The legal effects produced by software copyright transfer contracts and software product transfer contracts are completely different. The transferee of a software copyright transfer contract, when the conditions for software copyright transfer are met, will replace the transferor and become the new software copyright owner, and enjoy the right to copy, distribute, and rent the software by himself or by allowing others to do so. The transferee of a software product transfer contract only has the right to use the software after acquiring the software product, and is not allowed to copy, distribute or otherwise exploit the software.
2. What are the matters needing attention in the software copyright transfer contract
(1) Notes for the transferee
1. When signing a computer software copyright transfer contract, both parties should note that the rights agreed to be transferred must be consistent with the rights specified in the computer software copyright certificate. The rights recorded are consistent with or included in the rights recorded in the computer software copyright certificate.
2. Investigate the reliability and legality of the transferred software.
① Conduct a detailed investigation on the reliability of the software transferred by the transferor.
② Investigate the legality of the computer software copyright owned by the transferor to ensure that it is the legal owner of the copyright.
3. If payment is made in installments, the transferee shall pay the computer software copyright transfer fee on schedule in accordance with the contract.
4. The transferee shall not exercise other untransferred rights beyond the scope transferred by the computer software copyright owner.
5. The transferee should fully predict whether the transferred computer software copyright can achieve the predetermined goals and generate expected profits.
6. The transferee should require the transferor to make appropriate guarantees for the transferred computer software copyright, that is, guaranteeIt has the right to transfer the copyright, and the transfer does not infringe the legitimate rights and interests of any third party. It also stipulates that it shall bear the responsibility for the patent to be declared invalid due to infringement of the legitimate rights and interests of others.
(2) Notes for the transferor
1. The law stipulates that two or more people cooperate in development Software, copyright is shared by co-authors. If one party wants to transfer the shared copyright to another party, it must obtain the unanimous consent of the other co-owners of the copyright.
When the computer software copyright is shared by several co-developers. One party transfers the joint copyright without the consent of the other copyright co-owners. The transfer is invalid, and the transferor should bear civil responsibilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses.
2. If the law stipulates that jointly developed software can be divided and used, developers can enjoy separate copyrights for the parts they developed, but they must not infringe upon the jointly developed software when exercising their copyrights. Overall copyright.
If the jointly developed software can be divided and used, when the developer transfers the copyright that he enjoys individually, the copyright of the jointly developed software as a whole will be infringed. If the transferor infringes the rights, the transfer is invalid, and the transferor shall bear civil responsibilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses.
3. The transferor should clearly state in the contract whether all or part of the copyright is transferred, and specify the specific rights. Such as reproduction rights, modification rights, translation rights, distribution rights, rental rights, etc.
4. The transferor should clearly stipulate in the contract the geographical scope of the transferred rights, especially when the copyright owner transfers the right of reproduction, distribution and translation. .
5. Chinese citizens, legal persons or other organizations that license or transfer computer software copyrights to foreigners must comply with the relevant provisions of the "Regulations of the People's Republic of China on the Administration of Technology Import and Export" Regulation. The transferor shall not transfer to foreigners technologies whose export is prohibited or restricted by the state.
The transferor transfers technology to foreign countries or foreigners that is prohibited or restricted from export by the country. The transferor shall be held criminally responsible in accordance with the provisions of the Criminal Law on the crime of smuggling, illegal business operations, leaking state secrets or other crimes; if the criminal penalty is not sufficient, the transferor shall be punished in accordance with the relevant provisions of the Customs Law based on different circumstances, or shall be punished by the State Council's Foreign Economic and Trade Supervisor The department will issue a warning, confiscate illegal gains, impose fines, etc.; the foreign trade and economic department of the State Council may also revoke theForeign trade business license.
6. To transfer technologies subject to export restrictions to foreigners, an application must be submitted to the foreign trade and economic cooperation department of the State Council. After review and approval, and after obtaining a letter of intent for a technology export license, substantive negotiations can be conducted and a technology export contract can be signed.
(3) Notes for the transferor and transferee
1. Software involved in the contract name The name of the software must match the content of the contract.
The name of the contract signed by the two parties is inconsistent with the content reflected in the contract. After a dispute occurs, during the litigation process, the law applied by the court may be inconsistent with the assumptions of both parties.
2. Both parties should clearly specify the transferred software name, version and other specific information in the contract.
The parties did not clearly record the name, model and other specific information of the transferred software in the contract. It may cause the software transferred by the transferor to be inconsistent with the transferee's prior assumptions.
3. Both parties should clearly agree on the transfer period in the contract, whether it is a short-term transfer or a permanent transfer.
4. Price
(1) The parties should clearly agree on the total transaction amount of the contract in the contract .
(2) Both parties should clearly agree on whether the transfer fee will be paid in a lump sum, a lump sum or a lump sum, installment payment, or commission payment. The commission fee for the transfer fee should be based on The profit commission is still based on usage.
