Nội dung toàn văn Circular No. 1254/1999/TT-BKHCNMT of July 12, 1999, guiding the im lementation of The Government’s Decree No.45/1998/ND-CP of July 1st, 1998 stipulating in detail the technology transfer.
THE MINISTRY OF SCIENCE, TECHNOLOGY AND ENVIRONMENT | SOCIALIST REPUBLIC OF VIETNAM |
Hanoi, July 12, 1999 |
CIRCULAR
GUIDING THE IM LEMENTATION OF THE GOVERNMENT’S DECREE NO.45/1998/ND-CP OF JULY 1ST, 1998 STIPULATING IN DETAIL THE TECHNOLOGY TRANSFER
Pursuant to Decree No.22-CP of May 22, 1993 of the Government on the tasks, powers and organizational structure of the Ministry of Science, Technology and Environment;
Pursuant to Decree No.45/1998/ND-CP of July 1st, 1998 stipulating in detail the technology transfer;
The Ministry of Science, Technology and Environment hereby guides the implementation of the Government’s Decree No.45/1998/ND-CP of July 1st, 1998 stipulating in detail the technology transfer (hereinafter referred to as Decree No.45/1998 for short).
1. Interpretation of terms
1.1.The commercial domestic technology transfers between the contracting parties stipulated in Point c, Clause 2, Article 1 of Decree No.45/1998 shall be understood as the transfer of technologies between the transferor and transferee in which the two parties are bound to their rights and obligations and to making payment.
1.2. Technical support and training contracts for the purpose of technology transfer, contracts called by the contracting parties as technology license contracts, and technical know-how license contracts are generally construed as technology transfer contracts and hereinafter are referred to is contracts for short.
1.3. Transfer of computer software in technology transfer
The transfer of computer software stipulated in Clause 2, Article 4 of Decree No.45/1998 means the transfer of computer software accompanied with other technological contents stipulated in Article 4 of Decree No.45/1998 in order to enable the transferee to acquire the full technological capability to create products and services that meet the quality and socio-economic efficiency criteria determined in the contract. The computer software contents shall be clearly determined in the contract. The transfer of computer software to the transferee without any other accompanied technological contents shall comply with the provisions of copyright legislation.
1.4. The service of providing consultancy on technology management and/or business management stipulated in Point 4.b, Article 4 of Decree No.45/1998 shall be understood as the sending of specialists to provide consultancy and/or information by the transferor to assist the transferee in managing the technology(ies) and/or business in order to achieve the objectives stated in the contract. When providing this service, the transferor shall neither directly manage the technologies nor directly manage business for the transferee.
1.5. The State capital stipulated in Decree No.45/1998 shall be understood as the capital under the State�s management, which includes:
a/ Capital allocated from the State budget.
b/ Own capital of State enterprises.
c/ Capital contributed by State enterprises to the companies (established under the Law on Companies).
d/ Capital borrowed from foreign governments, international organizations, foreign banks and companies via the State Bank or under the State’s guaranty.
e/ Aid from foreign governments, non-governmental organizations and international organizations for projects and construction works (including humanitarian aid), which is accounted into the State budget for management.
f/ State capital in the form of the right to use land, water surface, workshops, equipment...
1.6. The net selling price (stipulated in Clause 9, Article 2 of Decree No.45/1998) is guided in detail as follows:
The net selling price is the total selling price of a product or service with the transferred technology being applied during the process of its creation, which is calculated according to the transferee’s sale invoices minus the following amounts (if such amounts are included in the selling price):
- The special consumption tax, the value added tax.
- Commercial discounts (namely commissions paid to sale agents).
- Full expenses for the purchase of semi-finished products, parts, details and components from any supplying sources (understood as the purchase prices paid to the domestic independent supplier or the import prices including the costs of transport, insurance and tax). In cases where semi-finished products, parts, details and components are manufactured in Vietnam by a third party with the transferor�s technology, (via the transferee) and the transferor does not receive any technology transfer fees from the third party, the transferor and transferee may agree not to subtract the expenses for the purchase of these semi-finished products, parts, details and components.
