Previous Documents. It is common practice in the art market that, during the negotiations between the parties (author and purchaser), before signing a proper agreement (in other words a sole document that contains the details of all the rights and obligations of the parties), they decide on the basic items to be included in their purchase agreement by holding negotiations, dealing with them by email or by signing a basic document (like a letter of intent or memorandum of understanding). It should be borne in mind that an exchange of emails can be considered as a binding agreement and therefore the commitments accepted in such mails (e.g. the commitment to purchase the work at a certain price, the number of copies, terms of delivery, etc.) will be binding as though they had been drawn up in a formal written hard-copy agreement and duly signed by the parties12. One must also be careful with the documents that record intentions that are usually signed, for example at fairs. Here I am referring to the documents called for example deal memos, MOU (memorandum of understandings), letters of commitment, letters of intent, etc. These documents could have two very different consequences:
a) They could be mere proposals or drafts and not imply a binding commitment of any kind due to being subject to negotiations and subsequently signature of an agreement in which the final terms and conditions will be detailed; or
b) They could be binding, even if the details are left to be defined or precised in a subsequent agreement. This potential ambiguity, depending on one text or another, means that such documents should be very prudently interpreted and one must be aware of the nature (mandatory or intentional) of the document signed and its effects and consequences in order to ensure such document has the effects actually intended by the party that signs them.
Previous Documents. This Agreement cancels and supersedes any other previous understandings maintained among the Parties, whether oral or written, in connection with the matter discussed herein, including, but not limited to, the Letter of Intent of April 30, 2004.
Previous Documents. 6.1. The R&D Agreement and R&D Milestone Amendment are both terminated and replaced by this Agreement. All other previously written and executed agreements between MSI, ERD, Robert Hockaday, their assxxxx, predecessors, or successors in interest remain in full force and effect.
6.2. ERD will continue prosecution of and maintain the MFC IP and the Solar IP.
6.2.1. MSI will reimburse ERD for its, expenses related to prosecution and maintenance (including, but not limited to, ERD personnel work time, copy expenses, mailing expenses, and communications expenses) direct costs and fees as set forth herein. ERD shall provide written notice to MSI at least 30 days prior to any action that will incur such as an expense.
6.2.2. As owner of the MFC IP and Solar IP, MSI retains the right to prosecute and/or maintain any IP that ERD fails to prosecute and/or maintain. If ERD shall decide not to continue the prosecution or maintenance, or shall decide to take or not take any action that would reasonably be expected to reduce, impair, or limit the validity or enforceability of the MFC IP or Solar IP, then ERD shall provide written notice of such decision to MSI allowing MSI at least 30 days to continue, at MSI's expense, such prosecution or maintenance, or to take such other actions, at MSI's expense, to avoid such reduction, impairment, or limitation. Any such decision shall be based solely on ERD's economic ability to advance associated expenses, but such decision shall, to the extent possible, involve the concurrence of both Parties.
6.3. During the term of this Agreement ERD will provide professional support to MSI's efforts to transfer or license the MFC IP and the Solar IP to third parties, as needed by MSI without imposing an unreasonable burden on ERD. MSI will compensate ERD for such support at a rate of $58 (fifty eight dollars) per hour, the rate will escalate at a rate of 5% per year beginning with the first year after the effective date of this Agreement, plus direct costs, payable as set forth herein.
6.4. During the term of this Agreement ERD will as needed and as available, provide MSI with office space in ERD's Los Alamos facility, at no charge, except administrative support will be provided as needed by MSI and as available from ERD, and MSI shall compensate ERD for such administrative support at a rate of $25 (twenty five dollars) per hour, which rate will escalate at a rate of 5% per year beginning with the first year after the effective date of this ...
