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COPYRIGHT ASSIGNMENT AGREEMENT
作者:管理员    发布于:2014-07-08 16:26:03    文字:【】【】【

COPYRIGHT ASSIGNMENT AGREEMENT

 

DATE    Ä________________________

PARTIES

Ä[Assignor] of registered address Ä[   ], a company established and existing under the laws of Ä[   ] (the "Assignor");

and

Ä[Assignee] of registered address Ä[   ], PRC, a company established and existing under the laws of the PRC (the "Assignee").

RECITALS

 

A.                The Assignor is the sole beneficial owner of the Works.

B.                 The Assignor wishes to assign and the Assignee wishes to accept the right, title and interest in the Works including copyright for the Assignment Fee on the terms set out in this Agreement.

OPERATIVE PROVISIONS

1.                  GENERAL PROVISIONS

1.1              Definitions

In this Agreement, unless the context otherwise requires:

"Agreement" means this copyright assignment agreement.

"Assignment Fee" means a fee of Ä[    ].

"Business Day" means a day (other than a Saturday, Sunday or Chinese national holiday) on which banks are open for general banking business in Ä[   ].

"CIETAC" means the China International Economic and Trade Arbitration Commission.

"Effective Date" means the date of execution of this Agreement.

"Government Agency" means: 

(a)          a government or government department or other body;

(b)          a government, semi-governmental or judicial person; or

(c)          a person (whether autonomous or not) who is charged with the administration of a Law. 

"Law" means all laws, decrees, rules and regulations of the PRC and any subsequent amendments to them.

"Parties" means each of the Assignor and the Assignee.

"PRC" means the People's Republic of China excluding the Special Administrative Region of Hong Kong and Macau.

"RMB" means the lawful currency of the PRC.

"Tax" means a tax, levy, duty, charge, deduction or withholding, however it is described, that is imposed by law or by a Government Agency, together with any related interest, penalty, fine or other chargeÄ[, other than one that is imposed on taxable income].

"Territory" means Ä[the PRC].

"Work" means the work or other subject-matter specified in Schedule 1 Ä[and all drafts, editions, alterations and adaptations of the work or other subject-matter [and includes the operating and other printed manuals relevant to the work existing at the date of this Agreement, including users' manuals, programming manuals, modification manuals, flow charts, drawings and software listings designed to assist or supplement the development, understanding or application of the work]].

1.2              References

In this Agreement, unless the context otherwise requires:

(a)          a reference to including, includes or include must be read as if followed by the words "(without limitation)";

(b)          a reference to clauses, annexures or schedules is to a clause, annexure or schedule of, or to, this Agreement;

(c)          an annexure or schedule forms part of this Agreement;

(d)          the singular includes the plural and vice versa;

(e)          a reference to any agreement or document is to that agreement or document (and where applicable, any of its provisions) as amended, novated, restated or replaced from time to time; and

(f)           a reference to a party to this Agreement or any other document or arrangement includes that party's executors, substitutes, successors and permitted assigns.

2.                  ASSIGNMENT

(a)          In consideration of the Assignment Fee now paid by the Assignee to the Assignor, receipt of which the Assignor acknowledges, the Assignor, as beneficial owner, assigns to the Assignee, absolutely, all of its rights and interests in the Work and in the copyright and similar forms of protection in the Work:

(i)                            Ä[throughout the world/in the Territory]; and
(ii)                           Ä[for the remainder of the term of that copyright, including all extensions and renewals.]

(b)          This assignment includes the right to sue for, and recover, damages and other relief in relation to any infringement of copyright in the Work including any that may have occurred before the date of this assignment.

3.                  COPY OF WORK

The Assignor will deliver one copy of each material item that embodies the Work to the Assignee, within 7 days of the date of this Agreement.

4.                  ASSIGNEE'S ACKNOWLEDGMENTS AND INDEMNITY

[This clause is in the interests of Assignor and is an alternative to clause 5]

4.1              Assignee's acceptance of title and other acknowledgments

The Assignee accepts the title that the Assignor has to the Work and to the copyright (and similar forms of protection) in the Work.  Without limitation, the Assignee acknowledges that the Assignor does not make or give any representation, warranty or promise that the Work does not and will not infringe the rights of any other person.

