Non-Equity Strategic Alliance Agreement - Template Form Pro · US-law
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NON-EQUITY STRATEGIC ALLIANCE AGREEMENT
State of ________
RECITALS
A. This Non-Equity Strategic Alliance Agreement (this “Agreement”) is made and entered into effective as of ________ (the “Effective Date”), by and between the following party (“Party A”):
________, a ________ organized and existing under the laws of the State of ________,
with its principal place of business located at
________
and the following party (“Party B”):
________, a ________ organized and existing under the laws of the State of ________,
with its principal place of business located at
________
Party A and Party B are each referred to herein as a “Party” and collectively as the “Parties.”
B. WHEREAS, Party A conducts business in the following area and wishes to enter into a strategic alliance to market and perform certain complementary products and/or services:
________
C. WHEREAS, Party B conducts business in the following area and wishes to enter into a strategic alliance to market and perform certain complementary products and/or services:
________
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, and of the mutual covenants and promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
§ I. SCOPE OF STRATEGIC ALLIANCE
1.1. Each Party agrees to use its respective commercially reasonable best efforts to promote and market the other Party’s business interests in accordance with the other Party’s reasonable instructions, and shall protect the other Party’s interests with the diligence of a responsible business person.
1.2. This strategic alliance (the “Alliance”) shall have the following purpose:
________
1.3. Party A shall owe the following obligations to Party B in keeping with the terms of the Alliance and in furtherance of the Parties’ mutually beneficial goals and business interests:
________
1.4. Party B shall owe the following obligations to Party A in keeping with the terms of the Alliance and in furtherance of the Parties’ mutually beneficial goals and business interests:
________
§ II. MANAGEMENT
2.1. Each Party shall appoint a designated individual to represent and manage all services to be delivered hereunder.
2.2. The following individual is hereby appointed as the primary point of contact and representative manager for Party A’s business interests in this Alliance: ________.
2.3. The following individual is hereby appointed as the primary point of contact and representative manager for Party B’s business interests in this Alliance: ________.
2.5. The Managing Committee shall meet at such times and places as it determines appropriate to carry out its responsibilities hereunder. Such meetings may be held in person or by means of internet-based or telephonic communication. Each Party, through its representative, may call a meeting of the Managing Committee by giving written notice thereof to the representative of the other Party.
§ III. COMPENSATION
3.1. For rendering the services outlined in this Agreement in the course of the Alliance, Party B shall pay to Party A compensation in the amount of $________ per year (________), payable in accordance with the following schedule: ________.
§ IV. PROFIT SHARING
4.1. Any profits realized by the Parties in connection with the Alliance shall be allocated to the Parties in the following manner:
________
4.2. Profits shall be allocated to the Parties on the following basis: ________.
§ V. SHARED EXPENSES
5.1. Any expenses or losses incurred by the Parties in connection with the Alliance shall be allocated to the Parties in the following manner:
________
§ VI. TERM AND TERMINATION
6.1. This Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with its terms, shall terminate automatically on ________.
6.2. Either Party may terminate this Agreement for convenience upon not less than ________ days’ prior written notice to the other Party.
6.3. Upon expiration or termination of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party and shall pay all amounts then due and owing. The provisions of this Agreement that by their nature are intended to survive shall survive any expiration or termination hereof.
§ VII. NO PARTNERSHIP
7.1. Nothing contained herein shall be construed to imply a joint venture, partnership, or principal-agent relationship between Party A and Party B, and neither Party shall have the right, power, or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing.
7.2. The Parties do not contemplate a sharing of profits relating to the Party A services or the Party B services so as to create a separate, taxable entity under Section 761 of the Internal Revenue Code of 1986, as amended, nor co-ownership of a business or property so as to create a separate partnership under the law of any jurisdiction.
7.3. For tax, property, and liability purposes, Party A shall provide the Party A services and Party B shall provide the Party B services, each on a professional basis and as an independent contractor of the other.
7.4. Revenues and expenses relating to the services and any additional services shall be reported separately by the Parties for tax purposes.
7.5. During the performance of any of the services, Party A’s employees shall not be considered employees of Party B, and vice versa, within the meaning or application of any federal, state, or local laws or regulations including, but not limited to, laws or regulations covering unemployment insurance, old age benefits, workers’ compensation, industrial accident, labor, or taxes of any kind.
7.6. Party A’s personnel who are to perform the Party A services or additional services to be provided by Party A hereunder shall be under the employment, and ultimate control, management, and supervision of Party A.
7.7. Party B’s personnel who are to perform the Party B services or additional services to be provided by Party B hereunder shall be under the employment, and ultimate control, management, and supervision of Party B.
7.8. It is understood and agreed that Party A’s employees shall not be considered Party B’s employees within the meaning or application of Party B’s employee fringe benefit programs for the purpose of vacations, holidays, pension, group life insurance, accidental death, medical, hospitalization, and surgical benefits, and vice versa.
§ VIII. INTELLECTUAL PROPERTY
8.1. Title to and interest in all intellectual property owned or controlled by each Party prior to the Alliance, including, but not limited to, drawings, plans, reports, designs, code, artwork, or any other intellectual property, whether registered or otherwise, shall remain the sole property of such Party both during and after the term of this Agreement (“Background IP”).
