This is a sample contract that will be signed by the buyer and seller (Hummingbird Web Solutions Pvt Ltd.)
Website Sale Agreement
This Website Sales Agreement (the “Agreement”) is made and entered on __________, (the “Effective Date”), by and between <<SELLER>> “Seller” and <<BUYER>> “Buyer” (collectively referred to as the “Parties”).
WHEREAS, Seller owns outright and exclusively certain Internet domains (the “Site”) together with all good will of the business relating thereto, all intellectual property rights (as each such term is hereinafter defined) associated therewith, including without limitation, all registrations, applications and renewals, whether domestic or foreign (the “IP Assets”) as set forth in the Attachment A; and
WHEREAS, Seller desires to sell, convey, assign, transfer and deliver to Buyer, and Buyer desires to purchase, acquire and accept from Seller, all of Seller’s right, title and interest in and to the Site (as such term defined herein) and intellectual property rights associated therewith, on the terms and conditions pursuant to this Agreement; and
NOW, THEREFORE, The Parties agree as follows:
1. SALE OF WEBSITE
1.1 Seller hereby sells, assigns and transfers to Buyer, its successors and assigns, and shall cause any of its affiliates to sell, assign and transfer, its or their entire right, title and interest in and to the Site and IP Assets free and clear of any liens, claims or encumbrances. Such sale, assignment, or transfer shall be effective as of the Closing Date, provided that if any legal transfer of the Site or any of the intellectual property rights requires compliance with any registration, filing or any other government authorization procedures in India or any other applicable jurisdiction, than the effective date of such assignment of such intellectual property rights shall be the date on which all of the required government registrations, filings and authorizations are completed.
1.2 No Other Interest. By this Agreement, Seller hereby specifically disclaims and waives any and all interest it may have in the IP Assets, including without limitation the Site and intellectual property rights related thereto.
1.3 Further Acts. Seller agrees to perform at any time all legal acts as may be reasonably necessary or appropriate, based upon the advice of counsel to Seller, for Buyer to obtain and perfect its property rights in the IP Assets , including promptly reviewing, signing and returning all papers which are required for obtaining such rights or for evidencing Buyer’s ownership thereof, and to render such other assistance as Buyer may request, at Buyer’s expense, including without limitation, in proceedings before any patent office, trademark office, copyright office, court or other tribunal, provided however, Buyer agrees to provide reasonable notice to Seller in case that Seller’s assistance is required pursuant to this Agreement.
Sale, Not License.
For the avoidance of doubt, the Parties intend to effect hereunder a complete sale and transfer of all of Seller’s right, title and interest in and to the Site and the intellectual property rights related thereto, rather than a partial sale or transfer of same to Buyer, and rather than a license of same to Buyer; that as a result of and concurrent with said sale, Seller shall relinquish completely, and Buyer shall exercise, all dominion and control over the IP Assets, including without limitation the Site and the intellectual property rights related thereto; that Buyer shall bear full risk for the successful commercial exploitation, sale or license of the IP Assets without recourse or set-off against Seller; and that the obligation of Buyer to pay the Purchase Price to Seller hereunder is not in any manner conditioned upon the successful commercial exploitation, license or sale by Buyer of the Site and/or the intellectual property rights related thereto. As of the Effective Date, Buyer shall be solely responsible for any and all expenses relating to the Site and its business, including without limitation operating expenses (such as employee salaries, rent, and office supplies), taxes and other liabilities, arising after the Effective Date.
2. PURCHASE PRICE
Buyer shall pay Seller a total of <<Amount in Figures>> USD (<<Amount In Words>>) for the Site (the “Purchase Price”) in accordance with the Section 3 (Payment) below.
Parties hereby agree to use escrow.com as services to facilitate the consummation of the transaction contemplated hereby. The payment will be paid following this structure:
Buyer shall make a payment in the amount of <<Amount in Figures>> USD (<<Amount In Words>>), which is to be paid upon the Effective Date (the “Payment”).
