英文技術轉讓合同實例

LICENSE CONTRACT OF THE TRANSFER OF TECHNOLOGY

Date of signing:________,________

Place of signing: Beijing. China

Contract No.:________

In accordance with Bid No.________under the I. B. R. D. Loan No.________, this contract is made and entered into by and between________________Beijing PRC (hereinafter referred to as the "Licensee"), and________Company, Germany (hereinafter referred to as the "Licensor").

The Licensee:

Name:________________________________

Address:________________________________

Telex:________________________________

Fax:________________________________

The Licensor:

Name:________________________________

Address:________________________________

Telex:________________________________

Fax:________________________________

Whereas the Licensor has the technical know-how for design, manufacture, assembly, installation, test, inspection, adjustment, operation, maintenance, management and sale of Railway________as required by Licensee;

Whereas the Licensor has the right and agrees to transfer the abovementioned technical know-how to the Licensee for the manufacture of Railway________product;

Whereas the Licensee agrees to introduce the Licensor's technical know-how for design, manufacture, maintenance, sale and export of the Railway________product;

Whereas the Licensor agrees to supply to the Licensee and the Licensee agrees to obtain from the Licensor a certain amount of parts and components for the assembling and manufacturing of the Railway________product under other contract.

The authorized representatives of both parties, through friendly negotiations, have agreed to enter into the Contract under the terms and conditions as stipulated below:

ARTICLE 1 DEFINITIONS

1.1 "The Licensee" means________Beijing, P. R. C.

1.2 "The Licensor" means________Company, Germany.

1.3 "The Contract" means the agreement entered between the Licensee and the Licensor, as recorded in the Contract signed by both parties, including all annexes, attachments and appendices thereto and all documents incorporated by reference therein.

1.4 "The contract Price" means the price payable to the Licensor by the Licensee under the Contract for the full and proper performance of its contractual obligations.

1.5 "The Contract Products" means all the products with the models and specifications and performances which are manufactured by the technology transferred by the Licensor to the Licensee as stipulated in Annex________to the Contract.

1.6 "The Contract Factory" means the place where the Licensee manufactures the Contract Products by using the Technology supplied by the Licensor, that is________factory.

1.7 "The Technical Documentation and Software" means all the documents to be supplied to the Licensee by the Licensor as stipulated in Annex________of the Contract. It consists of the followings:

A. All the technical indices, drawings, design, technical documents and software relating to the design, manufacture, calculation, assembly, installation, test, managements, inspection, adjustment, operation, maintenance, acceptance test and sale of the Contract Products;

B. All the technical indices, drawings, design, technical documents and software relating to the inspection, installation, commissioning, testing, acceptance, operation and maintenance of the Contract Equipment;

C. All the technical indices, drawings, technical documents and software relating to the inspection, testing, adjustment, assembly and maintenance of the SKD/CKD Parts.

1.8 "The Technical Service" means the technical assistance, supervision, instruction, training and other services under the contract to be rendered by the Licensor to the Licensee as stipulated in Annex________and Annex________to the Contract.

1.9 "SINOTRANS" means China National Foreign Trade Transportation Corporation, which is the pointed agent of the Licensee for receipt of the Technical Documentation and Software, the Contract Equipment and the Parts at the ports of destination:

A. Xingang seaport:

SINOTRANS, TANGGU BRANCH

Address:________

Telex:________

FAX:________

B. Beijing Airport:

SINOTRANS, Beijing Air Freight Co.

Address:________

Telex:________

FAX:________

1.10 "P. R. C." means the People's Republic of China.

1.11 "F. R. G." means Federal Republic of Germany

1.12 "The World Bank" means the International Bank for Reconstruction and Development (I. B. R. D.) and International Development Association.

ARTICLE 2 OBJECT OF THE CONTRACT

2.1 The licensor has agreed to transfer to the Licensee and the Licensee has agreed to obtain from the Licensor the technical know-how for the design, manufacture, assembly, installation, test, inspection, adjustment, operation and maintenance and management of the Contract Products. The name, model, specifications and technical indices of the Contract Products are detailed in Annex________to the Contract.

2.2 The Licensor has agreed to grant the Licensee the license and right to design, manufacture, use, sell in the PRC the Contract Products and export the Contract Products. The license and right are nonexclusive and non-transferable.

2.3 The Licensor has agreed to provide the licensee with the Technical Documentation and Software related to the Contract Products. The contents, copies and time of delivery of the Technical Documentation and Software are detailed in Annex________and Annex________to the Contract.

