PRELIMINARY STATEMENT 前言
REPRESENTATIONS AND WARRANTIES 陈述和保证
CONTINUING OBLIGATIONS 双方持续的义务
BREACH OF CONTRACT 违约责任
FORCE MAJEURE 不可抗力
SETTLEMENT OF DISPUTES争议的解决
APPLICABLE LAW 适用法律
MISCELLANEOUS PROVISIONS 其他规定
一、关于PRELIMINARY STATEMENT 前 言
例This Master Marketing Services Agreement (the “Agreement”) is entered into as of [MONTH DAY, YEAR] (the “Effective Date”) by and between: a Delaware corporation with a principal place of business at (“VENDOR”)
RESEARCH IN MOTION LIMITED, a company incorporated in the Province of Ontario and having its principal place of business at 295 Phillip Street, Waterloo, Ontario, N2L 3W8 (“RIM”)
本销售服务主协议（下称：协议）由一家主营业地位于特拉华州（美国—译注） 的公司（下称：供方）与位于安大略省（加拿大—译注），主营业地在295 Phillip Street, Waterloo, Ontario, N2L 3W8（下称：需方）于（ 年 月 日）签订的，鉴于：
A.RIM is a leading distributor and marketer of innovative wireless solutions for the worldwide marketplace;
B.VENDOR is in the business of [INSERT A DETAILED DESCRIPTION OF THE VENDOR’S BUSINESS IN NO MORE THAN 3 SENTENCES]; and
C.RIM and VENDOR (each a “Party” and collectively the “Parties”) wish to enter into anadd background information if appropriate视交易具体情况决定是否应介绍合同背景
例After friendly consultations conducted in accordance with the principles of equality and mutual benefit, the Parties have agreed to [describe subject matter of the Contract] in accordance with Applicable laws and the provisions of this Contract.
例independent contractor arrangement whereby VENDOR shall perform certain Services (as defined herein) on the terms and conditions set forth in this Agreement.
NOW THEREFORE in consideration of the mutual promises and covenants herein contained, the Parties hereby covenant and agree as follows:
Now the Parties Hereby Agree as follows:双方现协议如下：
例 Unless the terms or context of this contract otherwise provide, all term used in this Contract shall have the meanings set out as follows.
例Unless the terms or context of this Contract otherwise provide, the following terms shall have the meanings set out below:
例“Affiliate” means any entity which, directly or indirectly, is controlled by , under common control with, or in control of, a Party; the term “control” being used in the sense of power to elect or appoint a majority of directors or to direct the management of a company.
例“Applicable Laws” mean the laws, regulations, rules, and legislative, executive or judicial notices, orders, decisions or other documents binding on either Party or the subject matter of this Contract.
例“Business Day” means, in respect of Party A and any action to be taken by Party B in the PRC, any day on which the companies in the PRC are generally open for business in the PRC, including a Saturday or Sunday which the PRC government temporarily declares to be a working day (“Working Rest Day”), but excluding a statutory holiday, or a Saturday or Sunday other than a Working Rest Day; in respect of any action to be taken by Party B in [Party B Home Country], any day on which the companies in [Party B Home Country] are generally open for business in [Party B Home Country].
例“China” and “PRC” mean the People’s Republic of China, [but for purposes of this Contract do not include the special administrative regions of Hong Kong and Macau and the region of Taiwan]
例“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by any Party which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be undertstood by the Parties, exercising reasonable business judgement, to be confidential.
例“Effective Date” means the [date of this Contract first shown above][the date on which each of the conditions precedent in Article , have been satisfied or waived in accordance with the terms thereof].
“Expiration Date” means the day on which the initial Term or any extended Term expires in accordance with the provisions of Articles .1 and .2.
例“Intellectual Property Right” or “IPR” means any and all rights in any invention, disvcovery, improvement, utility, model, copyrightable work, industrial design or mask work, algorithm, data structure, trade secrets or know-how, Confidential Information, or any idea having commercial value. IPR shall include any trademark, trade dress, trade name, domain name, or other marks that serve to indetify and distinguish goods or services as coming from, or falling under the control of, a single source. IPR shall include all rights of whatsoever nature in computer software and data, all intangible rights or privileges of a nature similar to any of the foregoing in every case in any part of te world and whether or not registered, and all rights in any applications and granted registrations for any of the foregoing rights;
例References to Schedules, Annexes, Articles and Sections are references to schedules, annexes, articles and sections of this Contract.
例References in this Contract to laws, rules or regulations or to contracts, contracts or other documents, shall mean the same as amended from time, and references to government ministries, bureaux, departments, commissions, agencies, etc. shall include all successor entities thereto.
例In this Contract, the masculine form includes the feminine form and the singular form includes the plural form, and vice versa.
例Headings are for convenience of reference only and shall not affect the construction or interpretation of this Contract.
