技术出口合范
contract for equipment sales and technology licensing
contract no ____________________
this contract (hereinafter referred to as the contract) is made and entered into as of ________ (the date of signature ) in ________ (the place of signature) through friendly negotiation by and between _____________ a company incorporated and existing under the laws of ____________ with its registered address at _________________________________ and with its principal place of business at _________________________________ (hereinafter referred to as the buyer) and ____________________ a company incorporated and existing under the laws of the people’s republic of china with its registered address at _________________________________ and with its principal place of business at _________________________________(hereinafter referred to as the seller)
whereas the buyer desires to engage the seller to provide the equipment related design technical documentation technical service and technical training and to obtain from the seller a license of patent andor knowhow in relation to the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products now it is hereby mutually agreed as follows
article 1 definitions
11 acceptance means the buyer accepted the equipment in accordance with article 115
12 commissioning means the operation of the equipment in accordance with article 114 for the purpose of carrying out performance test
13 contract means this contract signed by and between the buyer and the seller including appendices attached which shall form an integral part of this contract
14 contract products refers to all types of the products manufactured with patent andor knowhow under the contract details of which are specified in appendix 1
15 destination airport refers to _____________airport
16 effective date of the contract means the date when the contract enters into force upon fulfillment of all the conditions stated in article 181
17 equipment means the equipment machinery instruments spare parts and materials supplied by the seller as listed in appendix 3
18 erection means placing the equipment to the positions according to the design drawings and connecting it with relevant equipment and utilities
19 improvement refers to new findings andor modifications made in the validity period of the contract by either party on patent andor knowhow in the form of new designs formulas recipes ingredients indices parameters calculations or any other indicators
110 job site means the site where the equipment shall be located andor erected namely ____
111 knowhow refers to any valuable technical knowledge data indices drawings designs and other technical information concerning the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products developed and owned or legally acquired and possessed by the seller and disclosed to the buyer by the seller which is unknown to either public or the buyer before the date of effectiveness of this contract and for which appropriate protection measures have been taken by the seller for keeping knowhow in secrecy the specific description of knowhow is set forth in appendix 3
112 last shipment means the shipment with which the accumulated invoice value of shipped goods has reached ____ ( ) percent of the total equipment price
113 patent refers to any and all of the effective patent rights possessed by the seller and licensed to the buyer under the contract in connection with the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products the no and list of which are set forth in appendix 3
114 performance test means the tests for examining whether the equipment is able to meet guarantee figures specified in appendix 1
115 technical documentation means the technical indices and data specifications drawings processes technical and quality standards and other documents carrying the descriptions and explanations of patent knowhow and other technical information in connection with the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products to be provided by the seller as listed in appendix 4
116 technical service means the technical instruction assistance and guidance rendered by the seller as per appendix 6
117 technical training means the training rendered by the seller as per appendix 7
118 test run means the initial run of a single machine or the whole system of the equipment without materials
119 warranty period means the period of the warranty given by the seller as specified in article 122 during which the seller is responsible for the defects of the equipment as per article 12
article 2 scope of the contract
21 the seller’s obligation
211 the seller shall supply the equipment provide the design technical documentation and conduct the technical service and technical training and grant the buyer a right to use the patent andor knowhow as set forth in the contract
212 the seller shall supply the equipment which is listed in appendix 3 the specification is detailed in appendix 1
213 the seller shall provide design in accordance with appendix 5 and submit to the buyer the technical documentation listed in appendix 4
214 the seller shall conduct the technical services at the job site as per appendix 6
215 the seller shall conduct the technical training as per appendix 7
22 the buyer’s obligation
221 the buyer shall at his own costs and expenses provide the seller with all information and data concerning the design as per appendix 2 the buyer shall ensure the completeness correctness and accuracy of all such information and data
222 the buyer shall at his own costs and expenses obtain all necessary import permits undertake customs clearance take delivery of the equipment to be supplied by the seller and transport them to the job site in time
223 the buyer shall at his own costs and expenses perform all the civil works construction erection test run commissioning and performance test in accordance with the technical documentation under the technical services rendered by the seller as per appendix 6
224 the buyer shall at his own costs and expenses supply all the equipments spare parts and facilities required except for the equipment supplied by the seller as per appendix 3
225 the buyer shall at his own costs and expenses provide the qualified and appropriate technical personnel labor tools utilities and the job site in time for erection test run commissioning and performance test as specified in appendix 2
226 the buyer shall at his own costs and expenses perform necessary administration and security guard at the job site
article 3 grant of license
31 the seller agrees to grant to the buyer and the buyer agrees to obtain from the seller a license to manufacture the contract products as well as to conduct erection test run commissioning performance test operation and maintenance for the equipment with patent andor knowhow as well as to use and sell the contract products the name model specification and technical data of the contract products are detailed in appendix 1 the buyer shall not make use of patent andor knowhow for any purposes other than those stipulated in the contract without prior written approval from the seller the annual output of the contract products manufactured by the buyer shall in no case exceed _______________
32 (option 1) the license granted under the contract shall be an exclusive license the seller shall not retain its right to grant the licenses to any third parties or to explore patent andor knowhow as well as to sell the contract products by itself within the territory specified in article 34
(option 2) the license granted under the contract shall be a nonexclusive license the seller shall retain its right to grant the licenses to any third parties and to explore patent andor knowhow as well as to sell the contract products by itself within the territory specified in article 34
33 the license granted under the contract shall be a nontransferable and nonsublicensing license under which the buyer shall neither be entitled to transfer nor grant sublicense to any third party without prior written approval from the seller
34 territory
341 the seller agrees to grant the license to the buyer only within the territory of _________________ (country or region) the buyer shall not explore patent andor knowhow in any place other than the job site without previous written consent of the seller
342 the seller agrees to grant a license to the buyer to use and sell the contract products only within the territory of ________________________ (country or region) in case the buyer fails to perform its obligations under this clause all the actual losses and damages thus incurred to the seller shall be borne by the buyer and the seller shall have the right to terminate the contract without prejudice to any remedies specified in the contract
article 4 price
41 the buyer agrees to pay the total contract price technical training and technical service fee to the seller
42 the total contract price including price of the equipment design technical documentation and a license fee in a fixed amount shall be __________(say _______________________ only)
the breakdown price is as follows
the price for equipment is __________(say _______________________ only)
fee for design is __________(say _______________________ only)
fee for technical documentations is __________(say _______________________ only)
license fee is __________________(say _________________ only)
421 the total contract price for the equipment is for delivery cif_____ port and the technical documentations is for delivery cip (by air) ______ airport cif and cip term shall be interpreted in accordance with incoterms XX issued by the international chamber of commerce (icc)
422 the total contract price includes the price for spare parts listed in appendix 3 however the total contract price does not cover the supply of any other spare parts at the buyer’s request the seller may provide with any other spare parts a separate agreement shall be signed between the parties
423 the above price is fixed and firm
43 the total contract price does not cover the technical service fee and technical training fee specified in appendix 67
44 the total contract price as well as the technical training and technical service fee shall not be regarded or in any way be explained or interpreted as covering any of the custom duties taxes or charges fees and expenses unless expressly listed in the contract
article 5 payment
51 down payment
within ____ ( ) days after signing the contract the buyer shall pay ____ ( ) percent of the total contract price amounting ____ by tt to the seller
52 [option one payment by sight lc]
the balance of the total contract price amounting ___ ( says ___ only ) shall be paid by an irrevocable letter of credit at sight issued within ___ ( ) days after signing the contract by a reputable bank in ___ acceptable to the seller in favor of the seller the letter of credit shall be available upon the presentation of the following documents till ______(specific expiration date or a specific circumstance for the expiration of the letter of credit)
521 ____ ( ) percent of the total contract price amounting ____ (say ___ only) shall be paid by the buyer to the seller within _______ days after the following documents have been submitted by the seller
(a) bill of lading in one (1) original and ___ ( ) copies
(b) commercial invoice in one (1) original and ___ ( ) copies
(c) packing list in one (1) original and ___ ( ) copies
(d) certificate of origin in one (1) original and ___ ( ) copies
(e) insurance policy in one (1) original and ___ ( ) copies
522 ____ ( ) percent of the total contract price amounting ____ (say ___ only) shall be paid by the buyer to the seller within _______ days after the following documents have been submitted by the seller
(a) one (1) copy of the acceptance certificate signed by the buyer as per article 115 or the seller’s written statement specifying the lapse of more than seven (7) days after the seller’s notice requesting the buyer to issue the acceptance certificate in accordance with article 115