The Payment shall be paid within ten (10) business days after the Effective Date.
Seller shall deliver the Site to the Buyer within ten (10) business days after the receipt of the Payment by the Seller. Buyer will then inspect the Site provided by the Seller for the purpose of determining whether or not the Site is in compliance with this Agreement and Attachment. Inspection shall take not more than ten (10) business days from the delivery of the Site by Seller.
If inspection is successful and everything was fully transferred, Buyer will authorize the release of the Payment from escrow.com.
If Buyer rejects the Site delivered hereunder and determines that changes or modifications are necessary or desirable to all or a given portion of Site, then Buyer will notify and advise Seller of the desired changes or modifications provided however, that any rejection shall be (i) reasonable, (ii) substantiated by a rejection notice specifically describing identifiable non-compliance with this Agreement, the applicable specifications or Attachment A, and (iii) not later than ten (10) days after the delivery of Site. Seller shall use its best efforts to make such changes or modifications promptly but in any event not later than ten (10) days of such notification and resubmit corrected Site to Buyer for approval in accordance with the provisions of this Section 3.
The Seller will pay any Escrow fees.
The Seller will pay any trademark transfer fees.
The closing date for the consummation of the transaction contemplated hereby shall be the date of Payment receipt by the Seller (the “Closing Date”) unless otherwise agreed by the Parties in writing or otherwise specifically provided in this Agreement.
4. DELIVERY OF WEBSITE
Seller shall transfer ownership and rights to the Site, including all source files (code & design), databases, texts and domain name to Buyer as of the Closing Date. Also, Seller will transfer all necessary information needed in order to setup and run the Site.
5. POST DELIVERY; TERMINATION
Seller will provide consulting, assistance and offer reasonable support for the Buyer via email for 30 days after the Site is transferred with no extra payment from the Buyer.
If the Seller will receive payments arising out of the Site after the Closing Date, Seller will transfer those payments to the Buyer upon demand.
This Agreement may be terminated by Buyer at any time prior to the Closing Date of the Agreement if:
there shall be any actual or threatened action or proceeding before any court or any governmental body which shall seek to restrain, prohibit or invalidate the transactions contemplated by this Agreement; or
Any of the transactions contemplated hereby are disapproved by any regulatory authority whose approval is required to consummate such transactions.
In the event of termination pursuant to this Section, no obligation, right or liability shall arise hereunder, and each Party shall bear all of the expenses incurred by it in connection with the negotiation, drafting and execution of this Agreement and the transactions herein contemplated.
The Agreement may be terminated at any time prior to the Closing Date by Seller, if Buyer shall fail to comply in any material respect with any of its covenants or agreements contained in this Agreement or if any of the representations or warranties of Buyer contained herein shall be inaccurate in any material respect. If this Agreement is terminated pursuant to this Section, this Agreement shall be of no further force or effect, and no obligation, right or liability shall arise hereunder.
6. SELLER AND BUYER REPRESENTATIONS
Seller represents and warrants that he/she has the right to sell the Site as provided in this Agreement. Furthermore, the Seller warrants that the Site is free, now and at the time of the Closing Date, from any security interest, liens, outstanding title claims or any other outstanding encumbrances.
Buyer represents and warrants to Seller that (a) Buyer is a company duly formed and in good standing in the state of incorporation; (b) Buyer has obtained, or before the Closing Date will obtain, full right, power and authority to perform its obligations hereunder; (c) Buyer’s entry into and performance of this Agreement will not violate or breach any agreement or obligation of Buyer, or any material law, regulation, judgment or order to which Buyer or the Domain are bound.