三、关于OPERATIVE CLAUSES 具体操作条款
五、关于陈述与担保 Representatins and Warranties
Add undertakings if appropriate
例Each party represents and warrants to the other Party that on the date hereof:
(a) it is [an independent legal person] duly organized, validly existing and in good standing under the laws of the place of its establishment;
(b)it has full authority to enter into this Contract and to perform its obligations hereunder;
(c)it has authorized its representative to sign this Contract and from and after the Effective Date the provisions of this Contract shall be legally binding upon it;
(d)its execution of this Contract and its performance of its obligations hereunder(i)will not violate any provision of its business license, articles of incorporation, articles of association or similar organizational documens; (ii) will not violate any Applicable Law or any governmental authorization or approval; and (iii) will not violate or result in a default under any contract to which it is a party or to which it is subject;
(e)no lawsuit, arbitration or other legal or governmental proceeding is pending or, to its knowledge, threatened against it that would affect its ability to perform its obligations under this Contract; and
(f)it has disclosed to the other Party all documents issued by and governmental department that may have a material adverse effect on its ability to full perform its obligations under this Contract, and the documents previously provided by it to the other Party do not contain any misstatements or omissions of material facts.
consequences of lnaccuracy in Representations
if any of the above representations and warranties of a Party are not accurate in all material respects on the date hereof, then such Party shall be in breach of this Contract.
例 Subject to the provisions of Article .2,the term of the Contract (“Term”) shall be two years, commencing on the Effective Date.
The Term shall expire automatically on the Expiration Date, unless extended for an additional term through a written contract signed by the authorized representatives of the Parties at least [sixty (60)] days prior to the Expiration Date.
insert other conditions triggering termination as appropriate根据情况设定其他导致合同终止的条款
例 Either party may terminate this Contract if the other party fails to fulfill or perform any of its obligations hereunder in the event that such failure remains unremedied sixty(60)days after the service of a written notice by the party to the defaulting party specifying the failure in question and requiring it to be remedied. The termination of this Contract shall not release either party form performance any of its obligations due at the time of such termination.
(a)This Contract shall terminate upon the expiration of the Term unless extended pursuant to Article3 .2.
(b)This Contract may be terminated at any time prior to expiration of the Term by the mutual written contract of the Parties.
(c)At any time prior to the expiration of the Term, a Party (“Notifying Party ”) may terminate this Contract through notice to the other Party in writing if:
(i)The other Party materially breaches this contract, and such breach is not cured within the Cure Period granted pursuant to Article 3(a) (Remedies for Breach of Contract); or
(ii)the other Party becomes bankrupt, or is the subject of proceedings for liquidation or dissolution, or ceases to carry on business or becomes unable to pay its debts as they come due; or
(iii)the conditions or consequences of Force Majeure (as hereinafter defined) which have a material adverse effect on the affected Party’s ability to perform continue for a period in excess of six (6) months and the Parties have been unable to find an equitable solution pursuant to Article .2(c) (Consequences of Force Majeure) hereof; or
(iv)a fundamental provision of this Contract (without which one or both of the Parties would not have entered into the Contract) is declared or becomes invalid under Applicable Law.
八、关于 Continuing Obligations 双方持续的义务
The provisions of Article (Termination), Article (Breach of contract) (but only with respect to claims arising prior to the termination hereof or with respect to other continuing obligations), Article (Confidentiality) and Article (Settlement of Disputes) shall survive the termination of this contract.
以下各条的条款在本合同终止后继续有效：第[ ]条（合同终止），第[ ]条（违约）（但其效力仅限于本合同终止前发生的违约事件以及违反其他持续义务的情形），第[ ]条（保密义务），以及第[ ]条（争议的解决）。
例The existence of this Contract, as well as its content, shall be held in confidence by both Parties and only disclosed as may be agreed to by both Parties or as may be required to meet securities disclosure or export permit requirements. Neither Party shall make public statements or issue publicity or media releases with regard to this Contract or the relationship between the Parties without the prior written approval of the other Party.
例From time to time prior to and during the term of this Contract either Party (“disclosing Party ”) has disclosed or may disclose Confidential Information to the other Party (“Receiving Party ”). The receiving Party shall, during the term of this Contract and for two years thereafter:
(a)maintain the confidentiality of Confidential Information;
(b)not to use Confidential Information for any purpose other than those specifically set out in this Contract; and
(c)not disclose any such Confidential Information to any person or entity, except to its employees or employees of its Affiliates,its agents, attorneys, accountants and other advisors who need to know such information to perform their responsibilities and who have signed written confidentiality contracts containing terms at least as stringent as the terms provided in this Article .
