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Modele de document et de lettre : Contrat de transfert de licence de progiciel

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Software licensing Agreement

This contract made this [JOUR/MOIS SIGNATURE DU CONTRAT] day of [ANNEE SIGNATURE DU CONTRAT], by and between [NOM DE LA SOCIETE], [name of company] a Chinese enterprise legal person duly organized and registered under the laws of the People's Republic of China on behalf of [LIEU ETABLISSEMENT], a Chinese entity duly organized and registered under the laws of the People's Republic of China (both of the foregoing Parties are hereinafter collectively referred to as “the Buyer”, and [PROFESSION VENDEUR],
a corporation organized and existing under the laws of [LIEU ETABLISSEMENT], [name of country] hereinafter referred to as “the Seller” as follows:
Now therefore, in consideration of the premises and the mutual covenants contained herein, the Parties hereto agree as follows:
Article 1 - Preamble
The Seller has provided the Buyer with the necessary documentation in connection with the software.
Therefore, the Buyer shall precise and determine if the specifications of the said software confer with its expectations.
Over the years, the Seller has acquired and perfected expertise in the development of software.
Thereof, the Buyer has examined the documentation provided to it and accepts the terms and conditions hereafter. It shall be responsible for the gap between its real needs and the specifications of the said software.
Any use of said software, owned by is bounded by the articles of the Agreement. Any other use shall be considered as fraudulent.
Article 2 - Definitions
The following terms shall have the following meanings in this Contract:
a)                         Software: see Appendix [NUMERO D' ANNEXE];
b)                         Use: see Appendix [NUMERO D' ANNEXE];
c )                        Installation: see Appendix [NUMERO D' ANNEXE];
d)                         Working order: see Appendix [NUMERO D' ANNEXE];
e)                         …
Article 3 - Object
By this Agreement, the Seller grants to the Buyer a software licensing Agreement. The Seller grants to the Buyer a non-exclusive and non-transferable right to use the software and relevant documentation. The software shall remain the ownership of the Seller.
Article 4 - Use Right Span
The Seller grants to the Buyer a personal, non-exclusive and non-transferable right to use the said software. The Buyer shall not disclose any information communicated to it directly or indirectly and for five years thereafter, neither shall it sub-license the software to a third Party either free of charge nor with financial consideration.
The Buyer shall not duplicate the said software except for the sole purpose of saving and filing the original copy. The Buyer shall use appropriately the said software in accordance with the Agreement and its provisions and materials, documentation provided to Buyer. The Buyer shall not use, sell and commission the sale of the software or any products that may compete with it. Furthermore, the Buyer shall not adapt, nor modify or merge, even partially the said software.
Article 5 - Term
This Agreement is made for a term of three years. It shall take effect on [DATE EFFET CONTRAT] and will end on [DATE FIN CONTRAT].
This contract will be extended by tacit Agreement from year to year at the end of the initial three (3) years period or at the end of any one of the one-year extension periods by giving six months notice to the other Party by registered letter, return receipt requested.
The Parties to the present Agreement agree to meet eight months prior to the expiration of the present contract, or as the case may be, eight months prior to the annual extensions, if any, in order to establish by mutual Agreement the minimum purchase requirements of the products to be applicable for each of the three years periods for which the present contract shall be extended, if any.
Article 6 - Delivery of the System
The items purchased by the Buyer shall be delivered C.I.F. in accordance with incoterms 1990. Therefore, the risk of loss for the items purchased by the Buyer shall be borne by the Seller until the items are delivered to the export carrier. After delivery of the items purchased by the Buyer to the export carrier, the title and risk of loss for the items purchased by the Buyer shall pass to the Buyer.
Article 7 - Royalty
In consideration for the license granted by the Seller hereunder, the Buyer shall pay the Seller a royalty of [MONTANT DU FORFAIT] USD (VAT included).
The Royalty shall be payable in the following manner:
        20 % of the total price upon signature of the Agreement.
        30 % of the total price [NBRE DE JOURS A COMPTER SIGNATURE] days thereafter signature of the Agreement.
        50 % of the total price when the performance is being completed.
Article 8 - Payments
