Agreement on the implementation of scientific and technical developments. Agreement for research, development and technological work

Treaties to carry out research , development and technological work.

Under a contract for the performance of scientific research work, the contractor undertakes to carry out scientific research stipulated by the technical specifications of the customer, and under a contract for the performance of development and technological work - to develop a sample of a new product, design documentation for it or new technology, and the customer undertakes to accept the work and pay for it (clause 1 of Article 769 of the Civil Code of the Russian Federation).

The contract for the performance of research, development and technological work is:

— consensual;

- reimbursable;

- bilateral.

An agreement with a contractor can cover both the entire cycle of research, development and production of samples, as well as its individual stages (elements).

Carrying out R&D creates a result that is separable from the work performed, which shows their similarity to a contract. Therefore, contractual norms, which are not affected by the specifics of R&D, are applicable to the obligations under consideration.

When performing R&D, the contractor has the right to independently, unless otherwise provided by the contract, involve third parties in its execution. The rules regarding such relationships apply. general contractor and subcontractor (Article 706 of the Civil Code). Regarding scientific research, then their specificity requires that the performer conduct them personally. He has the right to involve co-executors of research work only with the consent of the customer (clause 1 of Article 770 of the Civil Code).

With regard to the form of the contract, the general rules on the form of the contract apply.

The subject of the contract for the implementation of research work is the conduct of scientific research, and the subject of the contract for the implementation of R&D is the development constructive solution products, creating a sample product that embodies this solution, or new techniques, operations and methods of work, i.e. new technology. Fundamental and exploratory research is carried out within the framework of contracts for the implementation of research. theoretical research, the fundamental possibility of setting and solving practical problems is revealed.

An essential condition of the contract in question is the level of future research or development. It is drawn up by agreeing on the terms of reference, scientific and economic requirements customer.

The parties to the contract are the customer and the contractor. The contractor can be any legal entity or individual; licensing of R&D activities is not provided. At the same time, the performers are, as a rule, specialized research and design organizations for which R&D is the main or leading activity. Any entity can act on the customer’s side civil law- citizens, legal entities, public entities.

By the deadlines for completing the work, according to Art. 778 of the Civil Code, the norms of Art. 708 of the Civil Code, which regulates contractual relations. The law does not indicate the term as an essential condition of the contract and, consequently, the contract for the implementation of research and development work. The nature of such work indicates the possibility of determining the period through the category of a reasonable period. Therefore, when the deadline for completing the work is not specified in the contract, it must be completed within reasonable time after the obligation arises (clause 2 of Article 314 of the Civil Code). The deadline is essential condition only for contracts to carry out research and development work for government needs.

The contract may indicate the start and end dates for the work. By agreement between the parties, intermediate deadlines may also be provided, i.e. completion dates individual stages work. Unless otherwise established by regulations legal acts or a contract, the performer is liable for violation of not only the final, but also the initial and intermediate deadlines. Liability may be expressed in compensation for losses or payment of penalties provided for in the contract. The initial, final and intermediate terms specified in the contract can be changed in cases and in the manner provided for by the contract (clause 2 of Article 708 of the Civil Code). Violation deadline gives the customer the right to refuse to accept performance and demand compensation for losses (clause 3 of Article 708 and clause 2 of Article 405 of the Civil Code). Failure by the contractor to comply with the initial or intermediate deadline gives the customer the right to refuse to accept the performance only if the delay indicates a clear impossibility of completing the work by the deadline. deadline(clause 3 of article 708, clause 2 of article 715 of the Civil Code).

Price of work. According to Art. 778 of the Civil Code, the rules of Art. 709 of the Civil Code, which regulates contractual relations. The price is not one of the essential terms of the contract and, therefore, the contract for the implementation of research and development work. In the absence of a contractual price, payment must be made at the price that, under comparable circumstances, is usually charged for similar work (clause 3 of Article 424 of the Civil Code). Price is an essential condition only for contracts for the implementation of research and development work for government needs.

Unless otherwise provided by law or contract, the risk of accidental impossibility of fulfilling contracts for research, development and technological work is borne by the customer.

Unless otherwise provided by contracts for the performance of research, development and technological work, the parties are obliged to ensure the confidentiality of information relating to the subject of the contract, the progress of its execution and the results obtained. The scope of information considered confidential is determined in the contract.

Each party undertakes to publish information obtained during the performance of work, recognized as confidential, only with the consent of the other party.

Unless otherwise provided by the contract, the customer has the right to use the results of work transferred to him by the contractor, and the contractor has the right to use the results of work received by him for own needs.

In contracts for the performance of research, development and technological work, the contractor is obliged to:

perform the work in accordance with the technical specifications agreed with the customer and transfer the results to the customer within the period stipulated by the contract;

agree with the customer on the need to use protected results intellectual activity owned by third parties and the acquisition of rights to use them;

on his own and at his own expense, eliminate deficiencies in the work performed due to his fault, which may lead to deviations from the technical and economic parameters provided for in the technical specifications or in the contract;

immediately inform the customer about the detected impossibility of obtaining the expected results or about the inappropriateness of continuing the work;

guarantee to the customer the transfer of results obtained under the contract that do not violate the exclusive rights of other persons (Article 773 of the Civil Code of the Russian Federation).

