JOINT VENTURE AGREEMENT
________
This Joint Venture Agreement, hereinafter referred to as "Agreement," is entered into and made effective as of ________ (the "Execution Date") by and between the following parties:
BETWEEN:
________
Of the following address:
________
AND:
________
Of the following address:
________
RECITALS:
WHEREAS, each party under this Agreement may be referred to individually as "Party" and collectively as the "Parties".
WHEREAS, the Parties desire to enter into a joint venture, as defined further below.
WHEREAS, the Parties wish to establish a written agreement between them covering the terms and conditions of their agreement.
NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties do hereby agree as follows.
(1) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:
(a) Words referring to one gender include every other gender.
(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.
(c) If a word or phrase is defined in this Agreement then any grammatical variations of that word or phrase have a corresponding meaning.
(d) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(e) Any reference to time is a reference to time in New South Wales.
(f) In the event that something must be done under this Agreement on or before a particular date, if that date falls on a day which is not a business day, then that thing must be done on or before the next business day.
(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(h) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
(i) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(j) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.
(k) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.
(l) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.
(m) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.
(2) PURPOSE OF JOINT VENTURE
(a) Subject to the terms and conditions of this Agreement, the Parties will enter into a joint venture named (the "Joint Venture"):
________
(b) The purpose and description of the Joint Venture will be as follows ("Purpose"):
________
(3) NATURE OF JOINT VENTURE
(a) The relationship between the Parties is exclusively that of joint venturers. Nothing in this Agreement shall be construed to create employment, partnership, or any other fiduciary relationship between the Parties.
(b) Except as otherwise expressly provided in this Agreement, or as otherwise expressly permitted in writing by the other Parties, nothing in this Agreement authorises or permits any Party to do anything with the assets of the Joint Venture including but not limited to encumbering the assets of the Joint Venture, or to create any binding legal obligation for any other Party.
(c) The Parties each respectively covenant and agree that:
(I) The Party will act in good faith in accordance with the Purpose and with this Agreement; and
(II) The Party will diligently comply with its respective obligations under this Agreement; and
(III) The Party will strive to develop and to maintain a relationship of good faith and mutual trust with one another; and
(IV) The Joint Venture will be conducted as a commercial enterprise based on sound commercial practice; and
(V) Each of the Parties has the right to participate in the Joint Venture and to share in the profits of the Joint Venture, on the terms set out in this Agreement; and
(VI) Except as otherwise set out in this Agreement, no Party will have authority to act for or to accept any liability, responsibility or obligation on behalf of any other Party; and
(VII) The Party will not undertake any act, matter or thing which may reasonably be expected to negatively impact the financial position or the commercial reputation of the Joint Venture or of any other Party.
(4) PRINCIPAL PLACE OF BUSINESS
The principal place of business for the Joint Venture will be as follows:
________
(5) PARTIES' CONTRIBUTIONS TO JOINT VENTURE
The initial individual capital contributions of the Parties are as follows:
________
Total capital value of contribution:
$________ (________)
Form of contribution:
________
________
Total capital value of contribution:
$________ (________)
Form of contribution:
________
(6) ADDITIONAL CONTRIBUTIONS
In the event that additional funds are required for the Joint Venture, the Parties will contribute additional funds in equal proportions.
(7) USE OF FUNDS
(a) The Parties will open a bank account for the Joint Venture (the "Bank Account").
(b) The Bank Account will be used to hold any funds which are contributed by the Parties to the Joint Venture under the "Parties' Contributions to Joint Venture" and the "Additional Contributions" clauses of this Agreement ("Joint Venture Funds").
(c) The Joint Venture Funds must only be used for the Joint Venture and in accordance with the Purpose and this Agreement, unless otherwise agreed in writing by all Parties.
(8) DISTRIBUTION OF PROFITS OF JOINT VENTURE
Any profits of the Joint Venture will be distributed in equal proportions between the Parties.