Each of the Parties (for purposes of this paragraph, the “Indemnifying Party”) hereby indemnifies the other (for purposes of this paragraph, the “Indemnified Party”), and agrees to release and hold harmless the Indemnified Party, and the Indemnified Party’s employees, officers, agents, successors and assigns, from and against any and all claims, expenses, costs, damages, judgments, losses and liabilities, whether accrued, absolute, contingent or otherwise (including reasonable attorney fees) which may at any time be asserted against or suffered by the Indemnified Party, whether before or after the Closing Date, as a result of or on account of, or arising from, any breach by the Indemnifying Party of any covenant, representation, warranty or agreement made herein or in any instrument or document delivered pursuant to this Agreement.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
8. BINDING EFFECT
The covenants and conditions contained in the Agreement shall apply to and bind the Parties and their heirs, legal representatives, successors and permitted assigns.
9. GOVERNING LAW; ARBITRATION
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
The parties hereto desire to avoid, and settle without litigation, future controversies and/or claims which may arise between them relating to this Agreement and the transactions contemplated hereby and thereby. In this regard, the parties agree to engage in good faith negotiations to resolve any such controversy or claim. In the event any controversy or claim between the parties cannot be resolved by negotiation within thirty (30) days, any dispute, controversy or claim arising out of or relating to this Agreement, including without limitation, the breach, termination, or invalidity hereof, shall, on the written demand of either Party delivered to the other Party, be determined and settled by arbitration in accordance with the rules of United Nations Commission on International Trade Law (the “Unicitral Arbitration Rules”) as present in force. The claimant party shall appoint one arbitrator and the respondent party shall appoint one arbitrator, and the two arbitrators so appointed shall appoint the third arbitrator, in accordance with the provisions of the Unicitral Arbitration Rules. The place of arbitration shall be London, UK . The language of the arbitration shall be English. Any award granted by the arbitrators shall be final and binding upon the involved parties and shall constitute the sole and exclusive remedy for any dispute between the involved parties. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction.
The prevailing Party in any legal action, including arbitration, brought by one Party against the other and arising out of this Agreement shall be entitled, along with any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney’s fees. Such fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose. Such fees shall be in addition to any other relief that may be awarded
Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service to:
Either party may change such addresses from time to time by providing notice as set forth above. Either Party may send any notification hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Buyer and Seller.
12. CUMULATIVE RIGHTS
Buyer’s and Seller’s rights under this Agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
14. NON SOLICITATION
Both Parties agree that during the term of this Agreement and for a period of one (1) year thereafter, that they will not, without the prior written approval of the other Party hire or enter into a contract with any employee, agent or representative of the other Party to provide services, directly or indirectly, induce or attempt to induce or otherwise counsel, discuss, advise or encourage any employee, consultant, agent or representative of either Party to leave or otherwise terminate such person’s relationship with that Party. This Section shall not preclude employees of either Party from independently pursuing employment opportunities with the other Party on their own initiative or in response to general solicitations, including but not limited to job postings published in newspapers, trade publications or Websites, provided, however, that nothing in this Section shall be construed as waiving any Party’s right with regard to its employees’, consultants’ or officers’ non-competition obligations.
15. WARRANTY OF AUTHORITY.
The individuals actually executing this Agreement personally represent and warrant that they have the necessary power and authority to execute this Agreement on behalf of the Party they represent and their signatures are sufficient to make this Agreement a binding and enforceable obligation of such Party.
15. COUNTERPARTS OF THE AGREEMENT.
The Agreement may be separately executed by the Parties in two (2) or more counterparts and all such counterparts shall be deemed an original, but all of which together shall constitute one and the same instrument and will be binding on the Parties as if they had originally signed one copy of this Agreement. Delivery of a copy of this Agreement or such other document bearing an original signature by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.
Name and Signatures
Name and Signatures
This is a sample list only – could vary slightly from site to site
<<URL>> website, domain and sub domains
Customer Mailing List / Database, AWeber / any other mail management accounts – user lists
Facebook Page control
Source files, designs, Android & any other mobile Applications, templates, plugins and databases
Access codes, login information, SSL certificates, email accounts and provider links needed to continue to run the website
Google Analytics account
short guide for common tasks to run the website
Customer support system and other support and sales systems involved