Innovative Marketing B.V. ( Innovative Marketing) is a trusted international provider of innovative marketing and commerce solutions operating in 30 countries of the world. The solutions developed by Innovative Marketing assist their customers in increasing customer acquisition, profitability and loyalty. Innovative Marketing is currently considering a strategic alliance with an electronic payment service provider to be able to offer their clients secure and reliable solutions to improve their payment processing. Ideally, they would like to find a payment provider, whose business they might acquire at a later stage to add payment solutions to their range of services. Innovative Marketing has recently commenced negotiations with Friendly Payment, LLC (Friendly Payment), an emerging payment service provider, which seems to be able to offer them everything they are looking for. However, the Managing Board of Innovative Marketing is not fully convinced that they would like to tie themselves up to a company, which hasnt been in the market for long. While the negotiations continue, Innovative Marketing would like to keep their options open as long as their can and, in the meantime, approach other payment service providers to see if they can get a better deal with someone more experienced. However, the management of Friendly Payment has sensed that Innovative Marketing does not seem very committed to their future strategic relationship and, therefore, is now insisting on signing a Letter of Intent. Since Innovative Marketing does not want to lose a potential partner, its Managing Board has agreed to sign a Letter of Intent with an idea that it would be a non-binding document. You work as a junior legal officer at Innovative Marketing and you have received the following email from the Managing Director: From: Jayson Burns, Managing Director; To: Junior Legal Officer Subject: URGENT: Letter of Intent Hi, Ive just heard that Donald is in the hospital, so this week you are the only person who can review the documents and provide us with legal advice. Unfortunately, I have this urgent Letter of Intent, which Friendly Payment wants us to review and sign ASAP. Donald told me that you are aware of the general background information on these negotiations. Just in case, here are my main points: – we dont want to sign anything binding as we want to be able to walk away if we find someone better; – I want these negotiations and the strategic alliance we are discussing to remain confidential regardless of whether or not we end up signing a definitive agreement. Not sure if we end up signing one and when; – we have agreed on a 10% discount if we are to acquire their assets and this should be set in stone; – I dont want to bear any liability in case we decide to proceed with someone else. Please send me your comments with the detailed explanation of the reasons behind your comments and any suggested amendments/additional wording you advise to include. I will discuss them with Friendly Payment, but before I do so, I need to understand why we want to amend/add something. Best regards, Jayson Contract Drafting 2018-2019 Please review the attached Letter of Intent and prepare a written communication (in the appropriate form) to the Managing Director with your comments to the document and any suggested amendments/additional wording. Your communication should contain (i) the actual wording of amendments/additional provisions; (ii) explanation of the reasons behind your comment and/or amendments/additional wording; and (iii) what the consequences are if your advice is not followed. If there are more ways to approach a particular provision, please mention any viable alternatives as well. Formal requirements: – 1,500 words; – Appropriate format; – A4 Paper size; – 11 font – 2,5 margin; – Header with name, date, student number and legal product title. [Draft Letter of Intent starts as of the following page] Contract Drafting 2018-2019 LETTER OF INTENT This Letter of Intent (this Letter of Intent) sets forth the agreement of Friendly Payment LLC, a Delaware Limited Liability Company (hereinafter referred to as “Friendly Payments”), and Innovative Marketing B.V., a limited liability company incorporated under the laws of the Kingdom of the Netherlands (hereinafter referred to as “Innovative Marketing”), pursuant to which Friendly Payment and Innovative Marketing agree to enter into a strategic alliance to mutually pursue business objectives and to share certain business resources. 1. SCOPE OF STRATEGIC ALLIANCE The parties agree that Innovative Marketing shall discuss and offer its clients the opportunity to utilize Friendly Payments payments solutions (the Solutions) in conjunction with Innovative Marketings business and in conjunction with this Letter of Intent. The parties shall separately enter into any necessary license or other agreements between themselves or with customers relating to access to the Solutions. Pursuant to the alliance, Innovative Marketing shall, introduce and market Friendly Payment payment platforms and other services offered by Friendly Payment (collectively the “Services”), on terms mutually agreeable to Innovative Marketing, Friendly Payment and Innovative Marketings customer. Friendly Payment shall support and perform its payment and billing services (collectively the “Friendly Payment Services”) for Innovative Marketings customers and projects referred to Friendly Payment by Innovative Marketing. Any engagement to perform Friendly Payment Services shall be on such terms and conditions as Friendly Payment may approve in its sole discretion. Friendly Payment shall perform, schedule,staffandmanageallFriendlyPaymentServices. InnovativeMarketingshallprovide its products and solutions to Friendly Payment, which Friendly Payment intends to install on the Friendly Payment Billing Platform subject to the terms and conditions of the definitive Strategic Alliance Agreement (the definitive Agreement). Revenues received from business generated through the parties alliance shall be shared between the parties equally, with Innovative Marketing retaining 50% (fifty percent) of net revenue for business generated by Innovative Marketing and Friendly Payment retaining 50% (fifty percent) of net revenue for business generated by Friendly Payment. The parties recognize that each party may generate its own individual projects and customers that are not subject to the terms of the contemplated alliance or these revenue sharing provisions. 2. TERM The Letter of Intent shall be effective until the signing of the definitive Agreement, which shall be signed on or before the ninetieth (90th) day from the date of signing of this Letter of Intent. The Letter of Intent may be terminated upon mutual agreement of the parties. 