Chương II Luật chuyển giao công nghệ: Hợp đồng chuyển giao công nghệ

Chapter II

TECHNOLOGY TRANSFER CONTRACTS

Article 14. Principles for signing and performing technology transfer contracts

1. A technology transfer contract shall be entered into via the form of a written contract or some other written form with equivalent validity such as a telegram, telex, facsimile or data message or other form as stipulated by law.

2. The language in a written technology transfer contract shall be as agreed by the parties, but in the case of a transaction in Vietnam there must be a contract in Vietnamese. The Vietnamese and the foreign language versions of a contract shall be of equal validity.

3. A technology transfer contract shall be entered into and performed in accordance with the provisions of this Law, the Civil Code, the Commercial Law and other relevant laws.

Article 15. Contents of technology transfer contracts

Parties entering into a technology transfer contract may reach agreement on inclusion of the following particulars:

1. Name of the technology transfer contract, clearly stating the name of the transferred technology.

2. The technology object which is being transferred and the products created from the technology.

3. Transfer of the ownership of [and/or] right to use the technology.

4. Method of transfer of the technology.

5. Rights and obligations of the parties.

6. Price and mode of payment.

7. Date of effectiveness and term of validity of the contract.

8. Definition of terms and concepts (if any) used in the contract.

9. Plan and schedule for transfer of the technology, and location for implementing the transfer of the technology.

10. Liability to provide a warranty for the transferred technology.

11. Penalties for breach of contract.

12. Liability for breach of contract.

13. Applicable law for dispute resolution.

14. Tribunal for dispute resolution.

15. Other agreements, on condition that they are not contrary to the law of Vietnam.

Article 16. Transfer of ownership of technology

1. Transfer of ownership of technology means the owner of a technology transfers the entire right of possession, the right to use and the right to dispose of such technology to another entity in accordance with article 18 of this Law.

2. If a technology is a protected industrial property rights object, then transfer of ownership of such technology must be implemented together with transfer of ownership of the industrial property rights in accordance with the law on intellectual property.

Article 17. Transfer of right to use technology

1. Transfer of the right to use a technology means an entity as stipulated in article 8 of this Law permits another entity to use the technology in accordance with clause 2 of this article and article 18 of this Law.

2. The scope of transfer of the right to use a technology shall be as agreed by the parties, comprising:

(a). Exclusive or non-exclusive right to use the technology;

(b) Permission to re-transfer the right to use the technology to a third party or a prohibition from doing so;

(c) Fields of use of the technology;

(d) The right to improve the technology, and the right to receive information about improvements to the technology;

(dd) The exclusive or non-exclusive right to distribute and sell products created from the transferred technology;

(e) Geographical area in which it is permitted to sell products created from the transferred technology;

(g) Other rights related to the transferred technology.

3. If a technology is a protected industrial property rights object, then transfer of the right to use such technology must be implemented together with transfer of ownership of industrial property rights in accordance with the law on intellectual property.

Article 18. Forms of transfer of technology:

1. Transfer of data about the technology.

2. Provision of training the technology transferee for a specified period stipulated in the technology transfer contract to enable the transferee to properly understand and master the technology.

3. Appointment of a technical consultancy expert to enable the technology transferee to put the technology into production with the technological and product quality satisfying the specifications and schedule stipulated in the technology transfer contract.

4. Other forms of transfer as agreed by the parties.

Article 19 Time of effectiveness of technology transfer contracts

1. The time of effectiveness of a technology transfer contract shall be as agreed by the parties, except for the case stipulated in clause 2 of this article; if the parties do not agree on such time, then the contract shall be of full force and effect when the last party completes signing the contract.

2. A contract for the transfer of a technology on the list of technologies the transfer of which is restricted shall only take effect after the competent State body has issued a technology transfer permit.

Article 20. Rights and obligations of technology transferors

1. A technology transferor shall have the following rights:

(a) To require the technology transferee to correctly implement the contractual commitments;

(b) To request the competent State body to protect lawful rights and interests related to the transferred technology;

(c) To receive full payment in accordance with the contract and to enjoy other rights and interests as agreed in the contract; to enjoy incentives stipulated in this Law and in other relevant laws;

(d) To require the technology transferee to apply measures to remedy, and to pay compensation for loss and damage if the technology transferee fails to correctly discharge the contractual obligations, except where the parties agree otherwise;

(dd) To lodge a complaint or to institute legal proceedings for breach of contract in accordance with law.

2. A technology transferor shall have the following obligations:

(a) To guarantee that the right to transfer the technology is lawful and is unrestricted by third party rights, except where the parties agree otherwise;

(b) To correctly implement the contractual commitments; to pay compensation for loss and damage suffered by the technology transferee or third parties as a result of breach of contract;

(c) Upon request of another negotiating party, to maintain confidentiality of information obtained during the process of negotiating and signing the technology transfer contract;

(d) To notify the technology transferee and to take appropriate measures on discovery of any technical difficulties which result in the transfer results failing to satisfy the requirements stipulated in the contract; to pay compensation for loss and damage sustained by the technology transferee or third parties and due to failure to perform the contractual commitments;

(dd) To conduct procedures applying for a technology transfer permit in the case of a transfer from Vietnam to overseas of a technology on the list of technologies the transfer of which is restricted;

(e) Not to agree on clauses restricting competition which are prohibited by the Law on Competition;

(g) To discharge financial and other obligations as stipulated by law.

