-by and between-
[PARTY A NAME]
[PARTY B NAME]
TABLE OF CONTENT
- [OPERATIVE CLAUSES]
- CONDITIONS PRECEDENT
- REPRESENTATIONS AND WARRANTIES
- BREACH OF CONTRACT
- FORCE MAJEURE
- SETTLEMENT OF DISPUTES
- APPLICABLE LAW
- MISCELLANEOUS PROVISIONS
SCHEDULE A DEFINITIONS
THIS CONTRACT(“Contract”)is made in [city and province],China on this day of ,200 by and between [Party A name],[Party A entity form] established and existing under the laws of China, with its legal address at [address] (hereinafter referred to as “Party A”), and [Party B name], [Party B entity form] organized and existing under the laws of [Party Bjurisdiction of incoporation] with its legal address at [address] (hereinafter referred to as “Party B”). Party A and Party B shall hereinafter be referred to individually as a “Party ” and collectively as the “Parties”.
本合同于 年 月 日由以下两方在［地点］签订：
PRELIMINARY STATEMENT 前 言
[add background information if appropriate]
After friendly consultations conducted in accordance with the principles of equality and mutual benefit, the Parties have agreed to [describe subject matter of the Contract] in accordance with Applicable laws and the provisions of this Contract.
Now the Parties Hereby Agree as follows:
- Definitions 定义
Unless the terms or context of this contract otherwise provide, all term used in this Contract shall have the meanings set out in Schedule A hereto.
- [OPERATIVE CLAUSES]
Conditions Precedent (if any)
Representations and Warranties[Add unilateral representations and warranties if appropriate]
- Representatins and Warranties
- Each party represents and warrants to the other Party tha ton the date hereof:
- it is [an independent legal person] duly organized, validly existing and in good standing under the laws of the place of its establishment;
- it has full authority to enter into this Contract and to perform its obligations hereunder;
- it has authorized its representative to sign this Contract and from and after the Effective Date the provisions of this Contract shall be legally binding upon it;
- its execution of this Contract and its performance of its obligations hereunder(i)will not violate any provision of its business license, articles of incorporation, articles of association or similar organizational documens; (ii) will not violate any Applicable Law or any governmental authorization or approval; and (iii) will not violate or result in a default under any contract to which it is a party or to which it is subject;
- no lawsuit, arbitration or other legal or governmental proceeding is pending or, to its knowledge, threatened against it that would affect its ability to perform its obligations under this Contract; and
- it has disclosed to the other Party all documents issued by and governmental department that may have a material adverse effect on its ability to full perform its obligations under this Contract, and the documents previously provided by it to the other Party do not contain any misstatements or omissions of material facts.
2.3 consequences of lnaccuracy in Representations
if any of the above representations and warranties of a Party are not accurate in all material respects on the date hereof, then such Party shall be in breach of this Contract.
[Add undertakings if appropriate]
Subject to the provisions of Article .2,the term of the Contract (“Term”) shall be [—] years, commencing on the Effective Date.
The Term shall expire automatically on the Expiration Date, unless extended for an additional term of [__] years through a written contract signed by the authorized representatives of the Parties at least [sixty (60)] days prior to the Expiration Date.
(a) This Contract shall terminate upon the expiration of the Term unless extended pursuant to Article .2 (Term).
(b) This Contract may be terminated at any time prior to expiration of the Term by the mutual written contract of the Parties.
(c) At any time prior to the expiration of the Term, a Party (“Notifying Party ”) may terminate this Contract through notice to the other Party in writing if:
- he other Party materially breaches this contract, and such breach is not cured within the Cure Period granted pursuant to Article .1(a) (Remedies for Breach of Contract); or
- the other Party becomes bankrupt, or is the subject of proceedings for liquidation or dissolution, or ceases to carry on business or becomes unable to pay its debts as they come due; or
- the conditions or consequences of Force Majeure (as hereinafter defined) which have a material adverse effect on the affected Party’s ability to perform continue for a period in excess of six (6) months and the Parties have been unable to find an equitable solution pursuant to Article .2(c) (Consequences of Force Majeure) hereof; or
- a fundamental provision of this Contract (without which one or both of the Parties would not have entered into the Contract) is declared or becomes invalid under Applicable Law.