In contracts for the performance of research, development and technological work, the customer is obliged to:

provide the contractor with the information necessary to complete the work;

accept the results of the work performed and pay for them.

The contract may also provide for the customer’s obligation to issue technical specifications to the contractor and agree with him on the program (technical and economic parameters) or the subject of work.

If during research work it is discovered that it is impossible to achieve results due to circumstances beyond the control of the contractor, the customer is obliged to pay the cost of the work carried out before it was discovered that it was impossible to obtain the results stipulated in the contract for the performance of scientific research work, but not more than the corresponding part of the price of the work specified in agreement

If during the implementation of experimental design and technological work it is discovered that it is not the fault of the contractor that it is impossible or impractical to continue the work, the customer is obliged to pay the costs incurred by the contractor (Article 776 of the Civil Code of the Russian Federation).

The contractor is liable to the customer for violation of contracts for the performance of research, development and technological work, unless he proves that such a violation was not the fault of the contractor (clause 1 of Article 401 of the Civil Code of the Russian Federation).

The contractor is obliged to compensate for losses caused by him to the customer, within the cost of the work in which deficiencies were identified, if the contract stipulates that they are subject to compensation within the limits total cost work under the contract. Lost profits are subject to compensation in cases stipulated by the contract.

A contract for the performance of scientific research work is an agreement under which the contractor undertakes to carry out scientific research stipulated by the technical specifications of the customer, which can be both fundamental and applied in nature, and the customer undertakes to accept the work and pay for it (clause 1 of Article 769 of the Civil Code RF).

In accordance with Art. 2 Federal Law “On Science and State Scientific and Technical Policy”:

a) fundamental scientific research - experimental or theoretical activity, aimed at obtaining new knowledge about the basic laws of the structure, functioning and development of man, society, the environment natural environment;

b) applied scientific research - research aimed primarily at applying new knowledge to achieve practical goals and solve specific problems.

A contract for experimental design and technological work is an agreement under which the contractor undertakes to develop a sample of a new product, design documentation for it or new technology, and the customer undertakes to accept the work and pay for it (Clause 1 of Article 769 of the Civil Code of the Russian Federation).

In accordance with Art. 2 of the Federal Law “On Science and State Scientific and Technical Policy”, this agreement is related to scientific and technical activities, i.e. activities aimed at obtaining and applying new knowledge to solve technological, engineering, economic, social, humanitarian and other problems, ensuring the functioning of science, technology and production as a single system.

According to paragraph 2 of Art. 769 of the Civil Code of the Russian Federation, contracts for the performance of research, development and technological work can cover the entire cycle of research, development and production of samples, as well as its individual stages or elements.

Distinctive (qualifying) features of contracts for the performance of research, development and technological work:

firstly, these contracts, like a work contract, are aimed at performing certain works, transferring and accepting their results, while the result of the development and technological work is a “sample of a new product” or “design documentation”, which are of a material nature, in all other cases, the result is a way of expressing the work itself or evidence of its implementation (report);

secondly, the difference between the contracts in question and the work contract is that the subject of the work contract is always material result, therefore, termination of a work contract through its execution is always associated with the transfer of such a result to the customer; in these contracts, the subject is the performance of work and its result, and the result can be equally material and intangible, and the performance of work can have independent significance under certain conditions;

thirdly, A.P. Sergeev notes that a contract for the performance of research work is characterized by dividing the results into “expected” and “unexpected”, while the contract is considered properly executed regardless of what the corresponding result is;

fourthly, according to M.I. Braginsky, in order to recognize a contract for experimental design and technological work as properly executed, an “expected” (positive) result is always necessary; an “unexpected” (negative) result for such a contract is considered as a “lack of result”, which is associated with recognizing the contract as unfulfilled;

fifthly, a distinctive feature of research, development and technological work is that general rule they are creative.

Agreements for the implementation of research, development and technological work are consensual, bilateral, compensated and synallagmatic agreements.

The essential terms of contracts for the performance of research, development and technological work are:

a) subject of the contract

b) the level of future research or development, which is determined by the parties agreeing on the terms of reference, scientific and economic requirements of the customer (clause 1 of Article 769 of the Civil Code of the Russian Federation);

c) the high probability of obtaining new and commercially valuable knowledge in the course of performing the relevant work predetermines the inclusion in the contract of a condition to ensure the confidentiality of information relating to both the subject of the contract and the progress of its execution, as well as the results obtained, i.e. the contract must determine the scope of information recognized as confidential (clause 1 of Article 771 of the Civil Code of the Russian Federation);

Each party undertakes to publish information received during the performance of work, recognized as confidential, only with the consent of the other party (Clause 2 of Article 771 of the Civil Code of the Russian Federation).

Relations related to the establishment, change and termination of a regime trade secret in relation to information constituting a production secret (know-how), they are currently regulated by the Federal Law “On Trade Secrets”.

