Memorandum of Agreement (MOA) TemplateStartup Law ResourcesBusiness Operations
Download this free Memorandum of Agreement (MOA) form below and customize it for your unique business legal needs. Use this template if would like to enter into a transaction (e.g. purchase, partnership, employment) with another person or entity and would like to have an understanding of the agreement in place prior to finalizing the details.
MEMORANDUM OF AGREEMENT
between [Name of Partner 1] & [Name of Partner 2]
THIS MEMORANDUM OF AGREEMENT (MOA) (“Memorandum”), dated _________, 20__ between [NAME OF PARTNER] (“PARTNER”) an organization [SPECIFY TYPE; for example: not-for-profit] established under the laws of [COUNTRY] with its offices in [LOCATION, COUNTRY] represented by [REPRESENTATIVE OF PARTNER], [TITLE]; and [NAME OF PARTNER] (“PARTNER”), a [State], USA [Type of Organization] with its principal place of business in [City, State], USA, represented by [REPRESENTATIVE], [TITLE]; collectively referred to as “the Partners”.
The Partners wish to work together and in compliance with the following clauses:
[INCLUDE A GENERAL DESCRIPTION OF THE GOAL OF THIS AGREEMENT]
III. AREAS OF COLLABORATION
[DESCRIBE AREAS OF COLLABORATION BETWEEN PARTNER AND [PARTNER]]
Learning and building capacity. This can include the sharing of knowledge and lessons learned, organizational development and sustainability, sustainable finance, technology sharing, etc.
IV. ROLES AND RESPONSIBILITIES OF PARTNERS
DESCRIBE PARTNER’S RESPONSIBILITIES UNDER THIS AGREEMENT
V. PRINCIPAL CONTACTS
The Principal Contacts for each one of the organizations is:
[NAME OF PRINCIPAL CONTACT]
[NAME OF PRINCIPAL CONTACT]
Such Principal Contacts may be changed in writing from time to time by their respective Partners.
VI. USE OF INTELLECTUAL PROPERTY
The parties agree that any intellectual property, which is jointly developed through activities covered under this MOA, can be used by either party for ______________ purposes without obtaining consent from the other and without any need to account to the other.
All other intellectual property used in the implementation of the MOA will remain the property of the party that provided it. This property can be used by either party for purposes covered by the MOA but consent will be obtained from the owner of the property before using it for purposes not covered by the MOA.
VII. EFFECTIVE DATES AND AMENDMENTS.
This MOA shall take effect upon signing by both Parties and shall remain in effect for a period of _______ years from that date unless earlier terminated. Neither party may assign or transfer all or any portion of this MOA without the prior written consent of the other party.
The MOA may be renewed at the end of this period by mutual written agreement by both Parties.
The provisions of this MOA may only be amended or waived by mutual written agreement by both Parties.
The individuals signing this MOA on behalf of their respective entities represent and warrant (without personal liability therefor) that upon the signature of each, this MOA shall have been duly executed by the entity each represents.
Any Party may terminate this MOA and any related agreement, workplan and budget at any time and for any reason by giving _____ days prior written notice to the other Party; provided, however, that in the event [PARTNER] fails to perform any of its obligations under this MOA, PARTNER shall have the right to terminate this MOA and any related agreement, workplan and budget immediately upon written notice.
IX. TRANSFER OF FUNDS.
The parties acknowledge and agree that this MOA does not create any financial or funding obligation on either party, and that such obligations shall arise only upon joint execution of a subsequent agreement or workplan (which shall include a budget) that specifically delineates the terms and nature of such obligations and that references this MOA. Such subsequent agreements or workplans, and budgets, will be subject to funding being specifically available for the purposes outlined therein. All [PARTNER] funds are further subject to [PARTNER]’s obligation to expend [PARTNER] funds solely in accordance with the agreed upon budget and the line items contained therein.
X. NO JOINT VENTURE
Notwithstanding the terms “Partners” and “Partnership”, the Partners agree that they are not entering into a Legal Partnership, joint venture or other such business arrangement, nor is the purpose of the Partners to enter into a commercial undertaking for monetary gain. Neither Partner will refer to or treat the arrangements under this Agreement as a Legal Partnership or take any action inconsistent with such intention.