- Expenses for packs (meaning the price of packs bought from to the suppliers).
- Expenses for packing (meaning the costs of packing finished products for the purpose of transportation to the consumption place).
- Expenses for transportation (meaning the costs of transportation of finished products to the consumption place).
- Expenses for advertising by the transferee.
Depending on the technology(ies) and the type of products made with the transferred technology(ies), semi-finished products, parts, details, components as well as the above-mentioned expenses shall be concretely determined in the contract.
In cases where the transferee is a software designing, prospecting, and for manufacturing enterprise which also provides other technical services, the net selling price is the selling price of products or the price of the provided service which is calculated according to the transferee’s invoices issued to its clients minus the special consumption tax and the value added tax (if these taxes are included in the sale invoices).
1.7. The payment price of a technology transfer stipulated in Clause 4, Article 2 of Decree No.45/1998 shall be understood as the total sum of money to be paid by the transferee to the transferor and/or by the transferee to a third party designated by the transferor for the performance of the technology transfer contract.
2. Matters concerning the technology transfer contracts
2.1. Technology transfer with regard to investment projects that select technologies by mode of bidding:
After a bidding is held to select the technology supplier, the technology transfer shall be conducted according to the stipulations in Decree No.45/1998 and this Circular.
2.2. The contents of contracts stipulated in Article 11 of Decree No.45/1998 are further specified as follows:
The technology transfer includes: granting licenses to industrial property objects (if any), providing technological know-hows; providing technical documents; training; providing technical support and business management consultancy services. A contract may contain all of such contents, or simply one or several contents mentioned above. The details of each content are as follows:
2.2.1. The granting of licenses to industrial property objects (if any) shall comply with the provisions of industrial property legislation.
2.2.2. Technological know-hows must meet the requirements prescribed in Clause 5, Article 2 of Decree No.45/1998, the name and concrete result of the application of the technological secrets should be clearly stated.
2.2.3. Technical documents include designs, processes, formulas, quality control norms, tables, charts, instructions, guidelines, drawings, computer software, etc, demonstrating the contents of the transferred technology. The list of transferred technical documents is included in Clause 4.1 of the contract form. The titles of documents to be transferred must be listed in detail in the contract.
2.2.4. Training: Training must be aimed to assist the transferee in firmly grasping and mastering the technology(ies) within a prescribed period of time.
In the training program the numbers of workers and technicians to be trained, subject areas and contents of training, training duration and venue, must be specified. The contracting parties should take the initiative in making proposals and negotiating to adjust the contents of this program suitable to their own conditions.
The contract must contain specific provisions on the training as guided in Clause 4.2 Article 4 of the contract form.
The contract should also clearly specify commitments by the parties to achieve the training objectives, for example: commitment to qualifications and skills the trainees will acquire after the completion of the training program.
At the end of the training program the transferor must examine the training quality and present each trainee a certificate on completion of the training program.
The contract should specify expenses for each training item such as tuition fee, costs of trainers’ and trainees’ accommodation and travel and other related expenses (if any).
2.2. 5. Technical support and business management consultancy services
For the construction of projects and production establishments, technical assistance must be provided by the transferor according to the timetable agreed upon by the two parties. However, special attention should be paid to the three main phases:
a/ The phase before the test operation or production;
b/ The phase of test operation and production;
c/ The phase of official operation and production.
The technical support must be concretely stipulated in the contract or its appendix.
For such support and consultancy services as selection of technology, renewal of technology research, analysis, assessment, pre-feasibility and feasibility studies, technology management consultancy, business and production management consultancy, provision of services to collect, process and supply information on technologies, natural resources and environment, etc, the contract should clearly specify the tasks and duties of each specialist as well as the result of each service..
Expenses should be clearly stated for each item of technical support such as the number of specialists, their working period, salaries, allowances, travel, meals and accommodation and other expenses...