(9) LIMITS ON RETURN OF CONTRIBUTIONS AND ON DISTRIBUTION OF PROFITS
No Party is entitled to call for any distribution of profits or any return of capital or assets which that Party has contributed to the Joint Venture, except:
(a) Upon the termination of this Agreement or of the Joint Venture; or
(b) As otherwise expressly provided in this Agreement; or
(c) As otherwise expressly agreed in writing by the Parties.
(10) MANAGEMENT
The Joint Venture will be managed in the following manner:
________
(11) DECISION MAKING
Any decisions in relation to the Joint Venture shall be made by unanimous consent of the Parties.
(12) DISPUTE RESOLUTION
In the event that the Parties cannot agree on a material issue related to the Joint Venture (the "Dispute"), the Parties may not pursue legal action in relation to the Dispute unless they have first undertaken the following steps:
(a) The Parties must first attempt in good faith to resolve the dispute between themselves;
(b) Any Party may offer to purchase all of the assets of the Joint Venture from the other Party or Parties in writing, at a price mutually agreed-upon by both Parties. The price may be obtained through an external valuation;
(c) If the Parties cannot resolve the Dispute between themselves, the Parties must attempt in good faith to resolve the Dispute through non-binding mediation through a neutral third party that is agreed upon by all Parties (the "Mediation");
(d) The costs of any mediator appointed to handle such Mediation shall be borne equally between the Parties;
(e) Each Party will pay its own costs in relation to the Mediation.
(13) MEETINGS
Meetings will be called and carried out as follows:
________
(14) DUTIES AND OBLIGATIONS
The duties and obligations of the Parties shall be as follows:
________
________
________
________
(15) ACCOUNTING
The accounting records of the Joint Venture will be kept according to generally accepted accounting principles (GAAP) and will be available for inspection by any Party at any time.
(16) TERM & TERMINATION
(a) The Joint Venture will begin on the Execution Date and terminate on the following date: ________. The Joint Venture may, however, be terminated prior to this date if the purpose of the Joint Venture has been completed and the Joint Venture has been sold or dissolved after the repayment of any debts owed.
(b) At the termination of the Joint Venture, the Joint Venture and any remaining assets will be liquidated and the Parties will split the proceeds of such liquidation in a percentage corresponding to their individual amounts of contribution.
(c) If the Joint Venture must be terminated prior to dissolution, sale, or completion, it may be in the following circumstances:
(I) If any Party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not, the non-breaching party may terminate this Agreement in writing and force the sale or dissolution of the Joint Venture and its assets.
(II) If any Party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform, any other party may terminate this Agreement in writing and force the sale or dissolution of the Joint Venture and its assets.
(III) Any termination under this subclause shall not affect the accrued rights or liabilities of any Party under this Agreement or at law and shall be without prejudice to any rights or remedies any Party may be entitled to. Any provision or subclause of this Agreement which is meant to continue after termination or come into force at or after termination shall not be affected by this subclause.
(17) CONFIDENTIALITY
(a) Each Party hereby acknowledges and agrees that they and the other Party or Parties may each possess certain non-public Confidential Information (as hereinafter defined) and may also possess Trade Secret Information (as hereinafter defined) (collectively the "Proprietary Information") regarding their business operations and development. The Parties agree that the Proprietary Information is secret and valuable to each of their respective businesses and the Parties have entered into this Joint Venture as a business relationship, through which they will each have access to another party's Proprietary Information. Each of the Parties desires to maintain the secret and private nature of any Proprietary Information given. "Receiving Party" refers to the Party that is receiving the Proprietary Information and "Disclosing Party" refers to the Party that is disclosing the Proprietary Information. The Parties acknowledge and agree that they may be both the Receiving Party in relation to one piece of Proprietary Information, and the Disclosing Party in relation to another piece of Proprietary Information, and that the terms of this "Confidentiality" clause may be both binding on that Party as a Receiving Party, and enforceable by that Party as a Disclosing Party, as the context so provides.