XI. DISPUTE RESOLUTION
The Partners hereby agree that, in the event of any dispute between the Partners relating to this Agreement, the Partners shall first seek to resolve the dispute through informal discussions. In the event any dispute cannot be resolved informally within ____ calendar and consecutive days, the Partners agree that the dispute will be negotiated between the Partners through mediation, if Partners can agree on a mediator. The costs of mediation shall be shared equally by the Partners. Neither Partner waives its legal rights to adjudicate this Agreement in a legal forum.
This Agreement, including all Annexes, embodies the entire and complete understanding and agreement between the Partners and no amendment will be effective unless signed by both Partners. Such signature by both Partners may be made by telefacsimile.
FOR [FULL NAME OF PARTNER] [DATE]
FOR [FULL NAME OF PARTNER] [DATE]
This form has been prepared for general informational purposes only. It does not constitute legal advice, advertising, a solicitation, or tax advice. Transmission of this form and the information contained herein is not intended to create, and receipt thereof does not constitute formation of, an attorney-client relationship. You should not rely upon this document or information for any purpose without seeking legal advice from an appropriately licensed attorney, including without limitation to review and provide advice on the terms of this form, the appropriate approvals required in connection with the transactions contemplated by this form, and any securities law and other legal issues contemplated by this form or the transactions contemplated by this form.
What is a Memorandum of Agreement?
A memorandum of agreement is a document that forms a legal relationship between two parties working towards a shared goal. When it comes to research agreements at a college, university, or in fact any new partnership agreement, the memorandum of agreement, or MOA, forms some of the most important aspects of the process. MOAs allow research and collaboration to progress and benefit not just the researchers or collaborators, but their institutions and the public at large.
These documents outline the scope of projects and the rights available with them, and help to encourage business with industry partners as well as establishing ongoing partnerships with these external producers.
Overview of a Memorandum of Agreement
The purpose of a Memorandum of Agreement is to place, in writing, the relationship between any two parties who intend to work on a project or towards an objective. The MOA is a legally binding document, and it outlines the details and responsibilities of the partnership.
The MOA vs. The Contract
While the MOA is a formal document that is legally binding, more formal than simply agreeing verbally, it is not as formal as a contract. In fact, often an MOAoutlines an agreement before the drafting of a formal contract.
Essentially, it establishes a relationship that may become more formalized after negotiations are undertaken and both sides do their due diligence. Many organizations use MOAs to outline and set up agreements for collaboration, partnerships, service agreements, or the use of training or technical assistance. Money does not need to be exchanged as part of an MOA.
Contracts, however, are much more detailed and specific in the terms they outline. They give you a much more formalized agreement that is far more solid in terms of expectations and assignment of responsibility and delivery. Usually, an MOA comes first, followed by a contractbuilt from the MOA.
While an MOA is great for defining a relationship, a contract should be used when money comes into play, or there is a defined exchange of goods and services. This is important. The qualifying factor in a contract is anything that involves a value exchange. You give something valuable to your partnerand get something of equal value in return, and these values are specified. Contracts hammer home the importance of an agreement. They establish a legal obligation to meet agreed-upon terms. They also remove any gray areas or leeway from the agreement.
Why Use an MOA?
MOAs can be essential to get new partnerships up and running. They help solidify deals with suppliers, grab new recruits, and act as a precursor to a formal contract. Whenever you or your business isentering into a collaboration, transaction, partnership, employment agreement, or other business relationship, an MOAprovides a solid understanding of where you intend to take the relationship while you finalize the agreement.
It's easy to think of the MOA as a sort of placeholder agreement, and in many ways that's true. It serves to get the ball rolling while you solidify the terms of your new relationship. However, it is a legal document and binding if need be. The purpose of the MOA is to establish the goals, outcomes, and milestones you hope to achieve with your new partnership.
MOAs are used for everything from pre-employment agreements to buying a home to major research and development projects in industry and academia, even for contractors working on home improvement projects.
When Is an MOA a Contract?
There are certain situations wherean MOA is treated as a contract under the law. These include circumstances where MOAs deal with the exchange of money, where someone suffers a loss because the other party failed to live up to their terms, or when a customary exchange exists regardless of the contract.