4.2              Assignee's Indemnity

The Assignee must unconditionally indemnify the Assignor against, and must pay the Assignor, on demand the amount of, all losses, liabilities, expenses and Taxes that the Assignor may suffer, directly or indirectly, because of the Assignee's exploitation of its rights in the Work on or after the date of this assignment, including:

(a)          legal expenses on a full indemnity basis; and

(b)          damages or other compensation paid by the Assignor on the advice of its legal advisers to compromise or settle any claim.

5.                  ASSIGNOR'S REPRESENTATIONS, WARRANTIES, OBLIGATIONS AND INDEMNITY

[This clause is in the interests of Assignee and is an alternative to clause 4]

5.1              Assignor's Representations, Warranties and Obligations

The Assignor represents, warrants and agrees that:

(a)          (power) the Assignor has full legal capacity and power to enter into this Agreement and to carry out the transactions that it contemplates;

(b)          (copyright subsistence) copyright subsists in the Work;

(c)          (sole owner) the Assignor is [the sole author of/the sole employer of the sole author of] the Work and the sole owner of all rights, including the copyright, in the Work;

(d)          (no encumbrance) the Assignor has not created any encumbrance (including without limitation, a charge, mortgage, pledge, lien, right of set off) over the Work that exists, as at the date of this Agreement, over the Work;

(e)          (no dealings) there have been no previous assignments, licences, options or other dealings with the rights assigned under this Agreement that would conflict with the rights granted by this Agreement and the Assignor will not assign, license, grant options over or deal in any other way with any of these rights after the date of this Agreement in a way that would conflict with the rights granted by this Agreement;

(f)           (no infringement) the Work is original to its author except for material in the public domain and the Work does not and will not infringe any person's rights or otherwise contravene any law or give rise to any liability to make royalty or other payments to any other person; and

(g)          (no claims) the Assignor is not aware of any actual, suspected or threatened claim in relation to the Work, including any claim that the Work infringes any intellectual property rights.

5.2              Reliance on Representations and Warranties

The Assignor acknowledges that the Assignee has executed this Agreement and agreed to take part in the transactions that it contemplates in reliance on the representations and warranties that are made in this clause 5.

5.3              Indemnity

The Assignor must unconditionally indemnify the Assignee against, and must pay the Assignee, on demand the amount of, all losses, liabilities, expenses and Taxes (including legal expenses on a full indemnity basis and damages or other compensation paid by the Assignee on the advice of its legal advisers to compromise or settle any claim or proceeding) that the Assignee may suffer directly or indirectly because:

(a)          any of the Assignor's representations or warranties are or become incorrect in any respect;

(b)          the Assignor breaches any of its obligations under this Agreement;

(c)          any of the Assignor's obligations under this Agreement are wholly or partly illegal, void, voidable or unenforceable; or

(d)          of any claim by another person that relies on any fact which, if substantiated, would constitute a circumstance referred to in clause 5.3(a) or 5.3(b).

6.                  DISPUTE RESOLUTION

6.1              Friendly Consultations

If a dispute arises between the Parties in respect of this Agreement, a Party must:

(a)          issue a notice to the other Party notifying them of the existence of a dispute; and

(b)          attempt to resolve the dispute through friendly consultations.

6.2              Arbitration

(a)          If the dispute referred to in clause 6.1 is not resolved through friendly consultations, a Party may refer the matter to CIETAC to be resolved by arbitration in accordance with its then prevailing rules, which rules are deemed to be incorporated by reference into this clause.

(b)          The arbitration tribunal must consist of three (3) arbitrators appointed from among the panel of arbitrators of the arbitration commission of CIETAC as follows:

(i)                            one (1) arbitrator selected by the claimant to the dispute in accordance with the rules;
(ii)                           one (1) arbitrator selected by the respondent to the dispute in accordance with the rules; and
(iii)                          one (1) arbitrator to act as presiding arbitrator selected by the chairman of the arbitration commission in accordance with the rules.

(c)          The arbitration hearing must be:

(i)                            held in Ä[    ]; and
(ii)                           conducted in both Chinese and English.

(d)          The arbitration award is final and binding on the Parties and all the Parties agree to act according to the arbitration award.

(e)          The costs of arbitration must be borne by the Party designated in the arbitration award.

6.3              Continuing Rights and Obligations

Despite the existence of a dispute which is the subject of either friendly consultations in accordance with clause 6.1 or arbitration in accordance with clause 6.2, the Parties:

(a)          may exercise their remaining respective rights; and

(b)          must perform their remaining respective obligations,

under this Agreement, except in respect of those matters the subject of the dispute.