2.4 The Licensor has agreed to dispatch his technical personnel to the Contract Factory for Technical Services. The specific contents and requirements for the Technical Services are detailed in Annex________to the Contract.

2.5 The Licensor has agreed to give the Licensee's personnel technical training in Licensor's factories and at the Contract factory, to ensure that the Licensee's technical personnel shall master the above technical know-know transferred to the Licensee. The specific contents and requirements of technical training are detailed in Annex________to the Contract.

2.6 The Licensor has agreed, upon the request of the Licensee for a period of 10 (ten) years after the date of validity of the Contract, to supply the Licensee at the most favorable price with the parts, components, raw materials and accessories which are necessary for manufacturing the contract Products under a separate contract to be signed in due time.

2.7 The Licensor has agreed, upon the request of the Licensee for a period of 10 (ten) years after the date of validity of the Contract, to supply the Licensee at the most favorable price with equipment and software which are made or developed by the Licensor and are necessary for manufacturing the Contract software which are made or developed by the third party and are necessary for manufacturing the Contract Products.

2.8 The Licensor has agreed to grant the Licensee the license and right to use, on the contract Products manufactured by the contract Factory, the word "Made in China under license of" followed by Name of the Licensor, at the option of the Licensee, provided the Contract Products can meet the technical and quality requirement as specified in Annex________of the Contract.

ARTICLE 3 CONTRACT PRICE

3.1 The total Contract price, which is based on the contents and scope stipulated in Article 2 to the Contract and the Licensor's fulfillment of his obligations under the Contract, shall be________EURO (SAY:________EURO ONLY), details as follows:

3.1.1 Price for Technical Know-how:________EURO (SAY:________EURO ONLY). The breakdown prices of the technical knowhow are as follows:

A. Technology transfer fee is:

B. Technical documentation and software fee (CIF Beijing Port) is________EURO (SAY:________EURO ONLY).

C. Personnel training fee is________EURO (SAY:________EURO ONLY).

D. Technical service fee is________EURO (SAY:________EURO ONLY).

3.2 The above-mentioned total Contract Price shall be firm and fixed price for the Licensor's obligation under the contract, including all expenses incurred for delivery of the Technical Documentation and Software, CIP Beijing Airport, China.

ARTICLE 4 TERMS OF PAYMENT

4.1 All the payment stipulated in the Contract shall be effected in EURO through an irrevocable letter of credit, partial shipment allowed, under the I. B. R. D. Loan No.________for the price for the Technical Know-how, obtained from the World Bank opened in favor of the Licensor.

4.2 The Licensee shall, within thirty (30) working days after effectiveness of the Contract, open an irrevocable letter of credit by the Bank of China, Beijing in favor of the Licensor, in a bank in his country nominated by the Licensor and accepted by the Licensor, for an amount equivalent to the total Contract price. The letter of credit shall permit payments as stipulated in Article 4.3.

4.3 Payment for the Price for the Technical Know-how

4.3.1 10% (ten percent) of the total price for the technical knowhow under Article 3, namely________EURO (SAY:________EURO ONLY) shall be paid after the Licensor has presented the following documents provided they are in conformity with the stipulations of the Contract.

A. One Photostat copy of valid export license issued by the relevant authorities of the Licensor's or subcontractor's country, or one copy of the letter issued by the relevant authority of the Licensor's country stating that the valid export license is not required.

B. One original and one copy of the irrevocable letter of guarantee issued by the Licensor's Bank for a sum of 10% of the total price of for the technical know-how in favor of the Licensee, The specimen of the letter of guarantee is detailed in Annex________to the contract.

C. Four copies of the proforma invoice covering the total price for the technical know-how.

D. Two copies of the sight draft to be drawn on the Licensee to the Bank of China, Beijing.

E. Four copies of commercial invoice.

The abovementioned documents shall be presented not earlier than 30 days after effectiveness of the Contract.

4.3.2 25% (twenty-five percent) of the total price for the technical know-how under Article 3, namely________EURO (SAY:________EURO ONLY) shall be paid after the Licensor has delivered the first batch of the technical Documentation/Software as stipulated in Annex________to the Contract and against presentation of the following documents provided they are in conformity with the stipulations of the Contract:

A. Five copies of the commercial invoice.

B. Two copies of the sight draft to be drawn on the Licensee to the Bank of China, Beijing.

C. Five copies of the airway bill for the first batch of the technical Documentation and/or software.

D. Five copies of the packing list for the first batch of the Technical Documentation and/or Software.

E. Two copies of the letter issued by the Licensee confirming that the Licensor has delivered to the Licensee the first batch of Technical Documentation and/or Software as stipulated in Annex________and Annex________.

