties usually include payment currency, remittance method, payment documents, settlement bank, payment time and place, etc. Usually, the pricing currency is the same as the payment currency. If they are different, the exchange rate should be specified.
Second, the payment clause in the international technology transfer contract.
(a) Payment methods commonly used in international technology transfer contracts
1, remittance. It belongs to commercial credit and is risky. There are mainly prepayment, order payment, cash on delivery, cash against documents, etc. The general business process of remittance is as follows:
2. collect. It is also a kind of commercial credit. As an exporter, it is risky to deliver the goods first and then collect the money. According to the D/P method, it can be divided into D/P and D/A..
3. Letter of credit. With the development of international trade, the mode of payment by letter of credit is gradually formed in the process of banks participating in international settlement. Guaranteed by the bank's own reputation, it solves the contradiction of mutual distrust between buyers and sellers under other payment methods. Since/kloc-appeared at the beginning of the 9th century, it has become the most important payment method in international trade.
(2) Problems that should be paid attention to when making payment terms for technology license in international contracts.
1. No matter which payment method is adopted, unless payment is made in advance, the credit status and business style of Licensor shall be investigated in detail. According to the specific situation of customers, determine the payment method.
2. Relevant laws and regulations of the importing country. For countries with strict import control and foreign exchange control, try to pay in advance and avoid payment conditions such as collection and cash on delivery.
3. In the collection business, choosing a suitable collection bank is conducive to the recovery of payment; In the letter of credit business, choosing a reputable big bank as the issuing bank can make the payment of the payment more secure. If the issuing bank has a bad reputation, the applicant must find another big bank to confirm the letter of credit.
4. In the mode of payment by letter of credit, the letter of credit should be examined in strict accordance with the contract to prevent the "soft clause" of the letter of credit, that is, the "trap" of the letter of credit. If there are such terms or other terms that the beneficiary of the letter of credit cannot meet, the applicant is required to amend the letter of credit as soon as possible so that the exporter can deliver the goods as soon as possible.
5. Flexible combination of various payment methods. The combination of collection and letter of credit, prepayment and collection, prepayment and collection and letter of credit, etc.