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MOU/MOA / Who Should Use a Memorandum of Understanding
« on: March 27, 2018, 04:58:35 PM »
Who Should Use a Memorandum of Understanding

MOU/MOA / Memorandum of Understanding Definition
« on: March 27, 2018, 04:56:57 PM »
Memorandum of Understanding Definition

MOU/MOA / Is a Memorandum of Understanding Legally Binding?
« on: March 27, 2018, 04:56:04 PM »
Is a Memorandum of Understanding Legally Binding?

MOU/MOA / Memorandum of understanding
« on: March 27, 2018, 04:36:08 PM »
Memorandum of understanding

A Memorandum of understanding (MOU or MoU) is a document describing a bilateral or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It most often is used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforcement agreement. It is a more formal alternative to a gentlemen's agreement.

A Memorandum of Understanding or MOU is put in place to establish a clear understanding of how the deal will practically function and each party's role and compensation.

A MOU must (a) identify the contracting parties (b) spell out the subject matter of the agreement and its objectives (c) summarize the essential terms of the agreement, and (d) must be signed by the contracting parties.

In international public law, a memorandum of understanding is used frequently. It has many practical advantages when compared with treaties. When dealing with sensitive or private issues, a memorandum of understanding can be kept confidential, while a treaty cannot.

How MOU is Different from Agreement
MOU is like a contract, but it does not have to carry the same legal weight. If the wordings used in the MOU are vague and unclear and do not create any binding effect, then the same cannot be enforced. It does not create a valid contract. But if one party do anything on reliance of MOU and sustains any loss he can recover back losses but cannot get enforce the MOU. Both Parties of MOU are bind by estoppel and any of them cannot take adverse stand.

A memorandum of understanding is an agreement between two parties in the form of a legal document. It is not fully binding in the way that a contract is, but it is stronger and more formal than a traditional gentleman's agreement. Sometimes, a memorandum of understanding is used as a synonym for a letter of intent, particularly in private law. A letter of intent expresses an interest in performing a service or taking part in an activity, but does not legally obligate either party.

While, Agreement contains proposal and its acceptance and intention of parties is to bind each other with the terms of agreement. It is intention of parties that if any one violet the terms other will go to court and get it enforced.

Implementation of MoU in Transnational dealings
In international public law, a memorandum of understanding is used frequently. It has many practical advantages when compared with treaties. When dealing with sensitive or private issues, a memorandum of understanding can be kept confidential, while a treaty cannot. The other advantage of MoUs over more formal instruments is that, because obligations under international law may be avoided, they can be put into effect in most countries without requiring parliamentary approval.

A memorandum of understanding can also be put into effect in a timelier manner than a treaty, because it doesn't require ratification. In addition, a memorandum of understanding can be modified without lengthy negotiations. This is especially useful, except in multilateral situations. In fact, most transnational aviation agreements are a type of memorandum of understanding.

• The Memorandums of Understanding on Labour Cooperation between The People's Republic of China, Singapore and New Zealand on 2008, in parallel with their respective free trade agreements
• An international memorandum of understanding is the Oil for Food Program, which was created by the United Nations in 1995 and lasted until 2003. This agreement allowed Iraq to sell its oil to the world in exchange for humanitarian help, such as food and medicine for Iraqi civilians.
• The Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses between the US and Cuba, meant to criminalize hijacking in both countries (February 3, 1973)
• The agreement between the government of Indonesia and the GAM in the Aceh peace process, 15 August, 2005.

“How to write a Memorandum of Understanding?”
Since each deal is vastly different, there is no particular convention of writing MoU. As said above the MOU can be a simple statement e mailed to the other party with a response saying they agree. In reality, you can make the Memorandum of Understanding as simple or complicated as is necessary for the Joint Venture and the comfort of those involved. Some want every detail and possibility ironed out ahead of time; others don't.

MOU/MOA / What are the benefits of a memorandum of understanding?
« on: March 27, 2018, 04:33:24 PM »
What are the benefits of a memorandum of understanding?