(b) Confidential Information refers to any information which is confidential and commercially valuable to any of the Parties. The Confidential Information may be in the form of documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs or other oral or written knowledge and/or secrets and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property and/or finance or any other information which is confidential and commercially valuable to any of the Parties.
(c) Confidential Information may or may not be disclosed as such, through labeling, but is to be considered any information which ought to be treated as confidential under the circumstances through which it was disclosed.
(d) Confidential Information shall not mean any information which:
(I) is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Receiving Party;
(II) is already known, through legal means, to the Receiving Party;
(III) is given by the Disclosing Party to third parties, other than the Receiving Party, without any restrictions;
(IV) is given to the Receiving Party by any third party who legally had the Confidential Information and the right to disclose it; or
(V) is developed independently by the Receiving Party and the Receiving Party can show such independent development.
(e) Trade Secret Information shall be defined specifically as any formula, process, method, pattern, design or other information that is not known or reasonably ascertainable by the public, consumers, or competitors through which, and because of such secrecy, an economic or commercial advantage can be achieved.
(f) The Parties hereby agree they shall:
(I) Not disclose the Proprietary Information via any unauthorised means to any third parties throughout the duration of this Agreement and the Parties' relationship with each other unless, in the case of Confidential Information, that third party is a service provider necessary for the Joint Venture and the third party service provider agrees to sign a Non-Disclosure Agreement mutually agreeable to each Party;
(II) Not disclose the Confidential Information via any unauthorised means to any third parties for a period of 3 (three) years following the termination of this Agreement;
(III) Not disclose the Trade Secret Information forever, or for as long as such information remains a trade secret under applicable law, whichever occurs first, to any third party at any time;
(IV) Not use the Confidential Information or the Trade Secret Information for any purpose except the Purpose contemplated herein or expressly authorised by the Disclosing Party.
(18) INTELLECTUAL PROPERTY
In accordance with the terms and conditions of this Agreement, title and interest in and to intellectual property belonging to each of the Parties prior to this Joint Venture, including, but not limited to, plans, drawings, specifications, reports, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property, registered or otherwise, shall remain with that Party throughout the duration of this Agreement and forever thereafter, unless otherwise expressly agreed in writing by the Parties.
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(20) 588528525885588
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(________) 8228822282; 25
(________) 288258 2888225582; 25
(________) 852585 22 2588 825222222; 25
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(________) 822 858825, 8255822282, 25 2228282 22 252 2552 22 522 22525 25522; 25
(________) 822 855852822 22 2588 825222222; 25
(________) 552 2588822 22 2822; 25
(________) 552 8582 22 85258822 22 522 25522 22 22225 2588 825222222; 25
(________) 552 2588552 82 522 82525 25522 22 5582 2528522 2588 825222222; 25
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(21) LIMITATION OF LIABILITY
(a) Except in cases of death or personal injury caused by any Party's negligence, or except for any liability otherwise set out in this Agreement, any Party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement shall be limited to the amount each Party profited from the Joint Venture in the preceding three (3) months.
(b) To the extent it is lawful, no Party shall be liable to any other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits, or business.
(22) NO COMPETITION
(a) Each Party hereby respectively agrees that, during the term of the Joint Venture (as defined in the "Term & Termination" clause of this Agreement), and for the period of time as set out in this clause ("the Time Period") after termination of this Agreement, and within the geographical area as set out in this clause ("the Geographical Area"), the Party will not, either directly or indirectly, whether as employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:
(I) engaging in a business or project which is the same as, similar to or in competition with the Joint Venture; or
(II) soliciting, hiring, or attempting to hire any other Parties, or any employees or staff of the other Parties or of the Joint Venture;
(III) soliciting any customers or clients of the other Parties, or of the Joint Venture.
(b) For the purposes of this clause, "the Time Period" means, from the date that the Joint Venture is terminated (in accordance with the "Term & Termination" clause of this Agreement):
six months.
