The scale, production capacity, technological progress and economic applicability of refineries and chemical plants depend on the selection of their process routes. In petrochemical project construction, once the process route of the whole plant is determined, the process technology adopted by each device can be selected. With the development and maturity of petrochemical technology in China, some refineries and chemical plants can adopt domestic technology. However, compared with developed countries, the technology of some key factories is still immature, and there is still a lot of room for improvement from the international advanced level. These advanced technologies are often in the hands of internationally renowned professional technology companies, that is, patentees. In order to build a world-class petrochemical plant, it is necessary to obtain technology license from the patentee, that is, patent implementation license. Therefore, the introduction of patented technology procurement is a very important work.
The procurement of imported patented technology in petrochemical projects usually refers to the procurement of patent implementation license, which mainly includes the licensing right of patented technology such as device process package, process package design, on-site service and technical training. Obtain the right to use patented technology through procurement, carry out basic design and detailed design on the basis of the obtained process package design, and obtain on-site service and technical training of the device. Like physical procurement, the procurement of imported patented technology should also be carried out, which usually involves the qualification examination of the patentee, the signing of technical annexes, the issuance of inquiry, the receipt of quotations, the technical, commercial and price evaluation, the clarification of terms and quotations, the determination of the patentee, the negotiation and signing of contracts, etc. Among them, the contract text is the content of the agreement reached between the licensor (referring to the successful patentee) and the licensee (referring to the patented technology purchaser) on patent license and other related matters, the embodiment of the work content of each procurement link, and the legal basis for both parties to fulfill their obligations and realize the contract purpose. Therefore, contract negotiation is a key link in the procurement of imported patented technology.
This paper first summarizes the main clauses of the patent technology import contract text, then analyzes the clause deviation of the patentee and puts forward the negotiation countermeasures, and finally forms the specific negotiation strategies and implementation methods.
First, the contents of the terms of the patent technology import contract
The text of patent technology contract consists of three parts: main clauses, business annexes and technical annexes. Among them, the technical annex is a technical agreement reached by licensor and licensee on patented technology through detailed consultation, and it is the basis for the buyer's inquiry, the patentee's quotation and the signing of the contract by both parties. It mainly includes process description, design basis, design principles, specifications and standards, work scope of license issuing agency, design and technical data, instrument control system, performance guarantee, on-site service and training scope of license issuing agency. The main contents of the main terms and commercial annexes are as follows:
1. Contract scope and authorization agreement
The contract scope includes patent license, process design package, technical service, technical training and licensor's commitment to quality assurance of its proprietary and/or compulsory recommended equipment and/or catalyst. License agreement means that the patent license granted by licensor to licensee is non-exclusive, irrevocable and permanent.
2. Technical services and technical training
The license issuing agency shall design according to the requirements of the technical annex, be responsible for reviewing the technical data in the design process, assist the license issuing agency in reviewing the basic design and detailed design, and send process experts to provide on-site technical services and technical training. Be liable for breach of contract for delayed delivery of process packages and delayed dispatch of technical service personnel.
keep a secret
Within 10 years after the contract comes into effect, Licensee shall undertake the obligation of confidentiality for the information it obtains from Licensor, except in special circumstances.
4. Financial and tax agreements
Corresponding to the scope of the contract, the contract price consists of four parts: patent license fee, process package fee, technical service fee and training fee, in which the process package fee includes data review fee, and the training fee includes domestic training fee and foreign training fee. Patent license fee, process package fee and training fee are lump sum prices, and technical service fee is labor daily rate, and the actual expenses are settled according to the facts.
Payment node, proportion and method: the patent license fee and the process package fee shall be paid in four installments according to 10%, 50%, 30% and 10% of the total fee respectively. The first payment is an advance payment, which will be paid after the licensee receives the required payment documents after the contract comes into effect; The second payment shall be paid after Licensor has submitted the process package materials; The third payment shall be made after the basic design and detailed design review are completed; The last payment shall be paid after the acceptance of the contract equipment. The technical service fee is paid every two months according to the actual man-days The technical training fee will be paid in one lump sum after the training. Payment will be made by wire transfer.
Licensor and Licensee shall bear the relevant taxes and fees levied by the Government of China. The withholding income tax levied by the government of China on Licensor shall be withheld and remitted by Licensee at each payment.
5. Performance assignment
The license issuing agency guarantees the novelty of technology and the accuracy of technical documents provided by the license issuing agency. On the premise of meeting the performance assessment conditions, conduct performance assessment on the completed device, and issue certificates after passing; If the assessment is unqualified, rectification or compensation shall be required as appropriate. In extreme cases, if the startup of the device is unsuccessful or the performance value of the device fails to reach the limit value specified in the technical annex due to the licensor, rectification or compensation shall be made. If the catalyst life test does not meet the requirements, the licensee shall be liable for breach of contract.