Legal protection for the results of intellectual activity obtained during the performance of research, development and technological work is provided in accordance with the Civil Code of the Russian Federation.

d) the deadline for completing the relevant work, with the contract indicating the initial and final deadlines for the work; by agreement between the parties, the contract may also provide for deadlines for completing individual stages of work (interim deadlines) (Articles 778 and 708 of the Civil Code of the Russian Federation);

The initial, final and intermediate deadlines for completing the work specified in contracts for the performance of research, development and technological work can be changed in cases and in the manner provided for in the contracts.

e) the price of the work to be performed or the methods for determining it, and in the absence of such instructions in the contract, the work is paid at the price that, under comparable circumstances, is usually charged for similar work, i.e. the price condition in this case refers to definable essential conditions (Articles 778 and 709 of the Civil Code of the Russian Federation);

The price in these contracts includes compensation for the contractor’s costs and the remuneration due to him. The price of the work can be determined by drawing up an estimate.

In the event that the work is performed in accordance with the estimate drawn up by the contractor, the estimate becomes valid and becomes part of the contract from the moment it is confirmed by the customer.

The price of the work (estimate) can be approximate or fixed; in the absence of other instructions in the contract, the price of the work is considered fixed.

If there is a need to carry out additional work and, for this reason, a significant excess of the approximately determined price of the work, the contractor is obliged to promptly notify the customer about this. The customer who does not agree to exceed the price of the work specified in the contract has the right to withdraw from the contract. In this case, the contractor may require the customer to pay him the price for the completed part of the work.

The contractor who fails to promptly warn the customer about the need to exceed the price of the work specified in the contract is obliged to fulfill the contract, retaining the right to pay for the work at the price specified in the contract.

The contractor does not have the right to demand an increase in the fixed price, and the customer does not have the right to demand a decrease, including in the case when at the time of concluding the contract it was impossible to provide for the full scope of work to be performed or the expenses necessary for this.

If there is a significant increase in the cost of materials and equipment provided by the contractor, as well as services provided to him by third parties that could not be foreseen at the conclusion of the contract, the contractor has the right to demand an increase in the established price, and if the customer refuses to fulfill this requirement, termination of the contract due to a significant change circumstances.

f) specificity of the structure contractual connections and essential terms of contracts for the performance of research, development and technological work for state or municipal needs are determined by the rules of Art. 763-768 Civil Code of the Russian Federation.

Special requirements for the form of contracts for the performance of research, development and technological work Ch. 38 of the Civil Code of the Russian Federation does not establish, which allows us to talk about the need to apply general rules on the forms of transactions.

In cases where the relevant work is performed for state or municipal needs, the procedure for concluding and the form of the contract are determined by the rules established for contract agreements for state or municipal needs.

4. Agreement for the implementation of research, development and technological work

A contract for the performance of research, development and technological work is an agreement under which one party (the contractor) undertakes to conduct scientific research, develop a sample of a new product, design documentation for it or new technology, and the other party (customer) undertakes to accept and pay for the work done.

The agreement is regulated by Art. 769-778 GK.

Features of the agreement

The contract is consensual, bilateral, reciprocal, compensated.

Parties to the agreement:

customer - legal entities, citizens, public legal entities;

performer - research, design, technology organizations, scientific centers etc.

The essential terms of the contract are the subject and terms.

The subject of the agreement is the result of scientific research, the creation of samples of new products, technologies or design documentation. Fundamentally important here is the condition of the novelty of the result created within the framework of the contract. This involves taking into account the risk of accidental impossibility of fulfilling the contract. The legislator assigns this risk to the customer. And only the terms of a specific contract can distribute this risk differently, for example, attribute it to the contractor.

The relevant rules on the work contract apply to the conditions on the timing of the work; therefore, in order to recognize the contract as concluded, it is necessary to agree on the start and end dates of the work, the violation of which is considered as a delay in the fulfillment of obligations.

The form of the agreement is simple written.

The contract price is determined on the basis of an approximate or firm estimate.

The agreement may cover both the entire cycle of research, development and production of samples or technology, as well as its individual stages.

The contract must provide for conditions relating to patentable results of work, filing applications and obtaining patents for them, as well as the obligations of the parties to transfer rights to declared and patented solutions.

The delivery and acceptance of work is formalized by a bilateral act signed by the parties.

A contract for carrying out research work is terminated if it is identified that it is objectively impossible to achieve the expected result, and a contract for carrying out experimental design and technological work is also terminated if further continuation of work is inappropriate.

The Contractor has the right

1. Use the results of his work for his own needs, including those capable of legal protection.

2. Involve third parties in the execution of a contract for research and development work only with the consent of the customer.

3. Involve third parties in the execution of the contract for experimental design or technological work, unless otherwise provided by the contract (Article 770 of the Civil Code).

The performer is obliged

1. Perform the work in accordance with the technical specifications agreed with the customer and transfer the results to the customer within the period stipulated by the contract.

2. Conduct scientific research stipulated by the terms of reference personally.

3. Agree with the customer on the need to use protected results of intellectual activity owned by third parties and acquire rights to use them.

4. On your own and at your own expense, eliminate deficiencies in the work performed due to the fault of the contractor, which may lead to deviation from the technical and economic parameters provided for in the technical specifications or contract.

5. Immediately inform the customer about the detected inability to obtain the expected results or about the inappropriateness of continuing the work.

6. Guarantee to the customer the transfer of results obtained under the contract that do not violate the exclusive rights of other persons.

7. Compensate for losses caused to the customer within the limits of the cost of the work in which deficiencies are identified, unless the contract stipulates that they are subject to compensation within the limits of the total cost of the work under the contract. Lost profits are subject to compensation in cases stipulated by the contract.