(c) For the purposes of this clause, "the Geographical Area" means, from the following location:
________
a distance of:
one kilometre.
(23) INSURANCE
The Parties will obtain and maintain appropriate insurance for the particular industry the Joint Venture operates in.
(24) WARRANTIES REGARDING COMPETITION
Each Party hereby respectively warrants:
(a) That this Agreement does not relate to a contract, arrangement, or understanding, or a concerted practice for the purpose, or with the likely effect, of substantially lessening competition according to the Competition and Consumer Act 2010 (Commonwealth) ("CCA");
(b) That this Agreement does not relate to some kind of exclusive dealing between the parties, for the purpose, or with the effect or likely effect, of substantially lessening competition according to the CCA;
(c) That this Agreement does not relate to some kind of arrangement involving "price fixing" according to the CCA, whereby competitors have agreed on pricing rather than competing against each other;
(d) That this Agreement does not relate to some kind of arrangement involving "output restrictions" according to the CCA, whereby competitors have agreed to prevent, restrict, or limit the volume or type of particular goods or services available;
(e) That this Agreement does not relate to some kind of arrangement involving "market sharing" according to the CCA, whereby competitors have agreed to divide or allocate customers, suppliers, or territories among themselves rather than allowing competitive market forces to work; and
(f) That this Agreement does not relate to some kind of arrangement involving "bid rigging" or "collusive tendering" according to the CCA, whereby competitors have agreed they will not compete genuinely with each other for tenders, allowing one of the competitors to 'win' the tender.
(25) WARRANTIES REGARDING LEGAL ADVICE
Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:
(a) That the Warranting Party fully understands the terms of this Agreement.
(b) That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either:
(I) taken such independent legal advice; or
(II) elected not to take such independent legal advice.
(c) That the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
(26) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing, will be deemed validly given to a Party if delivered to the address of the relevant Party set out at the head of this Agreement or by email to the email address of the relevant Party as set out in this clause, or to such other email address as that Party may from time to time notify to the other Parties.
(b) Any Party ("the Nominating Party") may nominate another address ("the New Address") and/or another email address ("the New Email Address") by notifying all other Parties in writing of the New Address and/or of the New Email Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Email Address, be deemed validly given if delivered to the Nominating Party at the New Email Address.
(c) The relevant email contact information for the Parties is as follows:
________:................................
________:...............................
(d) The relevant facsimile contact information for the Parties is as follows:
________:................................
________:...............................
(e) The relevant telephone contact information for the Parties is as follows:
________:................................
________:...............................
(27) WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
(I) such notice is properly given if given to the other Party:
(A) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement.
(B) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with this Agreement.
(C) by post to a postal address the other party has nominated, acknowledged or used in connection with this Agreement.
(II) such notice is taken to be received:
(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
(B) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
(C) if sent by prepaid post within Australia, five (5) Business Days after the date of posting.
(D) if sent by prepaid post to or from an address outside Australia, twenty (20) Business Days after the date of posting.
(b) In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be.
(28) GENERAL PROVISIONS
(a) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of New South Wales and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within New South Wales. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature.
(b) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
(c) AMENDMENTS: This Agreement may only be amended in writing signed by all Parties.
(d) NO WAIVER: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of any Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of any Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.
(e) SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.
(f) PUBLIC ANNOUNCEMENT: No Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Party or Parties.
(g) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.
(h) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement.
(i) TRANSFER OF RIGHTS OR OBLIGATIONS: No Party is permitted to novate, subcontract, assign or otherwise transfer that Party's rights or obligations under this Agreement without the prior written consent of each other Party.
(j) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have. Unless expressly provided in this Agreement, nothing in this Agreement shall in any way reduce, extinguish, postpone or otherwise limit any right, remedy or power which that Party may have.
(k) LIABILITY OF PARTIES: The rights, obligations and liabilities of the Parties under this Agreement are several and are not joint or joint and several.
