中英文：国际计算机软件许可合同格式(4)
(c) For purposes of this Contract, Buyer shall cease to operate the
system if Buyer does not use the System furnished by Seller as part of the
regular use on a regularly used satellite transponder to encode and decode
signals.
【章名】 14. Extended Maintenance
Prior to the expiration of the warranty period for the System set
forth in this Contract, Seller and/or its designated service provider
shall offer to Buyer the opportunity to enter into an extended maintenance
contract with respect to the System (including the related Control
Computer software but excluding the Control Computer hardware platform),
renewable for successive and consecutive ________ year periods. Seller and
Buyer shall discuss proposals for establishing a service center in ______,
with the participation of Buyer, for the servicing of the system. Seller
and Buyer shall also discuss proposals for future joint cooperation on
other projects within China.
【章名】 15. System Licenses and Condition Precedent to Effectiveness
(a) The Control Computer''s operating system software is provided to
Buyer under the terms and conditions of a sublicense from the operating
system licensor, as set forth in Annex F herein.
(b) All Seller''s software required for operation of the System and the
system is provided to Buyer under the license set forth in Annex E herein.
(c) No technology transfer or assignment is granted under this
Contract with respect to any products, or systems owned by Seller or any
proprietary rights owned or sublicensed by Seller. No right to grant
sublicenses is granted or is to be inferred or implied under this
Contract.
(d) Relevant PRC regulations may require Buyer to obtain the approval
of the Ministry of Foreign Trade and Economic Cooperation ("MOFTEC") as a
precondition for the effectiveness of (a) the sublicense of the Control
Computer''s operating system software to Buyer from the operating system
licensor, as set forth in Annex F herein and (b) the license of Seller''s
software which is required for operation of the System, to Buyer as set
forth in Annex E herein (collectively, the "Annexes"). Within _________
working days of the execution of the Contract, Buyer and Seller will
jointly confer with MOFTEC to determine whether MOFTEC''s approval is
required for the effectiveness of the Annexes. If MOFTEC informs Buyer and
Seller to the satisfaction of Buyer and Seller that the Annexes do not
require its approval, the Contract shall become effective upon such
communication. If, on the other hand, MOFTEC informs Seller and Buyer that
the issuance of its approval is a precondition for the effectiveness of
the Annexes, then this Contract shall become effective only upon the
issuance of such approvals.
If the foregoing conditions are not fulfilled within ________ days
after the Contract execution date and Buyer and Seller do not agree in
writing to waive such condition or to extend the time for its fulfilment,
the Seller shall in such event be entitled to terminate the Contract
forthwith and neither Party shall have any further obligations or
liability towards the other Party under this Contract.
【章名】 16. System Security Requirements
The parties shall agree to institute a System security plan for the
System, which plan outlines security procedures that will be established
and maintained in order to prevent theft or other compromise of the System
during the shipment, storage, operation or any other phase of the parties''
activities in connection with this Contract, including the warranty and
post-warranty periods. Buyer agrees to adopt and comply with and/or cause
its agents to adopt and comply with reasonable alternate or additional
security requirements Seller may from time to time recommend.
【章名】 17. Equipment Order Lead Times
Delivery dates for the equipment which is the subject of this Contract
appear in Annex B. Order lead times required for additional equipment are
as follows: (sketch)
Buyer will provide a rolling ________ month forecast of equipment
desired for delivery. The first ________ months of this forecast are to be
considered firm orders, subject to cancellation penalties set forth in
Annex C.
【章名】 18. Mutual Representations
Each party represents and warrants that:
(a) It is duly organized and registered and in good standing in its
state or country and has power and authority to enter into and perform
this Contract and any other agreements and documents executed or delivered
by it in connection herewith (collectively, with this Contract, "the
Documents").
(b) Its execution, delivery and performance of the Documents have been
duly authorized by all necessary action.
【章名】 19. Confidentiality
(a) Buyer agrees that any information or data such as Seller'' s
drawings and software (including, without limitation, designs, reports,
software documentation, manuals, models, and the like), revealed by Seller
to Buyer and containing proprietary information marked or identified as
"proprietary" or "confidential" shall be maintained in confidence by Buyer
with at least the same care and safeguards as are applied to Buyer''s own
proprietary information, but in no event with less than reasonable care.
Such information or data shall not be duplicated, disclosed to others, or
used without the written permission of Seller. These obligations shall not
apply to any information or data which is in or comes into the public
domain without violation of this provision; or is received lawfully by
Buyer from a third party; or is developed by Buyer independently and
without benefit of the information or data received from Seller. Seller
shall have no obligation to provide confidential or proprietary
information.
(b) Buyer''s obligations under this clause shall remain in effect for
_______ years after this Contract is signed by the Seller and Buyer. All
tangible forms of Seller''s proprietary information delivered by Seller to
Buyer shall be and remain the property of Seller, and shall be returned to
Seller upon Seller''s request.
(c) Except as expressly provided herein, it is agreed that no license
under any patents, trade secrets or copyrights of Seller is granted to
Buyer by the disclosure of Seller''s confidential or proprietary
information.