2.2.6. The two parties should clearly determine in their contract those technical services, raw materials, supplies, semi-finished products, machinery and equipment that meet the price and quality requirements and can be supplied by the Vietnamese side
2.2.7. The time and tempo of the technology transfer, the places where each part of the technology and equipment is supplied should be clearly determined and suitable to the construction, production and business tempo. The measures and forms of handling of mistakes in the supply of the technology should be defined in the contract.
2.2.8. Commitments to guaranty and warranty.
a/ The transferor pledges to:
- The technological level and the product quality satisfying the technical norms set in the contract (the percentage of defective products, the waste level of raw materials and supplies...).
- The criteria on designing, manufacturing, installation and operation of equipment, which the transferor (or the sub-contractor) has the responsibility to comply with.
- Its liability for violations of the industrial property right by a third party.
b/ The transferee pledges to strictly follow the transferor’s instructions.
c/ Other commitments by the two parties so as to ensure that no mistake is made in the technology transfer, to respect mutual interests in securing confidentiality, competitiveness, safety and to ensure hygienic and environmental standards during the effective term of the contract.
d/ Commitment to warranty: The technological contents to be warranted and the warranty duration should be clearly stated. If different technological contents have different warranty durations, the warranty duration for each technological content must be clearly specified.
2.2.9. The contract must contain provisions defining the legal and material responsibilities of the two parties if they fail to fulfill their commitments made in the contract.
If the transferee has complied with the transferor’s instructions but the technology, the product or service fails to meet the set criteria, the transferor must investigate and explain the cause of any mistake, take remedy actions and pay compensation for the damage caused to the transferee.
2.2.10. The formulation and application of measures to prevent the impact of the technology(ies) on the environment and laborers should be clearly determined in the contract (on the content, degree, specific measures and scope of responsibility), including both the already known impact and the impact that might be discovered in the future. The transferor shall have the responsibility to inform the transferee of any bans and/or restrictions currently applicable around the world to the products and transferred technology(ies) (particularly pharmaceuticals, chemicals, foodstuff...).
2.3. Provisions not allowed to be included in the contract stipulated in Article 13 of Decree No.45/1998 are further clarified as follows:
2.3.1. Clause 3, Article 13 of Decree No.45/1998 is construed that the contract must not contain any provisions directly or indirectly restricting the export of products (under contracts) turned out by the transferee, unless these provisions are proved to protect the legitimate interests of the transferor.
2.3.2. Clause 4, Article 13 of Decree No.45/1998 is construed that the transferee may continue to conduct research in and develop the transferred technology or procure similar technologies from other sources; in cases where products made by the transferee bear the trademark of the transferor, the two parties may agree in their contract that the application of the technology research and development results to products that bear the transferor’s trademark must be consented by the transferor.
2.3.3. Clause 5, Article 13 of Decree No.45/1998 is construed that the contract must not contain any provisions forcing the transferee to unconditionally transfer without any charge to the transferor the following:
a/ The right to use the results of the technological modifications or innovations created by the transferee.
b/ The right to lodge applications for the protection of the industrial property right, the right to have monopoly use of the technological modifications or innovations created by the transferee and/or the right to transfer them to a third party.
2.3.4. Forbidding the transferee to continue using the transferred technology(ies) after the expiry of the contract, which is stipulated in Clause 7, Article 13 of Decree No.45/1998, is construed that the transferee is forbidden to continue using the technology(ies) for the production and consumption of products. In cases where technologies are transferred into Vietnam under contracts that are subject to approval as stipulated in Clause 1 and Clause 2, Article 32 of Decree No.45/1998, if the parties agree that the transferee shall not continue to use the transferred technology(ies) after the expiry of the contract, they must justify the reasonability of such agreement. The approving agency shall consider the reasonability of the agreement before giving its approval.
2.4. During the effective time of the contract, if one of the two parties makes a modification or innovation related to the transferred technology(ies), it shall have the responsibility to inform the other party of such modification or innovation. The transfer of modifications and innovations shall be made on the principles of equality and mutual benefit.
2.5. In cases where either party wishes to transfer its rights and obligations specified in the contract to a third party, it must seek the written consent from the other party as well as the approval from the contract-approving agency (for contracts subject to approval).