(b)one ( 1 ) copy of commercial invoice
523 ____ ( ) percent of the total contract price amounting ____ (say ___ only) shall be paid by the buyer to the seller within _______ days after the following documents have been submitted by the seller
a) one (1) original letter of retention guarantee in the form of appendix 10
b) one (1) copy of commercial invoice
52 [option two payment under a lg]
the balance of the total contract price amounting ___ (say ___ only ) plus interest for deferred payment in the amount of ___ (say ___ only ) totaling ___ (say ___ only ) as detailed in appendix 12 shall be paid by the buyer by installments as specified in appendix 12 and backed by an irrevocable letter of guarantee in favor of the seller as per the appendix 11 issued within ___ ( ) days after signing the contract by the reputable bank in ____ acceptable to the seller
53 all the banking charges incurred in the seller’s bank shall be borne by the seller while those incurred outside the seller’s bank shall be borne by the buyer
article 6 delivery of equipment and technical documentation
61 the delivery of the equipment
611 the delivery of the equipment listed in appendix 3 shall be completed within ____ ( ) months from the effective date of the contract
612 within ____ ( ) months after the effective date of the contract the seller shall send to the buyer a preliminary delivery schedule by fax
not later than ____ ( ) days before the first shipment the seller shall submit to the buyer the final delivery schedule in three (3) copies indicating contract number dispatch number name of the equipment quantity approximate dimensions volume of each package and time of each shipment
613 the port of shipment is ____ while the port of destination is ____
614 advance shipment partial shipment and transshipment are allowed however the seller shall inform the buyer thirty (30) days before such shipment
615 the date of bill of lading for each shipment shall be considered as the actual delivery date
616 the seller shall notify the buyer by fax of the following within five (5) working days after each shipment is effected
(a) contract number
(b) name of the vessel and loading port
(c) name of the equipment shipped
(d) number and date of bill of lading
(e) total volume
(f) total gross and net weight
(g) total number of packagescases
617 the seller shall airmail the following documents in duplicate to the buyer
(a) bill of lading
(b) commercial invoice
(c) packing list
(d) certificate of origin
(e) insurance policy
62 the late delivery of the equipment
621 if the seller fails to deliver the equipment in accordance with the final delivery schedule the seller shall pay to the buyer liquidated damages for such delay at the following rates
(a) from the first week to the fourth week the liquidated damages shall be
____ ( ) percent of the value of the delayed portion of the equipment per
week
(b) from the fifth week to the eighth week the liquidated damages shall be
____ ( ) percent of the value of the delayed portion of the equipment per week
(c) from the ninth week the liquidated damages shall be ____ ( ) percent of
the value of the delayed portion of the equipment per week
622 the fractions of four days or more shall be counted as one week and fractions of less than four days shall be omitted the total aggregate amount of the liquidated damages shall not exceed ____ ( ) percent of the value of the delayed portion equipment
623 the seller shall be released from the liability to the buyer whatsoever in respect of the late delivery after his payment of liquidated damages in accordance with article 62 notwithstanding the seller’s payment of the liquidated damages for the late delivery equipment the seller shall not be released from his obligation to deliver the equipment
63 the delivery of the technical documentation
631 the technical documentation listed in appendix 4 shall be delivered cip ____airport by air within ____ ( ) months after the effective date of the contract
632 the date of airway bill shall be regarded as the actual delivery date of the technical documentation
633 within ____ ( ) working days after sending each lot of the technical documentation the seller shall inform the buyer of the contract number item number number and date of airway bill and the flight
634 in case of shortage loss of or damage to the technical documentation due to the seller’s reason the seller shall make supplement to the buyer within ____ ( ) days after receiving the buyer’s written notification without any further charge
article 7 packing and marking
71 the equipment shall be packed to withstand long distance transportation multiple handling
72 the seller shall mark the following on two opposite sides of each package with indelible painted english words
(a) destination
(b) consignee
(c) contract number
(d) shipping mark
(e) grossnet weight (kg)
(f) case bale number
(g) dimensions l x w x h (cm)
73 each package shall contain one (1) copy of packing list
74 the seller shall mark on the package if necessary handle with care right side up fragile or other indicative marks according to the characteristics and feature of the goods as well as different requirement for transportation loading and unloading of the goods
75 if the goods weigh three (3) or more than three (3) metric tons gravity hoisting position and illustrative marks shall be marked so as to facilitate loading unloading and handing
76 all technical documentation provided by the seller shall be properly packed to withstand long distance transportation and multiple handling the surface of each package shall be marked with the following words
(a) destination
(b) consignee
(c) contract number
(d) grossnet weight (kg)
(e) item number
(f) dimensions l x w x h (cm)
article 8 technical service and technical training
81 the seller shall dispatch technical personnel to job site to render technical service in accordance with contract according to a time schedule agreed upon between both parties the number specialty rank treatment of the personnel and payment as well as the contents and requirements of technical service are specified in appendix 6
82 the buyer shall have the right to send its technical personnel to the relevant factory selected by the seller for training the number speciality treatment of the personnel and payment as well as the contents time schedule and requirement of training are specified in appendix 7
83 either party shall provide assistance to the other party’s technical personnel in their application for visa working permit andor other necessary formalities for rendering technical service or training under the contract in the other party’s factory
84 either party’s technical personnel shall abide by the laws of the other party’s country and the regulations of the other party during their stay in the other party’s country
article 9 standards and inspection
91 the seller shall carry out the design manufacture inspection and test of the equipment according to the existing standards of the people’s republic of china namely gb
92 the seller or the manufacturer shall at his own costs and expenses inspect the equipment and issue the exwork quality certificate
93 the opencase inspection of the equipment shall be performed by the buyer in the presence of the seller’s representatives on the job site in days after the arrival of the equipment at the job site the opencase inspection fee shall be borne by the buyer
the buyer shall inform the seller of the date one (1) month before the date of open case inspection and shall also render assistance to the seller’s representatives in their inspection work
94 during the joint opencase inspection a detailed inspection record shall be made and signed by the representatives of both parties
in case the seller is responsible for any defect or shortage of the equipment the inspection record shall be taken as an effective evidence for the buyer to claim repair replacement or supplement to the seller any of such claims shall be lodged by the buyer within month(s) after the arrival of the equipment at the job site
95 if any shortage defect of or damage to the equipment is found in opencase inspection not attributable to the seller’s responsibility the seller shall make repair replacement or supplement at the buyer’s expenses in accordance with the separate agreement signed by both parties
96 the buyer is not entitled to open the case assemble andor disassemble the equipment without the seller’s prior written consent
if there is no joint open case inspection due to the reasons not attributable to the seller the quantity and apparent quality of the equipment shall be deemed correct and in perfect condition
article 10 design and design liaison
101 the buyer shall provide to the seller within ____ ( ) days after the effective date of the contract all the design data which shall be taken as the design basis the seller shall not be liable to the buyer for and the buyer shall indemnify the seller and hold the seller harmless from any damages or failure caused by the incompleteness incorrectness andor inaccuracy of any such information and data
102 a design liaison meeting shall be held in the ____ ( ) month after receiving above mentioned design data the seller will dispatch his technical personnel to the job site to participate in the meeting during the meeting period the seller will discuss with the buyer the relevant design details both parties shall sign an agreement outlining the design details
103 during the design liaison meeting the seller and the buyer shall provide assistance to the other’s dispatched personnel in arranging entry visas to the respective countries the expense incurred on the dispatched personnel shall be borne by the party respectively
article 11 erection test run commissioning performance test and acceptance
111 the erection test run commissioning performance test shall be conducted by the buyer
112 chief representatives
1121 each party shall nominate one (1) chief representative to deal with the technical matters during the period from the start of the erection to acceptance of the equipment
1122 detailed arrangements shall be made through friendly discussions by the chief representatives of both parties the chief representatives of both parties shall fully cooperate to carry out their duties stipulated in the contract however they have no right to revise alter or amend the contract without the written authorization of both parties
1123 the chief representatives of both parties shall communicate through linking sheet for the matters relative to opinions suggestions and information the linking sheet shall be countersigned by the other party
113 erection and test run
1131 the erection shall be completed by the buyer in ____ ( ) days from the effective date of the contract the seller’s chief representative shall arrive at the job site ____ ( ) days prior to the beginning of the erection
1132 when erection is completed and in full conformity with requirements of the technical documentation a certificate of completion for erection of the equipment shall be signed by the chief representatives of both parties in two (2) originals one for each party within three (3) days the date of signing said certificate shall be deemed as the date of completion of erection
1133 as soon as the completion of erection test run for single machine and the whole system of the equipment shall be started
1134 when test run has been successfully performed a certificate of completion for test run of the equipment shall be signed by the chief representatives of both parties in two (2) originals one for each party within three (3) days the date of signing the said certificates shall be deemed as the date of completion of test run of the equipment
114 commissioning and performance test