Article 21. Rights and obligations of technology transferees

1. A technology transferee shall have the following rights:

(a) To require the technology transferor to correctly implement the contractual commitments;

(b) To request the competent State body to protect lawful rights and interests related to the transferred technology;

(c) To hire domestic or foreign entities to provide technology transfer services in accordance with law;

(d) To require the technology transferor to apply measures to remedy, and to pay compensation for loss and damage if the technology transferor fails to correctly discharge the contractual obligations, except where the parties agree otherwise;

(dd) To lodge a complaint or to institute legal proceedings in accordance with law for breach of contract;

(e) To enjoy the incentives stipulated in this Law and in other relevant laws.

2. The technology transferee shall have the following obligations:

(a) To correctly implement the contractual commitments; to pay compensation for loss and damage suffered by the technology transferor or third parties as a result of breach of contract;

(b) Upon request of another negotiating party, to maintain confidentiality about the technology and other information obtained during the process of negotiating and signing the technology transfer contract;

(c) To conduct procedures applying for a technology transfer permit in the case of a transfer from overseas into Vietnam of a technology on the list of technologies the transfer of which is restricted;

(d) To discharge financial and other obligations as stipulated by law.

Article 22. Price of and method of payment for technology transfer

1. The payment price stipulated in a technology transfer contract shall be as agreed by the parties.

2. Payment must be made by one or a combination of the following methods:

(a) One-off payment or payments in instalments in money or by goods;

(b) Transfer of the value of the technology as capital contribution to an investment project or to capital of an enterprise as stipulated by law;

(c) Other payment methods as agreed by the parties.

Article 23. Procedures for issuance of a technology transfer permit in the case of a technology on the list of technologies the transfer of which is restricted

1. Any entity with a need to receive or to be transferred a technology on the list of technologies the transfer of which is restricted shall forward the application file stipulated in article 24.1 of this Law to the State body authorized to issued technology transfer permits.

2. The State body authorized to issue technology transfer permits shall provide written approval within a time-limit of thirty (30) days from the date of receipt of a valid application file. In a case of refusal to approve, the State body shall provide a written response specifying its reasons for the refusal.

3. After receipt of written approval from the competent State body, the entity with the need to receive or to be transferred the technology shall sign a technology transfer contract.

4. After the technology transfer contract has been signed, one of the signatories shall forward the application file stipulated in article 24.2 of this law to the State body authorized to issue technology transfer permits.

5. Within a time-limit of ten (10) days from the date of receipt of a valid application file, the State body authorized to issue technology transfer permits shall be responsible to consider the consistency of the technology transfer contract with the items stipulated in the written approval in order to issue a decision on issuance of a permit. In a case of refusal to issue a permit, the State body shall provide a written response specifying its reasons for the refusal.

6. If there is a need to change the items stipulated in the technology transfer permit during the process of performance of the technology transfer contract, then one of the signatories to the contract must apply for a new permit.

Article 24 Application files for approval of technology transfer, and application files for issuance of a technology transfer permit in the case of a technology on the list of technologies the transfer of which is restricted

1. An application file for approval of the transfer of a technology on the list of technologies the transfer of which is restricted shall comprise:

(a) Written request to enter into a technology transfer contract;

(b) Document on the legal status of the applicant;

(c) Explanatory statement on the technology in accordance with regulations of the Ministry of Science and Technology.

2. An application file for issuance of a technology transfer permit in the case of a technology on the list of technologies the transfer of which is restricted shall comprise:

(a) Written request for issuance of a technology transfer permit;

(b) Written approval from the competent State body to transfer the technology;

(c) Document on the legal status of the parties to the technology transfer contract;

(d) Original or copy of the technology transfer contract;

(dd) List of technological data and technological equipment (if any) attached to the technology transfer contract.

Article 25. Right to registration of technology transfer contracts and procedures for registration

1. The parties entering into a technology transfer contract shall have the right to register such contract with the competent State administrative body for science and technology as the basis for the parties to enjoy the incentives stipulated in this Law and in other relevant laws.

2. An application file for registration of a technology transfer contract shall comprise:

(a) Request for registration of the technology transfer contract;

(b) Original or copy of the technology transfer contract

3. Within a time-limit of fifteen (15) days from the date of receipt of a valid application file, the competent State administrative body for science and technology shall consider and issue a decision on issuance of a certificate of registration of the technology transfer contract.

Article 26. Obligation to maintain confidentiality during issuance of technology transfer permits and issuance of certificates of registration of technology transfer contracts

The bodies and individuals responsible for issuance of technology transfer permits and of certificates of registration of technology transfer contracts shall also be responsible to maintain confidentiality of the technologies and business secrets in application files for issuance of technology transfer permits and in application files for registration of technology transfer contracts.

Article 27 Dealing with breaches of technology transfer contracts

1. The following sanctions shall apply to entities in breach of a technology transfer contract:

(a) Fine for a breach;

(b) Payment of compensation for loss and damage;

(c) Compulsory correct performance of the contract;

(d) Temporary stay of performance of the contract;

(dd) Suspension of performance of the contract;

(e) Rescission of the contract;

(k) Other measures as agreed by the parties, on condition that such other measures are not contrary to the fundamental principals of the law of Vietnam, not contrary to international commercial practice, nor contrary to an international treaty of which the Socialist Republic of Vietnam is a member.

2. The measures of temporary stay of performance, suspension of performance and rescission of a contract shall not apply to a non-fundamental breach of a technology transfer contract, except where the parties agree otherwise.

3. The parties may agree to a limit on the amount of compensation payable for loss and damage resulting from breach of a technology transfer contract, unless a provision of law provides otherwise.

4. Application of the sanctions stipulated in clause 1 of this article shall be implemented in accordance with law.