第二章 合 资 双 方
第十六条 甲、乙方应各自负责完成以下各项事宜：１６．１ 甲方责任（根据具体情况写，主要有：）——按第五章规定出资并协助安排资金筹措；——办理为设立合资公司向中国有关主管部门申请批准、登记注册、领取营业执照等事宜；——向土地主管部门办理申请取得土地使用权的手续；——协助合资公司组织合资公司厂房和其它工程设施的设计、施工；——协助办理乙方作为出资而提供的机械设备的进口报关手续和在中国境内的运输；——协助合资公司联系落实水、电、交通等基础设施；——协助合资公司申请所有可能享受的关税和税务减免以及其它利益或优惠待遇；——协助合资公司招聘中方管理人员、技术人员、工人和所需的其他人员；——协助外籍工作人员办理所需的入境签证、工作许可证和旅行手续等；——负责办理合资公司委托的其它事宜。１６．２ 乙方责任：——按第五章规定出资并协助安排资金筹措；——办理合资公司委托在中国境外选购机械设备、材料等有关事宜；——提供需要的设备安装、调试以及试生产技术人员、生产和检验技术人员；——培训合资公司的技术人员和工人；——如乙方同时又是技术转让方，则应负责合资公司在规定期限内按设计能力稳定地生产合格产品；——负责办理合资公司委托的其它事宜。
第七章 技 术 转 让
第九章 董 事 会
第三十一条 合资公司生产中所需要的有关设备、仪器等物资，其采购权归合资公司。第三十二条 合资公司所需原材料、燃料、零部件、运输工具等，在条件相同情况下，尽先在中国购买。
第十二章 劳 动 管 理
第三十三条 合资公司职工的招聘、处罚、辞退、合同期限、工资、劳动保险、生活福利等事宜，按照《中华人民共和国劳动法》和《中华人民共和国中外合资经营企业劳动管理规定》及其实施办法，经董事会研究制定方案，由合资公司和合资公司工会组织集体或个别地订立劳动合同。劳动合同订立后，报当地劳动管理部门备案。第三十四条 外籍职工有关的劳动事务详细规定见附件。
第十三章 工 会
第十五章 保 险
第十八章 违 约 责 任
第十九章 不 可 抗 力
第二十章 适 用 法 律
第二十二章 合 同 文 字
7. THE CONTRACT FOR SINO-FOREIGN EQUITY JOINT VENTURE
Chapter 1 General Provisions
In accordance with the Law of the People's Republic of China on JointVentures Using Chinese and Foreign Investment (the "Joint Venture Law")and other relevant Chinese laws and regulations, __________Company and___________ Company, in accordance with the principle of equality andmutual benefit and through friendly consultations, aGREe to jointly investto set up a joint venture enterprise in ________of the People's Republicof China.
Chapter 2 Parties of the Joint Venture
Parties to this contract are as follows: ___________Company (hereinafter referred to as Party A), registered with __________ in China,and its legal address is at ___________ (street) __________ (district)___________ (city) ___________China.
__________Company (hereinafter referred to as Party B), registeredwith __________. Its legal address at ___________.Legal representative:
(Note: In case there are more than two investors, they will be calledParty C,D……in proper order).
Chapter 3 Establishment of the Joint Venture Company
In accordance with the Joint Venture Law and other relevant Chineselaws and regulations, both parties of the joint venture aGREe to set up_____________joint venture limited liability company ( hereinafterreferred to as the joint venture company).
The name of the joint venture company is __________Limited LiabilityCompany.
The name in foreign language is __________.
The legal address of the joint venture company is at __________street___________(city)___________ province.
All activities of the joint venture company shall be governed by thelaws, decrees and pertinent rules and regulations of the People's Republicof China.
The Organization form of the joint venture company is a limitedliability company. Each party to the joint venture company is liable tothe joint venture company within the limit of the capital subscribed byit. The profits, risks and losses of the joint venture company shall beshared by the parties in proportion to their contributions to theregistered capital.