Aboriginal joint management arrangements for parks can ensure that local Aboriginal people are involved in the management of country that is important to them and that Aboriginal people's cultural rights and practices can be recognised and taken into account in managing the park. At the same time, the NPWS benefits from Aboriginal people's knowledge and experience (see How does Aboriginal joint management work?).

joint management agreements are the simplest way of establishing a formal written arrangement. Some advantages include:

an MOU can be negotiated with Aboriginal people nominated by the Aboriginal community, and is not restricted to 'native title holders' and 'Aboriginal owners' defined by legislation
an MOU can be as detailed or as general as the community and the NPWS want, unlike lease-back agreements and indigenous land use agreements which must address certain issues required by the legislation, however the outcomes agreed in an MOU must be consistent with the National Parks and Wildlife Act 1974
an MOU can be as binding or as flexible as the community and the NPWS want
the negotiation of an MOU can follow a process determined by the community and the NPWS, can evolve over time and does not have to fit a process set by legislation
the negotiation of an MOU does not require complex property transactions and legal advice
the negotiation of an MOU will probably take less time than the negotiation of a lease-back arrangement or an indigenous land use agreement.

Do Aboriginal people get jobs in joint managed parks?
This will depend on the park, the size, location and nature of the park, and the joint management agreement and what employment opportunities are available.

There may be scope for improving employment for Aboriginal people in the long term - by employing Aboriginal people when existing jobs become vacant or by involving local Aboriginal people in the recruitment process.

The NPWS may be able to provide access to its training programs and other educational opportunities to Aboriginal people who are involved in a joint management arrangement.

MOU/MOA / Understanding memorandums of understanding (MOUs)
« on: March 27, 2018, 04:30:14 PM »
Understanding memorandums of understanding (MOUs)

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Resumail Network wasn't going to survive. The Dallas-based company's flagship product -- Resumail, resume digitization and applicant-tracking desktop software -- was too limiting in a world of Monsters and HotJobs.

So in the spring of 2000, the company's CEO charged CTO Scott Howitt with reinventing the company as the one-stop online shop for HR services by January 2001.

But to pull off such a feat in Internet time, Howitt would have to bring in new partners while simultaneously finding a way to cut back on the lengthy, complex legal processes inherent to forming business partnerships.

"My idea was that we would create a bare-bones applicant-tracking system and plug in related services from all our different partners -- become best-in-breed for HR services," Howitt says.

An MOU is no contract -- understood?

Call that agreement an MOU (memorandum of understanding) or a letter of agreement, just don't call it a contract. An MOU is not a binding contract, says Steve de Groot, chair of the technology transaction group and partner at the law firm of King and Spalding in Atlanta. Although both documents define an agreement between two parties, significant differences exist.

* Contract

A contract spells out the "who, what, where, when, and costs" that define a deal. "Contracts also include representations, warranties, indemnifications, and risk sharing," de Groot says.


An MOU provides a nonbinding road map to the parties' agreement. "It's a shorthand version of the deal, written in plain English. An MOU needs to lay out the economic sharing, the principal obligations of each party -- who's to do what and when, who's bringing the technology to the table, and who owns it," de Groot says. MOUs do not provide the relationship exit strategies nor the penalties for violating the agreement that a binding contract provides.

* MOU advantages

Drafting and negotiating an MOU often takes less time than a binding contract. And, as in the experience, an MOU allows parties to explore partnership possibilities before entering into a long-term, contract-defined relationship.

* MOU disadvantages

One MOU disadvantage that de Groot has observed is the negotiations and events that take place prior to signing the MOU. "Oftentimes, the companies haven't addressed significant terms before signing an MOU: They haven't done all the due diligence surrounding the services that support the relationship," de Groot says. "They may come to the table guessing that a platform will support the technology agreement, and it ends up not [to be] the case."