- [insert other conditions triggering temination as appropriate]
2 Continuing Obligations
The provisions of Article (Termination), Article (Breach of contract) (but only with respect to claims arising prior to the termination hereof or with respect to other continuing obligations), Article (Confidentiality) and Article (Settlement of Disputes) shall survive the termination of this contract.
以下各条的条款在本合同终止后继续有效：第[ ]条（合同终止），第[ ]条（违约）（但其效力仅限于本合同终止前发生的违约事件以及违反其他持续义务的情形），第[ ]条（保密义务），以及第[ ]条（争议的解决）。
1 From time to time prior to and during the term of this Contract either Party (“disclosing Party ”) has disclosed or may disclose Confidential Information to the other Party (“Receiving Party ”). The receiving Party shall, during the term of this Contract and for [__] years thereafter:
本合同订立前以及在本合同期间，一方（“披露方”）曾经或者可能不时向对方（“受方”）披露该方的保密资料。在本合同期限内以及随后[ ]（ ）年间，受方必须：
- maintain the confidentiality of Confidential Information;
- not to use Confidential Information for any purpose other than those specifically set out in this Contract; and
- not disclose any such Confidential Information to any person or entity, except to its employees or employees of its Affiliates,its agents, attorneys, accountants and other advisors who need to know such information to perform their responsibilities and who have signed written confidentiality contracts containing terms at least as stringent as the terms provided in this Article .
2 The provisions of Article .1 above shall not apply to information that:
- can be shown to be known by the receiving Party by written records made prior to disclosure by the disclosing Party;
- is or becomes public knowledge otherwise than through the receiving Party’s breach of this Contract; or
- was obtained by the receiving Party from a third party having no obligation of confidentiality with respect to such information.
3 Each party shall formulate rules and regulations to inform its directors, senior staff, and other employees, and those of their Affiliates of the confidentiality obligation set forth in this Articles .
4 Upon the expiration or termination of this Contract, [and in any event upon the disclosing Party’s request at any time], the receiving Party shall (i) return to the other Party, or at the disclosing Party’s direction destroy, all materials (including any copies thereof) embodying the other Party’s Confidential Information and (ii) certify in writing to the other Party, within ten days following the other Party’s request, that all of such materials have been returned or destroyed.
Breach of Contract违约
1 Remedies for Breach of Contract
Except as otherwise provided herein, if a Party (“breaching party”) fails to perform any of its material obligations under this Contact, then the other Party (“aggrieved party”) may at its option:
- give written notice to the breaching party describing the nature and scope of the breach and demand that the breaching party cure the breach at its cost within a reasonable time specified in the notice (“Cure Period”); and
- if the breaching party fails to cure the breach within the Cure period, then in addition to its other rights under Article .1(c)(i) (Termination) or Applicable Laws, the aggrieved party may claim direct and foreseeable damages arising from the breach.
2 Limitation on Liability责任限制
Notwithstanding any other provision of this Contract, neither Party shall be liable to the other Party for damages for loss of revenues or profits, loss of goodwill or any indirect or consequential damages in connection with the performance or non-performance of this Contract .The aggregate liability of a Party for all claims for any loss, damage or indemnity whatsoever resulting from such Party’s performance or non-performance of this Contract shall in no case exceed United States Dollars (US$ ) or the RMB equivalent thereof.
无论本合同其他条款有何规定，任何一方均不向对方承担因本合同的履行或不履行而造成的收入或利润丧失、商誉丧失或任何间接或附带性损失的赔偿责任。在任何情况下，一方因本合同的履行或不履行而造成的损失、损害或补偿索赔所承担的责任累计总额不得超过[ ]美元（US￥[ ]）或等值的人民币。
1 Definition of Force Majeure
“Force Majeure” shall mean all eents which are beyond the control of the Parties to this Contract, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by either of the Parties. Such events shall include earthquakes, typhoons, flood ,fire, war, strikes, riots, acts of governments, changes in law or the application thereof or any other instances which cannot be foreseens, prevented or controlled, including instances which are accepted as Force Majeure in general international commercial practice.
- Consequences of Force Majeure
- if an event of Force Majeure occurs, a Party’s contractual obligations affected by such an event under this Contract shall be suspended during the period of delay caused by the Force Majeure and shall be automatically extended, without penalty, for a period equal to such suspension.