2.6. Time limit for keeping the technological secrets: If the contract does not prescribe the time limit for keeping the technological secrets, such time limit shall be the contract’s term. The two parties may agree upon a time limit for keeping secrets which may be longer than the contract’s term but not exceed the time when the technology(ies) is (are) publicized.
2.7. Time limit for the technological transfer an term of the technological transfer contracts of foreign investment projects in Vietnam.
Throughout the implementation process of an investment project, if a need for constant technological renewal arises, the technological transfer may be effected through several technological transfer contracts provided that the term of each contract must not exceed seven or 10 years as stipulated in Article 15 of Decree No.45/1998.
2.8. The contractual term:
The term of a contract stipulated in Clause 1, Article 15 of Decree No.45/1998 shall be agreed upon by the contracting parties but must not exceed seven years. For contracts that satisfy the conditions set in Appendix 1 of this Circular, the parties may agree on a longer contractual term which must, however, not exceed 10 years.
For contracts that are subject to approval and have a term of less than seven years (or less than 10 years for contracts that satisfy the conditions set in Appendix 1 of this Circular) the contracting parties may apply for an extension of their contractual term provided that the total of the contract’s initial term and its extended time shall not exceed seven years (or 10 years for contracts that satisfy the conditions set in Appendix 1 of this Circular) and they must obtain the approval from the contract-approving agency.
The time limit for transferring the right to use industrial property objects shall comply with the provisions of the industrial property legislation.
2.9. Form of technological transfer contracts is guided in Appendix guided in Appendix 6 of this Circular.
This contract form can be generally used for different contents of technological transfer. Depending on the concrete technological transfer content, a contract may contain all or several parts of the contract form. However, a contract must contain all principle contents stipulated in Article 11 of Decree No.45/1998.
3. Prices and payment in the technological transfer
3.1. Prices.
The price of payment for the technological transfer shall be negotiated between the two parties on the principles of equality and mutual benefit and in accordance with Clause 3 and Clause 4, Article 23 of Decree No.45/1998.
The price of payment for a transferred technology shall depend on the following factors:
- The technological advancedness and newness.
- The technological contents, the importance of the technology, for the entire business and production operation of the transferee.
- The technology monopoly, the scope of the transferee’s right to the transferred technology (whether or not the transferee has a monopoly over the transferred technology or the right to transfer it to a third party).
- The quality of products, the percentage of products for export.
- The transferee’s net profits as a result of the application of the technology during the contract’s term.
- Economic, technical and social benefits brought about by the application of the technology the possibility of expanding the application of such technology to other domestic business and production establishments, the possibility of achieving the national development goals, creating jobs, promoting export or accelerating the growth of other sectors.
3.2. Value of technologies as capital contribution
3.2.1. If the entire value of the transferred technology(ies) is used as capital contribution (through the contract), it shall be calculated in a certain sum of money. After the transferor has fulfilled its obligations prescribed in the contract, the two parties shall have to make a report on the contract acceptance.
A report on the acceptance of the contract under which capital contribution is made with the value of the technology(ies) must be unanimously certified by the transferee’s managing board and only since then shall the transferor enjoy a profit corresponding to its contributed capital and receive no other payments for the transferred technology(ies).
Depending on the project scope, the characteristics and contents of the technology(ies) and the economic efficiency brought about by the technology(ies) to the project, the value of capital contributions made with the whole technology(ies) shall be within the limit of from 0 to 8% of total investment capital. For technologies that meet the requirements set in Appendix 2, the value of capital contributions made with the technology(ies) may account for up to 10% of total investment capital. For projects with foreign invested capital, the value of capital contributions made with the technology(ies) shall not exceed 20% of the total legal capital.
3.2.2. If only part of the value of the technology(ies) is used as capital contribution (through the contract), and the remainder is paid by the mode of payment in lump-sum and/or periodical installments, the total value of such payments must be within the limits set in Item 3.9 of this Circular.
The results of the performance of each part of the contract as well as of the whole contract must be evaluated and certified in an after-test acceptance report.
