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(Adopted and Promulgated by the Second Session of the Ninth National People's
Article 322 Definition of Technology Contract
A technology contract is a contract whereby the parties prescribe their rights
and obligations in respect of the development or transfer of technology, or
in respect of technical consulting or service.
Article 323 General Requirements Concerning Technology
Contract
Conclusion of a technology contract shall be conducive to the advancement of
science and technology, and expedite the conversion, application and dissemination
of scientific and technological achievements.
Article 324 Terms of Technology Contract; Patents
Terms of a technology contract shall be prescribed by the parties, and generally
include the following:
(i) project name;
(ii) contents, scope and requirement of the subject matter;
(iii) the plan, schedule, period, place, territory and method of
performance;
(iv) confidentiality of technical information and materials;
(v) allocation of responsibilities for risks;
(vi) ownership of the technology and allocation of benefits
accrued therefrom;
(vii) standard applicable to and method of acceptance test;
(viii)price, remuneration or licensing fee and the method of payment;
(ix) liquidated damages or method for calculation of damages;
(x) method of dispute resolution;
(xi) definition of terms and phrases.
The parties may agree to include the following materials relating to the performance
of the contract as an integral part thereof: technical background information,
feasibility studies and technical evaluation report, project task matrix and
project plan, technical standard, technical specifications, original design
and technique documents, as well as other technical documentation.
Where the technology contract involves any patent, it shall set forth the name
of the invention/innovation, the patent applicant and the patentee, the date
of application, the application number, patent number and the term of the patent.
Article 325 Payment Method; Royalty
The method for payment of the price, remuneration or licensing fee under a technology
contract shall be prescribed by the parties, who may prescribe lump-sum payment
based on one-time calculation or installment payment based on one-time calculation,
and may also prescribe royalty payment or royalty payment plus advance payment
of initial fee.
Where a royalty payment method is prescribed, the royalty may be calculated
as a percentage of the product price, any increase in product value resulting
from exploitation of the patent or use of the technical secret, profit, or product
sales, and may also be calculated by any other method prescribed by the parties.
The royalty rate may be fixed or subject to annual increase or decrease.
Where a royalty payment is prescribed, the parties shall prescribe in the contract
a method for inspection of the relevant accounting books.
Article 326 Employee-developed Technology; Definition
Where the right to use and the right to transfer employee-developed technology
belong to a legal person or an organization of any other nature, the legal person
or organization may enter into a technology contract in respect of such employee-developed
technology. The legal person or organization shall reward or remunerate the
individual(s) who developed the technology with a percentage of the benefits
accrued from the use and transfer of the employee-developed technology. Where
the legal person or organization is to enter into a technology contract for
the transfer of the employee-developed technology, the employee-developer has
the right of first refusal under the same conditions.
An employee-developed technology is a technology developed in the course of
completing a task assigned by a legal person or an organization of any other
nature, or developed by primarily utilizing the material and technical resources
thereof.
Article 327 Non-employee-developed Technology
The right to use and the right to transfer non-employee-developed technology
belong to the individual developer, who may enter into a technology contract
in respect thereof.
Article 328 Individual's Rights with Respect to Technology
Developed Thereby
The individual who developed the technology is entitled to identify himself
as the developer in the documentation related thereto, and to receive honor
certificate and reward.
Article 329 Invalidity of Technology-monopolizing and
Infringing Contract
A technology contract which illegally monopolizes technology, impairs technological
advancement or infringes on the technology of a third person is invalid.
Article 330 Definition of Technology Development Contract
A technology development contract is a contract concluded in respect of the
development of a new technology, product, technique or material and the associated
system.
Technology development contracts include commissioned development contracts
and cooperative development contracts.
A technology development contract shall be in writing.
A contract on the conversion of a scientific achievement with potential for
industrial application is governed by reference to the provisions applicable
to technology development contracts.
Article 331 Obligations of Commissioning Party
The commissioning party under a commissioned development contract shall, in
accordance with the contract, provide development funds and pay remuneration;
supply technical materials and original data; complete its tasks of cooperation;
and accept the developed technology.
Article 332 Obligations of Developer in Commissioned
Development
The developer under a commissioned development contract shall, in accordance
with the contract, prepare and implement the development plan; use development
funds in a reasonable manner; timely complete the development and deliver the
developed technology, as well as provide the relevant technical materials and
necessary technical guidance so as to help the commissioning party master the
developed technology.
Article 333 Commissioning Party's Breach
Where the commissioning party breached the contract, thereby causing stoppage,
delay or failure of the development, it shall be liable for breach of contract.
Article 334 Developer's Breach
Where the developer breached the contract, thereby causing stoppage, delay or
failure of the development, it shall be liable for breach of contract.
Article 335 Obligations of Parties in Cooperative Development
Parties to a cooperative development contract shall, in accordance with the
contract, make investment, including investment in the form of technology; participate
in the development by performing their respective tasks; and cooperate with
each other in the development.