Chapter 4 The Purpose, Scope and Scale of Production and Business
The goals of the parties to the joint venture are to enhance economicco-operation technical exchanges, to improve the product quality, developnew products, and gain a competitive position in the world market inquality and price by adopting advanced and appropriate technology andscientific management methods, so as to raise economic results and ensuresatisfactory economic benefits for each investor.
(Note: This article shall be written according to the specificsituations in the contract).
The productive and business scope of the joint venture company is toproduce __________ products; provide maintenance service after the sale ofthe products; study and develop new products.
(Note: It shall be written in the contract according to the specificconditions).
The production scale of the joint venture company is as follows:
1. The production capacity after the joint venture is put intooperation is __________.
2. The production scale may be increased up to ____________ with thedevelopment of the production and operation. The product varieties may bedeveloped into ___________.
(Note: It shall be written according to the specific situation).
Chapter 5 Total Amount of Investment and the Registered Capital
The total amount of investment of the joint venture company is RMB___________ (or a foreign currency aGREed upon by both parties).
Investment contributed by the parties is Renminbi __________, whichwill be the registered capital of the joint venture company.
Of which: Party A shall pay ____________ Yuan, accounting for__________%; Party B shall pay ___________Yuan, accounting for__________%.
Both Party A and Party B will contribute the following as theirinvestment:
Party A: cash __________Yuan
machines and equipment __________Yuan
the right to the use of the site __________Yuan
industrial property __________Yuan
others __________ Yuan, __________ Yuan in all.
Party B: cash __________Yuan
machines and equipment __________Yuan
industrial property __________Yuan
others __________Yuan, __________Yuan in all.
(Note: When contributing capital goods or industrial property asinvestment, Party A and Party B shall conclude a separate contract to be apart of this main contract).
The registered capital of the joint venture company shall be paid in___________ installments by Party A and Party B according to theirrespective proportion of their investment.
Each installment shall be as follows:
(Note: it shall be written according to the concrete conditions).
In case any party to the joint venture intends to assign all or partof his investment subscribed to a third party, consent shall be obtainedfrom the other party to the joint venture, and approval from theexamination and approval authority is required.
When one party to the joint venture assigns all or part of hisinvestment, the other party has preemptive right.
Chapter 6 Responsibilities of Each Party to the Joint Venture
Party A and Party B shall be respectively responsible for thefollowing matters:
Responsibilities of Party A:
Handling of applications for approval, registration, business licenseand other matters concerning the establishment of the joint venturecompany from relevant departments in charge of China;
Processing the application for the right to the use of a site to theauthority in charge of the land;
Organizing the design and construction of the premises and otherengineering facilities of the joint venture company;
Providing cash, machinery and equipment and premises …… in accordancewith the provisions of Article 11;
Assisting Party B to process import customs declaration for themachinery and equipment contributed by Party B as investment and arrangingthe transportation within the Chinese territory;
Assisting the joint venture company in purchasing or leasingequipment, materials, raw materials, articles for office use, means oftransportation and communication facilities etc.;
Assisting the joint venture company in contacting and settling thefundamental facilities such as water, electricity, transportation etc.;
Assisting the joint venture in recruiting Chinese managementpersonnel, technical personnel, workers and other personnel needed;
Assisting foreign workers and staff in applying for entry visas, worklicenses and handling their travel procedures;
Responsible for handling other matters entrusted by the joint venturecompany.
Responsibilities of Party B:
Providing cash, machinery and equipment, industrial property …… inaccordance with the provisions of Article 11, and responsible for shippingcapital goods such as machinery and equipment etc. contributed asinvestment to a Chinese port;
Handling the matters entrusted by the joint venture company, such asselecting and purchasing machinery and equipment outside China, etc.;
Providing necessary technical personnel for installing, testing andtrial production of the equipment as well as the technical personnel forproduction and inspecting;
Training the technical personnel and workers of the joint venturecompany;
In case Party B is the licensor, it shall be responsible for thestable production of qualified products of the joint venture company inthe light of design capacity within the specified period;
Responsible for other matters entrusted by the joint venture company.(note: It shall be written according to the specific situation).