3.3. Lump-sum payment is a mode of payment whereby the two parties decide to make the payment in a certain amount of cash or a certain volume of goods, which is divided into a number of installments to be paid at the end of each phase of the technology transfer. For example, after the date the contract becomes effective, the date of receipt of technical documents, the date of completion of the test operation, the date of acceptance after test operation, the first date of mass production, the date of sale of the first batch of products, etc. The total value of all lump-sum payments made for the technology transfer during the contractual term is limited between 0-8% of total investment capital and/or between 0-25% of after-tax profits (as stipulated in Clause 3, Article 23 of Decree No.45/1998).
The two parties may also agree to make a lump-sum payment in several installments (paid within the contract’s term) or in one time after the transferor has fulfilled all its obligations prescribed in the contract.
3.4. Making payment in percentage of after-tax profits is a mode of payment for the technology transfer agreed upon by the two parties with the value equal to a percentage of after-tax profits earned by the transferee but this payable amount is still accounted into the transferee’s production and business costs (This kind of payment is not the distribution of after-tax profits of the transferee to transferor). For technologies that fail to meet the requirements set in Appendix 2 of this Circular, this percentage is limited between 0-25% of after-tax profits within the contractual term.
3.5. Making payment in percentage (%) of the net selling price of products is paying fees in percentage of the net-selling price of products with in each period or time as agreed upon by the two parties, such payments are made within the contractual term.
Depending on the technological factors (as prescribed in Item 3.1 of this Circular) the two parties shall agree upon the level of fee to be paid but such level must not exceed 5% of the net selling price of products for technologies that fail to meet the requirements set in Appendix 2 of this Circular.
3.6. The maximum level of payment stipulated in Clause 4, Article 23 of Decree No.45/1998 is the level of payment for all the contents of the transferred technology (including industrial property objects, technical know-hows and documents, training and other kinds of technical support), which is set in Appendix 2 of this Circular.
In cases where technologies fail to fully satisfy the three requirements prescribed in Clause 4, Article 23 of Decree No.45/1998 the maximum level of payment for technologies that satisfy one of these requirements shall be equal to the maximum level prescribed in Clause 3, Article 23 of Decree No.45/1998 plus one third of the difference between the levels of payments stipulated in Clause 3 and Clause 4, Article 23 of Decree No.45/1998.
3.7. Expenses for meals, accommodation, travel and salaries for the transferee’s trainees trained abroad may not be accounted into the percentage limits mentioned in Clause 3, Article 23 of Decree No.45/1998. This is construed that the transferor and transferee may or may not account expenses for meals, accommodation, travel, having allowances and insurance for the transferee’s trainees into the expenses paid to the transferor (stipulated in Article 23 of Decree No.45/1998).
However, tuition of the transferee’s trainees or money paid to the transferor's instructors must be accounted into the technological transfer fee payable by the transferee to the transferor, and the total technology transfer fee must be within the limit set in Clause 3 or Clause 4, Article 23 of Decree No.45/1998.
3.8. Payment for the technology transfer
3.8.1. Payment for the transfer of the right to use industrial property objects.
Transferring the right to use industrial property objects is a content of the technological transfer, therefore the total value of amounts paid for the technological contents which, as stipulated in Article 4 of Decree No.45/1998, include the right to use industrial property, objects, must be within the limit stipulated in Article 23 of Decree No.45/1998 and comply with the provisions of the industrial property legislation.
3.8.2. For periodical payments in percentage (%) of the net selling price, it is forbidden to put into the contract any provisions forcing the transferee to make a minimum periodical payment (without taking into account the productivity and the value of sold products).
3.8.3. For technological transfer activities in the form of support services such as on technological or technical management consultancy, business management consultancy, training, the payment prices must be calculated on the basis of the reasonable work volume already performed.
Steps involved in the price calculation include:
a/ Dividing the service into concrete activities;
b/ Calculating the time needed for performing such activities;
c/ Negotiating the amount to be paid for each working day, week or month of every specialist;
d/ Estimating the total price for the whole service;
e/ Considering services that can be domestically provided so as to reduce costs.