Article 336 Breach of Cooperative Contract
Where a party to a cooperative development contract breached the contract, thereby
causing stoppage, delay or failure of the development, it shall be liable for
breach of contract.
Article 337 Termination of Contract in Case Technology
Becomes Public
Where the technology which is the subject matter of a technology development
contract was made public by a third person, thereby rendering performance of
the technology development contract no longer meaningful, the parties may terminate
the contract.
Article 338 Allocation of Responsibility for Risk of
Failure; Duty to Inform upon Discovery of Circumstance Which May Lead to Failure
If in the course of implementing a technology development contract, the development
failed in whole or in part due to any insurmountable technical difficulty, allocation
of the responsibility for such risk shall be prescribed by the parties. Where
the allocation of responsibility for such risk was not prescribed or clearly
prescribed, and cannot be determined in accordance with Article 61 hereof, it
shall be shared by the parties in a reasonable manner.
Where a party discovers any circumstance which may lead to the failure of the
development in whole or in part as described in the previous paragraph, it shall
timely notify the other party and take the appropriate measures to mitigate
loss; where the party failed to timely notify the other party and take the appropriate
measures, thereby causing further loss, it shall be liable for such further
loss.
Article 339 Right to Patent Application in Commissioned
Development
Unless otherwise agreed by the parties, the right to apply for patent on the
invention/innovation resulting from a commissioned development belongs to the
developer. Where the developer is granted a patent, the commissioning party
may exploit such patent free of charge.
Where the developer is to assign the right to apply for patent on the invention/innovation
resulting from the commissioned development, the commissioning party has the
right of first refusal under the same conditions.
Article 340 Right to Patent Application in Cooperative
Development
Unless otherwise agreed by the parties, the right to apply for patent on the
invention/innovation resulting from a cooperative development belongs to the
parties therein jointly. Where a party is to assign its joint patent application
right, the other parties have the right of first refusal under the same conditions.
Where a party in the cooperative development declares a waiver of its joint
patent application right, the other party may apply by itself, or the other
parties may jointly apply, as the case may be. Where a patent is granted on
the invention/innovation, the party waiving its patent application right may
exploit such patent free of charge.
If a party in the cooperative development does not consent to the application
for patent, the other party or parties may not apply for patent.
Article 341 Right to Use or Transfer Technical Secret
The right to use and transfer the technical secret resulting from a commissioned
or cooperative development, and the method for allocation of benefits accrued
therefrom shall be prescribed by the parties. Where such matters were not prescribed
or clearly prescribed, and cannot be determined in accordance with Article 61
hereof, all of the parties are entitled to use and transfer the technology,
provided that the developer in a commissioned development may not transfer the
technology to a third person before it delivers the technology to the commissioning
party.
Article 342 Types of Technology Transfer Contract
Technology transfer contracts include contracts for the assignment of patent,
assignment of patent application right, transfer of technical secrets, and patent
licensing.
A technology transfer contract shall be in writing.
Article 343 Limit on Scope of Implementation May Not
Restrict Competition
A technology transfer contract may set forth the scope of exploitation of the
patent or the use of the technical secret by the transferor and the transferee,
provided that it may not restrict technological competition and technological
development.
Article 344 Term of Patent Licensing Contract May Not
Exceed Patent Term
A patent licensing contract is only valid during the term of the patent. Where
the term of the patent expires or the patent is invalidated, the patentee may
not enter into a patent licensing contract with any other person in respect
thereof.
Article 345 Obligations of Patent Licensor
The transferor under a patent licensing contract shall, in accordance with the
contract, license the patent to the transferee, deliver the technical materials
related to the exploitation of the patent, and provide the necessary technical
guidance.
Article 346 Obligations of Patent Licensee
The transferee under a patent licensing contract shall exploit the patent in
accordance with the contract and may not license the patent to any third person
except as provided in the contract; and shall pay the licensing fee in accordance
with the contract.
Article 347 Obligations of Transferor of Technical
Secret
The transferor under a contract for transfer of technical secret shall, in accordance
with the contract, supply the technical materials, provide technical guidance,
and warrant the practical applicability and reliability of the technology, and
shall abide by its confidentiality obligations.
Article 348 Obligations of Transferee of Technical
Secret
The transferee under a contract for transfer of technical secret shall, in accordance
with the contract, use the technology, pay the licensing fee and abide by its
confidentiality obligations.
Article 349 Warranty of Title, Completeness, Correctness
and Effectiveness
The transferor under a technology transfer contract shall warrant that it is
the lawful owner of the technology provided, and shall warrant that the technology
provided is complete, free from error, effective, and capable of achieving the
prescribed goals.
Article 350 Transferee's Confidentiality Obligations
The transferee under a technology transfer contract shall, to the prescribed
extent and within the prescribed period, abide by its confidentiality obligations
in respect of the non-public and secret portion of the technology provided by
the transferor.