Chapter 7 Transfer of Technology
Both Party A and Party B aGREe that a technology transfer aGREementshall be signed between the joint venture company and Party B (or a thirdparty) so as to obtain advanced production technology needed for realizingthe production and operation purpose and the production scale specified inChapter 4 of the contract, including product design, manufacturingtechnology, means of testing, materials prescription, standard of qualityand the training of personnel etc.
(Note: It shall be written in the contract according to the concreteconditions).
Party B offers the following guarantees on the transfer of technology:
(Note: Article applies only when Party B is responsible fortransferring technology to the joint venture company).
1. Party B guarantees that the overall technology such as thedesigning, manufacturing technology, technological process, tests andinspection of products (Note: The name of the products shall be written)provided to the joint venture company must be integrated, precise andreliable. It is to meet the requirement of the joint venture's operationpurpose, and be able to obtain the standard of production quality andproduction capacity specified in the contract;
2. Party B guarantees that the technology specified in this contractand the technology transfer aGREement shall be fully transferred to thejoint venture company, and pledges that the provided technology should betruly advanced among the same type of technology produced by Party B, themodel, specification and quality of the equipment are excellent and it isto meet the requirement of technological operation and practical usage;
3. Party B shall work out a detailed list of the provided technologyand technological service at various stages as specified in the technologytransfer aGREement to be an appendix to the contract, and guarantee itsperformance;
4. The drawings, technological conditions and other detailedinformation are part of the transferred technology and shall be providedon time;
5. During the term of the technology transfer aGREement, Party B shallprovide the joint venture company with any improvements in the technologyand the improved information and technological materials in time, andshall not charge separate fees;
6. Party B shall guarantee that the technical personnel and theworkers in the joint venture company can master all the technologytransferred within the period specified in the technology transferaGREement.
In case Party B fails to provide equipment and technology inaccordance with the provisions of this contract and the technologytransfer aGREement or in case any deceiving or concealing actions arefound, Party B shall be responsible for compensating the direct losses tothe joint venture company.
The technology transfer fee shall be paid in royalties. The royaltyrate shall be ___________% of the net sales value of the products.The term for royalty payment is the same as the term for thetechnology transfer aGREement specified in Article 19 of this contract.
The term for the technology transfer aGREement signed by the jointventure company and Party B is ___________ years. After the expiration ofthe technology transfer aGREement, the joint venture company shall havethe right to use, research and develop the imported technologycontinuously.
(Note: The term for a technology transfer aGREement is generally nolonger than 10 years, and it shall be approved by the Ministry of ForeignTrade and Economic Cooperation or other examination and approvalauthorities entrusted by the Ministry of Foreign Trade and EconomicCooperation).
Chapter 8 Selling of Products
The products of joint venture company will be sold both on the Chineseand the overseas market, the export portion accounts for __________%,__________% for the domestic market.
(Note: An annual percentage and amount for outside and domesticselling will be written out according to practical situations, in normalconditions, the amount for export shall at least meet the needs of foreignexchange expenses of the joint venture company).
Products may be sold on overseas markets through the followingchannels:
The joint venture company may directly sell its products on theinternational market, accounting for ___________%.
The joint venture company may sign sales contracts with Chineseforeign trade companies, entrusting them to be the sales agencies orexclusive sales agencies, accounting for __________%.
The joint venture company may entrust Party B to sell its products,accounting for ______________%.
The joint venture's products to be sold in China may be handled by theChinese materials and commercial departments by means of agency orexclusive sales, or may be sold by the joint venture company directly.
In order to provide maintenance service to the products sold both inChina or abroad, the joint venture company may set up sales branches formaintenance service both in China or abroad subject to the approval of therelevant Chinese department.