The Royalty mentioned above shall be payable by SWIFT bank transfer, Banker’s cheque or any other means of payment that ensures the transfer of funds to the account of the Seller on the very day of the banking order or the remittance of the means of payment.
Article 9 - Testing of the System
The Seller shall provide a testing of the system during one month.
During the course of the testing the Buyer shall check the conformity of the said software with the documentation and materials provided to the Buyer. If the testing is not successful within this period, The Agreement shall be cancelled. This cancellation shall not give right to any indemnity to the Buyer.
Article 10 - Penalty
The Seller shall pay the Buyer liquidated damages at the rate of 5 000 euros per week of delay.
Article 11 - Maintenance
The Seller shall not offer to the Buyer a maintenance contract.
Therefore the seller shall offer to the Buyer the opportunity to enter into an extended maintenance contract with respect to the system.
Article 12 - Training
The use of the said software gives rights to an appropriate training to the Buyer’s personal on site.
Article 13 - Confidentiality
The Buyer shall not disclose any information communicated to it by the Seller during the course of the Agreement and for the five years thereafter.
The Buyer shall ensure that its employees, suppliers and subcontractors comply with the above disclosure provision.
The provision does not apply to:
a)                         Information already known to Buyer, as been shown by written records, at the time when the Agreement was signed, and which was not disclosed by the Buyer.
b)                         Information already in the public domain. Or which becomes publicly available during the course of the Agreement otherwise than through the fault of the Seller.
c)                         Information disclosed to the Seller by a third Party not bound by a non disclosure Agreement with the Buyer.
Article 14 - Entire Agreement
The Agreement (including all exhibits attached hereto which herein incorporated by this reference) contains the entire Agreement between the Parties with respect to the subject matter hereof and supersedes all previous negotiations, Agreements arrangements and understanding with respect to the subject matter hereof.
Article 15 - Nature of Obligations
The Seller shall proceed with utmost diligence and care in carrying out all of the services specified as in these obligations in the contract.
Article 16 - Force Majeure
Performance of all or part of the contractual obligations incumbent on the Parties under the terms herein shall be deferred in the event of force majeure.
Force majeure means any event that the Parties could not expect or foresee, that is entirely beyond the control of the defaulting Party, and that prevents the obligations of the Agreement being performed as originally intended.
The Parties agree that the following in particular shall be considered cases of force majeure: war riots, fire, strike, inability to procure, and general transportation stoppage.
In the event of force majeure, as defined above, the invocating Party shall give notice to the other Party by registered letter with bill of receipt, or by telex or facsimile transmission within eight days of the event.
In the event of deferral, the term of the Agreement shall be extended accordingly.
Article 17 - Cancellation
In the event the obligations of one of the Parties don't comply with the articles referred to hereunder, the contract shall be, if required by the creditor of the said obligations, cancelled, by giving notice of such termination to the debtor of the obligations within 1 (one) week. Such notice shall serve to discharge the Parties hereto from their mutual obligations and responsibilities under this Agreement with respect to such products.
Cancellation of the contract shall be effective 10 (ten) days within the creditor's inefficient notice.
Article 18 - Amendment
Neither the Agreement or any of its provisions may be amended, changed, modified or waived except in writing duly executed by the Party to be bound thereby.
Article 19 - Applicable Law and Authentic Text
The contract is governed by the law in force in the country where the Seller has its head office. The [LANGUEINICONT] [language] text of this contract is authentic.
Article 20 - Competence
The competent court of the place where the Seller has his registered office shall have jurisdiction in any action arising out of this contract. Provided always that if the Seller is the plaintiff, he may bring his action before the competent court of the place the Buyer has its registered office.

Agreement made in [VILLE SIGNATURE DU CONTRAT], this [JOUR/MOIS SIGNATURE DU CONTRAT] day of [ANNEE SIGNATURE DU CONTRAT], in 6 (six) original copies.

The Seller                                        The Buyer
[NOM VENDEUR]                                [NOM ACHETEUR]


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