8. Ensure the confidentiality of information relating to the subject of the agreement, unless otherwise provided by the agreement.

9. Publish information obtained during the performance of work that is considered confidential only with the consent of the other party.

The customer has the right

Use the results of work transferred by the contractor, including those capable of legal protection, within the limits and on the conditions stipulated by the contract.

The customer is obliged

1. Issue technical specifications to the contractor and agree with him on the program or topic of work (if the contract provides for such an obligation).

3. If deficiencies are found in technical documentation, product samples, etc. the customer has the right to demand only that the contractor eliminate them free of charge, but does not have the right to demand proportionate reduction prices of work or compensation own expenses to eliminate shortcomings.

4. Lost profits are subject to compensation in cases provided for by the contract.

5. If the contractor delays the delivery of the work, the customer has the right to refuse to accept the work and demand compensation for the damage caused by this if he proves that the fulfillment of the obligation has lost interest for him due to the contractor’s delay.

1. Under a contract for the performance of scientific research work, the contractor undertakes to carry out scientific research stipulated by the technical specifications of the customer, and under a contract for the performance of development and technological work - to develop a sample of a new product, design documentation for it or a new technology, and the customer undertakes to accept the work and pay for it.

2. The contract with the contractor can cover both the entire cycle of research, development and production of samples, and its individual stages (elements).

3. Unless otherwise provided by law or contract, the risk of accidental impossibility of fulfilling contracts for the performance of research, development and technological work is borne by the customer.

4. The terms of contracts for the performance of research, development and technological work must comply with laws and other legal acts on exclusive rights ( intellectual property).

Commentary to Art. 769 Civil Code of the Russian Federation

1. The commented article provides the concept and main parameters of the contract for the performance of research, development and technological work (hereinafter - R&D), relating to the subjects, subject, features of the content and legal regulation of this agreement.

2. The parties (subjects) to the contract for the implementation of R&D are called “contractor” and “customer”. Neither the commented article nor other articles of the Civil Code of the Russian Federation contain any requirements for subjects. From this we can conclude that either the customer or the executor of this contract can be any entity civil legal relations. In accordance with paragraph 2 of Art. 1 of the Civil Code of the Russian Federation, such subjects are citizens (individuals) and legal entities; by virtue of paragraph 1 of Art. 124 of the Civil Code of the Russian Federation, subjects include public legal entities (state and municipal). Moreover, to the latter, by virtue of clause 2 of Art. 124 of the Civil Code of the Russian Federation applies the rules defining the participation of legal entities in civil legal relations, unless otherwise follows from the law or the characteristics of these entities.

Let us consider each of the subjects as potential participant contracts for R&D. Individual can be both a customer and a contractor; moreover, the presence of status individual entrepreneur seems optional - each person can order provided for by the regulations Ch. 38 Civil Code of the Russian Federation research and work; everyone can undertake to fulfill them. Nevertheless, the specificity of the relations regulated by the commented chapter is such that in practice, as a rule, their subjects are legal entities. In this case, specialized research organizations act as performers in most cases. Such organizations usually operate in the form of institutions, although other legal forms are also available, including commercial legal entities.

Public legal entities, it seems, can act as customers under a contract for R&D. Their performance as performers, although it does not directly contradict the requirements of the law, is, in my opinion, impossible due to the peculiarities of their status. Public legal entities are created, obviously, for purposes other than conducting scientific research and research.

3. The commented article defines two types of contracts:

1) to carry out research work;

2) to carry out development and technological work.

The specificity of the subject of the contract is the performance of work that results in an intangible object - the result of intellectual activity, which may fall under the criteria protected by intellectual property legislation (Article 1225 of the Civil Code).

Scientific research in accordance with Rosstat Order No. 4 of January 19, 2009 “On approval of the Instructions for filling out federal forms statistical observation N 2-science “Information on the implementation of scientific research and development”, N 3-inform “Information on the use of information and communication technologies and production of related goods (works, services)”, N 4-innovation “Information on the organization’s innovative activity” includes:

— fundamental scientific research — experimental or theoretical activity aimed at obtaining new knowledge about the basic laws of the structure, functioning and development of man, society, and the natural environment;

— applied scientific research — research aimed primarily at applying new knowledge to achieve practical goals and solve specific problems;

— experimental developments- activities based on knowledge acquired as a result of scientific research or practical experience, and aimed at preserving human life and health, creating new materials, products, processes, devices, services, systems or methods and their further improvement.

The result of development work is the development of a sample of a new product, design documentation. The category “prototype” is used in various regulatory legal acts. Thus, by Order of Rostekhregulirovanie dated October 9, 2006 N 224-st, GOST 31278-2004 “Cooperation of member states of the Commonwealth” was introduced Independent States military-economic. Terms and definitions", a prototype of a weapon product (WW) is defined as a sample manufactured according to a newly developed working documentation to check its compliance with the specified technical requirements for the purpose of making a decision on putting the product into production or adoption and on putting it into production or using it for its intended purpose.