The trade mark of the joint venture's products is __________.
Chapter 9 The Board of Directors
The date of registration of the joint venture company shall be thedate of the establishment of the board of directors of the joint venturecompany.
The board of directors is composed of __________directors, of which___________shall be appointed by Party A, _________by Party B. Thechairman of the board shall be appointed by Party A, and its vice-chairmanby Party B. The term of office for the directors, chairman andvice-chairman is four years, their term of office may be renewed ifcontinuously appointed by the relevant party.
The highest authority of the joint venture company shall be its boardof directors. It shall decide all major issues (Note: The main contentsshall be listed in the light of Article 36 of the Implementing Regulationsfor the Joint Venture Law) concerning the joint venture company. Unanimousapproval shall be required for any decisions concerning major issues. Asfor other matters, approval by majority or a simple majority shall berequired.
(Note: It shall be explicitly set out in the contract).
The chairman of the board is the legal representative of the jointventure company. Should the chairman be unable to exercise hisresponsibilities for any reason, he shall authorize the vice- chairman orany other directors to represent the joint venture company temporarily.
The board of directors shall convene at least one meeting every year.The meeting shall be called and presided over by the chairman of theboard. The chairman may convene an interim meeting based on a proposalmade by more than one third of the total number of directors. Minutes ofthe meetings shall be placed on file.
Chapter 10 Business Management Office
The joint venture company shall establish a management office whichshall be responsible for its daily management. The management office shallhave a general manager, appointed by Party _______, _______ deputy generalmanagers, _______by Party ______; _______by Party ________. The generalmanager and deputy general managers whose terms of office is ________years shall be appointed by the board of directors.
The responsibility of the general manager is to carry out thedecisions of the board and organize and conduct the daily management ofthe joint venture company. The deputy general managers shall assist thegeneral manager in his work.
Several department managers may be appointed by the management office,they shall be responsible for the work in various departmentsrespectively, handle the matters handed over by the general manager anddeputy general managers and shall be responsible to them.
In case of graft or serious dereliction of duty on the part of thegeneral manager and deputy general managers, the board of directors shallhave the power to dismiss them at any time.
Chapter 11 Purchase of Equipment
In its purchase of required raw materials, fuel, parts, means oftransportation and articles for office use, etc., the joint venturecompany shall give first priority to purchase in China where conditionsare the same.
In case the joint venture company entrusts Party B to purchaseequipment on the overseas market, persons appointed by the Party A shallbe invited to take part in the purchasing.
Chapter 12 Preparation and Construction
During the period of preparation and construction, a preparation andconstruction office shall be set up under the board of directors. Thepreparation and construction office shall consist of _________ persons,among which ________ persons will be from Party A, _______ persons fromParty B. The preparation and construction office shall have one managerrecommended by Party _________, and one deputy manager by Party ________.The manager and deputy manager shall be appointed by the board ofdirectors.
The preparation and construction office is responsible for thefollowing concrete works: examining the designs of the project, signingthe project construction contract, organizing the purchase and inspectionof related equipment, materials, etc., working out the general schedule ofproject construction, compiling the expenditure plans, controlling projectfinancial payments and final accounts of the project, drawing upmanagerial methods and keeping and filing documents, drawings, files andmaterials, etc., during the construction period of the project.
A technical group with several technical personnel appointed by PartyA and Party B shall be organized. The group, under the leadership of thepreparation and construction office, is in charge of the examination,supervision, inspection, testing, checking and accepting, and performancechecking of the project design, the quality of the project, the equipmentand materials and the imported technology.
After approval by both parties, the establishment, remuneration andthe expenses of the staff of the preparation and construction office shallbe covered in the project budget.
After having completed the project and finished the turning overprocedures, the preparation and construction office shall be dissolvedupon the approval of the board of directors.