4.3.3 50% (fifty percent) of the total price for the technical know-how under Article 3, namely________EURO (SAY:________EURO ONLY) shall be paid after the Licensor has delivered the last batch of the Technical Documentation/Software as stipulated in Annex________to the Contract and against presentation of the following documents provided they are in conformity with the stipulations of the contract:

A. Four copies of the commercial invoice.

B. Two copies of the sight draft to be drawn on the Licensee to the Bank of China, Beijing.

C. Five copies of the air way bill for delivering the last batch of the technical Documentation and/or Software.

D. Five copies of the packing list for delivering the last batch of the Technical Documentation and/or Software.

E. Two copies of the letter issued by the Licensee confirming that the Licensor has delivered to the Licensee all Technical Documentations as stipulated in Annex________

4.3.4 15% (fifteen percent) of the total price for the technical know-how under Article 3, namely________EURO (SAY:________EURO ONLY) shall be paid after acceptance of the Contract Products by the Licensee and against presentation of the following documents provided they are in conformity with the stipulations of the Contract:

A. Four copies of the commercial invoice.

B. Two copies of the sight draft to be drawn on the Licensee to the Bank of China, Beijing.

C. Two copies of the Acceptance Certificate for the Contract Products signed by the both Parties.

4.4 The Licensee shall have the right to deduct from the performance Bond or relevant payment under negotiation the penalties in form of liquidate damages, which Licensor shall pay in accordance with the stipulations of the Contract.

4.5 The banking charges incurred in the P. R. C. shall be borne by the Licensee and those incurred outside the P. R. C. shall be borne by the Licensor. The Licensor shall bear all interest charge in case they occur in the negotiation of the payment, unless these interest charges have been incurred by reasons of default by the Licensee.

ARTICLE 5 DELIVERY OF THE TECHNICAL DOCUMENTATION AND SOFTWARE

5.1 The Licensor shall deliver to the Licensee the Technical Documentation and Software at Beijing Airport in accordance with the contents, copies and time stipulated in Annex________to the Contract. The risk of the Technical Documentation shall be transferred from the Licensor to the Licensee after its arrival at Beijing Airport, China.

5.2 The data stamped by Beijing Airport, China shall be the actual date of delivery of the Technical Documentation and Software.

5.3 The Licensor shall, within two (2) working days, after dispatching each batch of the Technical Documentation and/or Software, inform the Licensee and Contract Factory by telex or fax of the Contract number, number of parcels, weight, flight and expected arrival date. At the same time, the Licensor shall airmail to the Licensee and the Contract Factory each two copies of the airway bill and the detailed list of the Technical Documentation/Software.

5.4 In case of any loss, damages or shortage caused to the Technical Documentation and Software during the transportation, the Licensor shall make supplementary or replaceable delivery to the Licensee within 45 (forty-five) days after receiving the Licensee's written notice without any charges.

5.5 The Technical Documentation and Software shall be packed in strong cases suitable for long distance transportation and numerous handling with protective measures against moisture and rain.

5.6 The following contents shall be marked on the cover of each package of the Technical Documentation and Software with indelible paint in conspicuous English printed words:

A. Contract No.:________

B. Consignee:________

C. Consignee code:________

D. Destination Airport: Beijing Airport.

E. Shipping Mark:________

F. Gross/Net Weight (kg):________

G. Item No./Case No.:________

H. Dimension (L x W x H in CM):________

5.7 In side of each package of the Technical Documentation and software there shall be two copies of the detailed list to identify each part.

5.8 For the delivery of the Technical Documentation and Software partial shipment is allowed. Transshipment is not allowed.

5.9 The Technical Documentation and Software shall be carried by flight belonging to the member countries of the World Bank and Switzerland.

5.10 The Licensor shall effect the insurance, with insurer from eligible source country, for an amount of 110% of the total contract price on "all risks" and "war risk" basis at the Licensor's expenses with the Licensee as the beneficiary.

5.11 All of the Technical Documentation and Software and services supplied under the Contract shall have their origins in the countries and areas eligible under the current World Bank Guideline for Procurement.

ARTICLE 6 TECHNICAL SERVICE AND PERSONNEL TRAINING

6.1 The Licensor shall send his skilled, healthy and competent technical personnel to the Contract Factory of the Licensee to provide Technical Service on site in accordance with the stipulations of the Contract. The stipulation, the number of personnel, specialty, task, content and duration in P. R. C are detailed in Annex________to the Contract.

