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Transfer of Technology and Know How

Actualizado a: 25 de Junio de 2009

Id. vLex: VLEX-59283219

Link: http://vlex.com/vid/transfer-technology-know-how-59283219

Texto

Contenidos
TRANSFER OF TECHNOLOGY AND KNOW-HOW AGREEMENT EXECUTED BY AND
BETWEEN ......................., S.A. de C.V. .......................(HEREINAFTER REFERRED TO AS
"PROVIDER ), HEREIN REPRESENTED BY ......................., AND _____________, S.A. de
C.V. .......................(HEREINAFTER REFERRED TO AS "RECIPIENT"), HEREIN
REPRESENTED BY ......................., PURSUANT TO THE FOLLOWING:

WHEREAS

PROVIDER has developed throughout many years full expertise and the best know-how in the
field of services related to ....................... (describe kind of services or area of expertise of
PROVIDER) ........................

The know-how and technology developed by PROVIDER for the development and marketing of
services related to ___________ (describe kind of services or area of expertise of
PROVIDER)....................... , are confidential in nature and the valuable property of PROVIDER.

PROVIDER wishes to transfer RECIPIENT such know-how in accordance with the provisions set
forth below.

RECIPIENT wishes to take advantage of PROVIDER'S know-how and use it in the development,
marketing and distribution of products and services related to ....................... (describe kinds of
services or products) ........................

IN FURTHERANCE THEREOF, the Parties agree to be bound pursuant to the following:

CLAUSES

FIRST. DEFINITIONS. For the purpose of this agreement, the following terms shall have the
following definitions hereunder:

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1. Transfer of Technology and Know-How shall mean the disclosures made by PROVIDER to
RECIPIENT, of the commercial knowledge, technology and know how developed by
PROVIDER, as well as the use or the right to use such commercial information in the
rendering of services related to ___________ (describe kinds of services or
products)....................... .

Technology and Know-How shall include trade secrets, knowledge, experience, methods
of and specifications for the development and marketing of the above mentioned Services.

2. Royalties shall mean payments to be made by RECIPIENT to PROVIDER pursuant to

clause Fourth hereinbelow, according with the definitions established by the applicable
Mexican Law.

3. Gross Sales shall mean all revenues obtained from the ordinary activities of RECIPIENT.

4. Services shall mean the activities related to .......................which will be developed by

RECIPIENT with the Technology and Know-How transferred and disclosed by
PROVIDER.

SECOND. TECHNOLOGY AND KNOW-HOW. PROVIDER shall transfer and provide

RECIPIENT the Technology and Know-How that RECIPIENT requires in the rendering of
the Services.

RECIPIENT shall not have the right to transfer, assign or license the Technology and
Know-How supplied by PROVIDER hereunder, without PROVIDER'S prior written consent.

THIRD. PROTECTIVE PROVISIONS. RECIPIENT, except as hereinafter provided, shall

not use nor at any time during the term of this agreement, in any way or manner
whatsoever, make known, divulge or communicate to any person, firm or company any of
PROVIDER'S Technology and Know-How. RECIPIENT shall take all the proper
precautions, contractual and otherwise, to prevent the unauthorized disclosure or use of
such information in violation of this paragraph by any of their key employees, agents,
distributors or persons acting under contract.

RECIPIENT is hereby authorized by PROVIDER to communicate and disclose such

Technology and Know-How received by RECIPIENT from PROVIDER as a consequence
of this agreement that may result indispensable to any third parties that supply RECIPIENT
with products or services required by RECIPIENT for the development and marketing of the
Services. RECIPIENT will take all necessary measures in order to secure that such
information provided to such third parties will be treated by the latter as privileged and
confidential and that, as a consequence, it will not divulge or communicate it or use it for
purposes different from those stipulated by RECIPIENT.

FOURTH. ROYALTY PAYMENTS. During the term of this agreement, RECIPIENT shall
pay PROVIDER for the Technology and Know-How, which constitute the subject matter
hereof, a royalty in an amount equivalent to .......................% (______ per cent)
.......................of RECIPIENT'S Gross Sales.

The Royalty Payments referred to in the previous paragraph shall be paid each year during
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the last ....................... (______) .......................days of the corresponding year, at the address
or bank account designated by PROVIDER for such purpose.

Such form of payment may be modified at any time by means of written agreement by the
parties.

RECIPIENT shall make all payments to PROVIDER hereunder net of any charge and
without deductions other than taxes required to be withheld by RECIPIENT. RECIPIENT
shall submit to PROVIDER, together with the payments, evidence of the corresponding
withholding and a copy of the tax return that evidences payment in due time of said tax.

On the same date that RECIPIENT pays PROVIDER the accrued Royalties, RECIPIENT
shall send to PROVIDER a report in writing that sets forth in detail the Gross Sales during
the period for which payment is made.

FIFTH. TERM AND TERMINATION. This agreement shall be in effect for an indefinite
period of time from the date of its execution. However, either party may terminate this
agreement, without further liability nor reason whatsoever, even if either party has incurred
in any expenses or liabilities with third parties, pursuant to a written notice served upon the
other party at least __ (______) ....................... days in advance, or in case of a final decision
issued by a competent court.