Chapter 13 Labor Management
Labor contract covering the recruitment, employment, dismissal andresignation, wages, labor insurance, welfare, rewards, penalties and othermatters concerning the staff and workers of the joint venture companyshall be drawn up between the joint venture company and the trade union ofthe joint venture company as a whole, or the individual employees in thejoint venture company as a whole or individual employees in accordancewith the Regulations of the People's Republic of China on Labor Managementin Joint Ventures Using Chinese and Foreign Investment and itsImplementing Rules.
The labor contracts shall, after being signed, be filed with the locallabor management department.
The appointment of high-ranking administrative personnel recommendedby both parties, their salaries, social insurance, welfare and thestandard of travelling expenses etc. shall be decided by the meeting ofthe board of directors.
Chapter 14 Taxes, Finance and Audit
The joint venture company shall pay taxes in accordance with theprovisions of Chinese laws and other relative regulations.
Staff members and workers of the joint venture company shall payindividual income tax according to the Individual Income Tax Law of thePeople's Republic of China.
Allocations for reserve funds, expansion funds of the joint venturecompany and welfare funds and bonuses for staff and workers shall be setaside in accordance with the provisions of the Joint Venture Law. Theannual proportion of allocations shall be decided by the board ofdirectors according to the business situation of the joint venturecompany.
The fiscal year of the joint venture company shall be from January 1to December 31. All vouchers, receipts, statistic statements and reportsshall be written in Chinese.
(Note: A foreign language can be used concurrently with mutualconsent).
Financial checking and examination of the joint venture company shallbe conducted by an auditor registered in China and reports shall besubmitted to the board of directors and the general manager.In case Party B considers it necessary to employ a foreign auditorregistered in another country to undertake annual financial checking andexamination, Party A shall give its consent. All the expenses thereofshall be borne by Party B.
In the first three months of each fiscal year, the manager shallprepare the previous year's balance sheet, profit and loss statement andproposal regarding the disposal of profits, and submit them to the boardof directors for examination and approval.
Chapter 15 Duration of the Joint Venture
The duration of the joint venture company is ___________ years. Theestablishment date of the joint venture company shall be the date on whichthe business license of the joint venture company is issued.An application for the extension of the duration, proposed by oneparty and unanimously approved by the board of directors, shall besubmitted to the Ministry of Foreign Trade and Economic Cooperation (orthe examination and approval authority entrusted by it) six months priorto the expiry date of the joint venture.
Chapter 16 The Disposal of Assets after the Expiration of the Duration
Upon the expiration of the duration, or termination before the date ofexpiration of the joint venture, liquidation shall be carried outaccording to the relevant laws. The liquidated assets shall be distributedin accordance with the proportion of investment contributed by Party A andParty B.
Chapter 17 Insurance
Insurance policies of the joint venture company on various kinds ofrisks shall be underwritten with the People's Republic of China. Types,value and duration of insurance shall be decided by the board of directorsin accordance with the provisions of the People's Insurance Company ofChina.
Chapter 18 The Amendment, Alteration and Termination of the Con- tract
The amendment of the contract or other appendices shall come intoforce only after a written aGREement has been signed by Party A and PartyB and approved by the original examination and approval authority.
In case of inability to fulfil the contract or to continue operationdue to heavy losses in successive years as a result of force majeure, theduration of the joint venture and the contract shall be terminated beforethe time of expiration after being unanimously aGREed upon by the board ofdirectors and approved by the original examination and approval authority.
Should the joint venture company be unable to continue its operationor achieve its business purpose due to the fact that one of thecontracting parties fails to fulfil the obligations prescribed by thecontract and articles of association, or seriously violates the provisionsof the contract and articles of association, that party shall be deemed tohave unilaterally terminated the contract. The other party shall have theright to terminate the contract in accordance with the provisions of thecontract after approval by the original examination and approvalauthority, and to claim damages. In case Party A and Party B of the jointventure company aGREe to continue the operation, the party who fails tofulfil its obligations shall be liable for the economic losses causedthereby to the joint venture company.
