Chương III Luật Chuyển giao công nghệ 2017: Hợp đồng chuyển giao công nghệ

Chapter III

TECHNOLOGY TRANSFER AGREEMENT

Article 22. Conclusion and performance of technology transfer agreement

1. A technology transfer agreement must be concluded in writing or in any forms which are considered as written transactions under regulations of the Civil Code. The agreement must be signed and sealed (if any) by the parties; all pages of the agreement or its appendixes must be initialed and sealed (if any).

2. The language used in the agreement shall be agreed upon by the parties.

3. The technology transfer agreement is concluded and performed in accordance with regulations of this Law, the Civil Code, and the Law on Commerce, the Law on Intellectual Property, the Competition Law and relevant laws.

Article 23. Contents of a technology transfer agreement

1. Name of technology to be transferred.

2. Technologies to be transferred, products created by the transferred technology, their quality standards.

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

4. Method of technology transfer.

5. Rights and obligations of the parties.

6. Price and method of payment.

7. Duration and effective date of the technology transfer agreement.

8. Definitions and terms used in the technology transfer agreement (if any).

9. Technology transfer plan or schedule, and location.

10. Warranty on transferred technology.

11. Penalty for breach of agreement.

12. Liability for breach of agreement.

13. Dispute resolution authority.

14. Other contents agreed upon by the parties.

Article 24. Duration and effective date of the technology transfer agreement

1. Duration of a technology transfer agreement shall be agreed upon by the parties.

2. The effective date of a technology transfer agreement shall be agreed upon by the parties. In case the parties fail to agree on the effective date, the technology transfer agreement shall become effective as from the date on which it is signed, excluding the cases prescribed in Clause 3 of this Article.

3. An agreement for transfer of technology restricted from transferring shall become effective as from the issued date of the technology transfer permit.

The technology transfer agreement which must be registered under regulations in Clause 1 and Clause 2 Article 31 herein shall become effective as from the issued date of Certificate of registration of technology transfer. If a technology transfer agreement is extended or revised, the written agreement on extension or revision shall become effective as from the issued date of Certificate of registration of technology transfer extension or revision.

Article 25. Rights and obligations of the transferor

1. The transferor has the following rights:

a) Request the transferee to strictly comply with provisions of the technology transfer agreement;

b) Receive full payment and enjoy other rights and interests as specified in the technology transfer agreement;

c) Hire an organization or individual to make technology transfer as regulated by law;

d) Request regulatory authorities to protect rights and legal interests related to the transferred technology;

dd) Request the transferee to implement corrective measures and make compensation for damage in case the transferee fails to fulfill its obligations specified in the technology transfer agreement, unless otherwise agreed;

e) Have other rights as defined by law.

2. The transferor must discharge the following obligations:

a) Ensure that the right to transfer technology is legal and not limited by the third party, unless otherwise agreed;

b) Comply with provisions specified in the technology transfer agreement; make compensation for damage caused to the transferee and/or the third party due to the transferor’s breach of agreement;

c) Keep secret of technology-related information and other information in course of negotiation, conclusion and performance of the technology transfer agreement;

d) Give a notification to the transferee and implement appropriate measures upon discovery of any technical difficulties which may result in the transferred technology fails to satisfy requirements specified in the agreement;

dd) Apply for permit to transfer technology which is restricted from transferring from Vietnam to foreign countries, unless otherwise agreed upon by the parties;

e) Fulfill financial obligations and other obligations as regulated by law.

Article 26. Rights and obligations of the transferee

1. The transferee has the following rights:

a) Request the transferor to strictly comply with provisions of the technology transfer agreement;

b) Request regulatory authorities to protect rights and legal interests related to the transferred technology;

c) Hire an organization or individual to make technology transfer as regulated by law;

d) Request the transferor to implement corrective measures and make compensation for damage in case the transferor fails to fulfill its obligations specified in the technology transfer agreement, unless otherwise agreed;

dd) Have other rights as defined by law.

2. The transferee must discharge the following obligations:

a) Comply with provisions specified in the technology transfer agreement; make compensation for damage caused to the transferor and/or the third party due to the transferee’s breach of agreement;

b) Keep secret of technology-related information and other information in course of negotiation, conclusion and performance of the technology transfer agreement;

c) Apply for permit to transfer technology which is restricted from transferring from a foreign country to Vietnam, unless otherwise agreed upon by the parties;

d) Fulfill financial obligations and other obligations as regulated by law.