1141 within ____ ( ) days after the completion of the test run the buyer shall make available qualified operation and maintenance personnel raw materials spare parts utilities and other matters required for the commissioning detailed procedures such as instrument calibrating items of recording sampling methods and analyzing methods which are necessary for the commissioning shall be discussed and agreed upon by the chief representatives of both parties
if in the opinion of both parties the equipment is ready for the commissioning both parties shall confirm the readiness for the commissioning in writing
1142 the commissioning of the equipment shall be started immediately after the confirmation of the readiness for the commissioning the commissioning period shall ____ ( ) days after commencement of the commissioning
1143 when the seller and the buyer consider that stable operation of the equipment has been achieved the date of performance test shall be fixed by chief representatives of both parties
1144 the seller shall have the right to access to the laboratory and testing facilities in order to take samples and make analytical tests the sample taking and analytical test during the commissioning period will be done in the presence of the chief representatives of both parties
1145 during the period of commissioning until acceptance of the equipment the seller may use the buyer’s stored spare parts should the buyer’s stored spare parts be used by the seller due to the seller’s responsibility the seller shall replenish the stores with the same in time at job site otherwise the seller shall provide the same at the buyer’s costs upon the buyer’s timely request
1146 if the result of performance test has reached the guarantee figures as per appendix 1 the acceptance certificate of the equipment shall be signed by the chief representatives of both parties in two (2) originals one for each party within three (3) days
1147 if the performance test cannot meet guarantee figures specified in appendix 1 both parties shall jointly make investigations so as to find out the reason for clarifying the responsibility
1148 if the guarantee figures are not met due to the seller’s reason the buyer shall agree to give an extension of ____ ( ) months so that the seller can make improvement or adjustment to the equipment and conduct further performance test all the costs and expenses for making improvement or adjustment to the equipment shall be borne by the seller
1149 during the extension period if the guarantee figures are still not met due to the seller’s reason the seller shall pay the liquidated damages as per appendix 1 to the buyer against the acceptance certificate signed by both parties
the seller’s aggregate liability to pay liquidated damages for failure to attain the performance guarantees shall not exceed ____ ( ) percent of the equipment price the seller shall have no further liability whatsoever to the buyer in respect of such failure after payment of the liquidated damages
11410 if the nonachievement of the guarantee figures is due to the reasons not attributable to the seller the seller shall agree to give an extension of ____ ( ) months during the extension period all costs thereto incurred for the adjustment of the equipment as well as the costs and expenses for the seller’s technical personnel shall be borne by the buyer in case the guarantee figures still can not be achieved due to the reasons not attributable to the seller in the extension period the equipment shall be accepted by the buyer both parties shall sign the acceptance certificate
115 acceptance
1151 acceptance shall occur in respect of the equipment when
(a) performance test has been successfully completed as per the article 1146 or
(b) the performance test has not been completed due to the reasons not attributable to the seller such as delayed civil construction lack of andor any other inconformity of raw materials spare parts of the buyer’s scope of supply under appendix 2 and utilities with the requirements of the contract in the ____ ( ) months from the date of bill of lading of the last shipment or
(c) the seller has paid the liquidated damages as per article 1149 or
(d) the guarantee figures still can not be reached due to reasons not attributable to the seller’s reason in the extension period as specified in article 11410 or
(e) the buyer takes the single machine and the whole system of the equipment into use without the seller’s approval
1152 at any time after any of the events set out in article 1151 has occurred the seller may give a notice to the buyer requesting the issuance of the acceptance certificate
1153 the buyer shall within seven (7) days after receipt of the seller’s notice issue such acceptance certificate
1154 if within seven (7) days after receipt of the seller’s notice the buyer fails to issue the acceptance certificate or fails to inform the seller in writing with convincing evidence of the reason why the buyer has not issued the acceptance certificate the equipment shall be deemed having been accepted on the seventh day of the seller’s said notice
1155 after the acceptance the seller’s responsibilities and obligations under the contract shall be deemed having been fulfilled except those as stipulated in article 12 and 14
article 12 guarantee and warranty
121 the seller guarantees that
(a) the equipment supplied by the seller shall be new and made of adequate materials and in conformity with the technical requirements of the contract
(b) the technical documentation shall be complete clear and correct
122 the period of warranty given by the seller under article 121 shall be ____ ( ) months from the date of acceptance or ____ ( ) months from the date of last shipment whichever comes earlier
123 defect of the equipment
1231 during the warranty period should any defect due to inferior materials or bad workmanship of the equipment be found under normal operation the buyer shall give the seller a notice stating the details together with all available evidence
the seller shall take immediate action to eliminate the defect at the seller’s expenses within the period agreed by both parties
1232 if certain defect can not be eliminated despite of several attempts the seller shall replace the defective parts with nondefective parts at the seller’s costs and expenses
1233 if the defect is eliminated by the buyer himself subject to the seller’s prior written consent all the direct costs and expenses thus incurred shall be borne by the seller
1234 the seller may reduce the price of the defective equipment according to the degree of inferiority or extent of damage as agreed by both parties after the reduction the seller shall be released from its obligations and liabilities
1235 during the warranty period should any defect due to the buyer’s improper operation or maintenance be found the seller will provide technical assistance to eliminate the defect or replace the defected parts upon buyer’s requests all the costs and expenses thus occurred shall be borne by the buyer
1236 subject to article 1231 the seller shall not be responsible for any defect or damage to the equipment arising out of any circumstances including but not limited to the following causes
(a) combination of the equipment with any machinery andor component other than those supplied by the seller or
(b) alteration modification or repair without the seller’s prior written consent or
(c) failure of the buyer to follow the technical documentation and instructions of the seller including the buyer’s improper operation and maintenance or
(d) normal wear and tear
124 during the warranty period should the technical documentation supplied by the seller be found incomplete unclear or incorrect due to the seller’s reason the seller shall be liable to supplement replace or correct the technical documentation free of charge
125 the seller shall in no respect be understood or interpreted as liable for the commercial development of the contract products the buyer shall undertake the risk of the commercial development of the contract products
126 in no circumstances whether as a result of breach of contract warranty indemnity tort (including negligence) strict liability or otherwise shall the seller or its subcontractors or suppliers be liable for loss of profit or revenues loss of production loss of use loss of information or data cost of capital cost of substitute equipment facilities services or replacement power downtime costs claims of the buyer’s customers for such damages or for any special consequential incidental indirect or exemplary damages
127 notwithstanding anything to the contrary provided in the contract the aggregate liability of the seller to the buyer on all claims of any kind whether in contract warranty indemnity tort (including negligence) strict liability or otherwise arising out of the performance or breach of the contract or use of any equipment or exploration of the patent andor knowhow shall not exceed ____ ( ) percent of the total contract price
128 all contractual obligations of the seller shall be deemed as having been fulfilled upon the expiry date of the warranty period
article 13 intellectual property right
131 the seller represents that it is entitled or authorized to grant the license to the buyer to use the patent andor knowhow for the purpose as specified in article 3
132 the buyer shall not use such patent andor knowhow received from the seller for any purpose other than that as specified in this contract
133 any intellectual property right or other technical information granted by the seller to the buyer shall remain the property of the seller in no circumstances shall any terms and conditions in this contract be construed deemed or interpreted as transfer of title to the buyer of any information which may be delivered to or accessed by the buyer
134 registration of the contract and maintenance of patent
1341 the buyer shall after the contract is signed between both parties make sure that the contract is registered with or filed to the competent authorities in the buyer’s country if it is required by law
1342 the seller shall during the validity period of the contract make all reasonable efforts to maintain patent in force in the territory as stipulated in article 341 and bear the costs thus incurred the buyer shall not make any action or inaction which may lead to invalidation or compulsory licensing of the patent
135 improvement and grantback
1351 should any improvement be made by the seller on patent andor knowhow within the validity period of the contract which shall be the exclusive property of the seller the seller shall grant the buyer a nonexclusive license to exploit such improvement at latest __________months from its improving provided that the license fee is agreed upon between both parties
1352 the buyer shall be entitled to make improvement on patent andor knowhow within the validity period of the contract the seller shall have the right to obtain and make use of the improvement the license fee shall be discussed between both parties in due time
1353 both parties shall keep improvement confidential neither party shall be entitled to grant any third party a sublicense on improvement made and provided by the other party without previous written consent of the other party
article 14 confidentiality
141 after signing of the contract both parties shall keep secret all the contents terms conditions of the contract
142 the buyer shall take proper measures to keep strictly confidential of knowhow technical documentation improvement and any other secret information obtained or accessible to from the seller the buyer shall not disclose any of them to any third party and shall not make use of them without prior written consent of the seller except otherwise stipulated in the contract
143 the buyer may disclose the secret information as described in article 142 to the personnel of its own or of any related parties engaged in the performance of the contract subject to article 142 strictly to the extent as essential for the implementation of the contract provided that the individuals andor parties accessing or may access such secret information are engaged to undertake in written form the same confidential liability of the buyer to the seller any breach of confidentiality obligations by any personnel from the buyer or the buyer’s related parties shall be deemed as breach of the contract by the buyer
