技术出口合同商务部2007版

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 and/or Know-how in
relation to the Erection, Test Run, Commissioning, Performance Test，operation
and maintenance for the Equipment, as well as manufacture of the Contract Products. Now it is hereby mutually agreed as follows:
Article 1 Definitions
1.1 “Acceptance ”means the Buyer accepted the Equipment in accordance with
Article 11.5.
1.2 “Commissioning” means the operation of the Equipment in accordance with
Article 11.4 for the purpose of carrying out Performance Test.
1.3 “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.
1.4 “Contract Products” refers to all types of the products manufactured with Patent and/or Know-how under the Contract, details of which are specified
in Appendix 1.
1.5 “Destination Airport” refers to Airport.
1.6 “Effective Date of the Contract” means the date when the Contract enters
into force upon fulfillment of all the conditions stated in Article 18.1.
1.7 “Equipment” means the equipment, machinery, instruments, spare parts and
materials supplied by the Seller as listed in Appendix 3.
1.8 “Erection” means placing the Equipment to the positions according to the
design drawings, and connecting it with relevant equipment and utilities.
1.9 “Improvement” refers to new findings and/or modifications made in the
validity period of the Contract by either party on Patent and/or Know-how in
the form of new designs, formulas, recipes, ingredients, indices, parameters,
calculations, or any other indicators.
1.10 “Job Site” means the site where the Equipment shall be located and/or erected, namely .
1.11 “Know-how” refers to any valuable technical knowledge, data, indices,
drawings, designs and other technical information, concerning the Erection,
Test Run, Commissioning, Performance Test，operation 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 Know-how in secrecy. The specific description of Know-how is set forth in Appendix 3.
1.12 “Last Shipment” means the shipment with which the accumulated invoice
value of shipped goods has reached ( ) percent of
the total Equipment price.
1.13 “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 Test,operation 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.
1.14 “Performance Test” means the tests for examining whether the Equipment
is able to meet guarantee figures specified in Appendix 1.
1.15 “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, Know-how
and other technical information, in connection with the Erection, Test Run,
Commissioning, Performance Test，operation and maintenance for the Equipment,
as well as manufacture of the Contract Products, to be provided by the Seller
as listed in Appendix 4.
1.16 “Technical Service” means the technical instruction, assistance and
guidance rendered by the Seller as per Appendix 6.
1.17 “Technical Training ”means the training rendered by the Seller as per
Appendix 7.
1.18 “Test Run”means the initial run of a single machine or the whole system
of the Equipment without materials.
1.19 “Warranty Period”means the period of the warranty given by the Seller as specified in Article 1
2.2, during which the Seller is responsible for the
defects of the Equipment as per Article 12.
Article 2 Scope of the Contract
2.1 The Seller's Obligation
2.1.1 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 and/or Know-how as set forth in the
Contract.
2.1.2 The Seller shall supply the Equipment which is listed in Appendix 3, the
specification is detailed in Appendix 1.
2.1.3 The Seller shall provide design in accordance with Appendix 5, and submit to the Buyer the Technical Documentation listed in Appendix 4.
2.1.4 The Seller shall conduct the Technical Services at the Job Site as per
Appendix 6.
2.1.5 The Seller shall conduct the Technical Training as per Appendix 7.
2.2 The Buyer's Obligation
2.2.1 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.
2.2.2 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.
2.2.3 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.
2.2.4 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.
2.2.5 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.
2.2.6 The Buyer shall at his own costs and expenses, perform necessary administration and security guard at the Job Site.
Article 3 Grant of License
3.1 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 and/or Know-how 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 and/or Know-how 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 .
3.2 (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 and/or Know-how as well as to sell the
Contract Products by itself within the territory specified in Article 3.4. (Option 2) The license granted under the Contract shall be a non-exclusive license. The Seller shall retain its right to grant the licenses to any third
parties, and to explore Patent and/or Know-how as well as to sell the Contract
Products by itself within the territory specified in Article 3.4.
3.3 The license granted under the Contract shall be a non-transferable and
non-sublicensing license, under which the Buyer shall neither be entitled to
transfer nor grant sub-license to any third party without prior written approval from the Seller.