Article 27. Price for technology transfer and payment method

1. The price for transferring technology shall be subject to agreement between the parties.

2. The payment may be made by adopting any of the following methods:

a) One-off or multiple payments in cash or by goods;

b) Transfer of technology value as capital contribution to the investment project or enterprise under regulations of law;

c) Payment by percentage (%) of the net selling price;

d) Payment by percentage (%) of the net revenue;

dd) Payment by percentage (%) of the earnings before income taxes of the transferee;

e) Other payment method as agreed upon by the parties.

3. The price of transferred technology must be audited and applied in accordance with regulations of the Law on taxation and prices in the following cases:

a) Technology is transferred between the parties among which one or both parties have state funding;

v) Technology is transferred between the parties having parent company-subsidiary company relationship;

c) Technology is transferred between the parties having association relationship as prescribed by the law on taxation.

4. The Government shall promulgate detailed regulations on this Article.

Article 28. Transfer of technology restricted from transferring

1. An organization or individual that wants to transfer any of the technologies restricted from transferring as prescribed in Article 10 herein must apply for a technology transfer permit.

2. The issuance of technology transfer permit must comply with the following order:

a) Giving approval for technology transfer.

The transfer of technologies applied to investment projects which have been appraised or given opinions in the phase of issuing investment policies or investment decisions is exempted from approval for technology transfer;

b) Issuing technology transfer permit.

3. Transferees of technologies which are transferred from foreign countries to Vietnam or transferred domestically and transferors of technologies which are transferred from Vietnam to foreign countries must prepare annual reports on their performance of technology transfer agreements under regulations by the Ministry of Science and Technology.

Article 29. Application and procedures for approval for technology transfer

1. An application for an approval for technology transfer includes:

a) The application form for an approval for technology transfer;

b) Proof of legal status of the applicant;

c) Written explanation for technology to be transferred;

d) Written explanation for conditions for applying transferred technology in accordance with regulations of law;

dd) written explanation for the consistency of transferred technology with laws on technical standards and regulations.

2. The organization or individual that wants to make transfer of technology restricted from transferring shall send an application for approval for technology transfer to the Ministry of Science and Technology.

3. Within 03 working days from the receipt of application, the Ministry of Science and Technology shall consider and request the applicant to supplement the application in accordance with regulations.

4. Within 30 days from the receipt of sufficient application, the Ministry of Science and Technology shall take charge of and cooperate with relevant ministries to give a written approval for technology transfer. If the application is refused, a written response which specifies reasons for refusal shall be given to the applicant.

5. Minister of Science and Technology is responsible for promulgating the templates of the application form for approval for technology transfer and explanation for technology.

Article 30. Application and procedures for issuance of technology transfer permit

1. An application for a technology transfer permit includes:

a) The application form for a technology transfer permit, which specifies the parties’ responsibility to ensure the compliance of contents of the technology transfer agreement with relevant laws;

b) Proof of legal status of the parties entering into the technology transfer agreement;

c) The original in Vietnamese or the certified copy of the technology transfer agreement. In case of unavailability of the technology transfer agreement in Vietnamese language, the notarized or certified translation into Vietnamese language shall be submitted;

d) The list of documents concerning technology, machinery, equipment (if any) enclosed with the technology transfer agreement;

dd) The certified copy of IP Rights Certificate for objects subject to IP Rights protection (if any);

e) Quality standards of products created by applying the transferred technology;

g) Explanation for conditions for using technology;

h) The written record of valuation of transferred technology in case the transferee uses state funding.

2. Upon the receipt of approval for technology transfer from the Ministry of Science and Technology, the parties shall conclude a technology transfer agreement.

3. Within 60 days from the conclusion of the technology transfer agreement, the party that is obliged to apply for a technology transfer permit shall send an application for a technology transfer permit to the Ministry of Science and Technology.

4. Within 05 working days from the receipt of application, the Ministry of Science and Technology shall consider and request the applicant to supplement the application in accordance with regulations.

Within 60 days from the receipt of the written request for supplementation of the application, the applicant must supplement required documents or submit an application for extension of deadline for supplementing documents. The extension given to supplement the application shall not exceed 60 days. Over this period, if the applicant fails to supplement required documents, the Ministry of Science and Technology shall give a written notification of refusal to issue the technology transfer permit and return the application as requested.

