Memorandum of Understanding - Template, Sample Form Pro · IN-law
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MEMORANDUM OF UNDERSTANDING
This Binding Memorandum of Understanding (hereinafter referred to as the "Memorandum" or "MOU") is executed at ________ on this ________.
BY AND BETWEEN
________, son/daughter/wife of ________, aged about ________ years, bearing PAN ________ and Aadhaar/identification number ________, residing at / having its registered office at ________ (hereinafter referred to as the "First Party", which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors-in-interest, legal heirs, executors, administrators and permitted assigns), of the FIRST PART;
AND
________, son/daughter/wife of ________, aged about ________ years, bearing PAN ________ and Aadhaar/identification number ________, residing at / having its registered office at ________ (hereinafter referred to as the "Second Party", which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors-in-interest, legal heirs, executors, administrators and permitted assigns), of the SECOND PART.
The First Party and the Second Party are hereinafter collectively referred to as the "Parties" and individually as a "Party".
WHEREAS:
A. The Parties are desirous of working together in connection with the Purpose described in this Memorandum.
B. This Memorandum sets out the initial relationship between the Parties as well as the respective rights and responsibilities of each Party.
C. Each Party is expected to act in good faith in accordance with this Memorandum and the provisions of the Indian Contract Act, 1872.
NOW THEREFORE, IN CONSIDERATION OF the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows:
§ 1. PROJECT AND PURPOSE
1.1. The Parties intend to investigate the prospect of working together and/or actually working together on a project, which shall be referred to as ________ (the "Project").
1.2. The Project has the following purpose (the "Purpose"):
________
§ 2. BINDING NATURE
2.1. The Parties hereby acknowledge and agree that the terms of this Memorandum are intended to be legally binding upon the Parties hereto and shall constitute a valid and enforceable contract within the meaning of the Indian Contract Act, 1872.
§ 3. AMENDMENTS TO MEMORANDUM
3.1. This Memorandum may be amended at any time by mutual agreement between the Parties.
3.2. Any change to this Memorandum must be made in writing and duly signed by both Parties or their authorised representatives.
§ 4. GENERAL OBLIGATIONS
4.1. The Parties shall act in good faith and shall use their best endeavours to achieve the Purpose and to give effect to the terms of this Memorandum.
4.2. The Parties hereby acknowledge and agree that they shall each, respectively, perform all acts and execute all documents as may reasonably be required in order to give effect to the terms of this Memorandum.
4.3. Each Party agrees to cooperate in the spirit of mutual understanding and goodwill in order to develop the Parties' relationship with one another and to pursue the Purpose.
§ 5. ROLES AND RESPONSIBILITIES OF THE PARTIES
5.1. The First Party (________) shall have the following obligations in relation to the Project:
________
5.2. The Second Party (________) shall have the following obligations in relation to the Project:
________
§ 6. CONFIDENTIALITY
6.1. Notwithstanding anything contained herein, this "Confidentiality" clause is intended to be legally binding on the Parties herein.
6.2. The Parties each hereby acknowledge and agree that in connection with this Memorandum, they may have access to information that is confidential and/or commercially valuable to one or more of the other Parties ("Confidential Information").
6.3. The Parties each hereby acknowledge and agree that they may be both the receiving party in relation to some Confidential Information ("Receiving Party") and the disclosing party in relation to some other Confidential Information ("Disclosing Party"), and that the terms of this Memorandum may apply to a Party as both a Receiving Party and a Disclosing Party, as the context so provides.
6.4. For the purpose of this Memorandum, Confidential Information may include but is not limited to:
6.4.1. information of whatever nature relating to the Project or to another Party (whether relating to the Project or otherwise);
6.4.2. any information derived from any other information which falls within this definition of Confidential Information; and
6.4.3. any copy of any Confidential Information.
6.5. but does not include information which:
6.6. In relation to any Confidential Information:
6.6.1. the Receiving Party shall keep the Confidential Information confidential and secret;
6.6.2. the Receiving Party shall only use the Confidential Information for the purpose of working in good faith on the Project in accordance with this Memorandum;
6.6.3. the Receiving Party shall not release the Confidential Information to any other party, unless that other party is an advisor who is under a duty of confidentiality, is assisting with the Project, and needs to have the Confidential Information in order to assist with the Project.
6.7. If there is any doubt as to whether any particular information constitutes Confidential Information, the Receiving Party shall presume it to be Confidential Information until the Receiving Party obtains explicit confirmation from the Disclosing Party that it is not Confidential Information.
6.8. To the extent that any Confidential Information constitutes personal data, the Parties shall comply with the Digital Personal Data Protection Act, 2023 and the rules framed thereunder, and shall process such personal data only for the Purpose and in accordance with applicable law.