* MOU mistakes

Strong language is the most common mistake with MOUs, de Groot says. Sometimes an MOU is written with terms that really make it a binding contract, with penalties for nonperformance and violations of the agreement. "Make sure an MOU spells out that it is explicitly nonbinding and will be subject in all respects to a binding agreement," de Groot says.

* MOU complements

If an MOU does not cover licensing and protection of proprietary information, de Groot suggests that parties also sign a licensing agreement and a nondisclosure agreement.

CTOs know that meeting partnership legalities could slow speedy partnership formation. But Howitt learned a valuable legal lesson that all CTOs should know: To devise agreements in Internet time, use MOUs (memorandums of understanding).

Tackling transition details

The company ditched the Resumail name, changed to, and went with a high-profile URL -- Howitt and Jeff Whittle,'shouse attorney and vice president of business development, had a goal to sign a service-partnering deal each week during the fall and winter.

But Howitt soon discovered that working quickly to find partners then integrating their services into the site wasn't the problem. Negotiating the contract was.

An early deal Howitt struck was with Recruiters-Aid, which would provide technical recruiting services through the URL. Finalizing the lengthy contract's details delayed the partnership two months. Time and energy was wasted on paperwork that could have been spent on technical issues or closing other deals, Howitt says.

"After that, our in-house counsel and I talked it over: We could use a 1-or 2-page MOU, [defining] basic revenue splits and an agreement with our partner that we'd write 'the rules' as we went along," Howitt says.

Key partnership points

The MOU must-haves for Howitt and Whittle included the service offering target launch date and key partnership milestones, a loose configuration of revenue splits, brand protection and creation of joint marketing tools, a broad understanding of each party's responsibility, and the ability for either party to walk away from the deal without penalty.

Closing deals with MOUs has another advantage over contracts for Howitt: flexibility. "We can see how the new package works out; we're not sure we'll ever get to the 'telephone book' contract," Howitt says.

Working with MOUs is similar to dating, says Whittle, who writes the MOUs that either he or Howitt signs. Using an MOU, the partners "can find out if we like each other and what we need to tweak. This tells us where to build additional structure into the next level," Whittle says.

And if the partnership has potential beyond the initial trial and the first MOU, Whittle and Howitt are prepared to write a lengthy contract, or another MOU, to cover new contingencies.

Making your case

Whereas Howitt had little problem moving from contracts to MOUs, other CTOs may face resistance from legal departments or other executives. If that's the case, Howitt suggests pairing an MOU with something to capture their attention: competitive edge.

"Make them understand the competitive edge that [you] stand to lose by taking the time to get together a contract instead of an MOU," Howitt explains. "In today's world, battles are won and lost over the course of a couple of months. If you are not careful, your competitor can be the first to market with your idea while you are sitting on the sideline assembling the contract."

Another strategy for CTOs who need to make a case for cutting out complexity is to quantify the benefits of doing so.

"CEOs want to see the relationship in dollars and cents," Howitt says. "If you can put a dollar figure to the relationship, they will want to get those dollars rolling in the door as soon as possible."

Finally, Howitt suggests one other advantage to the MOU arrangement to try out on reluctant CEOs. "I also try to pose the MOU as a 'try before you buy' relationship, where neither [partner] is at risk as we see how well we work together," he says. In today's fast-paced business environment where partnerships can determine a company's future, the MOU is the kind of flexible device that deserves a place in the CTO toolkit.

MOU/MOA / How a Memorandum of Understanding Works
« on: March 27, 2018, 04:27:23 PM »
How a Memorandum of Understanding Works

It's the kind of agreement you draw up when you're a tad concerned that your country might be obliterated by nuclear warheads. It's also the sort of document you might scrawl on a bar napkin, outlining a far-fetched business plan after an evening of a few too many White Russians. It's a memorandum of understanding, a legal term that holds major implications for both international and domestic law (and maybe even a few cocktail-stained napkins, too).

A memorandum of understanding (MOU) is, concisely, a written agreement. An MOU is sometimes confused with other, similar jargon, such as letter of intent or memorandum of agreement. For most legal purposes, however, all three of these terms amount to basically the same thing.