Second, the patent contract text deviation analysis and countermeasures
Most patent companies are internationally renowned technology companies, which attach great importance to the signing of the contract text, have strict procedures for reviewing and signing the contract terms, and have a strong sense of risk prevention, and often deviate from the buyer's contract text. The specific response ideas are as follows:
1. Contract scope and authorization agreement
With regard to the scope of the contract, the patentee proposes to reserve the quality responsibility for the licensor's proprietary equipment and catalyst, but excludes its obligation to recommend the equipment by force. Considering that it is difficult to purchase mandatory recommended equipment, if there is any problem with the quality of arrival, there will be difficulties in site installation and coordination, which will affect the construction progress. The license issuing agency shall be responsible for the quality of the compulsory recommended equipment. As a concession, the wording can be appropriately adjusted to explain in the contract how Licensor participates in the product quality control and inspection of the recommended manufacturer.
With regard to the licensing agreement, some patentees narrow the scope of licensing and exclude future patents; Some patent companies shorten the authorization period, such as replacing the qualifier "forever" of the information that the licensor should grant to the licensee and the patent right currently developed by the licensor with "until the equipment stops running"; Some patentees suggest that the licensee should give feedback to the licensor, its related parties and other licensees when making improvements. Based on the principle of equal rights and obligations, both parties can enjoy technological improvement, but they should insist that the right to use patented technology is permanent. For the feedback of technical improvement, it should be clearly stipulated that the intellectual property rights of subsequent improved technical achievements belong to the licensee; At the same time, it should be clear whether the deadline for feedback is "before the deadline" or "before the expiration date of the contract", which should be specifically agreed according to the situation.
2. Technical services and technical training
For design subcontracting, if Licensor entrusts a third party to perform design and on-site service obligations, it shall obtain the consent of Licensee in advance. Regarding the delivery of the process package, some patentees suggested that the date of information release is the actual delivery date, which is different from the actual receipt date. Because the actual delivery date is the basis for considering whether the delivery of the process package is delayed, and it will involve the calculation of liquidated damages, the actual delivery date should be adhered to.
For door-to-door service, in order to facilitate the comparison, the patentee is required to consider that the holidays of door-to-door service are Christmas and Sunday when quoting, and the overtime rate is consistent with the normal working hours rate. The patentee may be prompted to adjust the service rate quotation according to this situation. Regarding training, it can be divided into two parts: domestic and foreign. ?
keep a secret
Patents often require a longer confidentiality period: 15, 20 years, and some even require permanent confidentiality. Since the validity period of the contract is 10 years after the contract comes into effect, the confidentiality period shall generally not exceed the validity period of the contract. If it is really necessary to exceed the validity period of the contract due to special circumstances, the reasons shall be clearly stated in the contract so as to go through the examination and approval procedures.
Some patent dealers do not accept confidentiality exceptions, such as: information not provided by the "other party" is not confidential information; For another example, a patentee suggested that the licensee should reach a confidentiality agreement with these third parties in advance when disclosing necessary information to the third parties in the project construction, and the confidentiality measures should comply with the terms of this contract. During the period of the licensee's confidentiality obligation, if the technology is made public for reasons other than the licensee's, the confidentiality obligation will be terminated. During the negotiation, the third party information that may be leaked may be listed through consultation with the patentee, and a confidentiality agreement may be reached with the third party in advance if necessary.
4. Finance and taxation
Payment method: the patentee requires payment by letter of credit. Because technology introduction is different from physical materials and there is no title certificate, it is not suitable to pay by letter of credit; In addition, the letter of credit payment method is not convenient to withhold and pay taxes and fees. Therefore, only telegraphic transfer is considered. Payment term: Most patent companies require that the payment term be within 30 days after the licensee receives the qualified payment documents. If the payment is not completed on time, it is required to pay deferred payment interest or stop work. Due to the complexity of the payment approval process and links, it is impossible to pay within 30 days, so try to persuade the patentee to accept the 45-day payment period. The advance payment guarantee is essentially a performance guarantee and a quality guarantee. In the procurement of patented technology, the buyer is actually in a weak position, and should pay attention to self-protection when signing the contract, and the guarantee provided by the licensor is valid until the equipment is qualified. The adjustment of the validity period of the technical service fee proposed by the patentee can be set as 42 months after the acceptance of the device or the entry into force of the contract in combination with the characteristics of the project construction.
Taxes and fees: The withholding and remitting income tax rate levied by China Municipal Government is 65,438+00%. The patentee proposes that if the tax rate is adjusted, both parties should modify the contract price to ensure that the licensor will still receive the same amount of after-tax contract money paid by the licensee. Since the rate adjustment is decided by the government, whether it is increased or decreased is the risk of both parties, so there is no specific tax rate in the text. As for the business tax, the patentee suggests that the contract amount does not include 5% business tax. If there is any additional levy during the execution of the contract, the contract shall be revised to ensure that Licensor receives the original contract amount. The buyer agrees to the above requirements, but in order to avoid the tax clause in the contract, this content is not reflected in the contract text, and a memorandum agreement can be considered separately.