(l) CUMULATIVE RIGHTS: The rights and remedies provided in this Agreement are cumulative with any rights or remedies provided by law, and do not exclude any such rights or remedies provided by law.
(m) SURVIVAL OF OBLIGATIONS: At the termination or expiration of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive termination and/or expiration.
(n) NO RELIANCE ON REPRESENTATIONS: The Parties each respectively acknowledge and agree that they have entered into this Agreement voluntarily and without relying on any representation by any other Party or by any agent or representative of that other Party.
(o) FORCE MAJEURE/EXCUSE: No Party is liable to any other Party for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
(p) FURTHER ACTS: Each Party must, and must ensure that its employees, agents and representatives, do all things and sign, execute and deliver all documents, agreements and instruments as reasonably required in order to give effect to this Agreement and to the rights and obligations of the Parties created under this Agreement.
(q) COSTS: Each Party is responsible for its own costs in connection with the negotiation, preparation, execution and completion of this agreement, and in connection with giving effect to this Agreement, including but not limited to legal and accounting costs.
EXECUTED AS AN AGREEMENT THIS ________
Signed for and on behalf of ________ :
..................................................
In the presence of:
..................................................
Witness Signature
..................................................
Witness Name
..................................................
Witness Occupation
..................................................
..................................................
Witness Address
Signed for and on behalf of ________ :
..................................................
In the presence of:
..................................................
Witness Signature
..................................................
Witness Name
..................................................
Witness Occupation
..................................................
..................................................
Witness Address
JOINT VENTURE AGREEMENT
________
This Joint Venture Agreement, hereinafter referred to as "Agreement," is entered into and made effective as of ________ (the "Execution Date") by and between the following parties:
BETWEEN:
________
Of the following address:
________
AND:
________
Of the following address:
________
RECITALS:
WHEREAS, each party under this Agreement may be referred to individually as "Party" and collectively as the "Parties".
WHEREAS, the Parties desire to enter into a joint venture, as defined further below.
WHEREAS, the Parties wish to establish a written agreement between them covering the terms and conditions of their agreement.
NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties do hereby agree as follows.
(1) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:
(a) Words referring to one gender include every other gender.
(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.
(c) If a word or phrase is defined in this Agreement then any grammatical variations of that word or phrase have a corresponding meaning.
(d) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(e) Any reference to time is a reference to time in New South Wales.
(f) In the event that something must be done under this Agreement on or before a particular date, if that date falls on a day which is not a business day, then that thing must be done on or before the next business day.
(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(h) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
(i) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(j) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.
(k) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.
(l) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.
(m) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.
(2) PURPOSE OF JOINT VENTURE
(a) Subject to the terms and conditions of this Agreement, the Parties will enter into a joint venture named (the "Joint Venture"):
________
(b) The purpose and description of the Joint Venture will be as follows ("Purpose"):
________
(3) NATURE OF JOINT VENTURE
(a) The relationship between the Parties is exclusively that of joint venturers. Nothing in this Agreement shall be construed to create employment, partnership, or any other fiduciary relationship between the Parties.
(b) Except as otherwise expressly provided in this Agreement, or as otherwise expressly permitted in writing by the other Parties, nothing in this Agreement authorises or permits any Party to do anything with the assets of the Joint Venture including but not limited to encumbering the assets of the Joint Venture, or to create any binding legal obligation for any other Party.
(c) The Parties each respectively covenant and agree that:
(I) The Party will act in good faith in accordance with the Purpose and with this Agreement; and
(II) The Party will diligently comply with its respective obligations under this Agreement; and
(III) The Party will strive to develop and to maintain a relationship of good faith and mutual trust with one another; and
(IV) The Joint Venture will be conducted as a commercial enterprise based on sound commercial practice; and
(V) Each of the Parties has the right to participate in the Joint Venture and to share in the profits of the Joint Venture, on the terms set out in this Agreement; and
(VI) Except as otherwise set out in this Agreement, no Party will have authority to act for or to accept any liability, responsibility or obligation on behalf of any other Party; and
(VII) The Party will not undertake any act, matter or thing which may reasonably be expected to negatively impact the financial position or the commercial reputation of the Joint Venture or of any other Party.