Experimental design work (R&D) is not defined by civil law. In the Decree of the Government of Moscow dated September 2, 2008 N 781-PP “On the city target comprehensive program creation of an innovation system in the city of Moscow for 2008 - 2010.” they are presented as a set of works performed during the creation or modernization of products: development of design and technological documentation for prototypes (pilot batch), production and testing of prototypes (pilot batch). However, the said Resolution, taking into account paragraph 1 of Art. 3 of the Civil Code of the Russian Federation is not applicable to civil legal relations.

Order of JSC Russian Railways dated November 28, 2008 N 2712r “On approval of the standard of JSC Russian Railways” Innovation activities. Stages life cycle and certification of an innovative project" considers technological work as the development of new and adjustment of existing technological processes.

4. The purpose of the R&D contract is to create a new result of technical significance (new scientific research, product, new technology, etc.). As noted by D.A. Polyakov, “the sign of novelty follows from Art. 771 of the Civil Code of the Russian Federation, since it is possible to maintain confidentiality and undertake not to publish only in relation to new, unknown information.” The use of the term “work” in the name of the type of activity under consideration is explained by the historical separation of this agreement from contract-type agreements. For the first time special norm on contracts for research and development work appeared in Fundamentals civil legislation USSR and republics 1991

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Polyakov D.A. Legal regulation contracts for the implementation of research, development and technological work: Author's abstract. dis. ...cand. legal Sci. M., 2004. P. 8.

For contracts for the implementation of R&D, as well as for contracts for the creation of works of science, literature and art, and other protected results, the main goal is the creation of an intangible result, and not the procedure for carrying out the work. In both cases, the work is of a creative, intellectual nature that is not subject to legal regulation.

There are different points of view on the legal nature of contracts in the field of R&D. Some authors believe that this group of contracts belongs to the class of contracts for the performance of work. According to M.I. Braginsky, such agreements are “contract-like”. Some classify these contracts as contracts for the provision of services. There is a position according to which these are agreements on the transfer of know-how, the subject of which can be both protectable and unprotected objects.

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Kalmykov Yu.Kh. Legal regulation of economic relations. Saratov, 1982. P. 44.

Braginsky M.I., Vitryansky V.V. Contract law. Book three: Contracts for the performance of work and provision of services. M.: Statute, 2002 // SPS “ConsultantPlus”.

Voloshko S.D. Agreements for the transfer of scientific and technical achievements. Kharkov, 1974. P. 15; etc.

Azimov Ch.N. On the agreement for the transfer of scientific and technical achievements // Questions of invention. 1986. N 7. S. 20, 21.

The subject of the contract for the implementation of R&D is the receipt new information, which may have signs of a protected result of intellectual activity and the main characteristics of which must be defined in the contract (type of object, purpose of use, depending on the object - characteristics of content and form). This result is an object that has features of protectability, for example, an invention, utility model, industrial design, topology of an integrated circuit, etc., or does not have such features, but at the same time has a certain novelty. This result is achieved in the course of intellectual activity, the process of which is not regulated by law and is not controlled by any persons, including state and municipal bodies.

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It is necessary to take into account that the result of intellectual activity subject to state registration, becomes such only subject to this registration.

The purpose of contracts for R&D is not only to achieve a certain result, but also to use the created object by the customer. The legislator uses the term “transfer to the customer” (paragraph 2 of Article 773 of the Civil Code), however, in relation to intangible object this term is used as a convention. If a protected result of intellectual activity is created and the agreement does not define the procedure for distributing rights to it, such a procedure is determined dispositive norms Part four of the Civil Code of the Russian Federation on order contracts (Articles 1296, 1372, 1431, 1463, 1471 of the Civil Code). In the event that the agreement did not directly provide for the creation of a protected object, the procedure for the distribution of rights is regulated by Art. Art. 1297, 1371, 1462 of the Civil Code of the Russian Federation.

The execution of the contract for research, development and technological work is carried out personally by the relevant party. At the same time, the system-forming feature of the object delimits the degree of personal participation of the performer in creating the result. The involvement of third parties is possible only under those contracts under which the creative contribution is less significant - when performing experimental design and technological work (clause 2 of Article 770).

Unlike work contracts, the risk of not achieving the appropriate result is borne by the customer, who must pay for the work performed or compensate for the costs incurred by the contractor, depending on the purpose of the contract and its expected result.

Traditionally, it was believed that the performer under an order agreement is the author himself. However, the performer may also be another person, for example a legal entity, which, in turn, will acquire rights from the author (including within the framework of labor relations) and transfer it to the customer. Such a contractor is a kind of intermediary in the order agreement, and, as a general rule, he is not subject to “privileged” conditions, provided for by law for authors (for example, conditions for additional grace period, on limitation of liability - according to the contract author's order). For non-compliance or not proper execution obligations under the ordering agreement, the performer, who is not the author, is liable on the grounds and in the amount determined in accordance with the rules of Chapter. 25 of the Civil Code of the Russian Federation, taking into account the norms of Art. 777 Code.

Amendments to paragraph 2 of Art. 25 Federal Law dated December 18, 2006 N 231-FZ “On the entry into force of part four Civil Code Russian Federation"in Art. 772 of the Civil Code of the Russian Federation gave rise to the need to distinguish between protected and unprotected results. In the course of research, development and technological work, patentable objects can be created, which become so with the adoption federal body executive branch in the field of intellectual property, decisions on the issuance of a patent, other protected objects (scientific works, computer programs, trade secrets (know-how), etc.), as well as such objects that may not have signs of protectability.