6.2 The Licensee shall provide assistance for entry any exit visa, work and life in P. R. C for the Licensor's Technical Service personnel. The treatment conditions of the Licensor's technical personnel in P. R. C are detailed in Annex________to the Contract.

6.3 The Licensor's technical personnel sent to P. R. C for the Technical Service shall observe the laws of the People's Republic of China and rules and regulations of the contract Factory in the period of service in P. R. C.

6.4 The Licensee shall send his technical personnel to the relevant factories of the Licensor for technical training. The number of personnel, specialty, content, duration and requirement of training are detailed in Annex________to the Contract.

6.5 The Licensor shall provide assistance for entry and exit visa and shall provide the facilities necessary for the technical training for the Licensee's trainees. The treatment conditions of the trainees in the Licensor's country are detailed in Annex________to the Contract.

6.6 The Licensee's personnel under training shall observe the laws of the Licensor's country and the rules and regulations of the Licensor's factories in the period of training.

ARTICLE 7 ACCEPTANCE OF THE CONTRACT PRODUCTS

7.1 In order to verify the completeness, correctness and reliability of the Technical Documentation and Software supplied by the Licensor under the Contract, the Licensor shall, at his own expense send his representatives to carry out acceptance test on the Contract Products jointly with the technical personnel of the Licensee in the contract Factory. The specific procedure of the acceptance test and the standard of the acceptance are detailed in Annex________to the Contract.

7.2 If the technical performances of the Contract Products specified in Annex________to the Contract are achieved in the acceptance tests, both parties'authorized representative shall sign four copies of the acceptance certificate for the Contract Products, two copies for each party.

7.3 If any technical performance of the Contract Products specified in Annex________to the Contract is not achieved in the acceptance tests, both parties shall have friendly consultation and discussion and jointly analyze the causes and take measures to eliminate the defect. The second acceptance test shall be carried out after the defects have been eliminated.

7.4 If the responsibility for the failure of the first acceptance test lies with the Licensor, the Licensor shall, at his own expenses, take measures to eliminate the defects, again send his technical personnel to participate in the second acceptance test and shall bear all the expenses incurred in the second acceptance test, including the expenses for the materials used in the second acceptance test. If the responsibility for the failure of the first acceptance test lies with the Licensee, the Licensee shall, at his own expenses, take measures to eliminated the defects and bear all the relevant expenses incurred in the second acceptance test.

7.5 If it is due to the Licensor's responsibility that any technical performance of the Contract Products specified in Annex________to the Contract is still not achieved in the second acceptance test, the Licensor shall compensate the Licensee for the direct expenses sustained by the Licensee, for the acceptance test, and shall at his own expenses, take measures to eliminate the defects and send his technical personnel to participate in the third acceptance test. If the responsibility for the failure of the second acceptance test lies with the Licensee, the Licensee shall, at his own expenses, take measures to eliminate the defects and bear the relevant expenses incurred in the third acceptance test.

7.6 If it is due to the Licensor's responsibility that any technical performance of the Contract Products specified in Annex________to the Contract is still not achieved in the above-mentioned three acceptance tests, the Clause 8.7 to the Contract will be executed. If the responsibility lies with the Licensee, then both parties shall discuss and agree upon further execution of the Contract.

ARTICLE 8 GUARANTEES AND CLAIMS

8.1 The Licensor shall guarantee that the Technical Documentation and Software supplied by the Licensor to the Licensee in accordance with the Contract shall be of the latest and well-proved Technical Documentation and Software which are actually used by the Licensor and that the improved, modified and developed Technical Documentation and Software shall be supplied in time by the Licensor to the Licensee in the course of implementation of the Contract, without charge.

8.2 The Licensor shall guarantee that the Technical Documentation and Software supplied by the Licensor to the Licensee in accordance with the Contract shall be complete, correct and legible, and shall be delivered in time in accordance with the stipulations in Annex________to the Contract.

8.3 If it is found by the licensee that the Technical Documentation and Software supplied by the Licensor is not in conformity with the stipulations in Annex________to the Contract and Clause 8.2 to the Contract, the Licensor shall mail the related Technical Documentation to Licensee free of charge within 30 (thirty) days after receiving the Licensee's written notice.

8.4 If the Licensor fails to deliver the Technical documentation and Software in accordance with the time schedule stipulated in Annex________to the Contract and Clause 8.3, the Licensor shall pay to the Licensee penalties for late delivery of the Technical Documentation and Software at the following rates:

0.5% (point five percent) of the total Contract price of the Technical Documentation and Software for each full week of late delivery. The above-mentioned total penalties shall not exceed 5% (five percent) of the total Contract price of this contract.