例The provisions of Article 11 above shall not apply to information that:
(a)can be shown to be known by the receiving Party by written records made prior to disclosure by the disclosing Party;
(b)is or becomes public knowledge otherwise than through the receiving Party’s breach of this Contract; or
(c)was obtained by the receiving Party from a third party having no obligation of confidentiality with respect to such information.
例Each party shall formulate rules and regulations to inform its directors, senior staff, and other employees, and those of their Affiliates of the confidentiality obligation set forth in this Articles .
例Upon the expiration or termination of this Contract, [and in any event upon the disclosing Party’s request at any time], the receiving Party shall (i) return to the other Party, or at the disclosing Party’s direction destroy, all materials (including any copies thereof) embodying the other Party’s Confidential Information and (ii) certify in writing to the other Party, within ten days following the other Party’s request, that all of such materials have been returned or destroyed.
十、关于Breach of Contract违约责任与救济
1Remedies for Breach of Contract违约救济
例Except as otherwise provided herein, if a Party (“breaching party”) fails to perform any of its material obligations under this Contact, then the other Party (“aggrieved party”) may at its option:
(a)give written notice to the breaching party describing the nature and scope of the breach and demand that the breaching party cure the breach at its cost within a reasonable time specified in the notice (“Cure Period”); and
(b)if the breaching party fails to cure the breach within the Cure period, the aggrieved party may claim direct and foreseeable damages arising from the breach.
2Limitation on Liability责任限制
例 Notwithstanding any other provision of this Contract, neither Party shall be liable to the other Party for damages for loss of revenues or profits, loss of goodwill or any indirect or consequential damages in connection with the performance or non-performance of this Contract .The aggregate liability of a Party for all claims for any loss, damage or indemnity whatsoever resulting from such Party’s performance or non-performance of this Contract shall in no case exceed United States Dollars (US$ ) or the RMB equivalent thereof.
无论本合同其他条款有何规定，任何一方均不向对方承担因本合同的履行或不履行而造成的收入或利润丧失、商誉丧失或任何间接或附带性损失的赔偿责任。在任何情况下，一方因本合同的履行或不履行而造成的损失、损害或补偿索赔所承担的责任累计总额不得超过[ ]美元（US￥[ ]）或等值的人民币。
1Definition of Force Majeure不抗力的定义
例“Force Majeure” shall mean all events which are beyond the control of the Parties to this Contract, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by either of the Parties. Such events shall include earthquakes, typhoons, flood ,fire, war, strikes, riots, acts of governments, changes in law or the application thereof or any other instances which cannot be foreseen, prevented or controlled, including instances which are accepted as Force Majeure in general international commercial practice.
2Consequences of Force Majeure不可抗力的后果
例if an event of Force Majeure occurs, a Party’s contractual obligations affected by such an event under this Contract shall be suspended during the period of delay caused by the Force Majeure and shall be automatically extended, without penalty, for a period equal to such suspension.
例The Party claiming Force Majeure shall promptly inform the other Parties in writing and shall furnish within [fifteen (15)] days thereafter sufficient proof of the occurrence and duration of such Force Majeure. The Party claiming Force Majeure shall also use all reasonable endeavours to terminate the Force Majeure.
例In the event of Force Majeure, the Parties shall immediately consult with each other in order to find an equitable solution and shall use all reasonable endeavours to minimize the consequences of such Force Majeure.
十二、关于Settlement of Disputes争议的解决
例In the event of any dispute, controversy or claim (collectively, “dispute”) arising out of or relating to this Contract, or the breach, termination or invalidity hereof, the Parties shall attempt in the first instance to resolve such dispute through friendly consultations.
例If any dispute is not resolved by friendly consultations within [sixty (60)] days after the date such consultations were first requested by a Party, then any Party may submit the dispute for arbitration in [Singapore] before the [Singapore International Arbitration Centre] in accordance with its rules of arbitration procedure, supplemented by the following:
(a)There shall be one (1) arbitrator appointed by the arbitration body.
(b)The arbitration proceedings shall be conducted in the English language.
(c)The arbitration award shall be final and binding on the Parties, and the Parties agree to be bound thereby and to act accordingly.
(d)All costs of arbitration shall be borned by the Parties as determined by the arbitration tribunal..
Continuing Rights and Obligations持续的权利和义务
When any dispute occurs and is the subject of friendly consultations or arbitration, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Contract, except in respect of those matters under dispute.
3Enforcement of Award裁决的执行
例 Judgment upon any arbitral award may be entered in any court having jurisdiction over the Party against which the award has been rendered, or application may be made to any such court for judicial acceptance of the award and an order of enforcement, as the case may be. In the event of judicial acceptance and an order of enforcement, each Party expressly waives all rights to object thereto, including any defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state.
4Injunctive Relief 申请禁制令的司法救济权利
例 Notwithstanding the foregoing, the Parties agree that each Party has the right to seek injunctive or other similar relief in any court of competent jurisdiction in respect of any claims of breach of confidentiality or IPR infringement.
