You acknowledge that if you choose to use the terms and conditions of this Pro Forma Sale and Purchase Agreement (“SPA”) in relation to the sale of a Seller's Assets of a Venture:
Note that this SPA is provided for the sale of assets of a Venture and is not suitable for the sale of shares of a Venture or company. If you are acquiring shares of a company please do not use this SPA and seek legal advice.
The Seller has agreed to sell and the Buyer has agreed to buy the Seller’s Assets of a Venture, and the Seller and the Buyer are deemed to enter into a legally binding agreement in relation to that sale. The Seller and Buyer may together elect that the terms and conditions of this SPA apply to that sale.
The parties to this SPA are the Seller and Buyer. The SPA will apply to you in your capacity as either a Seller or a Buyer in respect of the sale and transfer of the Assets of the Venture.
Date of this SPA
If the Buyer and Seller elect that this SPA applies, then this SPA will be entered into between the Seller and the Buyer at the time that: (a) the Seller accepts the Buyer's offer to purchase the Assets of the Venture as part of a Private Sale; or (b) the Buyer is declared the Winning Bidder in an Auction for the Assets of the Seller's Venture.
1.1 In this SPA, words and phrases defined in CrowdMnA’s Terms and Conditions will have the same meaning in the SPA and in addition, the following definitions and rules of interpretation in this clause apply in this SPA.
Assets: the following assets of the Venture to be sold by the Seller to the Buyer:
Business Day: a day other than a Saturday, Sunday or a public holiday;
Completion: the completion of the sale and purchase of the Venture (comprising the Assets) pursuant to and in accordance with this agreement including the transfer of the Assets from the Seller to the Buyer undertaken in accordance with clause 4;
Completion Date: any time after the Effective Date when Completion occurs;
Content: the photographs, artwork, drawings, articles, features, editorial content and all other material, in whatever media or form, which relates exclusively to the Assets of the Venture as described in the Seller’s Listing;
Effective Date: the date specified by the Seller in its Listing as the end of the period of Auction in which there is a Winning Bidder or the date of acceptance by the Seller of a Buyer’s offer in a Private Sale or as separately agreed between the Seller and the Buyer;
Encumbrance: any interest or equity of any person (including any right to acquire, option or right of pre-emption) or any mortgage, charge (whether fixed or floating), pledge, lien, assignment, hypothecation, security interest, title retention or any other security agreement or arrangement or conditional sales agreement, hire purchase agreement, option, restriction as to the transfer, use or possession, easement subordination to any right of any other person any other encumbrance or security interest whatsoever;
Loss: any loss, cost, expense or damage (including legal costs on a full indemnity basis);
Moveable Assets:the servers, hardware, assets related to the technology and stock which are owned by the Seller and required for the operation of the Venture as described in the Seller’s Listing;
Records: originals and copies, in any material form, of all books, files, reports, records, correspondence, documents, supplier lists and contact details, customer lists and contact details, price lists, calculations, costings and associated documentation and other material of or relating to or used in connection with the Assets in the possession of the Seller as at the Completion Date; and
Technology: the technology owned or used by the Seller exclusively in the operation of the Venture as described in the Seller’s Listing.
The rules set out in the Terms and Conditions in relation to the interpretation of that agreement will equally apply to this SPA.
2. Sale of the Assets of the Venture
With effect from the Effective Date the Seller hereby agrees to sell the Assets to the Buyer and the Buyer hereby agrees to buy the Assets from the Seller, with full title guarantee and free from Encumbrances, in accordance with the Seller's obligations set out in this SPA under clause 4.3 and also CrowdMnA’s Terms and Conditions and Site Rules.
3. Payment of the Purchase Price
On the Effective Date the Buyer agrees to pay the Purchase Price to an escrow account held by the Escrow Agent for holding on behalf of the Buyer, subject to the Seller and Buyer fulfilling its obligations under clause 4.3 and clause 4.4 respectively, following which the Buyer agrees to approve the Escrow Agent to release the Purchase Price from the escrow account and pay the Purchase Price to the Seller on the Completion Date.
4.1 Time and place of Completion
Completion will take place after the Effective Date on the Completion Date. Completion will be deemed to have taken place at the premises of the Seller, even if Completion occurs electronically.
4.2 Conduct of the Venture Pre-Completion
The Seller will ensure that between the date of this SPA and Completion, the Seller:
4.3 Seller's Obligations
Following written confirmation in electronic form received by the Seller from the Escrow Agent that the Purchase Price has been received into an escrow account from the Buyer, the Seller is obligated to proceed to Completion and the Seller must cause to be delivered to the Buyer:
4.4 Buyer's Obligations
At the Effective Date, the Buyer is obligated to pay the Purchase Price to the Escrow Agent in accordance with clause 3. Only if the Seller complies with clause 4.3 will the Buyer on Completion approve the release of the Purchase Price by the Escrow Agent to the Seller.