3.8.4. Where technological transfers involve the import of equipment, the technology transfer must constitute a separate part of the contract for the import of equipment and the technological transfer fee must be calculated separately from the equipment price.
3.9. The combination of different modes of payment mentioned in Clause 4, Article 24 of Decree No.45/1998 shall be understood that a maximum level of payment for the technological value by different modes must ensure that the total sum of the ratios between the percentage of payment by to each mode and the maximum level of payment set for such mode (stipulated in Clause 3, Clause 4, Article 23 of Decree No.45/1998) must not exceed 1:
0 ≤ | Payment agreed to the made in % of the net selling price | + | Payment agreed to be made in % of after-tax profits | + | Lump-sum payment and/or contributed capital agreed to be calculated in % of total investment capital | ≥ 1 |
Maximum level (1) set for payment made in % of the net selling price | Maximum level (2) set the payment made in % of after-tax profits | Maximum level (3 ) set for lump- sum payment or contributed capital calculated in % in of total investment capital |
According to Clause 3, Article 23 of Decree No.45/1998:
(1) is the highest level of payment made according to the net selling price
(2) is the highest level of payment made according to after-tax profits
(3) is the highest level of payment made by the mode of lump-sum payment or capital contribution.
Example: The highest level of payment for the transferred technology (for example technologies within the limit set in Clause 3, Article 23 of Decree No.45/1998) is calculated as follows: it is agreed in a contract that payment shall be made by several modes such as: 2% of the net selling price, 10% of after-tax profits and a lump-sum payment of US$1,000,000,
and a capital contribution with US$500,000 (the project has a total investment capital of US$75,000,000:
|
|
|
| 1,000,000 + 500,000 |
|
2% | + | 10% | + | 75,000,000 | = 1.05 |
5% | 20% | 8% |
In this case the total sum of the names exceeds 1. So the payment made for the technology transfer exceeds the maximum level prescribed in Clause 3, Article 23 of Decree No.45/1998. The contracting parties must therefore readjust the payment price for the technology transfer.
In cases where the two parties agree upon a combination of several modes of payment for a technology which is on the list in Appendix 2 of this Circular, and if they apply formula (a) mentioned in Item 3.9 of this Circular the denominators (1), (2) and (3) shall have the respective values of 8%, 30% and 10% as the highest levels of payment..
3.10. Payment currency and conversion rate: It is necessary to clearly determine in the contract the payment currency and principles for calculating the conversion rate between various currencies (if any).
4. Management of the technology transfer
4.1. Assignment of the competence to approve technology transfer contracts and register the contracts (also applicable to the amending, supplementing and extending of contracts).
4.1.1. The assignment of the competence to approve contracts stipulated in Article 32 of Decree No.45/1998 is construed as follows:
a/ The Ministry of Science, Technology and Environment shall approve:
- Contracts for technology transfers from Vietnam to foreign countries.
- Contracts for domestic technology transfers, including the contents on the transfer of the right to own and/or use industrial property objects to which one party is a State organization or which involve capital contributed by the State.
- Technology transfer contracts of enterprises operating under the Law on Foreign Investment in Vietnam, which have total payment value (excluding the value of equipment) of more than US$30,000 each.
- For enterprises operating under the Law on Foreign Investment in Vietnam and having two or more technology transfer contracts in one fiscal year, if the value of the first contract is less that US$30,000, this contract is not subject to approval, but the second and subsequent ones must be subject to approval.
- Contracts with the content on granting licenses to use trademarks accompanied with production and business know-hows transferred from abroad into Vietnam and with a total payment value worth more than US$30,000 each (contracts for granting business franchise).
- Technology transfer contracts of investment projects which have been directly approved by the Government or the Ministry of Planning and Investment.
b/ The ministries, ministerial-level agencies, agencies attached to the Government, People’s Committees of the provinces and centrally-run cities and other agencies which have the competence to decide investment (as stipulated in the Government’s Regulation on investment and construction management), shall approve technology transfer contracts of investment projects funded by the State capital under their respective assigned approving competence which are other than those mentioned in Point a of this Item.