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Collection of legislation of the Russian Federation. 2006. N 52 (part 1). Art. 5497.

The question of legal nature an agreement, the result of which is information that falls under the characteristics of a trade secret (know-how). Despite the fact that part four of the Civil Code of the Russian Federation establishes an exclusive right to such an object, it remains as long as the actual monopoly is in effect (until the confidentiality of information is maintained). According to Art. 1467 of the Civil Code of the Russian Federation, from the moment of loss of confidentiality of the relevant information, the exclusive right to a production secret is terminated for all right holders.

Other information that does not fall under the provisions of Part Four of the Civil Code of the Russian Federation is not the object of civil legal relations. If, during the execution of a contract, a material result is created that does not have any signs of novelty, it falls under the provisions of the work contract rules.

Determining the legal nature of the agreement is also important for taxation, in particular when applying clauses 16, 16.1 of Art. 149 of the Tax Code of the Russian Federation (exemption from VAT). In the Determination of the Supreme Arbitration Court of the Russian Federation dated September 27, 2010 No. VAC-12734/10 in case No. A05-11681/2009, a violation was noted in terms of exemption from VAT for operations related to the analysis of coal samples, the study of water, soil, soils, building materials, rocks and geotechnical control, since these works do not meet the definition of scientific research work. Works, according to this Definition, must have “signs of applied scientific research, i.e. introduction of new ones obtained independently as a result scientific activity knowledge in achieving practical goals and solving specific tasks assigned to their performer. According to the courts, the research conducted by the university was aimed at testing known conditions and methods of analysis, at carrying out various measurements, tests, comparisons actual indicators With standard indicators, and not on research related to the application of any new knowledge to achieve specific tasks, as a result of which new, independently acquired knowledge is introduced.”

Activities related to implementation into production are not considered development work. new products or technology, the production of new products.

The contract for the implementation of R&D is, by its legal nature, an order contract. Part four of the Civil Code of the Russian Federation defines certain qualifying features of order contracts for the creation of results of intellectual activity various criteria (subject composition, various elements of contracts for individual species objects: conditions, consequences of non-fulfillment of the contract, regime of distribution of rights), which can be applied to the contracts in question, taking into account the norms of Chapter. 38 Civil Code of the Russian Federation.

Agreement No.

to carry out research work

Federal State educational institution higher vocational education"National Research Technological University "MISiS", hereinafter referred to as the "Contractor", Vice-Rector M.R. Filonov, acting on the basis of a Power of Attorney dated 01.09.10 on the one hand and LLC "______", hereinafter referred to as the "Customer", represented by general director ______., acting on the basis of the charter, on the other hand, hereinafter referred to as the “parties”, have entered into this Agreement as follows:

1 Subject of the Agreement

1.1. The Contractor undertakes, in accordance with the terms of this Agreement, to carry out and timely deliver to the Customer, and the Customer undertakes to accept and pay for the research work:

« Assessment of corrosion resistance and durability of materialsfastening units for translucent façade structures"(hereinafter referred to as research work, work).

1.2. Scientific, technical, economic and other requirements for the implementation and results of research work are specified in the Terms of Reference (Appendix No. 1).

2. Time frame for completing the work

2.1. Time frame for completing research work under this Agreement:

2.2. The deadlines for completing the research stages are indicated in the Schedule.

2.3. If the Customer violates the obligations to pre-pay for research work and/or pay for completed stages of research work in accordance with the payment procedure established by the Agreement, the Contractor has the right not to begin performing the work ( next stage) or pause its execution. At the same time, the deadlines for completing research work (stages) are increased for the period of delay in payment.

The same consequences with regard to the suspension and deadlines for completing the work occur in the event of a violation by the Customer of the obligations to ensure the conduct of research work provided for in subclauses 4.3.2, 4.3.3 of the Agreement, as well as obligations to accept the results of research work (stages of research work).

2.4. If the Customer is more than 10 days late in fulfilling his obligations to accept or pay for work under the Contract, the Contractor has the right to unilaterally refuse to fulfill obligations under the Agreement (terminate the Agreement), demand payment for work performed and compensation for losses.

3.1. The price of research work under the Agreement is:

Rubles in accordance with the protocol for agreeing on the contract price (Appendix No. 3).

Research work carried out under this Agreement is not subject to VAT in accordance with subparagraph 16 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation.

The price of individual stages of work (if allocated) is determined in the Schedule (Appendix No. 2).

3.2. Payment for work under this Agreement is made by the Customer by bank transfer by transfer cash payment order based on invoices issued by the Contractor in the following order:

3.2.1. Within five days from the date of conclusion of the Agreement, the Customer transfers to the Contractor an advance payment (advance payment) in the amount of 50 percent of the price of work under the agreement, which amounts to ______________ rubles.

3.2.2. Within five days from the date of completion of the research work, on the basis of the work acceptance certificate, the final payment for the research work is made, including the amount of the advance payment.

3.3. The Customer's obligation to pay is considered fulfilled from the moment funds are credited to the Contractor's bank account in accordance with the bank details specified by the Contractor and the purpose of payment.