- The Party claiming Force Majeure shall promptly inform the other Parties in writing and shall furnish within [fifteen (15)] days thereafter sufficient proof of the occurrence and duration of such Force Majeure. The Party claiming Force Majeure shall also use all reasonable endeavours to terminate the Force Majeure.
- In the event of Force Majeure, the Parties shall immediately consult with each other in order to find an equitable solution and shall use all reasonable endeavours to minimize the consequences of such Force Majeure.
Settlement of Disputes争议的解决
1 Friendly consultations
In the event of any dispute, controversy or claim (collectively, “dispute”) arising out of or relating to this Contract, or the breach, termination or invalidity hereof, the Parties shall attempt in the first instance to resolve such dispute through friendly consultations.
If any dispute is not resolved by friendly consultations within [sixty (60)] days after the date such consultations were first requested by a Party, then any Party may submit the dispute for arbitration in [Singapore] before the [Singapore International Arbitration Centre] in accordance with its rules of arbitration procedure, supplemented by the following:
- There shall be one (1) arbitrator appointed by the arbitration body.
- The arbitration proceedings shall be conducted in the English language.
- The arbitration award shall be final and binding on theParties, and the Parties agree to be bound thereby and to act accordingly.
- All costs of arbitration shall be borned by the Parties as determined by the arbitration tribunal..
- Continuing Rights and Obligations
When any dispute occurs and is the subject of friendly consultations or arbitration, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Contract, except in respect of those matters under dispute.
- Enforcement of Award
Judgment upon any arbitral award may be entered in any court having jurisdiction over the Party against which the award has been rendered, or application may be made to any such court for judicial acceptance of the award and an order of enforcement, as the case may be. In the event of judicial acceptance and an order of enforcement, each Party expressly waives all rights to object thereto, including any defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state.
- Injunctive Relief
Notwithstanding the foregoing, the Parties agree that each Party has the right to seek injunctive or other similar relief in any court of competent jurisdiction in respect of any claims of breach of confidentiality or IPR infringement.
The validity, interpretation and implementation of this Contract shall be governed by the laws of [the People’s Republic of China][another jurisdiction] (without regard to its rules governing conflict of laws).
1 Independent Contractor Relationship
The parties are only establishing an independent contractor relationship with each other by entering into this Contract. Nothing in this Contract shall be construed or implied as:
- establishing between the Parties hereto any partnership or any other form of relationship entailing joint liability;
- constituting either of the Parties hereto as the agent of the other Party (except with the other Party’s prior written consent); or
- authorizing either Party to incur any expenses or any other form of obligation on behalf of the other Party (except with the other Party’s prior written consent).
2 Binding Effect
This Contract is made for the benefit of the Parties hereto and their respective lawful successors and assignees and is legally binding on them.
This Contract shall not be changed verbally, but only by a written instrument signed by the Parties.
- No publicity
The existence of this Contract, as well as its content, shall be held in confidence by both Parties and only disclosed as may be agreed to by both Parties or as may be required to meet securities disclosure or export permit requirements. Neither Party shall make public statements or issue publicity or media releases with regard to this Contract or the relationship between the Parties without the prior written approval of the other Party.
- No Solicitation
Neither Party shall directly solicit for employment the other Party’s personnel who are engaged in the performance of this Contract, during the Term of this Contract and within one (1) year after the Expiration Date, without the prior written consent of the other Party.
Any notice or written communication provided for in this Contract by either Party to the other, including but not limited to any and all offers, writings, or notices to be given hereunder, shall be made in [language] by courier service delivered letter or by facsimile [or electronic mail] and confirmed by courier service delivered letter, promptly transmitted or addressed to the appropriate Party. The date of receipt of a notice or communication hereunder shall be the date of delivery confirmed by the courier service in the case of a courier service delivered letter and the next working day after dispatch in the case of a facsimile [or email]. All notices and communications shall be sent to the appropriate address set forth below, until the same is changed by notice given in writing to the other Party.
People’s Republic of China
Failure or delay on the part of any of the Parties hereto to exercise a right under this Contract shall not operate as a waiver thereof, nor shall any single or partial exercise of such a right preclude any other future exercise thereof.
This Contract may not be assigned in whole or in part by the Party without the prior written consent of the other Party hereto.