8.2. With respect to intellectual property created by the Parties during the course of and in connection with this Alliance (“Foreground IP”), the Parties agree that ownership shall be allocated as follows: ________. To the extent that any Foreground IP is created by one Party that is to be owned by the other Party hereunder, the creating Party hereby assigns all right, title, and interest therein to the owning Party and agrees to execute such further documents as may reasonably be required to perfect such ownership.
§ IX. TRADEMARK, TRADE NAME, AND COPYRIGHTS
9.1. Except as expressly provided herein, this Agreement does not grant either Party any ownership rights or interest in the other Party’s trade names, trademarks, service marks, or copyrights.
§ X. CONFIDENTIALITY
10.1. The Parties acknowledge that, in the course of the Alliance or the provision of additional services pursuant to this Agreement, each may be given access to, or come into possession of, confidential information of the other Party, which information may contain trade secrets, proprietary data, or other confidential material of that Party (“Confidential Information”).
10.2. Unless expressly authorized in writing by the disclosing Party, neither Party shall disclose to any third party any Confidential Information or materials provided by the other Party under this Agreement, or use such information in any manner other than to perform its obligations under this Agreement.
10.4. Each Party’s obligations under this Article shall survive the expiration or termination of this Agreement for a period of ________, except that trade secrets shall be protected for so long as they remain trade secrets under applicable law.
§ XI. LIMITATION OF LIABILITY AND INDEMNIFICATION
11.1. In no event shall either Party be liable to the other Party for any indirect, incidental, consequential, special, punitive, or exemplary damages arising out of or in connection with this Agreement, even if such Party has been advised of the possibility of such damages.
11.2. Each Party’s total cumulative liability to the other Party arising out of or relating to this Agreement shall not exceed the total amount of compensation paid or payable under this Agreement during the twelve (12) months preceding the event giving rise to the claim.
11.3. The limitations set forth in this Article shall not apply to liability arising from a Party’s gross negligence, willful misconduct, fraud, breach of confidentiality obligations, or infringement of the other Party’s intellectual property rights.
11.4. Each Party shall indemnify, defend, and hold harmless the other Party and its officers, directors, members, managers, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from such Party’s breach of this Agreement or negligent or wrongful acts or omissions in connection with the performance of its obligations hereunder.
11.5. The provisions of this Article shall survive the expiration or termination of this Agreement.
§ XII. DEFAULT
12.1. The occurrence of any of the following shall constitute a material default under this Agreement:
(a) the failure to make a required payment when due;
(b) the insolvency or bankruptcy of either Party;
(c) the subjection of any of either Party’s property to any levy, seizure, general assignment for the benefit of creditors, or application or sale for or by any creditor or governmental agency; and
(d) the failure to make available or deliver the services in the time and manner provided for in this Agreement.
§ XIII. REMEDIES
13.1. In addition to any and all other rights a Party may have available at law or in equity, if a Party defaults by failing to substantially perform any provision, term, or condition of this Agreement (including, without limitation, the failure to make a monetary payment when due), the other Party may terminate this Agreement by providing written notice to the defaulting Party.
13.2. Such notice shall describe with sufficient detail the nature of the default.
13.3. The Party receiving such notice shall have ________ days from the effective date of such notice to cure the default(s). Unless waived by the Party providing notice, the failure to cure the default(s) within such time period shall result in automatic termination of this Agreement.
§ XIV. DISPUTE RESOLUTION
14.1. The Parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation between their respective representatives. Any dispute not so resolved shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, with the arbitration to take place in ________, and judgment on the award rendered may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in a court of competent jurisdiction to protect its Confidential Information or intellectual property rights.
§ XV. ENTIRE AGREEMENT
15.1. This Agreement contains the entire agreement of the Parties, and there are no other promises or conditions in any other agreement, whether oral or written, concerning the subject matter of this Agreement.
15.2. This Agreement supersedes any prior written or oral agreements between the Parties with respect to the subject matter hereof.
§ XVI. SEVERABILITY
16.1. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
16.2. If a court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
§ XVII. AMENDMENT
17.1. This Agreement may be modified or amended only in a writing signed by both Parties or by the Party obligated under the amendment.
§ XVIII. ASSIGNMENT
18.1. Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any purported assignment in violation of this Article shall be void.
§ XIX. GOVERNING LAW
19.1. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict of laws principles. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in ________ for any matter not subject to arbitration.
§ XX. NOTICE
20.1. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person, by certified mail (return receipt requested), or by nationally recognized overnight courier, to the address set forth in the opening paragraphs of this Agreement, or to such other address as one Party may have furnished to the other in writing. Notice shall be deemed effective upon receipt or refusal of delivery.
§ XXI. WAIVER OF CONTRACTUAL RIGHTS
21.1. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
§ XXII. COUNTERPARTS
22.1. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures transmitted electronically or by facsimile shall be deemed valid and binding to the same extent as original signatures.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
_________________________________
________, Representative of ________, Party A
Title: ________
_________________
Date
_________________________________
________, Representative of ________, Party B
Title: ________
_________________
Date
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