The penalty paid shall be in the form of Liquidated Damages and shall fully indemnify the Licensee for all costs incurred as a result of such delay.

8.5 Payment of penalty made by the Licensor to the Licensee in accordance with the stipulation in Clause 8.4 to the Contract shall not release the Licensor from his obligations to continue to deliver the Technical Documentation and Software, which is subject to penalties for late delivery.

8.6 If the period for late delivery of the Technical Documentation and Software exceed 6 (six) months, the Licensee shall be entitled to terminate the Contract. In such case, the Licensor shall return to the Licensee the total amounts which the Licensee has already paid plus interest at the rate of 12% per annual thereon.

8.7 If it is due to the Licensor's responsibility that any technical performance of the Contract Products is not achieved in the acceptance tests, the case shall be dealt with in the following manner:

If it is due to the Licensor's responsibility that any technical performance of the Contract Products specified in Annex________to the Contract is not achieved and the Licensee cannot put the contract Products into production, the Licensee shall be entitled to terminate the Contract. In the case of termination of the Contract, the Licensor shall return to the Licensee the total amounts which have already been paid by the Licensee to the Licensor plus interest at the rate 12% per annual thereon and compensate the licensee for direct losses upon mutual agreement.

If it is due to the Licensor's responsibility that only some of the technical performances of the Contract Products specified in Annex________to the Contract are not achieved, but the Licensee still can put the Contract Products into production, the Licensor shall compensate licensee for the direct expenses at an amount of 5%-10% (five to ten percent) of contract price according to the significants of the discrepancy.

ARTICLE 9 INFRINGEMENTS AND CONFIDENTIALITY

9.1 The Licensor shall guarantee that the Licensor has lawful ownership of all the technical know-how, the Technical Documentation and Software supplied by the Licensor to the Licensee in accordance with the Contract, and that the Licensor has the right to transfer the technology and supply the Contract Equipment and the Parts to the Licensee. In case any third party brings a charge of infringement, the Licensor shall take up the matter with the third party and bear all legal and financial responsibilities, which may arise.

9.2 Both Parties shall keep secret all technical know-how, technical documentation and all the information of hydrology, geology and production of the Contract Factory regarding the business of the other party, being of either technical or commercial nature during the validity period of the Contract as well as thereafter for a period of 10 years. If a part of or the whole of such know-how, information or documentation becomes or is made publicly known, either the Party knowing such Know-how, information or documentation or through a third party, the other Party shall no longer be held to his secrecy obligation.

9.3 The Licensee shall have the right to use the technical knowhow and the Technical Documentations and software supplied by the Licensor to design, manufacture and sell the Contract Products after the terminal of the Contract.

ARTICLE 10 TAXES AND DUTIES

10.1 All taxes and duties in connection with and in the execution of the Contract to be levied by the Government of the P. R. C on the Licensee in accordance with the Chinese tax laws and regulations in effect shall be paid by the Licensee.

10.2 All the taxes and duties in connection with and in the execution of the Contract to be levied by the Government of the P. R. C on the Licensor in accordance with the tax laws in effect and the "Agreement between the Government of Federal Republic of Germany for the Reciprocal Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Property" shall be borne by the Licensor.

10.3 All the taxes and duties in connection with and in the execution of the Contract to be levied outside the P. R. C shall be paid by the Licensor.

ARTICLE 11 PERFORMANCE BOND

11.1 The Licensor shall, within thirty (30) calendar days after signing the contract, furnish a Performance Bond to the Licensee, issued by the Bank of China, Beijing against the counter-guarantee issued by a foreign bank to the Bank of China, Beijing in the amount of ten (10) percent of the total Contract Price. The Performance Bond shall remain valid until the acceptance of the Contract Products and expiration of the guarantee period of the Contract Equipment.

11.2 The Performance Bond shall be furnished by the Licensor in the form as stipulated in Annex________to the Contract. The cost thereof shall be borne by the Licensor.

11.3 In case the Licensor fails to perform any of his obligations under the Contract, the Licensee shall have the right to have a recourse from the Performance Bond.

ARTICLE 12 FORCE MAJEURE

12.1 If either of the contracting parties is prevented from executing the Contract by such cases of force majeure as war, serious flood, fire, typhoon and earthquake or other cases which are agreed upon by both parties as cases of force majeure, the time for performance of the Contract shall be extended by a period equivalent to the effect of such cases.

12.2 The affected party shall notify the other party of cases of force majeure occurred by telex, cable or fax as soon as possible and shall send by registered airmail, within 14 (fourteen) days thereafter, a certificate issued by the authority or department concerned to the other party for confirmati