7.                  TAXES

7.1              The Assignee must pay all Taxes imposed on it in accordance with the Law and in connection with this Agreement.

7.2              The Assignor must pay all Taxes imposed on it in accordance with the Law and imposed outside the Territory in connection with the payment of the Assignment Fee.

7.3              If a Tax is imposed on the Assignor is a withholding tax, the Assignee must provide the Assignor with the original tax receipt issued by the relevant Government Agency.

8.                  NOTICES

8.1              How to Give a Notice

A notice, consent, approval or other communication issued in accordance with this Agreement must be:

(a)          written in English or Chinese;

(b)          signed by, or on behalf of, the Party giving it; and

(c)          either:

(i)                            delivered or sent by pre-paid mail to the other Party's address;
(ii)                           sent by fax to the other Party's fax number and the machine from which it is sent produces a report that states that it was sent in full; or
(iii)                          sent in electronic form (such as e-mail).

8.2              When Notice is Given

A notice, consent, approval or other communication sent in accordance with clause 8.1 is regarded as given or received:

(a)          if it is sent by fax:

(i)                            by 5:00pm (Beijing time) on a Business Day, on that day; or
(ii)                           after 5:00pm (Beijing time) on a Business Day or on a day that is not a Business Day, on the next Business Day;

(b)          if it is sent by mail, on actual receipt; and

(c)          if it is sent in electronic form, when the e-mail message comes to the attention of the addressee.

8.3              Address for Notices

A Party's address and fax number are those set out below, or as the person notifies the other Party:

Assignor

Address:              Ä[   ]

Fax number:              [   ]

E-mail address:          [ . ]

Attention:             [   ]

 

Assignee

Address:             Ä[   ]

Fax number:              [   ]

E-mail address:          [   ]

Attention:             [   ]

9.                  MISCELLANEOUS PROVISIONS

9.1              Amendment

This Agreement must only be amended, supplemented, replaced or novated by the Parties executing another Agreement.

9.2              Governing Law

(a)          This Agreement is governed by the laws of Ä[the PRC] which have been published, are effective and are publicly available.

(b)          In the event that there is no published, effective and publicly available law in Ä[the PRC] governing a particular matter relating to this Agreement, reference must be made to general international commercial practice.

[alternative to clause 6]

 

[(c)  Each Party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in [   ], and any court that may hear appeals from any of those courts, for any proceedings in connection with this document, and waives any right it might have to claim that those courts are an inconvenient forum.]

 

9.3              Giving effect to this Agreement

After the Effective Date:

(a)          The Assignee must fulfil any requirements in relation to this Agreement which are, or may become, necessary by Law, to enable the Parties to exercise, enforce and enjoy all the rights and obligations in respect of this Agreement; and

(b)          If the Assignor considers it necessary or expedient to register this Agreement with any Government Agency, the Assignee must at its own cost register this Agreement in accordance with all written instructions and directions from the Licensor.

9.4              Waiver of Rights

A right may only be waived in writing, signed by the Party giving the waiver, and:

(a)          no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

(b)          a waiver of a right on one (1) or more occasions does not operate as a waiver of that right if it arises again; and

(c)          the exercise of a right does not prevent any further exercise of that right or of any other right.

9.5              Operation of Indemnities

(a)          Each indemnity in this Agreement survives expiry or termination of this Agreement.

(b)          A Party may recover a payment under an indemnity in this Agreement before it makes the payment.

9.6              Severability

The invalidity of any provision of this Agreement does not affect the validity of any other provision of this Agreement.

9.7              Language

This Agreement is written in both English and Chinese and both versions are of equal effect.  In the event of any inconsistency or error in translation between the English and Chinese versions, the Chinese version prevails.

9.8              Copies

This Agreement is executed in two (2) Chinese originals and two (2) English originals and each Party will retain one (1) original Chinese version and one (1) original English version.


SCHEDULE 1:  WORKS


EXECUTED as an agreement.

 

SIGNED for Ä[Assignor] under power of attorney in the presence of:

Signature of witness  Ä

 

Name of witness  Ä

 

Signature of attorney  Ä

 

Name of attorney  Ä

 

Date of power of attorney Ä

SIGNED for and on behalf of Ä[Assignee] by its lawful representative in the presence of:

Signature of witness  Ä

 

Name of witness  Ä

Lawful representative  Ä

 

Name (print)  Ä

 

 

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