開発システム工学概論 講義資料 その１
A
課題；石油化学プラント技術輸出におけるライセンス契約について。 平成 20 年 7 月 22 日
以下のライセンス契約文を別紙の単語集を参考 にして、文意を完全には理解できなくとも良い ので、必ず一回は目を通してから授業に出席 する事。
AG R E E M E N T
LICENSE
AGREEMENT CONTENTS
1. DEFINITION…………………………………………………2 2. GRANT OF LICENSE………………………………………3 3. DISCLOSURE OF TECHNICAL INFORMATION…… 3 4. TECHNICAL ASSISTANCE……………………………… 3 5. TRADEMARK…………………………………………………5 6. ROYALTIES AND PAYMENT………………………………5 7. IMPROVEMENT & GRANT-BACK……………………… 5 8. PERFORMANCE GUARANTEE……………………………6 9 . IN F RI N G E M EN T … … … … … … … … … … … … … … … … … 7 10. CONFIDENTIALITY……………………………………………… 8 11.LIMITATION OF LIABILITY……………………………… 8 12.FORCE MAJEURE……………………………………………9 13.EFFECTUATION…………………………………………… 9 1 4 . TE RM S……… ………………………………………………… 9 1 5 . T E R M I N AT I O N … … … … … … … … … … … … … … … … 9 16.ASSIGNMENT…………………………………………………10 17.APPLICABLE LAW AND ARBITRATION…………………10 18.NO WAIVER…………………………………………………… 10 19.LANGUAGE…………………………………………………… 11
This Agreement entered into this 22th day of July, 2008, by and between The Japan Steel Works, Ltd., a corporation duly organized and existing under the laws of Japan, having its principal office at 1-2 Yurakucho 1-chome, Chiyoda-ku, Tokyo, Japan (hereinafter called "Licensor" or “JSW”) and OJSC Sibirsko-Uralskaya Neftegazochimicheskaya Company, a Russian company, having its principal office at 70, Respubliki str., Salehard, Yamalo-Nenetsky AR, Russia (hereinafter called "Licensee" or OJSC “SIBUR”), WITNESSETH: WHEREAS, Licensor has been engaged in the business of manufacturing and engineering of machinery and plants; and WHEREAS, Licensor has been granted by Japan Petrochemical Co., Ltd. (hereinafter called “JPC”) a right and license to grant to a third party a sub-license to use JPC’s proprietary process for producing IP monomer of which details will be defined below more specifically; and WHEREAS, Licensee desires to obtain from Licensor a license for JPC’s proprietary process of production, use and sale of IP monomer and use the same for refurbishment of IP production plant in Licensee’s facilities at Tchaikovsky city, Russia , and Licensor intends to grant such license to Licensee and provide assistance on the conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual agreements contained herein, Licensor and Licensee agree as follows: １． DEFINITION
In this Agreement, the following words and expressions shall, unless the context otherwise requires, have the following meanings:
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1.1 "JPC’s Technology" means the technology of the process as specified in Appendix 1 attached hereto for production of IP monomer from the raw materials which is owned and used on a commercial scle by JPC. 1.2 "Patents" means those patents and patent applications, which are owned or controlled by JPC and/or Licensor at the time of execution of this Agreement, as set forth in Appendix 2, and shall also include all patents which may issue on the said applications. 1.3 "Technical Information" means all the technical information, knowledge, know-how and data developed, acquired or otherwise controlled by JPC and/or Licensor at the time of execution of this Agreement necessary for the design ,engineering ,construction, erection,operation and maintenance of plants applying the JPC’s Technology on a commercial scale. Technical Information also includes the documentation defined in Appendix 3 attached hereto. 1.4 "Territory" means the area limitted in Russian Federation where Licensee could sale the product of the plant. ２．GRANT OF LICENSE Licensor hereby grants to Licensee a non-exclusive, non-transferable, right and license, without the right to grant a sublicense, to produce and use at Licensee's plant located at Tchaikovsky, Russia and to sell and/or distribute IP monomer in the Territory under the Technical Information and Patents, during the term of this Agreement. ３．DISCLOSURE OF TECHNICAL INFORMATION 3.1 Within sixty (60) days after effective Date of this Agreement , Licensor shall furnish Licensee with all the materials of the Technical Information described in Appendix 3 and proprietary rights described in Appendix 2, all of which shall be written in English and sent by registered airmail. 3.2 During the term of this Agreement, Licensor shall, at the request of Licensee, furnish Licensee with additional data, information or improvements relating to the JPC’s Technology, Technical Information or proprietary rights.