MOUs are very common and are used for domestic purposes and agreements between nations. Some are general and concise. Others are long-winded and extremely detailed.

No matter their length or complexity, MOUs specify mutually-accepted expectations between two or more people or organizations as they labor together toward a common objective. And here are two other touchstones of MOUs -- generally they're not legally binding, in part because neither party wants to deal with the ramifications of a binding agreement, and they don't involve the exchange of money.

You might think that memoranda of understanding sound suspiciously similar to contracts, but there are actually significant differences between the two. A contract is a written, private agreement between two parties that is legally binding and can be enforced by a judge.

Contracts spell out the nitty-gritty obligations of each party which, if breached, can spell dire consequences for the entity that breaks it. Contracts are necessary when there is any sort of exchange of money because they help to protect the interests of both parties and ensure trust.

MOUs are less formal than contracts, and typically include fewer details and complexities, but they are more formal than handshake agreements, sometimes called gentlemen's agreements. All sorts of entities use MOUs to create guidelines for each party as they contribute their efforts and resources toward important projects. But ultimately, the reason that parties opt for MOUs is because they are simpler and more flexible than contracts.

Well-written MOUs reflect diplomatic savvy and creative analytical thinking. They also provide a mutually beneficial framework that both entities can work within to achieve shared goals. On the next page, you'll see why memoranda of understanding are virtual celebrities in the legal world.

MOU/MOA / Memorandum of Understanding - MOU
« on: March 27, 2018, 04:25:43 PM »
Memorandum of Understanding - MOU

What is a 'Memorandum of Understanding - MOU'
A memorandum of understanding (MOU) is a nonbinding agreement between two or more parties outlining the terms and details of an understanding, including each parties' requirements and responsibilities. An MOU is often the first stage in the formation of a formal contract.

BREAKING DOWN 'Memorandum of Understanding - MOU'
MOUs are not legally binding but are viewed as serious documents by the law. In the United States, an MOU is the same as a letter of intent, which is a nonbinding agreement stating a binding agreement will soon follow. MOUs are most often used as part of multinational international relations because, unlike treaties, they are quick and can be kept secret. However, MOUs can also be used as a tool to modify existing treaties and domestically.

MOUs are common, both domestically and abroad. They vary in length and complexity, but each understanding represents mutually accepted expectations between people, organizations or governments. Other key similarities between all MOUs is they are not legally binding and do not involve the exchange of money.

Legal Ramifications of an MOU
An MOU signals a legal contract is imminent. However, an MOU itself is not legally defensible but should still clearly outline specific points of an understanding. An MOU should describe who the parties are, what the project is they are agreeing on, the scope of the document, each parties' roles and responsibilities and more. While an MOU is not legally binding, it can help two parties move in the right direction toward an agreement.

An MOU, while not an enforceable document, still holds a lot of power because of the time, energy and resources needed to draft an effective and fair document. An MOU forces the participating parties to reach a semblance of a mutual understanding, and in the process, the two sides naturally mediate and figure out what is most important in moving toward an eventual future agreement that benefits both sides.

Basic Process for Drafting an MOU
Each party starts with a planning phase where it decides what is wanted or desired, what can be offered, what is willing to be negotiated and what is off the table. An initial draft is then written, after which representatives from each party meet to discuss the details. MOUs often list communication expectations to help mediate the sides.

During this time, agreements regarding the timeline for when the MOU takes effect are discussed. Agreements outlining how or when a party can terminate the understanding are also decided. This is when a party puts in disclaimers, restrictions or privacy statements, as desired. Once discussions are finished, a final MOU is drafted and signed.

MOU/MOA / Memorandum of Understanding (MoU)
« on: March 27, 2018, 04:23:35 PM »
Memorandum of Understanding (MoU)

A memorandum of understanding (MOU or MoU) is a formal agreement between two or more parties. Companies and organizations can use MOUs to establish official partnerships.

