Contract Law of the People's Republic of China
Author:sipoIssuing Date:2008-01-24 13:28:30Source:sipo
(9) damages for breach of contract or method for calculating the amount of compensation for losses;
(10) methods for settlement of disputes; and
(11) interpretation of technical terms and expressions.
Background materials on the technology, reports on feasibility studies and technological appraisals, project descriptions and plans, technological standards, technological specifications, original designs and documents on technological processes, as well as other technology files relevant to the performance of the contract may be deemed as an integral part of the contract as agreed upon by the parties in the contract.
Where a technology contract involves patents, the title of the invention or creation, the patent applicant and the patentee, the date and number of application, the patent number as well as the valid time period of patent rights shall be indicated.
Article 325 The method of payment of price, remuneration or royalties in the technology contract shall be agreed upon by the parties. The parties may agree on the method of an overall calculation and one time payment, or of an overall calculation and payment by installment. They may also agree on the method of proportionate payment or such payment plus an advance payment of entrance fee.
Where the method of proportionate payment is agreed upon in the contract, the payment may be made according to a specific proportion to the price of the product, to the increased value of output derived from exploitation of the patent or from use of the know-how, to the profit or to the sales. They may also agree on other methods of calculation. The proportion may be a fixed proportion, or a proportion with yearly progressive increase or decrease.
Where the proportionate payment is agreed upon, the parties shall agree in the contract on the relevant accounting books.
Article 326 Where the right to use or to transfer a job-related technological achievement belongs to the legal person or other organization, the legal person or other organization may conclude technology contracts with regard to the job-related technological achievement. The legal person or other organization shall extract a certain proportion from the proceeds acquired from the use and transfer of such job-related technological achievement to reward or remunerate the individual who accomplished this technological achievement. Where a legal person or other organization concludes a technology contract to transfer the job-related technological achievement, the individual who accomplished this technological achievement shall have the priority to be the transferee on equal conditions.
A job-related technological achievement refers to a technological achievement accomplished in the process of carrying out the task of the legal person, or other organization, or mainly through using the materials and technological means thereof.
Article 327 The right to use or transfer a non-job-related technological achievement belongs to the individual who accomplished it. The individual may conclude a technology contract on such non-job-related technological achievement.
Article 328 An individual who has accomplished a technological achievement shall have the right to be named as such in the documents related to the technological achievement and the right to receive certificates of honor and awards.
Article 329 A technology contract which monopolizes the technology or impedes the technological progress, or which infringes upon the technological achievement of others shall be null and void.
Section 2 Contracts for Technology Development
Article 330 A technology development contract refers to a contract concluded between the parties for purpose of conducting research in and development of new technologies, new products, new processes and new materials as well as their systems.
Technology development contracts include commissioned development contracts and cooperative development contracts and cooperative development contracts.
A technology development contract shall be in written form.
A contract concluded between the parties for purpose of application or commercialization of certain technological achievement which has potential value for industrial application shall apply the provision concerning technology development contracts mutatis mutandis.
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