4.5 Simultaneous Actions at Completion
In respect of Completion the obligations of the parties under this SPA are interdependent and conditional on the other party performing their respective obligations at Completion.
4.6 Post-Completion Obligations
If the Buyer has fulfilled its obligations arising under clause 4.4 and:
5. Ownership of the Assets
5.2 Risk of Loss
Subject to Completion taking place, risk of loss of the Assets shall pass to the Buyer from Completion and remain with the Seller until that time.
6. Transfer of Third Party Agreements
6.1 Third Party Agreements
The Third Party Agreements which the Seller will transfer to the Buyer under this clause are those Third Party Agreements specified in the Seller’s Listing for inclusion in the sale of the Venture.
6.2 Buyer to Take Benefit of Third Party Agreements
6.3 Consent of a Third Party for Third Party Agreement Transfer
If the consent of a third party is required for the transfer of a Third Party Agreement to the Buyer under clause 6.2 then:
6.4 Post Completion Date
From the Completion Date until each Third Party Agreement to which clause 6.2 applies has been novated or effectively assigned to the Buyer:
6.5 Indemnity Between Seller and Buyer
Until such time as a Third Party Agreement is assigned and novated to a Buyer under this clause 6:
7. Transferring Intellectual Property Rights Owned by a Third Party
8. Trading Responsibilities
8.1 Profits and Losses
The Seller represents and warrants to the Buyer that:
The Seller indemnifies the Buyer against any Loss which the Buyer suffers or incurs as a result of a breach of a warranty contained in clause 9.1. Apart from a breach of clause 9.1(c):
Nothing in this SPA shall pass to the Buyer, or shall be construed as acceptance by the Buyer of, any liability, debt or other obligation of the Seller (whether accrued, absolute, contingent, known or unknown) for anything done or omitted to be done before or at Completion Date in the course of or in connection with the Assets, Third Party Agreements and/or Third Party Licenses and the Seller shall indemnify the Buyer against all Losses suffered or incurred by the Buyer arising out of or in connection with any such thing.
10. Liability of CrownMnA
11. Value Added Tax
Except to the extent required by law or any legal or regulatory authority of competent jurisdiction neither party shall at any time disclose to any person (other than its directors, employees or professional advisers all solely in relation to the sale of the Assets of the Venture) the terms of this SPA or any trade secret or other confidential information relating to the Assets or the other party, or make any use of such information other than to the extent necessary for the purpose of exercising or performing its rights and obligations under this SPA.
13. Further Assurance
Following the Completion Date, the Seller shall (at its own expense) promptly execute and deliver such documents, perform such acts and do such things as the Buyer may reasonably require from time to time for the purpose of giving full effect to this SPA.
Neither party shall assign, transfer, mortgage, charge, declare a trust of, or deal in any other manner with any of its rights and obligations under this SPA without the prior written consent of the other party.
15. Inconsistency of Agreements
To the extent that there is any inconsistency between the terms of this SPA, any other agreement between you and a Buyer or Seller, and CrowdMnA’s Terms and Conditions and Site Rules, then those documents will be read in the following order of precedence:
Should the Seller and Buyer elect to use this SPA then this SPA together with the documents referred to in it and CrowdMnA’s Terms and Conditions and Site Rules constitute the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16. Variation and Waiver
No variation of this SPA shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this SPA or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right or remedy under this SPA or by law is only effective if it is in writing.
Except as expressly provided in this SPA, the rights and remedies provided under this SPA are in addition to, and not exclusive of, any rights or remedies provided by law.
Except as expressly provided in this SPA, each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation and execution of this SPA (and any documents referred to in it).
A notice given to a party under or in connection with this SPA shall be in writing and shall be sent by electronic mail (email) or delivered by hand or sent by pre-paid first-class post, recorded delivery or special delivery in each case to that party's registered office.
Delivery of a notice is deemed to have taken place (provided that all other requirements in this clause 18 have been satisfied) if sent by electronic mail (email) 24 hours after sending, or if delivered by hand, at the time the notice is left at the address, or if sent by post on the second Business Day after posting, unless such deemed receipt would occur outside business hours (meaning 9.00am to 5.30pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), in which case deemed receipt will occur when business next starts in the place of receipt (and all references to time are to local time in the place of receipt).
This clause 18 does not apply to the service of any proceedings or other documents in any legal action.
If any provision or part-provision of this SPA is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this SPA.
20. Governing Law and Jurisdiction
This SPA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this SPA or its subject matter or formation (including non-contractual disputes or claims).
This SPA has been entered into on the Effective Date.