144 notwithstanding this article 14 the seller may furnish to its subcontractor such documents data and other information received from the buyer to the extent required for performing the contract in which event the seller shall obtain from such subcontractor an undertaking of confidentiality similar to that imposed on the seller under the article 14
145 this article 14 shall survive the expiration or termination of the contract
146 the confidential obligation shall not apply to the information which
a now or hereafter enters the public domain or
b can be proved to have been in the possession of the party at the time of disclosure and which was not previously obtained directly or indirectly from the other party hereto or
c otherwise lawfully becomes available to either party from a third party under no obligation of confidentiality
article 15 taxes and duties
151 all taxes and duties in connection with the signing and performance of the contract levied by governments of the people’s republic of china including but not limited to customs duties income tax sales tax valueadded tax etc shall be borne and paid by the seller
152 all taxes and duties in connection with the signing and performance of the contract levied on the buyer and seller by the buyer’s governments including but not limited to customs duties income tax sales tax valueadded tax etc shall be borne and paid by the buyer the buyer shall pay in due time and full amount and hold the seller harmless from any taxes and duties in case incurred to the seller in the signing and performance of the contract
153 all import taxes and duties for tools andor instruments which the seller or the seller’s personnel may bring to the buyer’s country for the execution of the contract shall be borne and paid by the buyer
154 any and all taxes and duties in connection with the signing and performance of the contract levied in any place except the cases as specified in article 151 are not included in the contract price should the seller make the relevant payment directly as the case may be both parties agree to amend the contract price to fully compensate the seller for the payment and the buyer shall fully refund the seller for the relevant amount within_______( ) days from the seller’s payment
article 16 force majeure
161 if either of the contract parties is prevented from executing the contract due to the event of force majeure such as war riot coup embargo flood typhoon tornado snowstorm earthquake and other events which could not be foreseen avoided and overcome the affected party shall notify the other party by fax within the shortest possible time of occurrences of the force majeure and send a certificate issued by competent authorities or agency certifying the event of the force majeure by registered or express mail within fourteen (14) days following its occurrence
162 the affected party shall not be liable for any delay or failure in performing any of its obligations due to the event of force majeure however the affected party shall inform the other party by fax the termination or elimination of the event of force majeure as soon as possible
163 both parties shall proceed with their obligations immediately upon the cease of the event of force majeure or the removal of the effects and the term of the contract shall be extended correspondingly should the effect of the event of force majeure last for more than one hundred and twenty (120) days either party shall have the right to terminate the contract by a written notice
article 17 applicable law and settlement of disputes
171 the applicable law of the contract shall be the laws of the people’s republic of china
172 all disputes arising from or in connection with the contract shall be settled through friendly consultation between both parties in case no agreement can be reached the dispute shall be submitted for arbitration
173 the arbitration shall be conducted by china international economic and trade arbitration commission (cietac) in beijing in accordance with arbitration rules of the commission in effect at the time of applying for arbitration the tribunal shall be composed of three arbitrators
174 the arbitral award shall be final and binding upon both parties
175 during proceedings of arbitration the undisputed part of the contract shall be performed continuously by both parties regardless of such arbitration proceedings
article 18 effectiveness term and termination of the contract
181 the contract shall enter into force on the date when all of the following conditions have been fulfilled whichever occurs later
(a) the seller and the buyer sign the contract
(b) the contract shall be approved by the competent authorities andor banks of both parties (if applicable)
(c) the seller receives the down payment
(d) the seller duly receives the lc (or lg ) issued by the buyer＇s bank
182 each party shall use its best efforts to fulfill the above conditions for which it is responsible as soon as practicable
183 if the contract has not become effective pursuant to article 181 within ____ ( ) months after the date of signing this contract the seller has the right to make an equitable adjustment to the total contract price and the time for delivery andor other relevant conditions of the contract should no agreement is reached for the above mentioned adjustment within ____ ( ) days from the seller’s request of adjustment the seller shall be entitled to cancel the contract
184 the contract shall be valid and remain in force for_____ (_____) years from the date of effectiveness during which period the buyer shall be entitled to manufacture the contract products with patent andor knowhow and sell the contract products within the licensed territory as specified in article 34
(option 1) the buyer shall not be entitled to manufacture with patent andor knowhow or sell the contract products after the aforesaid period unless the buyer agrees to pay additional license fees in the amount and with the payment schedules and methods as agreed upon between both parties in due time
(option 2) the buyer shall be entitled to manufacture with patent andor knowhow or sell the contract products after expiration of the contract term specified above provided that the buyer shall not be released from its confidential obligations under the contract
(option 3) the buyer shall not be entitled to manufacture with patent andor knowhow or sell the contract products after the expiration of the contract term specified above and shall return to the seller all the technical documentations specified in appendix 4 without remaining any duplicate copies nevertheless the confidential obligations of the buyer under article 14 shall survive the contract term
185 either party may without prejudice to any other remedy for the other party’s following breach of the contract terminate the contract in whole or in part by a written notice send to the other party if the other party
a fails to perform its payment obligation under the contract and does not remedy for its failure within a period of ______ (____) days upon receipt of the written notice or a period agreed upon between the parties or
b fails to perform its confidentiality obligation under the contract or
c fails to perform any other obligations under the contract except minor parts thereof and does not remedy for its failure within a period of ______ (____) days upon receipt of the written notice or a period agreed upon between the parties or
d becomes bankrupt or insolvent goes into liquidation has a receiving or administration order made against him compounds with his creditors or carries on business under a receiver trustee or manager for the benefit of his creditors or dissolves or ceases to do business or be ordered to close down to cease to do business to dissolve or has its business license revoked or if any act is done or event occurs which (under applicable laws) has a similar effect to any of these acts or events
186 either party may without prejudice to any other remedy terminate the contract in whole or in part by a written notice send to the other party if
a the other party is prevented by the laws statutes rules or regulations of either country from performing its obligations under the contract or
b the seller is prevented by the relevant authority of the buyer’s country from being paid in accordance with the contract or
c the other party is prevented from performing its contractual obligations by any event of force majeure for more than one hundred and twenty (120) days
187 in the event of termination of the contract without prejudice to any other remedies available according to the contract andor applicable laws
the buyer shall cease all its further exploitation of the patent andor knowhow and any acceptance of further orders from third parties for the contract products
all the delivered literatures drawings samples instruments equipment and other documents including the interpretations related to patent andor knowhow shall be returned to the seller as the seller’s requests
all the contracts on sales of the contract products signed between the buyer and third parties shall be terminated by the buyer otherwise the seller shall be paid accordingly
in case the termination is due to the seller’s default the buyer shall be entitled to complete the performance of the contracts on sales of the contract products already signed between the buyer and third parties before the termination
the seller shall be paid by the buyer for all the contractual obligations performed by the seller till the date of termination within _______days from receipt of the termination notice
e termination of the contract shall not release either party from its confidential obligations under the contract
article 19 miscellaneous
191 the contract is signed by the authorized representatives of both parties in ____ ( ) originals each party shall keep ____ ( )
192 the contract supersedes all communications negotiations and agreements between the parties prior to the signing date of this contract
193 all amendments supplements and alternations to terms of the contract shall be made in written form and signed by the authorized representatives of both parties these amendments supplements and alternations shall form integral parts of the contract
if any costs occur or delivery delay due to amendment or explanation of the new law or statute or regulations enacted by the buyer’s country after the effectiveness of the contractthe seller shall have the right to ask for necessary adjustment in relation to the contract price and the delivery schedule
194 no assignment cession novation or transfer of any right or obligation under this contract shall be made by either party to a third party without the prior written consent of the other party
195 all communications between both parties in the course of implementation of the contract should be in english language in written form at the address set forth below the faxes concerning the important matters shall be confirmed in due time by registered or express mail or letter delivered by hand
the buyer
address
post code
fax __________________________
tel __________________________
email__________________________
attention ______________________
the seller
address
post code
fax __________________________
tel __________________________
email__________________________
attention ______________________
in witness whereof the parties hereto have caused this contract to be duly executed
the buyer
the seller
by______________________[signature]
name [printed name]
by_______________________ [signature]
name [printed name]
title
title
appendices
appendix 1 specifications and guarantee indices (omitted)
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contract for equipment sales and technology licensing