MOUs are not legally binding but they carry a degree of seriousness and mutual respect, stronger than a gentlemen’s agreement. Often, MOUs are the first steps towards a legal contract. In US law, a memorandum of understanding is synonymous with a letter of intent (LOI), which is a non-binding written agreement that implies a binding contract is to follow.

MOUs are popular in multinational international relations because, unlike treaties, they take a short time to ratify and can be kept confidential. MOUs may also be used to modify existing legal treaties.

When Do You Need a NDA - Non Disclosure Agreement - Confidentiality - Inventor FAQ

Confidentiality / Non-Disclosure Agreement: What You Need to Know

NDA / How to protect your idea - Should you use a NDA?
« on: March 25, 2018, 10:31:46 AM »
How to protect your idea - Should you use a NDA?

NDA / When do I need an NDA (Non Disclosure Agreement)?
« on: March 25, 2018, 10:30:42 AM »
When do I need an NDA (Non Disclosure Agreement)?

NDA / Non-Disclosure Agreement - NDA
« on: March 24, 2018, 05:40:33 PM »
Non-Disclosure Agreement - NDA

What is a 'Non-Disclosure Agreement - NDA'
A nondisclosure agreement (NDA) is a legal contract between two or more parties that signifies a confidential relationship exists between the parties involved. The confidential relationship often refers to information that is to be shared between the parties but should not be made available to the general public. NDAs are also commonly referred to as a confidentiality agreement.

BREAKING DOWN 'Non-Disclosure Agreement - NDA'
NDAs often arise when two companies are about to do business together. The parties are restricted from releasing information regarding any business processes of the counterparty integral to the company's operations. NDAs also may arise between an employer and employee. If the employee has access to sensitive information about the company, he may be asked to sign an NDA when he is hired. This provides an incentive to the employee not to release this sensitive information and avoid a costly legal headache. NDAs also sometimes arise between a company seeking funding and an investor in the company or potential investors, as NDAs are a very common way to protect company trade secrets. This information may include a go-to-market strategy and sales plan, potential customers, a manufacturing process or proprietary software. If an NDA is breached by one party, the other party may seek court action to prevent any further disclosures and may sue the disclosing party for monetary damages.

Common Elements of a Nondisclosure Agreement
Though NDAs may be customized to any degree, there are six major elements considered essential to include. These are sections that detail the parties to the agreement, the definition of what constitutes confidential information, the exclusions from confidential information, the obligations of the receiving party, the time periods involved and miscellaneous provisions.

The parties to the agreement section, at the beginning of the NDA, is simply a description of who is involved. If it is a one-sided agreement, it identifies the disclosing party. If necessary, the NDA should also cover third parties such as affiliated companies, agents or other partners. The definition of confidential information section lists the types and categories of confidential information protected under the agreement. This section must establish the type of confidential information without actually revealing it.

The exclusions from confidential information section excludes certain categories of information as nonconfidential, which protects the receiving party of this information from having to protect it in the future. The obligation of the receiving party section details what certain parties can do with the information provided by the disclosing party. The time period and miscellaneous sections use straightforward language to cover the term of the agreement and any other matters deemed important, such as which state's law to apply to the agreement and which party pays attorney fees in the case of a dispute.

NDA / What to look out for in a non-disclosure agreement (NDA)
« on: March 24, 2018, 05:36:45 PM »
What to look out for in a non-disclosure agreement (NDA)

A non-disclosure agreement (NDA) or confidentiality agreement allows to parties to exchange confidential information. The NDA stipulates which information is confidential, for what purpose the information is supplied and what the receiving party is and is not permitted to do. For many entrepreneurs signing an NDA is a routine matter before starting negotiations. However there is no single NDA, every NDA is (regrettably) different. Which pitfalls should you look out for?

Purpose of the NDA
Exchanging confidential information is done for a purpose, and therefore that purpose must be recorded in the NDA. Do not simply state “parties wish to explore a business relationship” or “parties wish to share confidential information”. What kind of information? What kind of relationship, and why does it need an exchange of confidential information?