The above-said agencies competent to approve contracts may consult with the higher-level managing agencies, the ministries in charge of specialized branches, specialized agencies and specialists in the relevant fields.
4.1.2. Vietnamese individuals and organizations participating in technology transfer contracts shall have to register with the Ministry of Science, Technology and Environment.
a/ Contracts for the transfer of technologies from abroad into Vietnam which are other than those mentioned in item 4.1.1 of this Circular.
b/ Contracts for domestic technology transfers (other than those mentioned in Item 4.1.1 of this Circular) with the value equivalent to more than US$30,000 each.
The contracts which have been approved by the Ministry of Science, Technology and Environment shall not have to go through registration procedures.
4.2. Dossiers requesting approval or registration of technology transfer contracts
4.2.1. A dossier requesting approval of a technology transfer contract stipulated in Article 33 of Decree No.45/1998 is further clarified as follows:
a/ A request for the contract approval.
b/ An economic-technical exposition which contains analyses and estimates of economic and financial benefits to be gained from the use of the technology(ies), a justification of the contractual term.
- A detailed description of the transferred technology(ies) a diagram of the technological phases, a description of the technological phases, a list of equipment of the production line. If the feasibility study report of the investment project contains these data, it is enough to enclose a copy of this report with this dossier).
- An estimate of the total payment price for the technology transfer.
In cases where a technology is selected not through bidding, the exposition must give reasons for the selection of the technology supplier, the advantages and economic and financial efficiency of the selected technology.
c/ A technology transfer contract must be stamped and signed by the parties’ representatives. It shall be made in five copies. After it is approved, the approving agency shall return two copies to the contracting parties (if the parties wish to receive more than two copies they must submit additional copies).
d/ A document certifying that the technology transfer contract has been adopted by the managing board on the principle of consensus in cases of joint ventures participated by a Vietnamese side and operating under the Law on Foreign Investment in Vietnam.
In cases where capital is contributed with the value of a technology for the establishment of an enterprise, the contract for the contribution of capital with the technology must be unanimously agreed upon by the capital contributors (as the managing board has not been set up).
e/ A copy of the investment license or business license (if any).
f/ A copy of the receipt of the contract evaluation fee. In cases where the technology transfer involves the granting of licenses for using industrial property objects, the dossier must be enclosed with protection titles and other documents as prescribed by the industrial property legislation.
4.2.2. A dossier of application for contract registration includes:
a/ A request for contract registration.
b/ The contract (the original or a copy certified by a competent agency).
c/ The investment license or the investment decision or the business registration certificate or the decision on the establishment of the transferee (if any).
d/ A copy of the receipt of the fee for technology transfer contract registration.
4.3. Approval by and registration with the Ministry of Science, Technology and Environment
4.3.1. For contracts subject to approval by the Ministry of Science, Technology and Environment and contracts subject to registration, the Ministry of Science, Technology and Environment shall assign the Office for Technological and Environmental Evaluation of Investment Projects (under the Ministry of Science, Technology and Environment) to receive and coordinate with other units in the Ministry in processing the dossiers of application for contract approval and registration.
4.3.2. For the purpose of supervising the compliance with the State policies and laws and the provisions in the contract signed by the parties, the transferee (except cases where technologies are transferred from Vietnam abroad) shall have to send an annual report on the situation of the technology transfer to the managing agency that has approved the contract.
The Ministry of Science, Technology and Environment shall, when necessary, together with concerned agencies, examine or inspect the performance of the technology transfer contracts in accordance with the provisions of law.
5. Implementation provisions
5.1. Contracts which had been approved before the effective date of Decree No.45/1998 shall continue to be performed in accordance with the provisions effective at the time they were approved.
5.2. In January every year the ministries, ministerial-level agencies, agencies attached to the Government, People’s Committees of the provinces and centrally-run cities and agencies competent to evaluate and approve technology transfer contracts shall have to inform the Ministry of Science, Technology and Environment of the technology transfer contracts they have approved in the preceding year.