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４．TECHNICAL ASSISTANCE (JPC's Plant Visit and Training) 4.1 Licensor agrees, at the request of Licensee, to permit Licensee's personnel to visit up to two (2) times JPC's plant in operation utilizing the Technical Information and proprietary rights, JPC's Mizushima plant or such other plant as may be designated by JPC. The number of Licensee's personnel shall be up to four (4) persons. The period, time, method, and reasonable details of such visits shall be determined separately through mutual consultation between the parties. 4.2 Licensor further agrees, at the request of Licensee, to train Licensee's personnel at JPC's plant or other appropriate place in Japan, to enable them to learn skills required for the operation and/or maintenance of the plant under the JPC’s Technology, provided that such visits for training shall be conducted one time only and the training period shall not exceed three (3) man-months. The period, time, method and reasonable details of the training shall be determined separately through mutual consultation between the parties. 4.3 Travelling, living and all other expenses of Licensee's personnel for such visits or training shall be borne and paid by Licensee. (Dispatch of Licensor’s personnel) 4.4 Upon request of Licensee, Licensor shall dispatch to Licensee a reasonable number of qualified technical personnel of Licensor and/or JPC to render technical assistance and services to technical personnel of Licensee in connection with the production of IP monomer, for a reasonable period to be mutually agreed upon between parties, provided that the total period of such assistance and services shall not exceed eighty (80) man-days. 4.5 Travelling expenses to and from the country of Licensor's personnel, and living and all other expenses of Licensor's personnel for the period of services, shall be borne and paid by Licensee. Licensee further agrees to pay Licensor a daily absence fee in the amount of 700 United States Dollars or such other amount as may be mutually agreed upon between the parties.
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4.6 The period, method and number of Licensor's personnel and other conditions for providing such services shall be mutually agreed upon by both parties. ５．TRADEMARK Licensor hereby grants to Licensee, during the term of this Agreement, the exclusive right to use the Trademark "IP" whether in combination with Licensee's own trademarks or not, with respect to the sale, distribution of the IP monomer in the Territory, provided that the form and method of use, including the colour and size of the Trademark, shall be approved by Licensor in advance. 6. ROYALTIES AND PAYMENT
6.1 In consideration of the grant of the rights and licenses and the supply of the Technical Information by Licensor to Licensee under this Agreement, Licensee shall pay to Licensor the following paid-up royalty: Paid-Up Royalty : US$4,000,000.-
Payment terms and conditions of royalty are specified in Appendix 4 attached hereto. 6.2 Payment shall be made net to Licensor without deduction for or on account of any tax imposed by any other governmental or local authorities outside Japan on such royalty, which tax shall be borne and paid by Licensee. 6.3 The amount of withholding tax levied on any payment to be made by Licensee to Licensor shall be borne by Licensor. Licensee shall withhold the tax from such payment to Licensor and pay any such tax to the appropriate governmental authority and thereafter shall send to Licensor the tax certificate and any other applicable documentation evidencing the payment of such tax. 7. IMPROVEMENTS & GRANT-BACK
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7.1 Each party agrees to inform each other of any development or improvement made by it in connection with the Technical Information relating to the JPC’s Technology and disclose, at the other party's request, details of such development or improvement. 7.2 Licensee shall have a right to use such development or improvement made and disclosed by Licensor without payment of any additional royalty. 7.3 Licensee shall, at the request of Licensor, grant to Licensor a non-exclusive license to use such development or improvement made and disclosed by Licensee in the country of Licensor and Asia district under the terms and conditions to be mutually agreed upon between the parties. 8． PERFORMANCE GUARANTEE 8.1 Licensor guarantees that the plant shall meet the guaranteed figures specified in Appendix. 