6.9. Each Party's respective obligations of confidentiality under this clause shall survive the termination or expiration of this Memorandum and shall continue after that Party ceases to participate in the Project.
§ 7. NON-COMPETE
7.1. Each Party respectively agrees that for the Time Period set out in this clause after the Party ceases to participate in the Project, and within the Geographical Area set out in this clause, the Party shall not, either directly or indirectly, whether as an employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unitholder, trustee, contractor or otherwise, undertake any of the following:
7.1.1. engaging in a business or project that is the same as, similar to, or in competition with the Project;
7.1.2. soliciting, hiring, or attempting to hire any other Parties or any employees or staff working in connection with the Project; or
7.1.3. soliciting any customers or clients of the Project.
7.2. For the purposes of this clause, the "Time Period" means ________ from the date that the Party ceases to participate in the Project.
7.3. For the purposes of this clause, the "Geographical Area" means ________.
7.4. The Parties acknowledge that the restrictions contained in this clause are reasonable and necessary to protect the legitimate business interests of the Parties, and shall be construed and enforced to the extent permissible under Section 27 of the Indian Contract Act, 1872. The restrictions during the subsistence of this Memorandum shall in all respects be valid and enforceable.
7.5. Each Party's respective obligations under this clause shall survive the termination or expiration of this Memorandum to the extent permitted by law.
§ 8. INTELLECTUAL PROPERTY
8.1. In connection with each Party's participation in the Project, each Party respectively may generate, create, contribute to, write or produce intellectual property ("Project Intellectual Property").
8.2. For the purposes of this Memorandum, "Project Intellectual Property" includes but is not limited to:
8.2.1. information, ideas, innovations, developments, improvements, inventions, discoveries, plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property;
8.2.2. intellectual property that results in any way from work performed for or on behalf of the Project (whether performed by the Party or by somebody else); and
8.2.3. intellectual property, whether the Party generates, creates, contributes to, writes or produces that intellectual property:
8.2.3.1. directly, indirectly, independently or in cooperation or conjunction with another person or persons;
8.2.3.2. during the Party's ordinary working hours, or outside of the Party's ordinary working hours; and
8.2.3.3. at the location where the Party ordinarily participates in the Project, or at some other location.
8.2.4. intellectual property that results in any way from the use of resources or assets in connection with the Project, including reference or other materials, personnel, facilities, or other resources; and
8.2.5. intellectual property that relates in any other way to the Project or any business that is developed in connection with the Project.
8.3. Unless otherwise expressly agreed between the Parties in writing, nothing in this Memorandum is intended to create any transfer or assignment of any intellectual property rights in relation to any Project Intellectual Property.
8.4. Unless otherwise expressly agreed between the Parties in writing, in the event that a particular Party generates, creates, contributes to, writes or produces an item of Project Intellectual Property, that Party shall retain any and all intellectual property rights in relation to that item of Project Intellectual Property, subject to the provisions of the Copyright Act, 1957, the Patents Act, 1970 and the Trade Marks Act, 1999, as applicable.
8.5. Each Party's respective obligations under this clause shall survive the termination or expiration of this Memorandum and shall continue after that Party ceases to participate in the Project.
§ 9. TIMING AND DURATION OF PROJECT
9.1. This Memorandum shall commence on ________.
9.2. The Parties shall negotiate in good faith in order to execute a final and legally binding agreement in relation to the Project (the "Agreement") on or before ________.
9.3. This Memorandum shall remain in effect until the Agreement commences, or unless and until otherwise terminated by the Parties in accordance with this Memorandum.
9.4. The Parties may terminate this Memorandum by mutual agreement in writing.
9.5. Either Party may terminate this Memorandum by providing the other Party with a written notice period of ________.
§ 10. RELATIONSHIP OF PARTIES
10.1. Nothing in this Memorandum is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
10.2. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person.
10.3. Neither Party shall hold itself out as having any authority to bind the other Party, nor incur any liability or obligation on behalf of the other Party, without the prior written consent of that other Party.
10.4. The relationship of the Parties under this Memorandum is that of independent parties working together in good faith to achieve the Purpose.
§ 11. COSTS
Unless otherwise expressly provided in writing, each Party shall be responsible for its own costs of complying with this Memorandum and in connection with the performance of its obligations under this Memorandum. Any stamp duty payable on this Memorandum under the Indian Stamp Act, 1899 or the relevant State stamp legislation shall be borne by ________.
§ 12. FORCE MAJEURE
12.2. If the Force Majeure Event continues for a continuous period exceeding 30 (thirty) days, the Parties shall mutually agree on the future course of action. However, notwithstanding all efforts made by the Parties in good faith, if the Force Majeure Event continues for a period of 90 (ninety) days, either of the Parties shall have the right to terminate this MOU by giving the other Party notice of termination in writing.