contract no ____________________
this contract (hereinafter referred to as the contract) is made and entered into as of ________ (the date of signature ) in ________ (the place of signature) through friendly negotiation by and between _____________ a company incorporated and existing under the laws of ____________ with its registered address at _________________________________ and with its principal place of business at _________________________________ (hereinafter referred to as the buyer) and ____________________ a company incorporated and existing under the laws of the people’s republic of china with its registered address at _________________________________ and with its principal place of business at _________________________________(hereinafter referred to as the seller)
whereas the buyer desires to engage the seller to provide the equipment related design technical documentation technical service and technical training and to obtain from the seller a license of patent andor knowhow in relation to the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products now it is hereby mutually agreed as follows
article 1 definitions
11 acceptance means the buyer accepted the equipment in accordance with article 115
12 commissioning means the operation of the equipment in accordance with article 114 for the purpose of carrying out performance test
13 contract means this contract signed by and between the buyer and the seller including appendices attached which shall form an integral part of this contract
14 contract products refers to all types of the products manufactured with patent andor knowhow under the contract details of which are specified in appendix 1
15 destination airport refers to _____________airport
16 effective date of the contract means the date when the contract enters into force upon fulfillment of all the conditions stated in article 181
17 equipment means the equipment machinery instruments spare parts and materials supplied by the seller as listed in appendix 3
18 erection means placing the equipment to the positions according to the design drawings and connecting it with relevant equipment and utilities
19 improvement refers to new findings andor modifications made in the validity period of the contract by either party on patent andor knowhow in the form of new designs formulas recipes ingredients indices parameters calculations or any other indicators
110 job site means the site where the equipment shall be located andor erected namely ____
111 knowhow refers to any valuable technical knowledge data indices drawings designs and other technical information concerning the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products developed and owned or legally acquired and possessed by the seller and disclosed to the buyer by the seller which is unknown to either public or the buyer before the date of effectiveness of this contract and for which appropriate protection measures have been taken by the seller for keeping knowhow in secrecy the specific description of knowhow is set forth in appendix 3
112 last shipment means the shipment with which the accumulated invoice value of shipped goods has reached ____ ( ) percent of the total equipment price
113 patent refers to any and all of the effective patent rights possessed by the seller and licensed to the buyer under the contract in connection with the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products the no and list of which are set forth in appendix 3
114 performance test means the tests for examining whether the equipment is able to meet guarantee figures specified in appendix 1
115 technical documentation means the technical indices and data specifications drawings processes technical and quality standards and other documents carrying the descriptions and explanations of patent knowhow and other technical information in connection with the erection test run commissioning performance testoperation and maintenance for the equipment as well as manufacture of the contract products to be provided by the seller as listed in appendix 4
116 technical service means the technical instruction assistance and guidance rendered by the seller as per appendix 6
117 technical training means the training rendered by the seller as per appendix 7
118 test run means the initial run of a single machine or the whole system of the equipment without materials
119 warranty period means the period of the warranty given by the seller as specified in article 122 during which the seller is responsible for the defects of the equipment as per article 12
article 2 scope of the contract
21 the seller’s obligation
211 the seller shall supply the equipment provide the design technical documentation and conduct the technical service and technical training and grant the buyer a right to use the patent andor knowhow as set forth in the contract
212 the seller shall supply the equipment which is listed in appendix 3 the specification is detailed in appendix 1
213 the seller shall provide design in accordance with appendix 5 and submit to the buyer the technical documentation listed in appendix 4
214 the seller shall conduct the technical services at the job site as per appendix 6
215 the seller shall conduct the technical training as per appendix 7
22 the buyer’s obligation
221 the buyer shall at his own costs and expenses provide the seller with all information and data concerning the design as per appendix 2 the buyer shall ensure the completeness correctness and accuracy of all such information and data
222 the buyer shall at his own costs and expenses obtain all necessary import permits undertake customs clearance take delivery of the equipment to be supplied by the seller and transport them to the job site in time
223 the buyer shall at his own costs and expenses perform all the civil works construction erection test run commissioning and performance test in accordance with the technical documentation under the technical services rendered by the seller as per appendix 6
224 the buyer shall at his own costs and expenses supply all the equipments spare parts and facilities required except for the equipment supplied by the seller as per appendix 3
225 the buyer shall at his own costs and expenses provide the qualified and appropriate technical personnel labor tools utilities and the job site in time for erection test run commissioning and performance test as specified in appendix 2
226 the buyer shall at his own costs and expenses perform necessary administration and security guard at the job site
article 3 grant of license
31 the seller agrees to grant to the buyer and the buyer agrees to obtain from the seller a license to manufacture the contract products as well as to conduct erection test run commissioning performance test operation and maintenance for the equipment with patent andor knowhow as well as to use and sell the contract products the name model specification and technical data of the contract products are detailed in appendix 1 the buyer shall not make use of patent andor knowhow for any purposes other than those stipulated in the contract without prior written approval from the seller the annual output of the contract products manufactured by the buyer shall in no case exceed _______________
32 (option 1) the license granted under the contract shall be an exclusive license the seller shall not retain its right to grant the licenses to any third parties or to explore patent andor knowhow as well as to sell the contract products by itself within the territory specified in article 34
(option 2) the license granted under the contract shall be a nonexclusive license the seller shall retain its right to grant the licenses to any third parties and to explore patent andor knowhow as well as to sell the contract products by itself within the territory specified in article 34
33 the license granted under the contract shall be a nontransferable and nonsublicensing license under which the buyer shall neither be entitled to transfer nor grant sublicense to any third party without prior written approval from the seller
34 territory
341 the seller agrees to grant the license to the buyer only within the territory of _________________ (country or region) the buyer shall not explore patent andor knowhow in any place other than the job site without previous written consent of the seller
342 the seller agrees to grant a license to the buyer to use and sell the contract products only within the territory of ________________________ (country or region) in case the buyer fails to perform its obligations under this clause all the actual losses and damages thus incurred to the seller shall be borne by the buyer and the seller shall have the right to terminate the contract without prejudice to any remedies specified in the contract
article 4 price
41 the buyer agrees to pay the total contract price technical training and technical service fee to the seller
42 the total contract price including price of the equipment design technical documentation and a license fee in a fixed amount shall be __________(say _______________________ only)
the breakdown price is as follows
the price for equipment is __________(say _______________________ only)
fee for design is __________(say _______________________ only)
fee for technical documentations is __________(say _______________________ only)
license fee is __________________(say _________________ only)
421 the total contract price for the equipment is for delivery cif_____ port and the technical documentations is for delivery cip (by air) ______ airport cif and cip term shall be interpreted in accordance with incoterms XX issued by the international chamber of commerce (icc)
422 the total contract price includes the price for spare parts listed in appendix 3 however the total contract price does not cover the supply of any other spare parts at the buyer’s request the seller may provide with any other spare parts a separate agreement shall be signed between the parties
423 the above price is fixed and firm
43 the total contract price does not cover the technical service fee and technical training fee specified in appendix 67
44 the total contract price as well as the technical training and technical service fee shall not be regarded or in any way be explained or interpreted as covering any of the custom duties taxes or charges fees and expenses unless expressly listed in the contract
article 5 payment
51 down payment
within ____ ( ) days after signing the contract the buyer shall pay ____ ( ) percent of the total contract price amounting ____ by tt to the seller
52 [option one payment by sight lc]
the balance of the total contract price amounting ___ ( says ___ only ) shall be paid by an irrevocable letter of credit at sight issued within ___ ( ) days after signing the contract by a reputable bank in ___ acceptable to the seller in favor of the seller the letter of credit shall be available upon the presentation of the following documents till ______(specific expiration date or a specific circumstance for the expiration of the letter of credit)
521 ____ ( ) percent of the total contract price amounting ____ (say ___ only) shall be paid by the buyer to the seller within _______ days after the following documents have been submitted by the seller
(a) bill of lading in one (1) original and ___ ( ) copies
(b) commercial invoice in one (1) original and ___ ( ) copies
(c) packing list in one (1) original and ___ ( ) copies
(d) certificate of origin in one (1) original and ___ ( ) copies
(e) insurance policy in one (1) original and ___ ( ) copies
522 ____ ( ) percent of the total contract price amounting ____ (say ___ only) shall be paid by the buyer to the seller within _______ days after the following documents have been submitted by the seller
(a) one (1) copy of the acceptance certificate signed by the buyer as per article 115 or the seller’s written statement specifying the lapse of more than seven (7) days after the seller’s notice requesting the buyer to issue the acceptance certificate in accordance with article 115