Reading These Documents
When reading a contract or MOA it's important to be detail oriented in your approach. Every word has meaning. Read the document through several times before signing anything. If something seems to be written in "legalese," slow down and read it over carefully. You may find that it's not so hard to understand after all. Never be afraid to ask for detailed clarification. Always beware of "hand-waving" explanations.
Get familiar with the standard wording you see in contracts. Know who the contractor is. Understand the terms used for the exchange of goods and services. Before you sign, make sure that you are okay with everything in there. This applies especially to contracts. Changing a contract after it's been signed is a very tricky prospect. Resolve any disputes before you put your name on the page.
Make sure everything in the contract or MOA is reasonable, reflects your expectations and verbal agreements, covers all the bases, and can be done. Make sure that neither you nor the other party is agreeing to something they can't deliver, or that could damage their organization.
Contents of Contracts
The elements of a contract are largely the same across the board, though the arrangement, outlining and phrasing may be different. They will always explain:
The parties in agreement, and their roles, using legal names
Detailed and specific outline of the arrangement, including scope of services, target audience, delivery expectations, and time limit (if any) on the agreement
Payment details, or details of services and obligations of each party
Evaluation of performance and delivery
Consequences for failing to live up to expectations
Conditions for ending or canceling the contract (if any)
Conditions for changing the contract
Signatures, date, and any financial information (tax ID, social security numbers, etc.)
Structure of a Memorandum of Agreement
A Memorandum of Agreement is structured similarly to a contract but has a different focus. The elements of an MOA include:
Introduction, which outlines the agreement and partnership purpose, and a statement of authority
The parties in agreement, using legal names
Goals of the partnership
Detailed breakdown of the expectations and roles of each partner
Any applicable payments or exchange of funds
Agreement scope and duration
Use of any involved or resulting intellectual property by each party
Conditions for changing or terminating the agreement
Restrictions on joint ventures
Memorandum of Agreement vs. Memorandum of Understanding
Many people become confused by the difference between an MOA and a Memorandum of Understanding, or MOU. While similar, these are not the same thing, and using the wrong one can create major legal complications in your efforts.
An MOU is a simple understanding between two parties with no transfer of goods, services, or funds. It serves only to outline the common goals of different partiesand does not outline obligations. It outlines an offer, consideration, and intentions involved in a newly established relationship. MOUs are properly used to work out how a program should work or how two agencies support each other's operations.
Here's the important thing. MOUs are far less binding in a legal sense and may be unenforceable unless the terms are integrated into a later MOA or contract. Each state has its own laws regulating such agreements. In general, an MOU is far less formal than an MOA. It can be problematic to try and pursue legal action based on an MOU. That being said, the MOU does serve as a sort of "handshake agreement," and the parties involved can be held liable if they fail to deliver and that failure causes harm to their partners.
The MOU is generally an informal precursor to the MOA, just as an MOA is a formal precursor to a contract. Because it is so informal, it's always better to further formalize agreements to protect everyone involved. Most MOUs should include language indicating that they are not obligating financial strictures or funding considerations.
Tips to Keep in Mind When Writing an MOA
When writing an MOA there are certain best practices you want to keep in mind and follow. When you are establishing the terms of any agreement, only use a single MOA. Multiple Memoranda of Understanding can create confusion. Keep your language clear, concise, and as simple as possible. When you can, use the same language you used in discussions.
Your MOA should always focus on balance. Deal with what both parties agree toas the core. Then break it down to each party's agreed-upon terms. Then bring it back to both parties being in agreement. Keep your agreement positive. Talk about what will be donerather than what won't. Make sure that all expectations are realistic and that all parties are capable of delivering.
Make sure that everyone involved is in complete agreement with all the terms, as intended. Sit down with the partners and read the MOA aloud so that everyone can hear potential problems or inconsistencies. Make sure that everyone's signature is on the document and that all parties have a copy of the signed document.
Though less formal than a contract, an MOA is an important step in establishing a formal partnership between two or more parties. It never hurts when drafting documents like this to have the right legal help to avoid traps and costly mistakes. The experienced attorneys you can find through Upcounsel can be of help in this area.
Whether it's an agreement or a formal contract, if you're new to businesses and partnerships, or just need some outstanding advice on your next agreement, login to UpCounsel today and see what we can do for your business partnership's legal needs.