(3) Both parties should clearly agree on whether the transfer fee should be delivered in sequence with the delivery of software-related materials and certificates of rights, and whether the transfer fee should be delivered in sequence with the delivery of software-related materials. as a premise.
(4) Both parties should agree on the specific date and period for the delivery of the transfer fee, as well as the settlement method, such as check, credit card, cash or other methods.
(5) During the payment of royalties, the name of the payment, purpose of payment, payer and payee must be clearly stated. Formal name, and the above must be consistent with what is agreed in the contract.
5. During the litigation, the other party should be required to bear all losses and should not voluntarily give up any litigation claims that are beneficial to itself.
6. Both parties should Mark the clear and correct signing time at the end of the contract.
7. The other party’s credit status should be investigated. The other party’s performance credit and cooperative spirit should be fully investigated before signing the contract. Understand.
8. The relationship between the unit and the person in charge of the unit should be correctly distinguished, and it should be clearly understood that the person in charge of the unit cannot represent the unit in his own name.
9. The general statute of limitations of two years applies to computer software copyright transfer contract disputes.
10. Computer Terms used in software copyright transfer contracts
① The name of a computer software copyright transfer contract should use concise and accurate statements to reflect the technical and legal characteristics of the contract. It is required that the name be consistent with the " Standard expressions in the Civil Code.
② When signing a contract, the terms of the contract must be accurate and clear, and some key terms and terms with strong professionalism must be used. Necessary definitions or explanations must be made at the beginning of the contract to avoid ambiguity or obstacles to understanding.
11. Both parties should clearly state in the contract: the transferor and the recipient The name, address, name of the legal representative and other information of the transferor; the name and address should be the name of the enterprise (including legal person or illegal person) and the address of the industrial and commercial place registered by the industrial and commercial administration department in accordance with the law.
12. It should also be stated in the contract that both parties have no objection to the understanding of the terms.
13. To foreigners The transfer of technology that is subject to free export must be registered with the foreign economic and trade department of the State Council and relevant documents submitted.
14. Liability for breach of contract
① Both parties should agree in the contract that if one party violates the contract, the other party can hold the breaching party responsible and require the breaching party to bear liquidated damages or compensation for losses.
② As long as the parties to the contract agree on liquidated damages or compensation for losses, they must agree on a specific amount or calculation method. When agreeing on liquidated damages,The agreed amount cannot be too high or too low. If the agreed amount is too low, the loss will not be compensated. If the agreed amount is too high, the amount will not be realized due to lack of legal support. Generally speaking, the amount of liquidated damages agreed upon cannot exceed the subject matter of the contract. If one party's losses indeed exceed the subject matter of the contract, it can be directly agreed to compensate for the loss.
15. The contract should clearly stipulate that in the event of a division of one party during the performance of the contract, the bearer of its contractual rights and obligations: If one of the parties is in the process of corporate division when signing the contract During the change period and the counterparty can foresee that the organization will be separated after the change, the specific bearer of the rights and obligations of the contract after separation should be clearly stipulated in the contract: whether the post-separation organization will jointly and severally bear joint liability for the rights and obligations of the contract, or whether It is assumed by one of the organizations; when the contract is concluded, it cannot be foreseen whether one party will be divided. In order to avoid disputes, the contract can also stipulate in the contract the distribution principle of the contractual rights and obligations of one party if it is divided.
16. Both parties should clearly stipulate in the contract that if one party’s organization is dissolved during the performance of the contract, the bearer of its contractual rights and obligations: If one party is in the process of dissolution when the contract is concluded, If the successor is within the change period and his rights and obligations can be foreseen, the specific name of the successor should be clearly agreed in the contract. At the same time, it must be stipulated that one party should promptly notify the other party of the dissolution of the organization and the liability for breach of this notification obligation.
17. During the performance process, both parties should pay attention to the changes in the counterparty's subject. If there is a change in the dissolution situation, they should pay attention to which legal person or organization will succeed its rights and obligations. Relevant evidence should be collected to prove the above facts.
18. It should be stated in the contract that the main contract, relevant vouchers, relevant accounting information, etc. are attachments to this contract.
19. Signature and seal Both parties should sign clear and unmistakable signatures, and if the party is an organization, they should also affix their official seal.
20. Both parties should agree in the contract that matters not covered in the contract shall be carried out in accordance with relevant laws and regulations. If there are no provisions in laws and regulations, the two parties may separately negotiate and sign a written supplementary agreement. As an attachment to this contract, the supplementary agreement has the same legal effect as this contract.
21. Both parties should clearly stipulate in the contract the conditions, time and reasons for the entry into force and termination of the contract.
22. If one party has objections when receiving the notice to terminate the contract from the other party, it can promptly request the people's court or arbitration institution to confirm the validity of the termination of the contract.
AboveBoth parties should pay attention to the details when signing a computer software copyright transfer contract and handle relevant procedures in strict accordance with legal regulations. It is recommended to entrust a professional lawyer to draft it to avoid legal risks to the maximum extent.
No comments yet. Say something...