(d) Neither party shall use the name or the name of any trademark or
trade name (or symbolic representation thereof) of the other party or its
parent, subsidiaries or other affiliates, in marketing, advertising,
public relations efforts or in any other manner without the express
written consent of such other party in each instance, which consent shall
not unreasonably be withheld or delayed.
【章名】 20. Indemnification
(a) Each party shall indemnify and hold harmless the other party, its
shareholders, directors, officers, employees, agents, designees and
assignees, or any of them, from and against all losses, damages,
liabilities, expenses, costs, claims, suits, demands, actions, causes of
actions, proceedings, judgments, assessments, deficiencies and charges
(collectively, "Damages") caused by, relating to or arising from the
performance by such party in accordance with this Contract of its
obligations hereunder, and Buyer shall also indemnify Seller, without
limiting the foregoing, for any such item caused by, relating to or
arising from (a) the programming services which are authorized for viewing
using the System, including any assertion that any such programming
service involves copyright infringement, (b) any disputes between Buyer
and any of its program distributors or other distributors or affiliates,
(c) any disputes or claims involving the subscribers for Buyer''s
programming services, or (d) any assertion that Buyer has been involved
in, that Buyer''s conduct of subscription involves, or that Buyer''s use of
the System involves, any unfair competition or violations of laws, rules
or regulations.
(b) In the event of a third-party claim, with respect to which a party
is entitled to indemnification hereunder, a party (the "Indemnified
Party") shall notify the other party (the "Indemnifying Party") in writing
as soon as practicable, but in no event later than ______ days after
receipt of such claims. The Indemnified Party''s failure to provide such
notice shall not preclude it from seeking indemnification hereunder unless
such failure has materially prejudiced the Indemnifying Party''s ability to
defend such claim. The Indemnifying Party shall promptly defend such claim
(with counsel of its own choosing) and the Indemnified Party shall
cooperate with the Indemnifying Party in the defense of such claim,
including the settlement of the matter on the basis stipulated by the
Indemnifying Party (with the Indemnifying Party being responsible for all
costs and expenses of such settlement). If the Indemnifying Party within a
reasonable time after notice of a claim fails to defend the Indemnified
Party, the Indemnified Party shall be entitled to undertake the defense,
compromise or settlement of such claim at the expense of the Indemnifying
Party. Upon the assumption of the defense of such claim, the Indemnifying
Party may settle, compromise or defend as it sees fit.
Notwithstanding anything to the contrary set forth in this Section,
Seller will defend any suit, claim, action or proceeding brought against
Buyer to the extent that such suit, claim, action or proceeding is based
on a claim that goods manufactured and sold by Seller to Buyer infringe
patent, copyright, mask work, trademark, trade secret or any other
intellectual property rights of any third party and Seller shall pay all
damages and costs awarded by final judgment (from which no appeal may be
taken) against Buyer, as well as its actual expenses and costs, on
condition that Seller (i) is promptly informed and furnished a copy of
each communication, notice or other action relating to the alleged
infringement, (ii) is given sole control of the defense (including the
right to select counsel), and the sole right to compromise and settle such
suit or proceeding; provided however, that Seller''s liability hereunder,
if any, shall be strictly and solely limited to the amount of royalties
which would be payable in respect of revenues derived by Seller from Buyer
from sales of the infringing goods. Seller shall not be obligated to
defend or be liable for costs and damages if the infringement arises out
of a combination with, an addition to, or modification of the goods after
delivery by Seller, or from use of the goods, or any part thereof, in the
practice of a process.
If any goods manufactured and supplied by Seller to Buyer are held to
infringe any valid patent and Buyer is enjoined from using the same, or if
Seller believes such infringement is likely, Seller will exert all
reasonable efforts at its option and expense (i) to procure for Buyer the
right to use such goods free of any liability for such infringement, or
(ii) replace or modify such goods with a noninfringing substitute
otherwise complying substantially with all the requirements of this
Contract, or (iii) upon return of the goods, refund the purchase price and
the transportation costs of such goods (less reasonable allowance for
their use and benefit derived therefrom for the period of time from
delivery to Buyer, such allowance being based on a straight-line
depreciation period of _______ years from the date of shipment by Seller).
If the infringement is alleged prior to completion of delivery of the
goods, Seller has the right to decline to make further shipments without
being in breach of contract. If Seller has not been enjoined from selling
such goods to Buyer, Seller may (at Seller''s sole election), at Buyer''s
request, supply such goods to Buyer, in which event Buyer shall be deemed
to extend to Seller the same patent indemnity hereinabove stated.
The same patent indemnity shall be deemed to be extended to Seller by
Buyer if any suit or proceeding is brought against Seller based on a claim
that the goods manufactured by Seller in compliance with Buyer''s
specifications infringe any valid patent.
Buyer shall promptly notify Seller of any infringement by a third
party of intellectual property rights licensed to Buyer under this
Contract. In the event that a third party infringes such intellectual
property rights, the Parties shall cooperate with one another to take
appropriate action to cause such infringement to cease.
The foregoing states the sole and exclusive liability of the parties
hereto for infringement of patents, copyrights, mask works, trade secrets
trademarks, and other proprietary rights, whether direct or contributory,
and is in lieu of all warranties, express, implied or statutory, in regard
thereto, including, without limitation, the warranty against infringement
specified in the uniform commercial code.