5.3. This Circular takes effect 15 days after its signing.
If there is any problem arising during the course of implementation of the Circular, individuals and organizations are requested to promptly report it to the Ministry of Science, Technology and Environment for consideration and solution.
| MINISTER OF SCIENCE, TECHNOLOGY AND ENVIRONMENT |
APPENDIX 1
CONTRACTS WITH A TERM OF UP TO 10 YEARS STIPULATED IN CLAUSE 2, ARTICLE 15 OF DECREE NO.45/1998 ARE:
1. Technology transfer contracts in the fields listed below, under which the transferor undertakes to continue transferring modifications or providing new designs of products without requiring any additional payment (excluding additional costs of training and technical assistance) during the effective term of the contracts.
1.1. Biological technologies applicable on the industrial scale for the production of:
a/ Plant varieties
b/ Domesticated animal breeds
c/ Curative medicines, veterinary drugs, plant protection substances
d/ Growth regulators used in husbandry and cultivation
e/ Biological fertilizers satisfying advanced economic and technical criteria
1.2. Technologies used for manufacturing new materials with special properties such as super-hard, super-conductive, super-elastic super-light, super-durable; super-thin... that have their constituents being made from domestic raw materials.
1.3. Energy-saving technologies.
1.4. Environment technologies (technologies for manufacturing equipment for environmental treatment, environmental treatment technologies, technologies for waste recycling, clean technologies, technologies using new kinds of energy or for manufacturing equipment operated by new energies.
1.5. Technologies for manufacturing electronic and semi-conducting components and equipment.
2. Contracts under which the transferee has its production activities based in deep-lying, remote or mountainous areas (according to Item A, List I, Appendix I of Decree No.10/1998/ND-CP) and uses the transferred technology(ies) to create more competitive and higher-quality products or products that can be exported.
3. Contracts for the transfer of technologies for manufacturing goods of a new generation in the world.
APPENDIX 2
TECHNOLOGIES WITH A MAXIMUM PAYMENT LEVEL (8% OF THE NET SELLING PRICE, OR 30% OF AFTER-TAX PROFITS OR CAPITAL CONTRIBUTION WITH A TECHNOLOGY VALUED AT UP TO 10% OF THE INVESTMENT CAPITAL) STIPULATED IN CLAUSE 4, ARTICLE 23 OF DECREE NO.45/1998 ARE TECHNOLOGIES THAT SATISFY THE FOLLOWING REQUIREMENTS
A. IN THE FIELDS EMPLOYING HIGH-TECHS SUCH AS:
1. Manufacturing micro-circuits, condensers, potentiometers, impedances, relays, electron guns, picture tubes, ICs, electronic chips, inductors... for industrial and civil purposes.
2. Manufacturing details of a high degree of precision such as regulating valves, control valves in hydraulic and compressed air conveyance systems of mechanical equipment, cam mechanisms, gyroscopes, measuring equipment and devices, precision measuring instruments and meters...
3. Using biological technologies on the industrial scale for the production of plant varieties, domesticated animal breeds, curative medicines, veterinary drugs, plant protection substances, bio-fertilizers satisfying advanced economic and technical criteria.
4. Manufacturing new materials with special properties, such as: super-hard, super-conductive, super-elastic, super-light, super-durable, and super-thin that have their constituents being made from domestic raw materials.
5. Producing purified chemicals, micro-chemicals, catalysts, premix, enzyme.
6. Manufacturing equipment operated by new energies (wind energy, solar energy, geo-thermal energy, tidal energy, biological energy...).
B. OF GREAT SIGNIFICANCE TO THE SOCI-ECONOMIC DEVELOPMENT IN DEEP-LYING, REMOTE, MOUNTAINOUS AREAS AND ISLANDS:
1. Technologies to be applied in production and business activities based in deep-lying, remote and mountainous areas and islands.
2. Technologies that use principal raw materials supplied by deep-lying, remote and mountainous areas and islands.
3. Technologies for the creation of products mainly in service of deep-lying, remote and mountainous areas and islands.
C. WITH A HIGH PERCENTAGE OF PRODUCTS FOR EXPORT
Over 50% of the products turned out through the application of the transferred technologies are for export..