4. Rights and obligations of the parties

4.1. The customer has the right:

4.1.1. In agreement with the Contractor, clarify the requirements for the content and/or scope of research work.

Changes (additions) to the requirements for research work established by the Terms of Reference and the Schedule are formalized by an additional agreement of the parties, which from the moment of its signing becomes an integral part of this Agreement.

4.1.2. Check the progress and quality of fulfillment by the Contractor, as well as his co-contractors, of the requirements of the Technical Specifications without interfering with operational and economic activities.

4.1.3. Submit to the Contractor, within 10 days from the date of receipt of the reporting documents, justified claims to the results of the research work performed, and refuse to accept the research work carried out with deviations from the requirements established in the Terms of Reference.

4.2. The performer has the right:

4.2.1. Make changes to the solution methodology, both private and general technical issues, as well as in the methodology and content of research and testing, if these changes do not contradict the Technical Specifications and the terms of the Agreement, do not change the timing of the research work and do not increase its cost.

4.2.2. Attract with written consent The Customer to the implementation of this Contract of co-executors. In this case, the Contractor bears full responsibility for improper fulfillment of obligations under the Agreement by co-executors engaged by him.

Specific co-executors of research work, which are determined by the Customer at the stage of concluding the Agreement, are indicated in the Terms of Reference. Permission to attract new co-executors can be issued by changing (adding) the Terms of Reference or by written notice The Contractor's customer.

4.2.4. Suspend work in the cases specified in clause 2.4 of the Agreement.

4.3. The customer is obliged:

4.3.1. Accept and pay for the results of research work (stage of research work) in the manner prescribed by this Agreement.

4.3.2. Provide the Contractor with the information necessary to carry out the research work.

4.3.3. Within ten days from the date of receipt of the Contractor’s request, inform your decision on the use of the results of intellectual activity, the rights to which belong to the Contractor or other persons (previous intellectual property), to perform the work.

4.3.4. Notify the Contractor within ten days from the receipt of notification of the receipt of a research result capable of legal protection during the implementation of this Agreement, your decision on the procedure for its use and form legal protection.

4.3.5. If the Contractor receives a notification about the impossibility of achieving the results of the research work, consider within ten days the question of the advisability of continuing the research work (stage of the research work) with the introduction in agreement with the Contractor necessary changes V Terms of reference to carry out research and/or Schedule research work, or decide to stop working.

4.4. The performer is obliged:

4.4.1. Carry out research work in accordance with the requirements of the Terms of Reference and transfer to the Customer the results of the work (reporting documentation, as well as other scientific and technical products provided for in the Terms of Reference) within the time limits provided for in this Agreement.

4.4.2. Agree with the Customer on the need to use protected results of intellectual activity, the rights to which belong to the Contractor or third parties, as well as the conditions for acquiring rights to use them.

4.4.3. Provide the Customer, upon his request, with all information and documentation related to the research work performed by the Contractor under this Agreement.

4.4.4. Within three days, inform the Customer about the suspension of work, including due to the impossibility of achieving the planned results or due to the inexpediency of continuing work, with appropriate justifications.

4.4.5. Notify the Customer within five days of each research result (stage of research) obtained during the implementation of this Agreement, capable of legal protection as an object of intellectual property, including potentially patentable technical solutions and production secrets (know-how), with justification for the proposed procedure for its use and forms of legal protection.

4.4.6. On his own and at his own expense, eliminate deficiencies in the work performed due to his fault, which may lead to deviation from the technical and economic parameters provided for in the Technical Specifications.

5. Procedure for delivery and acceptance of completed work

5.1. After completion of the research work the Contractor in in writing notifies the Customer about the readiness of the work for delivery and submits it to the Customer for acceptance scientific and technical documentation and other results of work, work acceptance certificate in two copies.

5.2. Compound reporting documentation, other materials to be prepared and transferred by the Contractor to the Customer upon completion of the research work (individual stages of the research work) are defined in the Terms of Reference and the Schedule.

5.3. The Customer, within ten days from the date the Contractor submits the reporting documentation and other results of work under the Contract as a whole (stage), is obliged to review the received materials and send the Contractor a signed work acceptance certificate or a reasoned refusal to accept the work.

5.4. In case reasoned refusal The customer from the acceptance of research work (research stage) by the parties is drawn up two-way protocol indicating the identified deficiencies and the time frame for their elimination.

5.5. If the Customer fails to provide a signed work acceptance certificate or a reasoned refusal to accept the work within ten days from the date of delivery of the reporting materials, the work under the stage or under the Agreement as a whole is considered completed without defects, handed over on the basis of an act signed by the Contractor unilaterally , and is subject to payment.

5.6. In case of early completion of the work (research and development stage), the Customer has the right to accept and pay for it ahead of schedule in the manner established by the Agreement.

5.7. The deadlines for completing research work (stages of research) specified in the Schedule Plan do not include the time of acceptance by the Customer of the result of the work (stage of work). By the deadline specified in the Schedule, the Contractor is obliged to transfer to the Customer the documentation provided for in the Terms of Reference and the work acceptance certificate for review and signing.

6. Responsibility of the parties

6.1. In case of complete or partial non-fulfillment or improper execution obligations under the Agreement, the guilty party is obliged to compensate the other party for the losses caused.