(b)one ( 1 ) copy of commercial invoice
523 ____ ( ) percent of the total contract price amounting ____ (say ___ only) shall be paid by the buyer to the seller within _______ days after the following documents have been submitted by the seller
a) one (1) original letter of retention guarantee in the form of appendix 10
b) one (1) copy of commercial invoice
52 [option two payment under a lg]
the balance of the total contract price amounting ___ (say ___ only ) plus interest for deferred payment in the amount of ___ (say ___ only ) totaling ___ (say ___ only ) as detailed in appendix 12 shall be paid by the buyer by installments as specified in appendix 12 and backed by an irrevocable letter of guarantee in favor of the seller as per the appendix 11 issued within ___ ( ) days after signing the contract by the reputable bank in ____ acceptable to the seller
53 all the banking charges incurred in the seller’s bank shall be borne by the seller while those incurred outside the seller’s bank shall be borne by the buyer
article 6 delivery of equipment and technical documentation
61 the delivery of the equipment
611 the delivery of the equipment listed in appendix 3 shall be completed within ____ ( ) months from the effective date of the contract
612 within ____ ( ) months after the effective date of the contract the seller shall send to the buyer a preliminary delivery schedule by fax
not later than ____ ( ) days before the first shipment the seller shall submit to the buyer the final delivery schedule in three (3) copies indicating contract number dispatch number name of the equipment quantity approximate dimensions volume of each package and time of each shipment
613 the port of shipment is ____ while the port of destination is ____
614 advance shipment partial shipment and transshipment are allowed however the seller shall inform the buyer thirty (30) days before such shipment
615 the date of bill of lading for each shipment shall be considered as the actual delivery date
616 the seller shall notify the buyer by fax of the following within five (5) working days after each shipment is effected
(a) contract number
(b) name of the vessel and loading port
(c) name of the equipment shipped
(d) number and date of bill of lading
(e) total volume
(f) total gross and net weight
(g) total number of packagescases
617 the seller shall airmail the following documents in duplicate to the buyer
(a) bill of lading
(b) commercial invoice
(c) packing list
(d) certificate of origin
(e) insurance policy
62 the late delivery of the equipment
621 if the seller fails to deliver the equipment in accordance with the final delivery schedule the seller shall pay to the buyer liquidated damages for such delay at the following rates
(a) from the first week to the fourth week the liquidated damages shall be
____ ( ) percent of the value of the delayed portion of the equipment per
week
(b) from the fifth week to the eighth week the liquidated damages shall be
____ ( ) percent of the value of the delayed portion of the equipment per week
(c) from the ninth week the liquidated damages shall be ____ ( ) percent of
the value of the delayed portion of the equipment per week
622 the fractions of four days or more shall be counted as one week and fractions of less than four days shall be omitted the total aggregate amount of the liquidated damages shall not exceed ____ ( ) percent of the value of the delayed portion equipment
623 the seller shall be released from the liability to the buyer whatsoever in respect of the late delivery after his payment of liquidated damages in accordance with article 62 notwithstanding the seller’s payment of the liquidated damages for the late delivery equipment the seller shall not be released from his obligation to deliver the equipment
63 the delivery of the technical documentation
631 the technical documentation listed in appendix 4 shall be delivered cip ____airport by air within ____ ( ) months after the effective date of the contract
632 the date of airway bill shall be regarded as the actual delivery date of the technical documentation
633 within ____ ( ) working days after sending each lot of the technical documentation the seller shall inform the buyer of the contract number item number number and date of airway bill and the flight
634 in case of shortage loss of or damage to the technical documentation due to the seller’s reason the seller shall make supplement to the buyer within ____ ( ) days after receiving the buyer’s written notification without any further charge
article 7 packing and marking
71 the equipment shall be packed to withstand long distance transportation multiple handling
72 the seller shall mark the following on two opposite sides of each package with indelible painted english words
(a) destination
(b) consignee
(c) contract number
(d) shipping mark
(e) grossnet weight (kg)
(f) case bale number
(g) dimensions l x w x h (cm)
73 each package shall contain one (1) copy of packing list
74 the seller shall mark on the package if necessary handle with care right side up fragile or other indicative marks according to the characteristics and feature of the goods as well as different requirement for transportation loading and unloading of the goods
75 if the goods weigh three (3) or more than three (3) metric tons gravity hoisting position and illustrative marks shall be marked so as to facilitate loading unloading and handing
76 all technical documentation provided by the seller shall be properly packed to withstand long distance transportation and multiple handling the surface of each package shall be marked with the following words
(a) destination
(b) consignee
(c) contract number
(d) grossnet weight (kg)
(e) item number
(f) dimensions l x w x h (cm)
article 8 technical service and technical training
81 the seller shall dispatch technical personnel to job site to render technical service in accordance with contract according to a time schedule agreed upon between both parties the number specialty rank treatment of the personnel and payment as well as the contents and requirements of technical service are specified in appendix 6
82 the buyer shall have the right to send its technical personnel to the relevant factory selected by the seller for training the number speciality treatment of the personnel and payment as well as the contents time schedule and requirement of training are specified in appendix 7
83 either party shall provide assistance to the other party’s technical personnel in their application for visa working permit andor other necessary formalities for rendering technical service or training under the contract in the other party’s factory
84 either party’s technical personnel shall abide by the laws of the other party’s country and the regulations of the other party during their stay in the other party’s country
article 9 standards and inspection
91 the seller shall carry out the design manufacture inspection and test of the equipment according to the existing standards of the people’s republic of china namely gb
92 the seller or the manufacturer shall at his own costs and expenses inspect the equipment and issue the exwork quality certificate
93 the opencase inspection of the equipment shall be performed by the buyer in the presence of the seller’s representatives on the job site in days after the arrival of the equipment at the job site the opencase inspection fee shall be borne by the buyer
the buyer shall inform the seller of the date one (1) month before the date of open case inspection and shall also render assistance to the seller’s representatives in their inspection work
94 during the joint opencase inspection a detailed inspection record shall be made and signed by the representatives of both parties
in case the seller is responsible for any defect or shortage of the equipment the inspection record shall be taken as an effective evidence for the buyer to claim repair replacement or supplement to the seller any of such claims shall be lodged by the buyer within month(s) after the arrival of the equipment at the job site
95 if any shortage defect of or damage to the equipment is found in opencase inspection not attributable to the seller’s responsibility the seller shall make repair replacement or supplement at the buyer’s expenses in accordance with the separate agreement signed by both parties
96 the buyer is not entitled to open the case assemble andor disassemble the equipment without the seller’s prior written consent
if there is no joint open case inspection due to the reasons not attributable to the seller the quantity and apparent quality of the equipment shall be deemed correct and in perfect condition
article 10 design and design liaison
101 the buyer shall provide to the seller within ____ ( ) days after the effective date of the contract all the design data which shall be taken as the design basis the seller shall not be liable to the buyer for and the buyer shall indemnify the seller and hold the seller harmless from any damages or failure caused by the incompleteness incorrectness andor inaccuracy of any such information and data
102 a design liaison meeting shall be held in the ____ ( ) month after receiving above mentioned design data the seller will dispatch his technical personnel to the job site to participate in the meeting during the meeting period the seller will discuss with the buyer the relevant design details both parties shall sign an agreement outlining the design details
103 during the design liaison meeting the seller and the buyer shall provide assistance to the other’s dispatched personnel in arranging entry visas to the respective countries the expense incurred on the dispatched personnel shall be borne by the party respectively
article 11 erection test run commissioning performance test and acceptance
111 the erection test run commissioning performance test shall be conducted by the buyer
112 chief representatives
1121 each party shall nominate one (1) chief representative to deal with the technical matters during the period from the start of the erection to acceptance of the equipment
1122 detailed arrangements shall be made through friendly discussions by the chief representatives of both parties the chief representatives of both parties shall fully cooperate to carry out their duties stipulated in the contract however they have no right to revise alter or amend the contract without the written authorization of both parties
1123 the chief representatives of both parties shall communicate through linking sheet for the matters relative to opinions suggestions and information the linking sheet shall be countersigned by the other party
113 erection and test run
1131 the erection shall be completed by the buyer in ____ ( ) days from the effective date of the contract the seller’s chief representative shall arrive at the job site ____ ( ) days prior to the beginning of the erection
1132 when erection is completed and in full conformity with requirements of the technical documentation a certificate of completion for erection of the equipment shall be signed by the chief representatives of both parties in two (2) originals one for each party within three (3) days the date of signing said certificate shall be deemed as the date of completion of erection
1133 as soon as the completion of erection test run for single machine and the whole system of the equipment shall be started
1134 when test run has been successfully performed a certificate of completion for test run of the equipment shall be signed by the chief representatives of both parties in two (2) originals one for each party within three (3) days the date of signing the said certificates shall be deemed as the date of completion of test run of the equipment
114 commissioning and performance test