(4) PRINCIPAL PLACE OF BUSINESS
The principal place of business for the Joint Venture will be as follows:
________
(5) PARTIES' CONTRIBUTIONS TO JOINT VENTURE
The initial individual capital contributions of the Parties are as follows:
________
Total capital value of contribution:
$________ (________)
Form of contribution:
________
________
Total capital value of contribution:
$________ (________)
Form of contribution:
________
(6) ADDITIONAL CONTRIBUTIONS
In the event that additional funds are required for the Joint Venture, the Parties will contribute additional funds in equal proportions.
(7) USE OF FUNDS
(a) The Parties will open a bank account for the Joint Venture (the "Bank Account").
(b) The Bank Account will be used to hold any funds which are contributed by the Parties to the Joint Venture under the "Parties' Contributions to Joint Venture" and the "Additional Contributions" clauses of this Agreement ("Joint Venture Funds").
(c) The Joint Venture Funds must only be used for the Joint Venture and in accordance with the Purpose and this Agreement, unless otherwise agreed in writing by all Parties.
(8) DISTRIBUTION OF PROFITS OF JOINT VENTURE
Any profits of the Joint Venture will be distributed in equal proportions between the Parties.
(9) LIMITS ON RETURN OF CONTRIBUTIONS AND ON DISTRIBUTION OF PROFITS
No Party is entitled to call for any distribution of profits or any return of capital or assets which that Party has contributed to the Joint Venture, except:
(a) Upon the termination of this Agreement or of the Joint Venture; or
(b) As otherwise expressly provided in this Agreement; or
(c) As otherwise expressly agreed in writing by the Parties.
(10) MANAGEMENT
The Joint Venture will be managed in the following manner:
________
(11) DECISION MAKING
Any decisions in relation to the Joint Venture shall be made by unanimous consent of the Parties.
(12) DISPUTE RESOLUTION
In the event that the Parties cannot agree on a material issue related to the Joint Venture (the "Dispute"), the Parties may not pursue legal action in relation to the Dispute unless they have first undertaken the following steps:
(a) The Parties must first attempt in good faith to resolve the dispute between themselves;
(b) Any Party may offer to purchase all of the assets of the Joint Venture from the other Party or Parties in writing, at a price mutually agreed-upon by both Parties. The price may be obtained through an external valuation;
(c) If the Parties cannot resolve the Dispute between themselves, the Parties must attempt in good faith to resolve the Dispute through non-binding mediation through a neutral third party that is agreed upon by all Parties (the "Mediation");
(d) The costs of any mediator appointed to handle such Mediation shall be borne equally between the Parties;
(e) Each Party will pay its own costs in relation to the Mediation.
(13) MEETINGS
Meetings will be called and carried out as follows:
________
(14) DUTIES AND OBLIGATIONS
The duties and obligations of the Parties shall be as follows:
________
________
________
________
(15) ACCOUNTING
The accounting records of the Joint Venture will be kept according to generally accepted accounting principles (GAAP) and will be available for inspection by any Party at any time.
(16) TERM & TERMINATION
(a) The Joint Venture will begin on the Execution Date and terminate on the following date: ________. The Joint Venture may, however, be terminated prior to this date if the purpose of the Joint Venture has been completed and the Joint Venture has been sold or dissolved after the repayment of any debts owed.
(b) At the termination of the Joint Venture, the Joint Venture and any remaining assets will be liquidated and the Parties will split the proceeds of such liquidation in a percentage corresponding to their individual amounts of contribution.
