MEMORANDUM OF AGREEMENT

MEMORANDUM OF AGREEMENT

THIS MEMORANDUM OF AGREEMENT (hereafter this ‘‘Agreement’’) is entered into by and between UPick Inc. of address [address] (hereafter referred to as ‘‘Company ’’) and [name of Sister Company] of address [address] (hereafter referred to as ‘‘Car Dealer’’ ) and shall be effective as of the ______ day of ______________, 20___ (Effective Date)

Whereas, UPick Inc. and [Name of Sister Company] deal in car dealerships and intend to work together and share profits thereof;

Whereas, the parties to this contract intend to work in partnership with the other;

NOW, THEREFORE, in consideration of the premises, and of the mutual promises and undertakings herein contained, the parties, intending to be legally bound, do agree as follows:

    1. THE AGREEMENT
  • UPick Inc. and [Sister Company] merge to make various car deals and split the profits as agreed in this contract
  • As part of the agreement, parties to this agreement agree that all cars to be sold under this agreement need to have mechanical and safety inspection by one of the Company’s certified mechanics. 
    1. TERM AND TERMINATION
  • This Agreement shall be operative from the date of execution of this Agreement (Effective date) and shall run for 24 months.
  • Unless otherwise mutually agreed to in writing, either Party to this Agreement may terminate this Agreement upon written notice of termination to the other Party and take responsibility of the costs thereof. 
  • Unless otherwise mutually agreed to in writing, upon the termination of this Agreement, any business arrangement then in effect will immediately terminate.
  • Violation of any part of the agreement, breach of contractual duties, any evidence of fraud, embezzlement and/or impossibility of performance will lead to the termination of this contract. 
  • PAYMENT TERMS
  • All payments and balances will be made monthly unless otherwise agreed in writing.
  • Any deal that the company makes with car dealers will be split in profits in the following breakdown;

Offer 1

10% House/License

30% Buyers/Listing

30%Posts/marketing

30% Desking/Financing

Offer 2

Front back

House/ License 10% 30%

Buyers 60% N/A

Posts/Marking 30% 20%

Financing N/A 50%

 

——- ——-

Total 100% 100%.

  • REPRESENTATIONS AND WARRANTIES

As of the date hereof, each of the statements contained herein shall be a true, accurate and full disclosure of all facts relevant to the matters contained therein, and such warranties and representations shall survive the execution of this Agreement.  Each Party hereby represents and warrants that:

  • Such Party is a duly organized and validly existing corporation under the laws of the State of California and has the requisite power and authority to enter into and carry out the terms of this Agreement.
  • If such Partner is a corporation (partnership), all corporate (partnership) action required to be taken by such Partner to consummate this Agreement has been taken and no further approval of any board, court or other body is necessary in order to permit such Partner to consummate this Agreement.
  • To the best of such Partner’s knowledge, neither the execution and delivery of this Agreement, nor the performance of or the compliance with, this Agreement has resulted (or will result) in any violation of, or be in conflict with, or invalidate, cancel or make inoperative, or interfere with, or constitute a default under, or result in the creation of any lien, encumbrance or any other charge upon the Property pursuant to any charter or bylaw provision, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, agreement, permit, judgment, decree or order to which such Partner is a party or by which the Property (or any portion thereof) is bound, and there is no default and no event or omission has occurred which, but for the passing of time or the giving of notice, or both, would constitute a default on the part of such Partner under this Agreement.
  •  To the best of such Partner’s knowledge, there is no action, proceeding or investigation, pending or threatened (nor any basis therefor) which questions, directly or indirectly, the validity or enforceability of this Agreement as to such Partner or which would materially and adversely affect the Property or the Partnership.
  • Confidential Information and mutual non-disclosure
  • For the purposes of this Agreement, Confidential Information means any data or in-formation that is proprietary to or possessed by a Party and not generally known to the public or that has not yet been revealed, whether in tangible or intangible form, when-ever and however disclosed, including, but not limited to: 
  • Any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; 
  • any concepts, samples, reports, data, know-how, works-in-progress, designs, drawings, photographs, development tools, specifications, software programs, source code, object code, flow charts, and databases; 
  • any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the Party’s past, present or future business activities, or those of its affiliates, subsidiaries and affiliated companies; 
  • trade secrets; plans for products or services, and customer or supplier lists; 
  • Any other information that should reasonably be recognized as Confidential Information by the Parties. 
  • The Parties agree hereby that Confidential Information needs not to be novel, unique, patentable, copyrightable or constitutes a trade secret in order to be designated Confidential Information and therefore protected.
  • Confidential Information shall be identified either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the confidential nature of the information. Such notification shall be done orally, by e-mail or written correspondence, or via other appropriate means of communication. 
  • The Parties hereby acknowledge that the Confidential Information proprietary to each Party has been developed and obtained through great efforts and shall be regarded and kept as Confidential Information.
  • For the purposes of this Agreement, the Party which discloses Confidential Information within the terms established hereunder to the other Party shall be regarded as the Disclosing Party. Likewise the Party which receives the disclosed Confidential Information shall be regarded as the Receiving Party. 
  • Notwithstanding the aforementioned, Confidential Information shall exclude information that: 
  • is already in the public domain at the time of disclosure by the Disclosing Party to the Receiving Party or thereafter enters the public domain without any breach of the terms of this Agreement; 
  • was already known by the Receiving Party before the moment of disclosure (under evidence of reasonable proof or written record of such disclosure); 
  • is subsequently communicated to the Receiving Party without any obligation of confidence from a third party who is in lawful possession thereof and under no obligation of confidence to the Disclosing Party; 
  • becomes publicly available by other means than a breach of the confidentiality obligations by the Receiving Party (not through fault or failure to act by the Receiving Party); 
  • Is or has been developed independently by employees, consultants or agents of the Receiving Party (proved by reasonable means) without violation of the terms of this Agreement or reference or access to any Confidential Information pertaining to the Parties. 
  1. SEVERABILITY