1141 within ____ ( ) days after the completion of the test run the buyer shall make available qualified operation and maintenance personnel raw materials spare parts utilities and other matters required for the commissioning detailed procedures such as instrument calibrating items of recording sampling methods and analyzing methods which are necessary for the commissioning shall be discussed and agreed upon by the chief representatives of both parties
if in the opinion of both parties the equipment is ready for the commissioning both parties shall confirm the readiness for the commissioning in writing
1142 the commissioning of the equipment shall be started immediately after the confirmation of the readiness for the commissioning the commissioning period shall ____ ( ) days after commencement of the commissioning
1143 when the seller and the buyer consider that stable operation of the equipment has been achieved the date of performance test shall be fixed by chief representatives of both parties
1144 the seller shall have the right to access to the laboratory and testing facilities in order to take samples and make analytical tests the sample taking and analytical test during the commissioning period will be done in the presence of the chief representatives of both parties
1145 during the period of commissioning until acceptance of the equipment the seller may use the buyer’s stored spare parts should the buyer’s stored spare parts be used by the seller due to the seller’s responsibility the seller shall replenish the stores with the same in time at job site otherwise the seller shall provide the same at the buyer’s costs upon the buyer’s timely request
1146 if the result of performance test has reached the guarantee figures as per appendix 1 the acceptance certificate of the equipment shall be signed by the chief representatives of both parties in two (2) originals one for each party within three (3) days
1147 if the performance test cannot meet guarantee figures specified in appendix 1 both parties shall jointly make investigations so as to find out the reason for clarifying the responsibility
1148 if the guarantee figures are not met due to the seller’s reason the buyer shall agree to give an extension of ____ ( ) months so that the seller can make improvement or adjustment to the equipment and conduct further performance test all the costs and expenses for making improvement or adjustment to the equipment shall be borne by the seller
1149 during the extension period if the guarantee figures are still not met due to the seller’s reason the seller shall pay the liquidated damages as per appendix 1 to the buyer against the acceptance certificate signed by both parties
the seller’s aggregate liability to pay liquidated damages for failure to attain the performance guarantees shall not exceed ____ ( ) percent of the equipment price the seller shall have no further liability whatsoever to the buyer in respect of such failure after payment of the liquidated damages
11410 if the nonachievement of the guarantee figures is due to the reasons not attributable to the seller the seller shall agree to give an extension of ____ ( ) months during the extension period all costs thereto incurred for the adjustment of the equipment as well as the costs and expenses for the seller’s technical personnel shall be borne by the buyer in case the guarantee figures still can not be achieved due to the reasons not attributable to the seller in the extension period the equipment shall be accepted by the buyer both parties shall sign the acceptance certificate
115 acceptance
1151 acceptance shall occur in respect of the equipment when
(a) performance test has been successfully completed as per the article 1146 or
(b) the performance test has not been completed due to the reasons not attributable to the seller such as delayed civil construction lack of andor any other inconformity of raw materials spare parts of the buyer’s scope of supply under appendix 2 and utilities with the requirements of the contract in the ____ ( ) months from the date of bill of lading of the last shipment or
(c) the seller has paid the liquidated damages as per article 1149 or
(d) the guarantee figures still can not be reached due to reasons not attributable to the seller’s reason in the extension period as specified in article 11410 or
(e) the buyer takes the single machine and the whole system of the equipment into use without the seller’s approval
1152 at any time after any of the events set out in article 1151 has occurred the seller may give a notice to the buyer requesting the issuance of the acceptance certificate
1153 the buyer shall within seven (7) days after receipt of the seller’s notice issue such acceptance certificate
1154 if within seven (7) days after receipt of the seller’s notice the buyer fails to issue the acceptance certificate or fails to inform the seller in writing with convincing evidence of the reason why the buyer has not issued the acceptance certificate the equipment shall be deemed having been accepted on the seventh day of the seller’s said notice
1155 after the acceptance the seller’s responsibilities and obligations under the contract shall be deemed having been fulfilled except those as stipulated in article 12 and 14
article 12 guarantee and warranty
121 the seller guarantees that
(a) the equipment supplied by the seller shall be new and made of adequate materials and in conformity with the technical requirements of the contract
(b) the technical documentation shall be complete clear and correct
122 the period of warranty given by the seller under article 121 shall be ____ ( ) months from the date of acceptance or ____ ( ) months from the date of last shipment whichever comes earlier
123 defect of the equipment
1231 during the warranty period should any defect due to inferior materials or bad workmanship of the equipment be found under normal operation the buyer shall give the seller a notice stating the details together with all available evidence
the seller shall take immediate action to eliminate the defect at the seller’s expenses within the period agreed by both parties
1232 if certain defect can not be eliminated despite of several attempts the seller shall replace the defective parts with nondefective parts at the seller’s costs and expenses
1233 if the defect is eliminated by the buyer himself subject to the seller’s prior written consent all the direct costs and expenses thus incurred shall be borne by the seller
1234 the seller may reduce the price of the defective equipment according to the degree of inferiority or extent of damage as agreed by both parties after the reduction the seller shall be released from its obligations and liabilities
1235 during the warranty period should any defect due to the buyer’s improper operation or maintenance be found the seller will provide technical assistance to eliminate the defect or replace the defected parts upon buyer’s requests all the costs and expenses thus occurred shall be borne by the buyer
1236 subject to article 1231 the seller shall not be responsible for any defect or damage to the equipment arising out of any circumstances including but not limited to the following causes
(a) combination of the equipment with any machinery andor component other than those supplied by the seller or
(b) alteration modification or repair without the seller’s prior written consent or
(c) failure of the buyer to follow the technical documentation and instructions of the seller including the buyer’s improper operation and maintenance or
(d) normal wear and tear
124 during the warranty period should the technical documentation supplied by the seller be found incomplete unclear or incorrect due to the seller’s reason the seller shall be liable to supplement replace or correct the technical documentation free of charge
125 the seller shall in no respect be understood or interpreted as liable for the commercial development of the contract products the buyer shall undertake the risk of the commercial development of the contract products
126 in no circumstances whether as a result of breach of contract warranty indemnity tort (including negligence) strict liability or otherwise shall the seller or its subcontractors or suppliers be liable for loss of profit or revenues loss of production loss of use loss of information or data cost of capital cost of substitute equipment facilities services or replacement power downtime costs claims of the buyer’s customers for such damages or for any special consequential incidental indirect or exemplary damages
127 notwithstanding anything to the contrary provided in the contract the aggregate liability of the seller to the buyer on all claims of any kind whether in contract warranty indemnity tort (including negligence) strict liability or otherwise arising out of the performance or breach of the contract or use of any equipment or exploration of the patent andor knowhow shall not exceed ____ ( ) percent of the total contract price
128 all contractual obligations of the seller shall be deemed as having been fulfilled upon the expiry date of the warranty period
article 13 intellectual property right
131 the seller represents that it is entitled or authorized to grant the license to the buyer to use the patent andor knowhow for the purpose as specified in article 3
132 the buyer shall not use such patent andor knowhow received from the seller for any purpose other than that as specified in this contract
133 any intellectual property right or other technical information granted by the seller to the buyer shall remain the property of the seller in no circumstances shall any terms and conditions in this contract be construed deemed or interpreted as transfer of title to the buyer of any information which may be delivered to or accessed by the buyer
134 registration of the contract and maintenance of patent
1341 the buyer shall after the contract is signed between both parties make sure that the contract is registered with or filed to the competent authorities in the buyer’s country if it is required by law
1342 the seller shall during the validity period of the contract make all reasonable efforts to maintain patent in force in the territory as stipulated in article 341 and bear the costs thus incurred the buyer shall not make any action or inaction which may lead to invalidation or compulsory licensing of the patent
135 improvement and grantback
1351 should any improvement be made by the seller on patent andor knowhow within the validity period of the contract which shall be the exclusive property of the seller the seller shall grant the buyer a nonexclusive license to exploit such improvement at latest __________months from its improving provided that the license fee is agreed upon between both parties
1352 the buyer shall be entitled to make improvement on patent andor knowhow within the validity period of the contract the seller shall have the right to obtain and make use of the improvement the license fee shall be discussed between both parties in due time
1353 both parties shall keep improvement confidential neither party shall be entitled to grant any third party a sublicense on improvement made and provided by the other party without previous written consent of the other party
article 14 confidentiality
141 after signing of the contract both parties shall keep secret all the contents terms conditions of the contract
142 the buyer shall take proper measures to keep strictly confidential of knowhow technical documentation improvement and any other secret information obtained or accessible to from the seller the buyer shall not disclose any of them to any third party and shall not make use of them without prior written consent of the seller except otherwise stipulated in the contract
143 the buyer may disclose the secret information as described in article 142 to the personnel of its own or of any related parties engaged in the performance of the contract subject to article 142 strictly to the extent as essential for the implementation of the contract provided that the individuals andor parties accessing or may access such secret information are engaged to undertake in written form the same confidential liability of the buyer to the seller any breach of confidentiality obligations by any personnel from the buyer or the buyer’s related parties shall be deemed as breach of the contract by the buyer