5 , provided that: (1) the plant is designed, constructed, pre-commissioned, started up and operated strictly in accordance with the Technical Information provided hereunder and the advises and instructions given in writing by Licensor’s technical personnel on the site of the plant, and (2) the plant has no mechanical defects (including civil engineering and construction works and electrical and instrumentation works), which are not attributable to Licensor, and (3) all necessary raw materials, utilities, energy and other supplies necessary for operation of the plant are fully and continuously caused to be supplied in accordance with the specifications stipulated in Appendix 1 attached hereto or in accordance with such specifications specifically agreed by Licensor, which agreement shall not be unreasonably withheld, and (4) well-trained and sufficient number of operating personnel are provided or caused to be provided by Licensee , and (5) the guarantee test is performed in accordance with Appendix 5. 8.2 In order to verify the fulfillment of the guaranteed figures, the guarantee test shall be carried out under the supervision of Licensor’s personnel at an
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appropriate time to be agreed upon by the parties hereto after the date of start-up of the plant. The guarantee test shall be conducted for a period of seventy two (72) hours and according to the procedure mutually agreed upon by the parties hereto . Further details, related liabilities including a structure of liquidated damages are stated in Appendix 5. 9. INFRINGEMENT
9.1 Licensor guarantees that the production, sale and use of the JPC’s Technology utilizing the Technical Information and the proprietary rights will not infringe upon the claim of any valid patent in the Russian territory owned by a third party. Subject to the provisions of Paragraph 9.2 and 9.3 of this Article, Licemsor agrees to indemnify and hold Licensee harmless from and against any and all losses, damages and liabilities arising from or as a result of any claim or suit brought against licensee alleging that the production, sale and use of the JPC’s Technology utilizing the Technical Information, or its improvements furnished by Licensor, and the proprietary rights constitutes an infringement on any valid patent in the Russian territory owned by a third party. 9.2 In the event that any third party claim is made or suit is brought against Licensee during the term of this Agreement on the basis that the production, sale or use of the JPC’s Technology infringes a patent in the Russian territory owned by said third party, Licensee agrees to assume the defense of such claim or suit and to pay all expense, costs and fees, including attorneys fees for the defense of any such claim or suit. In the event a final judgement is determined in favor of Licensee and eliminates such claim or suit, all expenses and fees shall be borne by Licensee. In the event a third party is successful in such claim or suit, all expenses and fees as well as the judgement (representing damages) shall be borne and paid by Licensor. In the event such claim or suit is settled, then, Licensor and Licensee shall be responsible for payment and satisfaction of, in equal amounts, all expenses of such suit or claim as well as the settlement payment to be made to such third party.
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9.3 In the event that any third party infringes any of the proprietary rights or the Trademark of Licensor in the Territory, then the parties hereto shall cooperate to take appropriate action against such third party. All expenses, including attorneys fees shall be borne and paid by Licensor and Licensee equally, and any money recovered from such third party shall be shared by Licensor and Licensee equally. 10． CONFIDENTIALITY 10.1 Licensee acknowledges that the Technical Information, know-how, trade secrets, and other information, disclosed by Licensor ("Confidential Information") is valuable, confidential and proprietary in nature and that the disclosure of the Confidential Information would result in immediate and irreparable harm to Licensor, and agrees that, at all times during the term of this Agreement and for five (5) years thereafter, it will hold in confidence all of the Confidential Information to any third party, except to its authorized employees, without the prior written consent of Licensor. 10.2 Licensee's obligation under this Article with respect to Confidential Information shall not apply to information which 1) is already in the possession of Licensee prior to disclosure by Licensor and was not acquired by Licensee directly or indirectly from Licensor;or 2) is part of the public domain at the time of disclosure by Licensor; or, thereafter becomes part of the public domain without fault on the part of Licensee; or 3) may be acquired hereafter by Licensee from any third party without obligation of secrecy. 11. LIMITATION OF LIABILITY
11.1 Licensor shall in no event be liable to Licensee for loss of profit, loss of production, loss of raw materials, chemicals and other consumables or for any consequential loss or damage, either direct or indirect, arising from any cause whatsoever under this Agreement.