A more workable purpose would be “Parties are considering a cooperation to extend the social media platform of party A with the facial recognition software of party B”. This clearly stipulates the backgrounds of the parties and what kind of information will be exchanged.

Some NDAs are single-sided: only information of one party is covered. This is hardly ever fair. Always demand that NDAs are made mutual, allowing both yourself and the other side to supply confidential information.

Identifying confidential information
How to recognize confidential information? Sometimes NDAs simply state that everything exchanged for the purpose is confidential. That is hardly workable. Therefore, insist on some kind of marking requirement: if it is stamped as confidential, it is covered.

If it is not practical to stamp everything, then you could add “or if the confidential nature would have been readily apparent to a casual observer” or similar wording to allow at least some kind of recognition.

Third-party coverage
By default an NDA only applies to the parties. This includes employees, but not third parties such as outside advisors or suppliers. These can be added of course, but only if they have a clear need to know. Preferably, they should explicitly agree to the contents of the NDA or at least warrant that their confidentiality obligations are at least as strict as the NDA.

Some parties insist that employees sign individually for the NDA. This makes the employee personally liable for violations of the NDA. That is hardly fair and unenforceable in many jurisdictions.

No further commitments
An NDA is intended for “sniffing”, for getting to know each other better prior to entering in a purchase, license, cooperation or other agreement. It is therefore important to stress that nothing in the NDA can be construed as an obligation to enter into such other agreement.

A common mistake is to use language like “the parties hereby cooperate to do X and exchange confidential information for this purpose”. This commits the parties to that cooperation. Instead, use “the parties hereby wish to investigate the feasibility of cooperating on X” to make it clear the cooperation itself has not started yet.

Ownership of information
Add language to make it clear that information exchanged is owned by the supplying party. The recipient should receive a limited license for the purpose. (A common mistake is to say that the recipient gets no license, which is wrong because he needs to use the information for the purpose. Excluding any and all license for commercial exploitation is fine, however.)

If the recipient is expected to change or amend the information, e.g. by compiling it into summaries or by modifying software, separate language should be added to address this. Don’t forget to add some language on IPR ownership of the results of such activities.

If software is to be exchanged, a separate license must be included for that software. This license should be explicit: what is and is not permitted.

If information is available to the public, it can no longer be patented. Thus, an NDA violation by the recipient may harm the discloser’s ability to patent that information. With special clauses this harm can be contained, e.g. by adding that the recipient will compensate for the loss of a patent.

Some patent jurisdictions (e.g. Europe) allow for a filing within 6 months after the violation provided it is clear that the disclosure was a violation. By adding that the recipient shall provide a statement to that effect, this requirement can be more easily satisfied.

Exclusions to confidentiality
Information may lose its confidential status at some point, for example because it became part of the public domain or is available without restriction from some third party. In those situations it would be unreasonable to have to keep the information confidential. Therefore, a good NDA stipulates that confidentiality obligations cease if such situations arise (although the recipient will have the onus of proof).

It may happen that parts of the information become public without the entirety becoming public at once. An exception needs to be mad for that situation.

A related exception needs to be added for residual information. Information may be retained in the unaided memory of individuals who receive the information. It would be unreasonable to declare that a violation of the NDA.

Disclosure by law
Under some circumstances information must be given to courts or government agencies, e.g. if a warrant or subpoena is served or a legal procedure calls for. An example is the US discovery process. Such disclosures must of course be permitted under the NDA. One may add a clause saying the disclosing party should be informed (if permitted) so they can take legal action such as applying for a preliminary injunction to block the disclosure.

A common mistake is to put “disclosures required by law” under the list of exclusions mentioned above. This is wrong, because information does not lose its confidential status merely because a court or government agency has the right to demand access to it. That right only implies that that specific disclosure must be permitted.

An NDA is an often-used legal document, and many NDAs look the same. However each NDA is different under the hood and you should always make sure the NDA you sign has the clauses you want.

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