Memorandum of Understanding - Template, Sample Form Pro · AU-law

MEMORANDUM OF UNDERSTANDING
(Non-Binding)

________

This Memorandum of Understanding ("Memorandum" or "MOU") is dated ________.

BETWEEN:

________ ________ (ABN/ACN)

of the following address:

________

AND

________ ________ (ABN/ACN)

of the following address:

________

(together the "Parties" and each a "Party")

BACKGROUND

A. The Parties wish to explore working together in connection with the Purpose described in this Memorandum.

B. This Memorandum records the initial relationship between the Parties and their respective intentions, expectations and proposed responsibilities.

C. Except for the clauses expressly stated to be binding in §13, this Memorandum is not intended to be legally binding but records the mutual expectations of the Parties.

D. Each Party is expected to act in good faith in accordance with this Memorandum.

§1. PROJECT AND PURPOSE

(a) The Parties intend to investigate the prospect of working together, and/or to work together, on a project referred to as ________ (the "Project").

(b) The Project has the following purpose (the "Purpose"):

________

§2. NON-BINDING NATURE

(a) The Parties acknowledge and agree that:

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§3. CHANGES TO MEMORANDUM

(a) This Memorandum may be amended at any time by agreement between the Parties.

(b) Any changes must be made in writing and signed by each Party.

§4. GENERAL OBLIGATIONS

(a) Notwithstanding the non-binding nature of this Memorandum, the Parties will act in good faith and use their reasonable endeavours to achieve the Purpose and to give effect to the terms of this Memorandum.

Each Party will keep the other Party reasonably informed of any matters which may affect the Project or the achievement of the Purpose, and will respond promptly and in good faith to any reasonable request for information made by the other Party in connection with the Project.

(b) Each Party agrees to cooperate in the spirit of mutual understanding and goodwill in order to develop the Parties' relationships and to pursue the Purpose.

(c) The Parties will have the following obligations:

________

§5. ROLES OF PARTIES

(a) ________ will have the following responsibilities in relation to the Project:

________

(b) ________ will have the following responsibilities in relation to the Project:

________

§6. CONFIDENTIALITY

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(I) information of any nature relating to the Project or to another Party;

(II) any information derived from such information; and

(III) any copy of any Confidential Information,

but does not include information which:

(I) was lawfully known to or in the possession of the Receiving Party before disclosure, and not as a result of any breach of confidentiality;

(II) is or becomes publicly available through no fault of the Receiving Party;

(III) is provided to the Receiving Party without restriction by a third party who did not breach any confidentiality obligation;

(IV) is provided by the Disclosing Party and marked "Non-Confidential"; or

(V) is required by law or regulation to be disclosed, in which case disclosure is limited to the minimum necessary and the Disclosing Party is first consulted as to whether and how such disclosure may be prevented or restricted.

(e) In relation to any Confidential Information:

(I) the Receiving Party will keep the Confidential Information confidential;

(II) the Receiving Party will only use the Confidential Information for the purpose of working in good faith on the Project; and

(III) the Receiving Party will not disclose the Confidential Information to any third party unless that party is an adviser under a duty of confidentiality who is assisting with the Project and needs the information for that purpose.

(f) If there is doubt whether information is Confidential Information, the Receiving Party should treat it as such until the Disclosing Party confirms otherwise.

(g) The obligations in this §6 are intended to continue after termination or expiry of this Memorandum and after a Party ceases to participate in the Project.

§7. NON-COMPETITION

(a) For clarity, this §7, like the balance of this Memorandum (other than §13), is not intended to be legally binding. If the Parties require binding restraint protection, they will enter a separate binding non-compete agreement. Any such restraint must be reasonable as to scope, duration and area to be enforceable under Australian law.

(b) Each Party agrees that, for the Time Period after it ceases to participate in the Project, and within the Geographical Area, it will not, directly or indirectly, whether as employee, partner, sole trader, manager, director, adviser, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise:

(I) engage in a business or project that is the same as, similar to, or in competition with the Project;

(II) solicit, hire or attempt to hire any other Party, or any employee or staff working in connection with the Project; or

(III) solicit any customers or clients of the Project.

(c) "Time Period" means, from the date the Party ceases to participate in the Project:

________

(d) "Geographical Area" means:

________

(e) The obligations in this §7 are intended to continue after termination or expiry of this Memorandum and after a Party ceases to participate in the Project.

§8. INTELLECTUAL PROPERTY

(a) In connection with its participation in the Project, each Party may generate, create, contribute to, write or produce intellectual property ("Project Intellectual Property").