The invalidity or unenforceability, in whole or in part, of any provision in this Agreement, shall not affect in any way the remainder of the provisions herein.

  • INDEMNIFICATION   

Each party will “indemnify”, defend, and hold harmless the other party and its officers, directors, employees and agents from and against all third-party claims, causes of actions, damages, liabilities, judgments, losses, costs or expenses based on or arising out of or in connections with: (i) the Indemnifying Party’s breach or default of any provision of this Agreement, and/or (ii) the acts, errors, representations, misrepresentations, or negligence of the Indemnifying Party, it’s employees, contractors, or agents, or willful acts of misconduct of such Indemnifying Party.   

In addition, each party shall indemnify and hold harmless the other party and its legal business partners and law firm, (i) against and from any and all damages, liabilities, costs and expenses (including reasonable attorney fees) incurred by the indemnified party, by reason of a third party claim, demand, action, suit or charge based on action or inaction of the indemnifying party; (ii) the indemnifying party’s violation of any law, rule or regulation in connection with its duties under this Agreement, including a violation for which it has made a warranty or representation hereunder; or (iii) the inaccuracy of any warranty or representation made by the indemnifying party in this Agreement.   Each party agrees to immediately notify the other of any suit or threat of suit for which indemnification may be sought under this section.  Neither party shall settle any claim involving the other, or on behalf of the other, without the written consent of the other.  

  • LIMITATIONS ON LIABILITY

IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LEGAL AND BUSINESS PARTNERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN OR WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF EITHER PARTY SHALL BE FOUND LIABLE, IN A COURT OF COMPETENT JURISDICTION, FOR ANY MATTER RELATING TO OR ARISING FROM THIS AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, EQUITY, FRAUD, MISREPRESENTATION, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM ARISING FROM THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF EITHER PARTY), THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE BY EITHER PARTY WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NON PERFORMANCE, ACTS, OR OMISSIONS HEREUNDER WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO SUCH PARTY, BY THE OTHER PARTY, UNDER THIS AGREEMENT.

THE FOREGOING WARRANTIES, TERMS OR CONDITIONS ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

REGARDLESS OF THE ABOVE, COMPANY’S OR ITS LEGAL AND BUSINESS PARTNERS’ AGGREGATE LIABILITY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) SHALL NOT EXCEED THE AMOUNT OF FEES BILLED BY PARTNER-COMPANY TO COMPANY PURSUANT TO THIS AGREEMENT.  IN ADDITION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS), WHETHER OR NOT NOTIFIED OF SUCH DAMAGES.

  • DISPUTES

Except as otherwise specifically agreed in writing by the parties, any dispute relating to any rights and/ or obligations arising from this Agreement which is not resolved through mediation shall be adjudicated by any court of competent jurisdiction.

  • MODIFICATION

This Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto.

  • NOTICE

All notices, requests, demands, consents, approvals or other communications given hereunder or in connection herewith shall be in writing, shall be sent by registered or certified mail, return receipt requested, postage prepaid, or by hand delivery with acknowledged receipt of delivery, shall be deemed given on the date of acceptance or refusal of acceptance shown on such receipt, and shall be addressed to the party to receive such notice at the following applicable address:

[In this section as per the partners agreement and approval, state all your addresses and how such information might reach all of you.] 

Any party may, by notice given as aforesaid, change its or his address for all subsequent notices.

GOVERNING LAWS

 This Agreement shall be deemed to have been made, executed, and delivered in the State of Florida and shall be construed per the laws of the State of California.

 

In Witness of whom, this Agreement is duly executed by the duly authorized representatives of the parties as set forth below:

 

UPick Inc. [Sister Company]

 

Signature: ____________________________ Signature: _______________________

Date_________________________: Date: ________________________________

 

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