144 notwithstanding this article 14 the seller may furnish to its subcontractor such documents data and other information received from the buyer to the extent required for performing the contract in which event the seller shall obtain from such subcontractor an undertaking of confidentiality similar to that imposed on the seller under the article 14
145 this article 14 shall survive the expiration or termination of the contract
146 the confidential obligation shall not apply to the information which
a now or hereafter enters the public domain or
b can be proved to have been in the possession of the party at the time of disclosure and which was not previously obtained directly or indirectly from the other party hereto or
c otherwise lawfully becomes available to either party from a third party under no obligation of confidentiality
article 15 taxes and duties
151 all taxes and duties in connection with the signing and performance of the contract levied by governments of the people’s republic of china including but not limited to customs duties income tax sales tax valueadded tax etc shall be borne and paid by the seller
152 all taxes and duties in connection with the signing and performance of the contract levied on the buyer and seller by the buyer’s governments including but not limited to customs duties income tax sales tax valueadded tax etc shall be borne and paid by the buyer the buyer shall pay in due time and full amount and hold the seller harmless from any taxes and duties in case incurred to the seller in the signing and performance of the contract
153 all import taxes and duties for tools andor instruments which the seller or the seller’s personnel may bring to the buyer’s country for the execution of the contract shall be borne and paid by the buyer
154 any and all taxes and duties in connection with the signing and performance of the contract levied in any place except the cases as specified in article 151 are not included in the contract price should the seller make the relevant payment directly as the case may be both parties agree to amend the contract price to fully compensate the seller for the payment and the buyer shall fully refund the seller for the relevant amount within_______( ) days from the seller’s payment
article 16 force majeure
161 if either of the contract parties is prevented from executing the contract due to the event of force majeure such as war riot coup embargo flood typhoon tornado snowstorm earthquake and other events which could not be foreseen avoided and overcome the affected party shall notify the other party by fax within the shortest possible time of occurrences of the force majeure and send a certificate issued by competent authorities or agency certifying the event of the force majeure by registered or express mail within fourteen (14) days following its occurrence
162 the affected party shall not be liable for any delay or failure in performing any of its obligations due to the event of force majeure however the affected party shall inform the other party by fax the termination or elimination of the event of force majeure as soon as possible
163 both parties shall proceed with their obligations immediately upon the cease of the event of force majeure or the removal of the effects and the term of the contract shall be extended correspondingly should the effect of the event of force majeure last for more than one hundred and twenty (120) days either party shall have the right to terminate the contract by a written notice
article 17 applicable law and settlement of disputes
171 the applicable law of the contract shall be the laws of the people’s republic of china
172 all disputes arising from or in connection with the contract shall be settled through friendly consultation between both parties in case no agreement can be reached the dispute shall be submitted for arbitration
173 the arbitration shall be conducted by china international economic and trade arbitration commission (cietac) in beijing in accordance with arbitration rules of the commission in effect at the time of applying for arbitration the tribunal shall be composed of three arbitrators
174 the arbitral award shall be final and binding upon both parties
175 during proceedings of arbitration the undisputed part of the contract shall be performed continuously by both parties regardless of such arbitration proceedings
article 18 effectiveness term and termination of the contract
181 the contract shall enter into force on the date when all of the following conditions have been fulfilled whichever occurs later
(a) the seller and the buyer sign the contract
(b) the contract shall be approved by the competent authorities andor banks of both parties (if applicable)
(c) the seller receives the down payment
(d) the seller duly receives the lc (or lg ) issued by the buyer＇s bank
182 each party shall use its best efforts to fulfill the above conditions for which it is responsible as soon as practicable
183 if the contract has not become effective pursuant to article 181 within ____ ( ) months after the date of signing this contract the seller has the right to make an equitable adjustment to the total contract price and the time for delivery andor other relevant conditions of the contract should no agreement is reached for the above mentioned adjustment within ____ ( ) days from the seller’s request of adjustment the seller shall be entitled to cancel the contract
184 the contract shall be valid and remain in force for_____ (_____) years from the date of effectiveness during which period the buyer shall be entitled to manufacture the contract products with patent andor knowhow and sell the contract products within the licensed territory as specified in article 34
(option 1) the buyer shall not be entitled to manufacture with patent andor knowhow or sell the contract products after the aforesaid period unless the buyer agrees to pay additional license fees in the amount and with the payment schedules and methods as agreed upon between both parties in due time
(option 2) the buyer shall be entitled to manufacture with patent andor knowhow or sell the contract products after expiration of the contract term specified above provided that the buyer shall not be released from its confidential obligations under the contract
(option 3) the buyer shall not be entitled to manufacture with patent andor knowhow or sell the contract products after the expiration of the contract term specified above and shall return to the seller all the technical documentations specified in appendix 4 without remaining any duplicate copies nevertheless the confidential obligations of the buyer under article 14 shall survive the contract term
185 either party may without prejudice to any other remedy for the other party’s following breach of the contract terminate the contract in whole or in part by a written notice send to the other party if the other party
a fails to perform its payment obligation under the contract and does not remedy for its failure within a period of ______ (____) days upon receipt of the written notice or a period agreed upon between the parties or
b fails to perform its confidentiality obligation under the contract or
c fails to perform any other obligations under the contract except minor parts thereof and does not remedy for its failure within a period of ______ (____) days upon receipt of the written notice or a period agreed upon between the parties or
d becomes bankrupt or insolvent goes into liquidation has a receiving or administration order made against him compounds with his creditors or carries on business under a receiver trustee or manager for the benefit of his creditors or dissolves or ceases to do business or be ordered to close down to cease to do business to dissolve or has its business license revoked or if any act is done or event occurs which (under applicable laws) has a similar effect to any of these acts or events
186 either party may without prejudice to any other remedy terminate the contract in whole or in part by a written notice send to the other party if
a the other party is prevented by the laws statutes rules or regulations of either country from performing its obligations under the contract or
b the seller is prevented by the relevant authority of the buyer’s country from being paid in accordance with the contract or
c the other party is prevented from performing its contractual obligations by any event of force majeure for more than one hundred and twenty (120) days
187 in the event of termination of the contract without prejudice to any other remedies available according to the contract andor applicable laws
the buyer shall cease all its further exploitation of the patent andor knowhow and any acceptance of further orders from third parties for the contract products
all the delivered literatures drawings samples instruments equipment and other documents including the interpretations related to patent andor knowhow shall be returned to the seller as the seller’s requests
all the contracts on sales of the contract products signed between the buyer and third parties shall be terminated by the buyer otherwise the seller shall be paid accordingly
in case the termination is due to the seller’s default the buyer shall be entitled to complete the performance of the contracts on sales of the contract products already signed between the buyer and third parties before the termination
the seller shall be paid by the buyer for all the contractual obligations performed by the seller till the date of termination within _______days from receipt of the termination notice
e termination of the contract shall not release either party from its confidential obligations under the contract
article 19 miscellaneous
191 the contract is signed by the authorized representatives of both parties in ____ ( ) originals each party shall keep ____ ( )
192 the contract supersedes all communications negotiations and agreements between the parties prior to the signing date of this contract
193 all amendments supplements and alternations to terms of the contract shall be made in written form and signed by the authorized representatives of both parties these amendments supplements and alternations shall form integral parts of the contract
if any costs occur or delivery delay due to amendment or explanation of the new law or statute or regulations enacted by the buyer’s country after the effectiveness of the contractthe seller shall have the right to ask for necessary adjustment in relation to the contract price and the delivery schedule
194 no assignment cession novation or transfer of any right or obligation under this contract shall be made by either party to a third party without the prior written consent of the other party
195 all communications between both parties in the course of implementation of the contract should be in english language in written form at the address set forth below the faxes concerning the important matters shall be confirmed in due time by registered or express mail or letter delivered by hand
the buyer
address
post code
fax __________________________
tel __________________________
email__________________________
attention ______________________
the seller
address
post code
fax __________________________
tel __________________________
email__________________________
attention ______________________
in witness whereof the parties hereto have caused this contract to be duly executed
the buyer
the seller
by______________________[signature]
name [printed name]
by_______________________ [signature]
name [printed name]
title
title
appendices
appendix 1 specifications and guarantee indices (omitted)
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