§ 13. INDEMNITY
13.1. Each Party (the "Indemnifying Party") hereby agrees to indemnify and hold the other Party harmless from all damages, costs, legal fees or other losses arising out of or relating to:
13.1.1. breach of this MOU by the Indemnifying Party; and
13.1.2. breach of any representation or warranty by the Indemnifying Party.
§ 14. LIMITATION OF LIABILITY
14.1. Neither Party shall be liable for, nor shall the measure of damages include, any punitive, consequential or indirect losses or damages, including lost profits or third-party claims arising out of or relating to its performance or failure to perform under this MOU. Liability for all punitive, consequential or indirect losses or damages is hereby expressly excluded.
14.2. Notwithstanding anything contained in this MOU, a Party's aggregate liability for any loss or damage, direct or indirect, for any cause whatsoever (including, but not limited to, those arising out of or related to this MOU) with respect to claims (whether third-party claims, indemnity claims or otherwise) shall not under any circumstances exceed ________.
§ 15. NON-SOLICITATION
15.1. Notwithstanding any provision to the contrary, each of the Parties agrees that the Parties (or any person forming part of the Parties) shall not, for a period of ________ from the date of this MOU:
15.1.1. directly or indirectly partner with, enter into any activity with, hire, or attempt to hire for any purpose whatsoever (whether as an employee, consultant, advisor, independent contractor, partner or otherwise) any employee or consultant of the other Party;
15.1.2. directly or indirectly approach, canvass, solicit, or otherwise entice using any incentive whatsoever (whether such incentive be in cash, kind, a composite of the same or in any other manner) any employees, vendors, customers, consultant, contractor or agent of the other Party.
§ 16. SEVERABILITY
If any provision of this MOU shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this MOU shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Any invalid or unenforceable provision of this MOU shall be replaced with a provision that is valid and enforceable and most nearly gives effect to the original intent of the invalid or unenforceable provision.
§ 17. ENTIRE AGREEMENT
This MOU constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the Parties with respect to the subject matter hereof.
§ 18. NO OTHER RIGHTS GRANTED
Nothing in this MOU is intended to grant any rights under any patent, copyright or other intellectual property rights of any Party in favour of the other, nor shall this MOU be construed to grant any Party any rights in or to the other Party's Confidential Information, except the limited right to use such Confidential Information in connection with the Project under this MOU.
§ 19. AMENDMENTS
Any change, alteration, amendment, or modification to this MOU must be in writing and signed by the authorised representatives of both Parties.
§ 20. DISPUTE RESOLUTION AND JURISDICTION
20.1. Any dispute(s) arising out of or in connection with this MOU shall, as far as possible, be settled amicably between the Parties hereto, failing which the following shall apply.
20.2. Any dispute, difference or claim arising out of or in connection with this MOU shall be referred to arbitration by a sole arbitrator to be appointed jointly by the Parties.
20.3. The arbitration proceedings shall be conducted at ________ in the English language, in accordance with the provisions of the Arbitration and Conciliation Act, 1996, or any statutory re-enactment or modification thereof for the time being in force.
20.4. The arbitral award shall be final and binding on the Parties and may be enforced as a decree of a competent court.
20.5. The Parties further agree to keep the arbitration proceedings and the arbitral award confidential.
20.6. Subject to the arbitration provisions above, the courts at ________ shall have exclusive jurisdiction over all matters arising out of or in connection with this MOU.
20.7. If either Party engages legal counsel to enforce any rights arising out of or relating to this MOU, the prevailing Party shall be entitled to recover reasonable costs and legal fees, subject to the discretion of the arbitral tribunal or court.
§ 21. WAIVER
No waiver of any provision of this MOU, or of any rights or obligations of any Party hereunder, shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No failure or delay on the part of any Party in exercising any right, power or privilege under this MOU shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.
§ 22. NOTICES
22.1. Except as otherwise specified in this MOU, all notices, requests, consents, approvals, agreements, authorisations, acknowledgements, waivers and other communications required or permitted under this MOU shall be in writing and shall be deemed duly given when delivered by hand, by registered post with acknowledgement due, by reputed courier, or by electronic mail, to the address specified for the relevant Party in the recitals of this MOU.
22.2. Either Party may change its address for notification purposes by giving the other Party 10 (ten) days' prior written notice of the new address and the date upon which it will become effective.
§ 23. GOVERNING LAW
This MOU and all issues arising out of or in connection with the same shall be governed by and construed in accordance with the laws of India.
IN WITNESS WHEREOF, the Parties hereto have set their hands to this Memorandum of Understanding on the day, month and year first hereinabove written.
SIGNED AND DELIVERED BY THE PARTIES THIS ________
___________________________
________ (First Party)
WITNESS 1: ________, Address: ________
___________________________
________ (Second Party)
WITNESS 2: ________, Address: ________
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