3. FEES AND CAPITAL The parties agree that pursuant to this Letter of Intent, Friendly Payment shall receive a fee of EUR 500,000 (five hundred thousand euro) in two tranches of EUR 250,000 (two hundred and fifty thousand euro) payable within forty-five (45) days and ninety (90) days, respectively, after the signing of a definitive Agreement, which fee shall be used to fund software development and integration work associated with business developed by the parties pursuant to this Contract Drafting 2018-2019 agreement. Additionally, Friendly Payment shall be issued 100,000 (one hundred thousand) shares of Innovative Marketings common stock upon the execution of a definitive Agreement. 4. RIGHT OF FIRST OPTION TO PURCHASE. During the eighteen (18) months immediately following the execution of the definitive Agreement, Friendly Payment intends to provide Innovative Marketing with a right of first option to acquire substantially all of the assets of Friendly Payment at a 10% (ten percent) discount from the then-current fair market value of the assets (determined through a methodology mutually agreeable to the parties), at terms and conditions to be agreed by the parties, and subject to customary due diligence, representations and warranties. 5. INDEMNIFICATION. Each party shall indemnify, defend and hold the other party, its partners, shareholders, directors, officers, employees, and agents harmless from and against any and all third-Party suits, actions, investigations and proceedings, and related costs and expenses (including reasonable attorney’s fees) resulting solely and directly from the indemnifying Party’s negligence or wilful misconduct, and that neither party shall be required hereunder to defend, indemnify or hold harmless the other and/or its partners, shareholders, directors, officers, directors, employees and agents, or any of them, from any liability resulting from the negligence or wrongful acts of the Party seeking indemnification or of any third-Party. Each Party further agrees to cooperate with the other in the defence of any such claim or other matter. 6. INTELLECTUAL PROPERTY The parties agree that pursuant to a definitive Agreement, each Party shall be granted a royalty-free, non-exclusive, non-transferrable license during the Term of the Agreement to use the name and trademarks of the other (in forms provided by the Party owning such name or trademark) in conjunction with promoting or providing the services contemplated by this Letter of Intent. Work performed on engagements pursuant to the Letter of Intent by either Friendly Payment and/or Innovative Marketing, and information, materials, products and deliverables developed in connection with engagements pursuant to the Letter of Intent shall be the property of the respective party performing the work or creating the information. All underlying methodology utilized by Friendly Payment and Innovative Marketing respectively which was created and/or developed by either party prior to the definitive Agreement and utilized in the course of performing engagements pursuant to the Letter of Intent shall not become the property of the other. 7. GENERAL TERMS AND CONDITIONS Although this Letter of Intent is a contractually binding obligation of the parties, it is not intended to be exhaustive of all the points for inclusion in the definitive Agreement and any related agreements. The parties will negotiate in good faith additional customary and reasonable terms and conditions as part of the definitive Agreement and any related agreements. This Letter of Intent is merely a guide to the preparation of a mutually satisfactory definitive Agreement. Nothing herein shall be construed to preclude other provisions Contract Drafting 2018-2019 consistent with the terms of this transaction from being inserted in the definitive Agreement at the request of either party provided the other party agrees. 8. DEFAMATION. During the term of this Letter of Intent, neither party shall defame or make bad faith derogatory statements to third parties about the other party, which restriction shall not apply to statements made in legal, arbitration, administrative or investigative proceedings, or statements required to be made under applicable laws, court order or subpoena, or in a mandated discovery process in any legal proceeding. 9. EXCLUSIVITY From the signing date of this Letter of Intent until the date of signing the definitive Agreement, the parties agree that (1) each party will not, directly or indirectly, through any representative or otherwise, solicit or entertain offers from, negotiate with or in any manner encourage, discuss, accept, or consider any proposal of any other person relating to the strategic alliance similar to the subject matter of this Letter of Intent; and (2) each party will immediately notify the other party regarding any contact between the party or their respective representatives and any other third party regarding any such offer or proposal or any related inquiry. 10. ENTIRE AGREEMENT This Letter of Intent constitutes the full and complete agreement between the parties with respect to the subject matter contained in this Letter of Intent and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to such subject matter, except as otherwise expressly referred to herein. 11. AUTHORITY The parties signing this letter affirm that they are an authorized representative of their respective business entity and have authority to enter into this Letter of Intent. 12. GOVERNING LAW AND JURISDICTION This Letter of Intent shall be governed and construed in accordance with the laws of the Kingdom of the Netherlands with the court of Amsterdam having exclusive jurisdiction in case of disputes. Accepted and Agreed to by: Friendly Payment ______________ Name: Title: Date: Innovative Marketing _________________ Name: Title: Date: Please be aware that all references should be in Oscola ( Oxford) citation with footnote. ========== when reviewing, commenting, suggesting amendment of the letter of intent, please take the client’s(Jayson Burns, Managing Director) interest into consideration as specified in the letter from the client to you. – We dont want to sign anything binding as we want to be able to walk away if we find someone better; – I want these negotiations and the strategic alliance we are discussing to remain confidential regardless of whether or not we end up signing a definitive agreement. Not sure if we end up signing one and when; – we have agreed on a 10% discount if we are to acquire their assets and this should be set in stone; – I dont want to bear any liability in case we decide to proceed with someone else.
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