例The validity, interpretation and implementation of this Contract shall be governed by the laws of [the People’s Republic of China][another jurisdiction] (without regard to its rules governing conflict of laws).
例Unless otherwise stipulated in this contract, the terms and conditions of this contract shall be interpreted in accordance with the “International Rules for the Interpretation of Trade Terms (INCOTERMS 2000)” provided by International Chamber of Commerce.
Independent Contractor Relationship合同双方之间的独立关系
例The parties are only establishing an independent contractor relationship with each other by entering into this Contract. Nothing in this Contract shall be construed or implied as:
(a)establishing between the Parties hereto any partnership or any other form of relationship entailing joint liability;
(b)constituting either of the Parties hereto as the agent of the other Party (except with the other Party’s prior written consent); or
(c)authorizing either Party to incur any expenses or any other form of obligation on behalf of the other Party (except with the other Party’s prior written consent).
例This Contract is made for the benefit of the Parties hereto and their respective lawful successors and assignees and is legally binding on them.
例 This Contract shall not be changed verbally, but only by a written instrument signed by the Parties.
例 Amendments to this Contract may be made only by a written instrument signed by a duly authorized representative of each of the parties and,unless prior approval from the examination and approval authority is statutorily required,such amendments shall become effective upon the signing by the duly authorized representatives of the parties.
例Neither Party shall directly solicit for employment the other Party’s personnel who are engaged in the performance of this Contract, during the Term of this Contract and within one (1) year after the Expiration Date, without the prior written consent of the other Party.
例 Any notice or written communication provided for in this Contract by either Party to the other, including but not limited to any and all offers, writings, or notices to be given hereunder, shall be made in [language] by courier service delivered letter or by facsimile [or electronic mail] and confirmed by courier service delivered letter, promptly transmitted or addressed to the appropriate Party. The date of receipt of a notice or communication hereunder shall be the date of delivery confirmed by the courier service in the case of a courier service delivered letter and the next working day after dispatch in the case of a facsimile [or email]. All notices and communications shall be sent to the appropriate address set forth below, until the same is changed by notice given in writing to the other Party.
例 Notices required or permitted under this Contract shall be effective if in writing,written in English,sent by registered airmail,or by telex or facsimile confirmed by a registered airmail letter,return receipt requested,addressed as follows;unless otherwise specified herein,notices shall be effective from the date of receipt of the telex or facsimile or,in the event the telex or facsimile is not received,eight(8) days after the service of the registered letter.
例 Failure or delay on the part of any of the Parties hereto to exercise a right under this Contract shall not operate as a waiver thereof, nor shall any single or partial exercise of such a right preclude any other future exercise thereof.
例 Unless otherwise specified herein,failure or delay on the part of any party to exercise any right,power or privilege under this Contract shall not operate as a waiver thereof,nor shall any single or partial exercise of any right,power or privilege preclude any further exercise thereof.
例This Contract may not be assigned in whole or in part by the Party without the prior written consent of the other Party hereto.
例The invalidity of any provision of this Contract shall not affect the validity of any other provision of this Contract.
例If any of the provisions of this Contract or any document executed in connection herewith is hereafter determined to be invalid,illegal or unenforceable in any respect under any applicable law,(i) the validity,legality and enforceability of the remaining provisions shall not in any way be affected or impaired,and such remaining provisions shall remain in full force and effect;and(ii) the invalid,illegal or unenforceable provision shall be replaced by a valid,legal and enforceable provision that comes closest to expressing the true intent of such invalid,illegal or unenforceable provision.
Entire Agreement 完整协议
例This Contract and the Schedules and annexes hereto constitute the entire agreement between the Parties hereto with respect to the subject matter of this Contract and supersede all prior discussions, negotiations and agreements between them.
Schedules and Annexes附录以及附件
例The Schedules and Annexes hereto are made an integral part of this Contract and are equally binding with the main body of the Contract. In the event of any conflict between the terms and provisions of the main body of the Contract and the Schedules or Annexes, the terms and provisions of the main body of this Contract shall prevail.
例 This Contract is executed in the Chinese language in two originals and in the English language in two originals. Both language versions shall be equally authentic.
例 This Contract is executed in Chinese in two(2) counterparts, and each party shall hold one copy.If necessary,it may be translated into other lanauages. However, if there is any discrepancy between the Chinese version and a version in any other language, the Chinese version shall prevail.
例This Contract shall take effect from the date of its execution by the duly authorized representatives of the parties.
例IN WITNESS WHEREOF, each of parties hereto has caused this Contract to be executed by its duly authorized representative on the date first set forth above.
例The headings to the articles hereof are for ease of reference only,and in no event shall the substance of any paragraph or the intent of the parties be interpreted or controlled by such headings.