The invalidity of any provision of this Contract shall not affect the validity of any other provision of this Contract.
- Entire Agreement
This Contract and the Schedules and annexes hereto constitute the entire agreement between the Parties hereto with respect to the subject matter of this Contract and supersede all prior discussions, negotiations and agreements between them.
- Schedules and Annexes
The Schedules and Annexes hereto are made an integral part of this Contract and are equally binding with the main body of the Contract. In the event of any conflict between the terms and provisions of the main body of the Contract and the Schedules or Annexes, the terms and provisions of the main body of this Contract shall prevail.
This Contract is executed in the Chinese language in ( ) originals and in the English language in ( ) originals. Both language versions shall be equally authentic.
本合同中文正本[ ]份，英文正本[ ]份。
IN WITNESS WHEREOF, each of parties hereto has caused this Contract to be executed by its duly authorized representative on the date first set forth above.
[Party A name] [Party B name]
Name: [Party A rep name] Name: [Party B rep name]
Title: [Party A rep position] Title: [Party B rep position]
Nationality:[Chinese] Nationality: [Party B rep nationality]
姓名： [甲方代表姓名] 姓名： [乙方代表姓名]
职务： [甲方代表职务] 职务： [乙方代表职务]
国籍： 中国 国籍： [乙方代表国籍]
- Unless the terms or context of this Contract otherwise provide, the following terms shall have the meanings set out below:
“Affiliate” means any entity which, directly or indirectly, is controlled by , under common control with, or in control of, a Party; the term “control” being used in the sense of power to elect or appoint a majority of directors or to direct the management of a company.
“Applicable Laws” mean the laws, regulations, rules, and legislative, executive or judicial notices, orders, decisions or other documents binding on either Party or the subject matter of this Contract.
“Business Day” means, in respect of Party A and any action to be taken by Party B in the PRC, any day on which the companies in the PRC are generally open for business in the PRC, including a Saturday or Sunday which the PRC government temporarily declares to be a working day (“Working Rest Day”), but excluding a statutory holiday, or a Saturday or Sunday other than a Working Rest Day; in respect of any action to be taken by Party B in [Party B Home Country], any day on which the companies in [Party B Home Country] are generally open for business in [Party B Home Country].
“China” and “PRC” mean the People’s Republic of China, [but for purposes of this Contract do not include the special administrative regions of Hong Kong and Macau and the region of Taiwan] [“中国”指中华人民共和国，但在本合同中，不包括香港和澳门特别行政区以及中国的台湾地区]
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by any Party which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be undertstood by the Parties, exercising reasonable business judgement, to be confidential.
“Effective Date” means the [date of this Contract first shown above][the date on which each of the conditions precedent in Article , have been satisfied or waived in accordance with the terms thereof].
“Expiration Date” means the day on which the initial Term or any extended Term expires in accordance with the provisions of Articles .1 and .2.
“Intellectual Property Right” or “IPR” means any and all rights in any invention, disvcovery, improvement, utility, model, copyrightable work, industrial design or mask work, algorithm, data structure, trade secrets or know-how, Confidential Information, or any idea having commercial value. IPR shall include any trademark, trade dress, trade name, domain name, or other marks that serve to indetify and distinguish goods or services as coming from, or falling under the control of, a single source. IPR shall include all rights of whatsoever nature in computer software and data, all intangible rights or privileges of a nature similar to any of the foregoing in every case in any part of te world and whether or not registered, and all rights in any applications and granted registrations for any of the foregoing rights;
“Renminbi” or “RMB” means the lawful currency of China.
“Term” means the initial or extended Contract term set out in Articles .1 or .2, as appropriate.
“United States Dollars” or “US$” means the lawful currency of the United States of America.
[Insert other definitions as appropriate]
- References to Schedules, Annexes, Articles and Sections are references to schedules, annexes, articles and sections of this Contract.
- References in this Contract to laws, rules or regulations or to contracts, contracts or other documents, shall mean the same as amended from time, and references to government ministries, bureaux, departments, commissions, agencies, etc. shall include all successor entities thereto.
- In this Contract, the masculine form includes the feminine form and the singular form includes the plural form, and vice versa.
- Headings are for convenience of reference only and shall not affect the construction or interpretation of this Contract.