3.4 Territory
3.4.1 The Seller agrees to grant the license to the Buyer only within the territory of (country or region). The Buyer shall not explore
Patent and/or Know-how in any place other than the Job Site without previous
written consent of the Seller.
3.4.2 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
4.1 The Buyer agrees to pay the total Contract price, Technical Training and
Technical Service fee to the Seller.
4.2 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).
4.2.1 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 2000, issued by the INTERNATIONAL CHAMBER OF COMMERCE (ICC).
4.2.2 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.
4.2.3 The above price is fixed and firm.
4.3 The total Contract price does not cover the Technical Service fee and Technical Training fee specified in Appendix 6,7.
4.4 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
5.1 Down Payment
Within ( ) days after signing the Contract, the
Buyer shall pay ( ) percent of the total Contract
price amounting by T/T to the Seller. ......................The Beginning of Option.......................
5.2 [Option One: Payment by Sight L/C]
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).
5.2.1 ( ) 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;
5.2.2 ( ) 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 11.5, 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 11.5;
(b)One ( 1 ) copy of commercial invoice.
5.2.3 ( ) 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:
1.a) One (1) original Letter of Retention Guarantee in the form of Appendix 10;
2.b) One (1) copy of Commercial Invoice.
5.2 [Option Two: Payment under a L/G]
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.
......................The End of Option.......................
5.3 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
6.1 The Delivery of the Equipment
6.1.1 The delivery of the Equipment listed in Appendix 3 shall be completed within ( ) months from the Effective Date of the
Contract.
6.1.2 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.
6.1.3 The port of shipment is , while the port of destination
is .
6.1.4 Advance shipment, partial shipment and transshipment are allowed, however, the Seller shall inform the Buyer thirty (30) days before such shipment.
6.1.5 The date of Bill of Lading for each shipment shall be considered as the
actual delivery date.
6.1.6 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 packages/cases
6.1.7 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.
6.2 The Late Delivery of the Equipment
6.2.1 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.
6.2.2 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.
6.2.3 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 6.2. 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.
6.3 The Delivery of the Technical Documentation
6.3.1 The Technical Documentation listed in Appendix 4 shall be delivered CIP airport by air within ( ) months
after the Effective Date of the Contract.
6.3.2 The date of airway bill shall be regarded as the actual delivery date of
the Technical Documentation.
6.3.3 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.
6.3.4 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
7.1 The Equipment shall be packed to withstand long distance transportation,
multiple handling.
7.2 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) Gross/net weight (kg)
(f) Case/ bale number
(g) Dimensions: L x W x H (cm)
7.3 Each package shall contain one (1) copy of packing list.
7.4 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.
7.5 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.
7.6 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) Gross/net weight (kg)
(e) Item number
(f) Dimensions: L x W x H (cm)
Article 8 Technical Service and Technical Training
8.1 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.
8.2 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.
8.3 Either party shall provide assistance to the other party's technical personnel in their application for visa, working permit, and/or other necessary formalities for rendering Technical Service or training under the
Contract in the other party's factory.
8.4 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
9.1 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.
9.2 The Seller or the manufacturer shall, at his own costs and expenses, inspect the Equipment and issue the ex-work quality certificate.
9.3 The open-case 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 open-case 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.
9.4 During the joint open-case 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.
9.5 If any shortage, defect of or damage to the Equipment is found in open-case 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.
9.6 The Buyer is not entitled to open the case, assemble and/or 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
10.1 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 and/or inaccuracy of any such information and
data.
10.2 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.
10.3 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
11.1 The Erection, Test Run, Commissioning, Performance Test shall be conducted by the Buyer.
11.2 Chief Representatives
11.2.1 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.
11.2.2 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.
11.2.3 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.
11.3 Erection and Test Run
11.3.1 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.
11.3.2 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.
11.3.3 As soon as the completion of Erection, Test Run for single machine and
the whole system of the Equipment shall be started.
11.3.4 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.
11.4 Commissioning and Performance Test
11.4.1 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.
11.4.2 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.
11.4.3 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.
11.4.4 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.
11.4.5 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.
11.4.6 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.
11.4.7 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.
11.4.8 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.
11.4.9 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.
11.4.10 If the non-achievement 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。