5. Performance assignment
Regarding the preconditions for examination, some patent companies have added "the contract device should be built according to the process design package and operated according to the guidance of the licensor" as the examination conditions. You can consider accepting it. Regarding the influence of raw material changes on performance appraisal, some patent companies have deleted the time limit for providing the latest appraisal indicators within two weeks after receiving the new material list; At the same time, if Licensor proposes that recalculation will involve a lot of work, both parties need to reach an agreement on the cost in advance. If the raw materials are inconsistent with the design basis and cannot be eliminated, the patentee shall be required to adjust the guarantee value in consideration of the construction progress requirements, and the licensor shall improve the latest assessment indicators within the time limit required by the licensee. If the initial performance appraisal fails due to the reasons of Licensor, Licensor has only one opportunity to repeat the performance appraisal, and repeated performance appraisal will not be accepted. With regard to the compensation clause, some patentees suggested deleting it in part or in whole. Considering the logic and integrity of the contract, in order to avoid risks, in extreme cases such as unsuccessful start-up of the device or failure of the performance value of the device to reach the limit value specified in the technical annex due to the licensor, it is necessary to implement rectification or compensation. With regard to the exemption of performance guarantee liability, licensor's liability can be exempted if compensation is paid; However, some patentees have suggested that if the performance evaluation cannot be carried out within a period of time after the contract comes into effect due to reasons other than the licensor, it will be regarded as automatic acceptance of the equipment, which is unacceptable. For the description of assessment indicators, it is intuitive to list them in the form of tables, which is convenient for contract execution.
The patentee made many deviations from the applicable law of the contract, and confirmed with the legal personnel that China law is the best and English law is acceptable. Regarding the place of arbitration, Singapore and Hong Kong are acceptable places where Chinese and Western cultures are relatively integrated.
As for force majeure, wars, government actions and strikes that do not prevent entry into the project implementation site cannot constitute force majeure.
Most American patent companies have proposed to increase export control clauses. In order to avoid risks, the buyer can draft this content through legal personnel and ask the patent company to confirm whether to accept it or not to reach mutual understanding.
Third, negotiation strategies and implementation methods
Communicate with the patentee before the negotiation and make a detailed negotiation plan. Organize technical, legal, financial and other related personnel to form a negotiating team to determine the main talk. The negotiation process includes pre-negotiation preparation, negotiation implementation and post-negotiation summary.
The preparation work before the negotiation is very important, which mainly includes analyzing and studying the deviation of the patentee, formulating coping strategies, familiarizing with technical annexes, communicating with the patentee, preparing English and meeting materials, etc. Because the terms of the contract are closely linked, one move will affect the whole body. In order to improve the efficiency of negotiation, we can bring up the entanglement of the other side and clarify it at the beginning of the negotiation, which can solve a class of problems. This requires careful analysis of the deviation proposed by the patentee before the negotiation, so as to find out the deviation in understanding between the two sides. At the beginning of the negotiation, we will focus on these issues, make it clear, clarify our thinking, and then modify the language in detail so as to quickly determine the relevant content in the text. For example, through deviation analysis, it can be seen that the patentee has a deviation in understanding the requirements and ideas of the licensee's performance appraisal. During the negotiation, the whole evaluation process will be introduced in detail and the evaluation ideas will be put forward, and the two sides will soon reach an understanding and form a text. For another example, if we analyze the deviation process of the patent company, we can find that some legal personnel of the patent company are in a dominant position in the preparation of the contract text, while some financial personnel of the patent company are in a dominant position in the preparation of the text. Therefore, it is necessary to coordinate the corresponding legal or financial personnel to give priority attention and adopt a key breakthrough strategy in the preparation and negotiation.
In the process of negotiation, we can achieve better negotiation results by adopting the way of unifying our understanding first and then sorting out the words. Revise the contract text while negotiating, and mark the content with different colors to facilitate subsequent verification. Form meeting minutes during negotiation.
Summarize the daily negotiations, organize personnel to analyze specific problems and propose solutions, and then start the next day's negotiations. After the negotiation with each company is completed, summarize the negotiation situation, prepare the negotiation summary in time and sort out the contract terms. The negotiation terms can be divided into five categories: agreed terms, failure to reach an agreement, confirmation by the patentee, confirmation by the buyer, and no need to reach an agreement this time. The experience accumulated in the last negotiation can be used in the next negotiation, and the problems of the last negotiation can be avoided in the next negotiation.
Four. conclusion
The procurement of imported patent technology for petrochemical projects involves a large contract amount and high procurement risk, in which the negotiation of contract terms is the key and difficult point, but the task can be successfully completed as long as it is carefully planned, carefully analyzed, carefully studied and used for reference, controlled and summarized.
References:
Ma Xiaojia. Risk and risk control in international technology trade. Excellent Paper on Material Procurement: 20/200810/China Petroleum Materials Company. Beijing: Petroleum Industry Press, 20 1 1 May.
[2] Zhao. International technology trade. Beijing: Tsinghua University Publishing House, August 2007.
[3] Wang Hui. Strategies for avoiding risks by signing patent licensing contracts. Proceedings of the first scientific and technological seminar of Shenhua, August 2005.
? [4] Wang Qingjiang. How to draft the terms of the technology import contract? World market. 2002, (5).