Transfer of technology in construction contract
(Правовое руководство по составлению строительных контрактов)
The purchaser will require a knowledge of the technological processes necessary for production by the works, and require the technical information and skills necessary for its operation and maintenance. The communication to the purchaser of this knowledge, information and skills is often referred to as the transfer of technology (paragraph 1).
Differing contractual arrangements can be adopted for the transfer of technology and the performance of the other obligations necessary to construct the works (paragraph 2). The transfer of technology itself may occur in different ways, for example, through the licensing of industrial property (paragraph 3), through the creation of a joint venture between the parties (paragraph 4) or the supply of confidential know-how (paragraph 5). The information and skills necessary for the operation and maintenance of the works may be communicated through the training of the purchaser's personnel or through documentation (paragraph 6).
The manner in which the technology is to be described may depend on the contractual arrangements which are adopted (paragraph 11). When deciding whether various restrictions are to be imposed on the purchaser's use of the technology, the parties should take into account mandatory legislation which may regulate such restrictions and should attempt to negotiate provisions which are balanced and which impose only those restrictions necessary to protect the legitimate interests of each party (paragraphs 12 to 16).
The guarantees to be given by the contractor may depend on the contractual arrangements adopted. Under certain arrangements a separate guarantee in respect of the technology may be unnecessary, while under other arrangements a qualified guarantee may be given that the use of the technology will result in the operation of the works in accordance with specified parameters provided certain conditions are satisfied (paragraph 17). The price for technology which is transferred is usually determined as a lump sum or in the form of royalties (paragraphs 18 to 20).
The parties may wish to include in the contract an undertaking by the contractor that the use of the technology transferred will not result in claims by a third person whose industrial property rights may be infringed by the use (paragraph 21). They may wish to specify the procedure to be followed by them and their rights and obligations in the event of a claim by a third person (paragraph 22).
The contractor will wish to obligate the purchaser to maintain confidentiality in respect of know-how supplied. The contract should clearly define the extent to which confidentiality is imposed, and provide for situations in which the purchaser may reasonably need to disclose the know-how to third persons (paragraphs 23 and 24). In drafting contract provisions on the training of the purchaser's personnel, issues to be dealt with may include the categories and numbers of trainees, their qualifications, the procedure for selecting the trainees, the places at which they are to receive training, and the duration of the training (paragraphs 27 to 29).
The training obligations of the contractor should be clearly defined. The contractor may be obligated to engage trainers with qualifications and experience appropriate for the training (paragraph 30). The contract should also fix the payment conditions relating to the training (paragraph 31).
When technical information and skills are conveyed through documentation, the contract may address such issues as the description of the documents to be supplied, demonstrations needed to explain the documents, and the times at which the documents are to be supplied (paragraphs 33 and 34).