Neither the expiration nor any termination of this agreement for whatever cause shall affect
any rights or obligations of either party which have accrued as of the effective date of such
expiration or termination, nor shall it affect any rights or obligations of either party under this
agreement which are intended by the parties to survive such expiration of termination.

SIXTH. LABOR RESPONSIBILITIES. Since both parties are established commercial

companies having their own and sufficient elements to comply with each and all of their
obligations hereunder, each party shall be responsible for the compliance with any and all
responsibilities in connection with its employees, workers, personnel, commission agents
or intermediaries, and shall hold the other party harmless and free from and against any
claim, suit or liability arising out of said relationships.

SEVENTH. FISCAL OBLIGATIONS. The Parties agree that all taxes, charges or
contributions resulting from this agreement shall be covered by the Party that shall bear
them pursuant to applicable legal provisions.

EIGHTH. HIERARCHY OF THIS AGREEMENT AND AMENDMENTS. This Agreement,

its Exhibits, in its case, and complementing and related documents constitute the final and
total agreement of the Parties in connection with the transaction set forth herein and
substitutes any other verbal or written understandings that may have been previously
adopted by the Parties in connection with such transaction.

Any amendment to the agreements set forth herein shall be made in writing and signed by
each of the Parties to this Agreement to be valid and effective.

NINTH. ENFORCEMENT OF OBLIGATIONS. In case of any delay by any of the Parties,

the lack of action by the other Party shall not constitute waiver by such Party to enforce the
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future timely compliance of such obligation, and shall not be construed to be a release of
such delay.

Any release to comply with any of the obligations set forth herein, granted by any of the
Parties in favor of the other shall be made in writing and shall only be effective for the
specific event and the single occasion for which it is granted.

TENTH. LEGISLATION; SCOPE OF AGREEMENT. During the term of this Agreement,

each of the Parties shall observe all laws, regulations and other legal provisions that are
applicable in connection with the transaction under this Agreement.

The Parties undertake to enforce compliance of this Agreement, in its entirety and as may
be applicable, by its officers, directors, members of the board, representatives, attorneys-in-
fact, factors, agents, consultants and any other persons involved in the compliance,
preparation, enforcement, execution of this Agreement or that know its provisions.

ELEVENTH. RELATION BETWEEN THE PARTIES. None of the Parties shall be entitled
to represent the other or to contract or acquire obligations on its behalf, except with prior
and written authorization or representation. None of the provisions of this Agreement shall
be deemed to be an authorization by any of the Parties to act as agent, representative or
commission agent of the other Party.

TWELFTH. NOTIFICATIONS AND NOTICES. Notifications and/or notices made by the

Parties shall be sent in writing, by certified mail, special courier services, confirmed
telecopy (fax) or through any other means with receipt acknowledged by the recipient, to
the domiciles of the Parties set forth below, during working days and hours. All notifications,
notices or communications amongst the Parties pursuant to the provisions of this Clause
shall be deemed received on the date in which they are delivered, with the corresponding
receipt or confirmation.

For the above, the Parties appoint the following as their domiciles:

PROVIDER: .......................

RECIPIENT: .......................

In furtherance of the provisions of this Clause, the Parties shall provide written notice of any
change to their domiciles and fax numbers. Until such notice of change is received, all
notices shall be effective at the time they are delivered to the above mentioned domiciled or
fax numbers.

THIRTEENTH. ASSIGNMENT. The Parties may not assign their rights and obligations
under this Agreement in favor of any third party, either partially or totally, without the prior
written approval of the other Party, except if such assignment is expressly agreed in this
Agreement.

FOURTEENTH. SUBSISTENCE OF OBLIGATIONS. The Parties agree that termination of

this Agreement by any cause shall not release them from compliance of their obligations
arisen before such termination in favor of the other Party, obligations arise after such
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termination as a result of actions or omissions related with the same before such
termination, or obligations of the Parties that pursuant to the provisions of this Agreement
shall subsist its termination.

FIFTEENTH. HEADINGS. Headings of the clauses of this agreement have been included
only for reference purposes and for convenience of the reader, and shall not affect
construance of the sense and scope of such clauses.

SIXTEENTH. LANGUAGE. This Agreement is executed in Spanish and English versions.

In case of discrepancy between both versions, the Spanish version shall prevail.

SEVENTEENTH. APPLICABLE LEGISLATION AND JURISDICTION. This agreement

shall be subject to the mercantile laws applicable in the United Mexican States. The
interpretation and execution of this agreement shall be subject to the exclusive jurisdiction
of the competent courts residing in ........................ The Parties hereby waive any other
jurisdiction to which they may be entitled by reason of their present or future domiciles or for
any other reason.

IN WITHNESS THEREOF, the parties, fully understanding the content and legal scope of
each and every one of the clauses of the present agreement, sign the same in .......................
, this .......................day of the month of .......................of ........................

PROVIDER

_____________, S.A. de C.V.

____________________________________

By: .......................

Legal Representative

RECIPIENT

_____________, S.A. de C.V.

___________________________________

By: .......................

Legal Representative

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