Article 351 Transferor's Liabilities for Breach
Where the transferor failed to transfer technology in accordance with the contract,
it shall refund the licensing fee in part or in whole, and shall be liable for
breach of contract; where the transferor exploited the patent or used the technical
secret beyond the prescribed scope, or unilaterally allowed the patent to be
exploited or the technical secret to be used by a third person in breach of
the contract, it shall cease the breach and be liable for breach of contract;
where the transferor breached any prescribed confidentiality obligation, it
shall be liable for breach of contract.
Article 352 Transferee's Liabilities for Breach
Where the transferee failed to pay the prescribed licensing fee, it shall pay
the overdue licensing fee and pay liquidated damages in accordance with the
contract; where it failed to pay the overdue licensing fee and liquidated damages,
it shall cease exploitation of the patent or use of the technical secret, return
the technical materials, and be liable for breach of contract; where the transferee
exploited the patent or used the technical secret beyond the prescribed scope,
or allowed the patent to be exploited or the technical secret to be used by
a third person without consent by the transferor in breach of the contract,
it shall cease the breach and be liable for breach of contract; where the transferee
breached any prescribed confidentiality obligation, it shall be liable for breach
of contract.
Article 353 Transferor Liable in Case of Infringement;
Exception
Where the exploitation of the patent or the use of the technical secret by the
transferee in accordance with the contract infringes on the lawful interests
of any other person, the liability shall be borne by the transferor, except
otherwise agreed by the parties.
Article 354 Sharing of Improvement
The parties may, on the basis of mutual benefit, provide in the technology transfer
contract for the method of sharing any subsequent improvement resulting from
the exploitation of the patent or use of the technical secret. If such method
was not prescribed or clearly prescribed, and cannot be determined in accordance
with Article 61 hereof, neither party is entitled to share any subsequent improvement
made by the other party.
Article 355 Applicability of Other Laws or Administrative
Regulations
Where the relevant laws or administrative regulations provide otherwise in respect
of technology import/export contracts or in respect of patent contracts or contracts
for patent application, such provisions prevail.
Article 356 Definitions of Technical Consulting and
Technical Service Contracts
Technical consulting contracts include contracts for provision of feasibility
studies, technical forecast, specialized technical investigation, and analysis
and evaluation report, etc. in respect of a particular technical project.
A technical service contract means a contract whereby one party solves a particular
technical problem for the other party by utilizing its technical knowledge,
excluding a contract for construction project or a contract of hired work.
Article 357 Obligations of Client under Technical Consulting
Contract
The client under a technical consulting contract shall, in accordance with the
contract, describe the problem on which consultancy is sought, provide the technical
background information as well as related technical materials and data; and
accept the work product from, and pay the remuneration to, the consultant.
Article 358 Obligations of Consultant under Technical
Consulting Contract
The consultant under a technical consulting contract shall complete the consulting
report or answer the question within the prescribed period; the consulting report
submitted shall comply with the requirements set forth in the contract.
Article 359 Remedies for Breach; Consultant Not Liable
for Loss
Where the client under a technical consulting contract failed to provide the
necessary materials and data in accordance with the contract, thereby impairing
the progress and quality of the work, or failed to accept or delayed in accepting
the work product, it may not claim refund of the remuneration paid, and shall
pay any unpaid remuneration.
Where the consultant under the technical consulting contract failed to provide
the consulting report within the prescribed period or the consulting report
submitted does not comply with the contract, it shall be liable for breach of
contract by way of reducing or foregoing the remuneration, etc.
The client under a technical consulting contract shall bear the loss resulting
from any decision made by it based on the complying consulting report and opinion
provided by the consultant, except otherwise agreed by the parties.
Article 360 Obligations of Client under Technical Service
Contract
The client under a technical service contract shall, in accordance with the
contract, provide the working conditions and complete its tasks of cooperation;
accept the work product and pay the remuneration.
Article 361 Obligations of Service Provider under Technical
Service Contract
The service provider under a technical service contract shall, in accordance
with the contract, complete the services, solve the technical problem, warrant
the quality of its work, and communicate the knowledge for solving the technical
problem.
Article 362 Remedies for Breach
Where the client under a technical service contract failed to perform its contractual
obligations, or rendered non-conforming performance, thereby impairing the progress
and quality of the work, or failed to accept or delayed in accepting the work
product, it may not claim refund of the remuneration paid, and shall pay any
unpaid remuneration.
Where the service provider under a technical service contract failed to complete
services in accordance with the contract, it shall be liable for breach of contract
by way of forgoing the remuneration, etc.
Article 363 Ownership of New Technology in Connection
with Technical Consulting/Service Contract
In the course of performing a technical consulting contract or a technical service
contract, any new technology developed by the consultant or service provider
utilizing the technical materials and working conditions provided by the client
belongs to the consultant or service provider. Any new technology developed
by the client utilizing the work product provided by the consultant or service
provider belongs to the client. However, if the parties agree otherwise in the
contract, such provision prevails.
Article 364 Technology Intermediary Service or Technical
Training
Where a relevant law or administrative regulation provides otherwise in respect
of technology intermediary service contracts or technical training contracts,
such provisions prevail.
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