6.2. The parties are not responsible for violation of obligations under the Agreement if such violation occurred through no fault of theirs.

6.3. The Contractor is obliged to compensate for losses caused by it to the Customer, within the limits of the total cost of work under the Contract.

6.4. For violation of the deadlines for completing work (stages of work), the Contractor shall pay the Customer a penalty in the amount of 0.05% (Five hundredths of a percent) of the paid (advanced) price of the stage for each day of delay, but not more than 20% of the price paid by the Customer for the stage in which there was a delay.

6.5. For violation of the terms of payment for work provided for in the Agreement, the Customer shall pay the Contractor a penalty in the amount of 0.05% of the amount owed for each day of delay, but not more than 20% of the amount owed.

6.6. Lost profits cannot be reimbursed by either party.

7. Confidentiality of information

7.1. Each party undertakes to ensure the confidentiality of information relating to the subject of the Agreement, the progress of its execution and the results obtained.

7.2. Information recognized as confidential includes information of a scientific, technical, economic and other nature contained in the Terms of Reference, documentation and other results of the work as a whole and in stages, provided that such information has value due to its unknownness to third parties, to she's not there free access on legally and the parties possessing such information take measures to protect it or are obliged to do so by virtue of their obligations under this Agreement.

7.3. Each party undertakes to publish information obtained during the performance of work, recognized as confidential, only with the consent of the other party.

7.4. The requirement to maintain confidentiality of information does not apply to cases where the provision of information is mandatory or expressly permitted in accordance with mandatory rules, established by law and other regulatory legal acts (in particular, the provision legal deposit documents, provision of the text of the Agreement in government bodies and organizations subordinate to them, etc.), or necessary for protection legal rights and interests of one party in case of violation of the Agreement by the other party.

8. Rights of the parties to the results of the work

8.1. The rights to the results of work are understood to be those created during the implementation of this Agreement exclusive rights for inventions, utility models, industrial designs, breeding achievements, topology integrated circuits, programs for electronic computers, databases, and rights to results scientific and technical activities, protected as a trade secret, including potentially patentable technical solutions and production secrets (know-how).

8.2. The rights to the results of the work belong (are assigned) to the Customer.

8.3. The costs of ensuring legal protection of the results of scientific and technical activities are borne by the party that owns the rights to such results.

8.4. If the Contractor does not have rights to the results of the work, he has the right to use the obtained results of the work for his own needs (in his own activities).

8.5. If the rights to the results belong to the Contractor, he is obliged, at the request of the Customer, to provide the Customer and/or persons specified by him with free non-exclusive license for the use of intellectual property objects created during the execution of the Agreement.

8.6. If the rights to the results of work in accordance with the terms of clause 8.2 of the Agreement belong (are assigned) to the Customer, then such rights are transferred (assigned) to the Customer only from the moment (subject to) full payment of the research work in the amount provided for in this Agreement.

9. Force majeure

9.1. The parties are released from liability for complete or partial failure to fulfill obligations under the Agreement if such failure is a consequence of circumstances force majeure(force majeure), that is, extraordinary and unavoidable circumstances under given conditions, including natural disasters, riots, prohibitive actions of the authorities, etc. 9.2. The party whose performance of obligations was affected force majeure, is obliged to notify the other party about this in writing within seven days, providing documentary justification. 9.3. If force majeure circumstances have affected the proper performance by a party of its obligations under the Agreement, the deadlines for fulfilling obligations are extended for the period of such circumstances.

9.4. If force majeure circumstances last more than two months, the parties must discuss the situation and come to an agreement on the further implementation of the Agreement, formalizing such an agreement in writing.

If force majeure circumstances last more than four months or the parties are unable to reach the above agreement, each party has the right to unilaterally refuse to perform the Agreement by notifying the other party at least one month before the date of termination of the Agreement. In this case, mutual settlements must be made between the parties based on the actual amount of work performed (documented expenses incurred by the Contractor at the time of termination of the Agreement).

10. Consideration and resolution of disputes

10.1. Disputes and disagreements arising in connection with the execution of this Agreement are resolved by the parties through negotiations with the execution of appropriate protocols or in claim procedure. The deadline for responding to a claim is 15 days from the date of receipt of the claim in writing. 10.2. Unsettled disputes are referred to the Moscow Arbitration Court.

11. Duration of the Agreement

11.1. This Agreement comes into force from the moment it is signed by both parties and is valid until full execution parties to their obligations.

11.2. The deadlines for completing the work are defined in Section 2 of the Agreement and can be changed by agreement of the parties, as well as in the cases provided for in clauses 2.3, 9.3.

12. Final provisions

12.1. Any changes and additions to the terms of this Agreement, unless otherwise provided in it, are drawn up additional agreements and/or protocols signed by both parties. 12.2. Issues not regulated by this Agreement are resolved in accordance with the legislation of the Russian Federation. 12.3. This Agreement is drawn up in 2 copies, each having the same legal force, one copy for each party. 12.4. About a change in actual or legal address and bank details, the parties notify each other in writing within five days. 12.5. An integral part of this Agreement are the following appendices: 1) Technical specifications (Appendix No. 1); 2) Schedule (Appendix No. 2); 3) Protocol for agreeing on the contract price (Appendix No. 3). Addresses and bank details parties