Digital Asset Purchase Agreement (Free Template)

The basic template below can be used as a starting point for drafting a contract to purchase a website, mobile app and/or other digital assets. One common pitfall for a buyer to avoid is to ensure that the contract makes it clear that the buyer is buying only the assets and not any unnecessary liabilities. The longer the asset has been in business the more important this provision is.

The given asset purchase agreement (APA) template is designed for the acquisition of a website, mobile application, or other digital assets. The key points covered in this APA include:

1. Purchased Assets: This clause clarifies what the buyer is purchasing. This includes all rights, title, and interest in the purchased assets, which are explicitly listed in an exhibit to the agreement.
2. Purchase Price: This section outlines the total purchase price and payment terms, including a down payment at closing and subsequent payments based on a percentage of gross sales.
3. Assumption of Liabilities: This section specifies the liabilities and obligations that the buyer will assume, which must be disclosed to the seller prior to execution of the agreement. The buyer is not responsible for any other liabilities of the seller.
4. Covenants of Seller: This clause includes promises by the seller, such as maintaining relationships with suppliers and customers, conducting business as usual until closing, and not selling any assets.
5. Non-Compete: The seller agrees not to engage in the same business within a specified geographical area for two years from the date of closing.
6. Closing: This details the closing process, including delivery of access to the purchased assets and execution of the agreement.
7. Indemnity: Each party agrees to protect the other from losses or damages arising from a breach of any representation, warranty, or covenant contained in the agreement.
8. Notices, Brokers, Amendment and Modification, Severability, Entire Agreement, Governing Law and Arbitration, Counterparts, Headings, Binding Effect: These sections cover various administrative and legal aspects of the agreement, including how notices should be delivered, that no brokers were used, how the agreement can be modified, what happens if a part of the agreement is found to be unenforceable, that the agreement is the complete agreement between the parties, how disputes will be resolved, how the agreement can be signed in counterparts, that headings are for convenience only, and that the agreement is binding on successors and assigns.

The agreement ends with the signatures of the buyer and seller, and the acknowledgment by a notary public.

THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is made this ____ day of ______________ , 2019 (the “Effective Date”) by and between __________________. (the “Seller”), and _______________ (the “Buyer”). The parties agree as follows:

1. Purchased Assets.

Buyer agrees to purchase, and Seller agrees to sell, free from all liabilities and encumbrances, all Seller’s rights, title and interest, if any, in and to the Purchased Assets, as defined in this paragraph. “Purchased Assets” listed in Exhibit A include all right, title and interest of Seller in intellectual property, telephone numbers, accounts receivable (“Accounts”), all causes of action related to the Purchased Assets, customer lists and goodwill.

2. Purchase Price.

a. The total purchase price for the Purchased Assets shall be $____________ (the “Purchase Price”).

b. Buyer shall deliver the Purchase Price to Seller as follows:

i. Down payment of $_________ due at Closing, and

ii. The remaining balance of $___________ will be paid every two weeks in installments that equal 10% of the Gross Sales. “Gross Sales” shall mean all sales generated by the Purchased Assets minus administrative costs that shall not exceed $_______ per month.

3. Assumption of Liabilities.

At Closing Buyer shall assume and agree to pay, discharge or perform as appropriate only the following liabilities and obligations (the “Assumed Liabilities”) and only to the extent such liabilities and obligations were disclosed to Seller prior to execution of this Agreement:

a. Obligations under existing customer purchase orders;

b. Agreements with vendors providing services to the business (e.g., web hosting services) after the Closing date.

Except for the Assumed Liabilities, Buyer is not assuming, nor shall it in any way be liable or responsible for, any liabilities, obligations or debts of Seller, whether accrued, absolute, contingent or otherwise, arising before or after the Closing.

4. Covenants of Seller.

a. Until the Closing, Seller shall use best efforts to maintain current relationships with suppliers, customers and others having business relations with Seller in connection with the Purchased Assets.

b. Until the Closing, except as may be first approved in writing by Buyer or as is otherwise permitted or contemplated by this Agreement, Seller shall conduct its business and all transactions with respect to the Purchased Assets, only in the usual and ordinary course of business consistent with Seller’s past practice.

c. Until the Closing, Seller shall make no sale of assets.

5. Non-Compete.

Seller shall not engage in the business of _____________________ in any capacity, directly or indirectly, anywhere in _____________________ for a period of two (2) years from the date of Closing.

6. Closing.

a. The consummation of the purchase and sale of the Purchased Assets (the “Closing”) shall be held on ___________________, 2019 or sooner by agreement of the parties, at such place as Buyer and Seller may agree.

b. At the Closing:

i. Seller shall deliver to Buyer access to the Purchased Assets

ii. Each party hereto will deliver to the other party executed counterparts of this Agreement and such other documents as may be reasonably requested by that other party in connection with the consummation of the transactions contemplated by this Agreement.

7. Indemnity.

Each party shall indemnify, defend and hold the other party harmless from and against any and all losses, liabilities, damages, costs and obligations (or actions or claims in respect thereof) (including reasonable counsel fees), arising out of or based upon:

a. The indemnifying party’s breach of any representation, warranty or covenant contained in this Agreement;

b. The Purchased Assets.

8. Notices.

Any notice required or permitted by this Agreement shall be in writing and effectively delivered for all purposes if delivered personally, by overnight delivery service or by United States mail, certified mail, postage prepaid, return receipt requested and:

9. Brokers.

Buyer and Seller each warrants to the other that it has not engaged, consented to, or authorized any broker, investment banker, or other third party to act on its behalf, directly or indirectly, as a broker or finder in connection with the transactions contemplated by this Agreement and no such third party is entitled to any fee or compensation in connection with this Agreement or the transactions contemplated hereby by reason of any action of it.

10. Amendment and Modification.

This Agreement may be amended, modified or supplemented only by written agreement signed by the Party sought to be charged with an amendment.

11. Severability.

Any provision of this Agreement that shall be prohibited or unenforceable shall be deemed ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

12. Entire Agreement.

This Agreement sets forth all of the promises, covenants, agreements, conditions and undertakings between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

13. Governing Law and Arbitration.

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The place of arbitration shall be ____________ . The arbitration shall be governed by the laws of [INSERT STATE ]. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Parties understand that this Section means that, by agreeing to arbitrate, they waive their rights to sue in court and have a jury trial.

14. Counterparts.

This Agreement may be executed in one or more counterparts all of which when taken together constitute one and the same instruments. A signed counterpart is as binding as an original.

15. Headings.

The headings used in this Agreement are for convenience only and shall not be used to limit or construe the contents of any of the sections of this Agreement.

16. Binding Effect.

This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.