Chapter 19 Liability for Breach of Contract
should either Party A or Party B fail to pay on schedule thecontributions in accordance with the provisions defined in Chapter 5 ofthis contract, the party in breach shall pay to the other party _________%of the contribution starting from the first month after exceeding the timelimit. Should the party in breach fail to pay after 3 months, __________%of the contribution shall be paid to the other party, who shall have theright to terminate the contract and to claim damages from the party inbreach in accordance with the provisions of Article 53 of the contract.
Should all or part of the contract and its appendices be unable to befulfilled owing to the fault of one party, the party in breach shall bearthe liability therefor. Should it be the fault of both parties, they shallbear their respective liabilities according to the actual situation.
In order to guarantee the performance of the contract and itsappendices, both Party A and Party B shall provide each other with bankguarantees for performance of the contract.
Chapter 20 Force Majeure
Should either of the parties to the contract be prevented fromexecuting the contract by force majeure, such as earthquake, typhoon,flood, fire, war or other unforeseen events, and their occurrence andconsequences are unpreventable and unavoidable, the prevented party shallnotify the other party by telegram without any delay, and within 15 daysthereafter provide detailed information of the events and a valid documentfor evidence issued by the relevant public notary organization explainingthe reason of its inability to execute or delay the execution of all orpart of the contract. Both parties shall, through consultations, decidewhether to terminate the contract or to exempt part of the obligations forimplementation of the contract or whether to delay the execution of thecontract according to the effects of the events on the performance of thecontract.
Chapter 21 Applicable Law
The formation, validity, interpretation, execution and settlement ofdisputes in respect of, this contract shall be governed by the relevantlaws of the People's Republic of China.
Chapter 22 Settlement of Disputes
Any disputes arising from the execution of, or in connection with, thecontract shall be settled through friendly consultations between bothparties. In case no settlement can be reached through consultations, thedisputes shall be submitted to the Foreign Economic and Trade ArbitrationCommission of the China Council for the Promotion of International Tradefor arbitration in accordance with its rules of procedure. The arbitralaward is final and binding upon both parties.
Any disputes arising from the execution of, or in connection with thecontract shall be settled through friendly consultations between bothparties. In case no settlement can be reached through consultations, thedisputes shall be submitted to __________Arbitration Organization in__________for arbitration in accordance with its rules of procedure. Thearbitral award is final and binding upon both parties.
Any disputes arising from the execution of, or in connection with thecontract shall be settled through friendly consultations between bothparties. In case no settlement can be settled through consultations, thedisputes shall be submitted for arbitration.
Arbitration shall take place in the defendant's country.
If in China, arbitration shall be conducted by the Foreign Economicand Trade Arbitration Commission of the China Council for the Promotion ofInternational Trade in accordance with its rules of procedure.
If in ___________, the arbitration shall be conducted by ___________inaccordance with its rules of procedure.
The arbitral award is final and binding upon both parties.
(Note: When formulating contracts, only one of the above-mentionedprovisions can be used).
During the arbitration, the contract shall be observed and enforced byboth parties except for the matters in dispute.
Chapter 23 Language
The contract shall be written in Chinese and in ___________. Bothlanguage versions are equally authentic. In the event of any discrepancybetween the two aforementioned versions, the Chinese version shallprevail.
Chapter 24 Effectiveness of the Contract and Miscellaneous
The appendices drawn up in accordance with the principles of thiscontract are integral parts of this contract, including: the projectaGREement, the technology transfer aGREement, the sales aGREement etc.
The contract and its appendices shall come into force commencing fromthe date of approval of the Ministry of Foreign Trade and EconomicCooperation of the People's Republic of China (or its entrustedexamination and approval authority).
Should notices in connection with any party's rights and obligationsbe sent by either Party A or Party B by telegram or telex, etc., thewritten letter notices shall be also required afterwards. The legaladdresses of Party A and Party B listed in this contract shall be theposting addresses.
The contract is signed in ___________, China by the authorizedrepresentatives of both parties on __________, __________.
For Party A For Party B