5. Within 15 working days from the receipt of sufficient application, the Ministry of Science and Technology shall process the application and grant a technology transfer permit to the applicant. If the application is refused, a written response which specifies reasons thereof shall be given.

6. In case of change in contents of a technology transfer permit, the applicant must carry out procedures for a new permit.

7. Minister of Science and Technology is responsible for promulgating the template of the application form for a technology transfer permit and the technology transfer permit template.

Article 31. Registration of technology transfer

1. Technology transfer agreement and part of technology transfer laid down in Clause 2 Article 5 herein must be registered with science and technology authorities in the following cases, excluding the transfer of technologies restricted from transferring which have been granted technology transfer permit:

a) Transfer of technology from a foreign country to Vietnam;

b) Transfer of technology from Vietnam to a foreign country;

c) Domestic technology transfer with use of state funding or state budget, excluding cases where Certificate of registration of science and technology task outcomes is available.

2. The Government encourages organizations and individuals to carry out the registration of technology transfer agreement in cases other than those prescribed in Clause 1 of this Article.

3. An application for registration of technology transfer includes:

a) The application form for registration of technology transfer, which specifies the parties’ responsibility to ensure the compliance of contents of the technology transfer agreement with relevant laws;

b) The original or the certified copy of the technology transfer agreement which includes all of contents prescribed in Article 23 herein. In case of unavailability of an agreement in Vietnamese language, the notarized or certified translation of the technology transfer agreement into Vietnamese language shall be submitted.

4. Within 90 days from the conclusion of the technology transfer agreement, the party that is obliged to apply for registration of technology transfer shall send an application for Certificate of registration of technology transfer to the science and technology authority.

5. Within 05 working days from the receipt of sufficient application, the science and technology authority shall process the application and grant a Certificate of registration of technology transfer to the applicant. If an application is refused, a written response which specifies reasons thereof shall be given to the applicant.

6. Science and technology authorities are entitled to refuse applications for Certificate of registration of technology transfer in the following cases:

a) A technology transfer agreement which is made for transfer of technology restricted from transferring;

b) An agreement which does not specify transferable technology or technology transfer contents;

c) An agreement whose contents are in contravention to regulations of this law.

7. The Government shall promulgate detailed regulations on this Article.

Article 32. Validity of technology transfer permit/ Certificate of registration of technology transfer

1. Technology transfer permit/ Certificate of registration of technology transfer shall become effective as from the issued date.

2. Issuing authorities shall have the power to nullify the issued technology transfer permit/ Certificate of registration of technology transfer in the following cases:

a) Failing to comply with provisions in the technology transfer permit or Certificate of registration of technology transfer;

b) Forging the application for the technology transfer permit or Certificate of registration of technology transfer;

c) At the request of a regulatory authority in case the holder commits violations against regulations of relevant laws.

3. If an organization or individual has been granted the Certificate of registration of technology transfer and enjoyed supports or incentives under regulations of law but such Certificate is nullified, the Certificate holder is responsible for returning received supports or incentives to the Government in accordance with the Government's regulations.

Article 33. Extension and revisions to technology transfer

1. If the parties reach an agreement on extension or revisions to the technology transfer of which Certificate of registration has been granted, the parties must submit the application prescribed in Clause 2 of this Article to the issuing authority of Certificate of registration of technology transfer for Certificate of registration of extension or revisions to the technology transfer under regulations of law.

2. An application for extension or revisions to technology transfer includes:

a) The application form for extension or revisions to technology transfer;

b) The original in Vietnamese language or the certified copy of the written agreement on extension or revisions. In case of unavailability of an agreement in Vietnamese language, the notarized or certified translation of such agreement into Vietnamese language shall be submitted.

3. Procedures for extension or revisions to technology transfer shall comply with regulations in Clauses 4, 5 and 6 Article 31 of this Law.

4. Minister of Science and Technology shall assume responsibility to promulgate the template of the application form for extension or revisions to technology transfer and the template of Certificate of registration of extension or revisions to technology transfer.

Article 34. Responsibility to keep secret in the course of issuing technology transfer permit or Certificate of registration of technology transfer

Authorities and/or individuals responsible for issuing the technology transfer permit or Certificate of registration of technology transfer shall assume responsibility to keep secret of application-related information.