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11.2 Licensor’s maximum aggregate liability under this Agreement shall in no event exceed twenty(20) percent of the total license fee . 12. FORCE MAJEURE In the event that either party is unable to carry out its obligations under this agreement, wholly or in part, due to circumstances beyond its control, including without limitation, strikes, lockouts, fire, explosion, flood, earthquake, acts of God, war or other hostilities, terrorism, civil commotion, governmental acts, orders or regulations and, then, upon giving prompt notices of force majeure to the other party, the party so affected shall be released without any liability on its part from the performance of its obligations under this Agreement, but only to the extent and only for the period that its performance of said obligations is prevented by circumstances of force majeure. 13. EFFECTUATI0N This Agreement shall become effective upon receipt of the first payment by Licensor as stipulated in Appendix 4 attached hereto. 14.. TERMS This Agreement shall remain in force and effect for fifteen (15) years from the date on which this Agreement has become effective in accordance with the preceding Article, and shall thereafter continue in force and effect from year to year automatically, unless either party gives notice to the other of its intention not to continue this agreement six (6) months prior to the expiration of this Agreement. 15. TERMINATION
15.1 If either party fails to perform its obligations under this Agreement, the other party may give notice of such failure to the failing party requesting it to correct the failure within the period of fourteen days and if the failing party does not correct such failure within the specified period, then the non-failing party may terminate this agreement forthwith by giving notice of termination to the failing party.
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15.2 Should either party become insolvent, or be wound up, or make an assignment for the benefit of creditors, or be adjudged bankrupt, or have a receiver appointed for its undertaking or assets or discontinue its usual business operations for three months, then the other party may terminate this Agreement immediately by giving notice to that effect. 15.3 Termination of this Agreement shall not discharge or release either of the parties hereto from its obligation to make payments or any other liabilities accruing prior to such termination. 15.4 After termination of this Agreement, whether caused by virtue of the provisions of this Article due to Licensee or by virtue of the preceding Article, Licensee shall not use any Technical Information provided hereunder. Notwithstanding to the above, Licensee can use Technical Information subject to full payment of royalty stipulated in Article 6 16. ASSIGNMENT This Agreement may not be assigned by Licensee either in whole or in part to any third party, without the prior written consent of Licensor. 17. APPLICABLE LAW AND ARBITRATION This Agreement shall be governed by and construed in accordance with the law of U.K. All disputes, controversies or differences which may arise between the parties out of or in relation to this Agreement or for the breach hereof which can not be settled by mutual consultation between the parties shall be finally settled by arbitration in London, UK, pursuant to the rules of the London Court of International Arbitration. The award resulting therefrom shall be final and binding on both parties hereto. 18. NO WAIVER The failure of either party hereto at any time to enforce any of the terms, provisions, or conditions of this Agreement shall not be construed as a waiver of
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the same or of the right to enforce the same on any subsequent occasion. 19. LANGUAGE This Agreement is executed in two copies, each in English and in Russian, both copies being original. In case of any discrepancies in interpreting in this Agreement, priority shall be given to the English one. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. The Japan Steel Works, Ltd. OJSC “SIBUR “
By: Name: Title:
By: Name: Title:
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APPENDIX
LIST
Appendix Appendix. Appendix. Appendix. Appendix.
1 2 3 4 5
JPC’s Patent
Process List
Specification
Documentation Payment
List and Conditions Figures
Terms
Performance Procedure , Guarantee and its Liabilities.
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