(b) "Project Intellectual Property" includes, but is not limited to:

(I) information, ideas, innovations, developments, improvements, inventions, discoveries, plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property;

(II) intellectual property resulting in any way from work performed for or on behalf of the Project;

(III) intellectual property, whether generated, created, contributed to, written or produced:

(A) directly, indirectly, independently or jointly with another person;

(B) during or outside ordinary working hours; and

(C) at or away from the usual location of the Project;

(IV) intellectual property resulting from the use of resources or assets in connection with the Project, including reference materials, personnel, facilities or other resources; and

(V) intellectual property otherwise relating to the Project or any business developed in connection with it.

(c) Unless otherwise expressly agreed in writing, nothing in this Memorandum transfers or assigns any intellectual property rights in any Project Intellectual Property.

(d) Unless otherwise expressly agreed in writing, the Party that generates an item of Project Intellectual Property retains all intellectual property rights in that item.

(e) The provisions of this §8 are intended to continue after termination or expiry of this Memorandum and after a Party ceases to participate in the Project.

§9. TIMING AND DURATION

(a) This Memorandum commences on ________.

(b) The Parties will negotiate in good faith with a view to executing a final, legally binding agreement in relation to the Project (the "Agreement") on or before ________.

(c) This Memorandum will remain in effect until the Agreement commences, or unless and until otherwise terminated.

(d) Either Party may terminate this Memorandum by giving written notice to the other Party.

§10. CONSEQUENCES OF TERMINATION

(a) On termination of this Memorandum:

(I) neither Party will, under this Memorandum, incur any financial liability to the other Party;

(II) notwithstanding the foregoing, a Party may incur liability towards the other Party in connection with matters outside this Memorandum, including liability in contract, tort or equity;

(III) if a Party ("First Party") holds any equipment, materials, documents, intellectual property, data or other information ("Items") that are the property of the other Party ("Second Party"), the First Party must promptly return all such Items to the Second Party, or destroy them if so directed; and

(IV) the obligations in §6 (Confidentiality) and §7 (Non-Competition) will continue for the periods stated in those clauses.

§11. EXCLUSIVITY

(a) Each Party (the "Representing Party") represents to the other Party that:

(I) on signing this Memorandum, the Representing Party will terminate any discussions or negotiations with any party other than a Party to this Memorandum (a "Third Party") relating to the Purpose or the Project ("Third Party Discussions");

(II) while this Memorandum is in effect, the Representing Party will not, directly or indirectly:

(A) engage in any Third Party Discussions;

(B) invite, encourage, seek or solicit any Third Party to engage in Third Party Discussions;

(C) respond to any invitation or solicitation from a Third Party in relation to Third Party Discussions (except to expressly reject it); or

(D) enter into any agreement, memorandum of understanding, heads of agreement, letter of intent or other arrangement (binding or non-binding) with a Third Party in relation to Third Party Discussions; and

(III) the Representing Party will ensure that its employees, agents, advisers, contractors and other representatives also comply with this clause.

(b) For clarity, "Third Party Discussions" do not include discussions with a Third Party undertaken in good faith and in the spirit of this Memorandum in order to pursue the Purpose.

§12. COSTS AND EXPENSES

(a) Unless otherwise expressly agreed between the Parties in writing, each Party will bear its own costs and expenses incurred in connection with the negotiation, preparation and performance of this Memorandum and the Project.

(b) No Party will be liable to any other Party for any costs or expenses incurred in connection with this Memorandum or the Project, except as may be otherwise agreed in a separate legally binding agreement.

§13. GOVERNING LAW, JURISDICTION AND BINDING CLAUSES

(a) The Parties intend that this §13 and §6 (Confidentiality, to the extent enforceable) be legally binding, while the balance of this Memorandum is not intended to be legally binding.

(b) This Memorandum is governed by, and is to be construed in accordance with, the laws of ________, Australia.

(c) The Parties submit to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from those courts.

(d) Nothing in this Memorandum operates to exclude, restrict or modify any rights or remedies that cannot lawfully be excluded, including under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

SIGNED BY THE PARTIES ON ________

Signed for and on behalf of ________:

..................................................
Signature

Name: ________
Position: ________
Date: ________

Witness: ..................................................
Witness name: ________

Signed for and on behalf of ________:

..................................................
Signature

Name: ________
Position: ________
Date: ________

Witness: ..................................................
Witness name: ________