(c) If the Joint Venture must be terminated prior to dissolution, sale, or completion, it may be in the following circumstances:
(I) If any Party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not, the non-breaching party may terminate this Agreement in writing and force the sale or dissolution of the Joint Venture and its assets.
(II) If any Party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform, any other party may terminate this Agreement in writing and force the sale or dissolution of the Joint Venture and its assets.
(III) Any termination under this subclause shall not affect the accrued rights or liabilities of any Party under this Agreement or at law and shall be without prejudice to any rights or remedies any Party may be entitled to. Any provision or subclause of this Agreement which is meant to continue after termination or come into force at or after termination shall not be affected by this subclause.
(17) CONFIDENTIALITY
(a) Each Party hereby acknowledges and agrees that they and the other Party or Parties may each possess certain non-public Confidential Information (as hereinafter defined) and may also possess Trade Secret Information (as hereinafter defined) (collectively the "Proprietary Information") regarding their business operations and development. The Parties agree that the Proprietary Information is secret and valuable to each of their respective businesses and the Parties have entered into this Joint Venture as a business relationship, through which they will each have access to another party's Proprietary Information. Each of the Parties desires to maintain the secret and private nature of any Proprietary Information given. "Receiving Party" refers to the Party that is receiving the Proprietary Information and "Disclosing Party" refers to the Party that is disclosing the Proprietary Information. The Parties acknowledge and agree that they may be both the Receiving Party in relation to one piece of Proprietary Information, and the Disclosing Party in relation to another piece of Proprietary Information, and that the terms of this "Confidentiality" clause may be both binding on that Party as a Receiving Party, and enforceable by that Party as a Disclosing Party, as the context so provides.
(b) Confidential Information refers to any information which is confidential and commercially valuable to any of the Parties. The Confidential Information may be in the form of documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs or other oral or written knowledge and/or secrets and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property and/or finance or any other information which is confidential and commercially valuable to any of the Parties.
(c) Confidential Information may or may not be disclosed as such, through labeling, but is to be considered any information which ought to be treated as confidential under the circumstances through which it was disclosed.
(d) Confidential Information shall not mean any information which:
(I) is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Receiving Party;
(II) is already known, through legal means, to the Receiving Party;
(III) is given by the Disclosing Party to third parties, other than the Receiving Party, without any restrictions;
(IV) is given to the Receiving Party by any third party who legally had the Confidential Information and the right to disclose it; or
(V) is developed independently by the Receiving Party and the Receiving Party can show such independent development.
(e) Trade Secret Information shall be defined specifically as any formula, process, method, pattern, design or other information that is not known or reasonably ascertainable by the public, consumers, or competitors through which, and because of such secrecy, an economic or commercial advantage can be achieved.
(f) The Parties hereby agree they shall:
(I) Not disclose the Proprietary Information via any unauthorised means to any third parties throughout the duration of this Agreement and the Parties' relationship with each other unless, in the case of Confidential Information, that third party is a service provider necessary for the Joint Venture and the third party service provider agrees to sign a Non-Disclosure Agreement mutually agreeable to each Party;
(II) Not disclose the Confidential Information via any unauthorised means to any third parties for a period of 3 (three) years following the termination of this Agreement;
(III) Not disclose the Trade Secret Information forever, or for as long as such information remains a trade secret under applicable law, whichever occurs first, to any third party at any time;
(IV) Not use the Confidential Information or the Trade Secret Information for any purpose except the Purpose contemplated herein or expressly authorised by the Disclosing Party.
(18) INTELLECTUAL PROPERTY
In accordance with the terms and conditions of this Agreement, title and interest in and to intellectual property belonging to each of the Parties prior to this Joint Venture, including, but not limited to, plans, drawings, specifications, reports, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property, registered or otherwise, shall remain with that Party throughout the duration of this Agreement and forever thereafter, unless otherwise expressly agreed in writing by the Parties.
(19) 58588 28858 258852558
5585 25522 525282 528228288282 525228 525 582228825228 2552 828 282 88588882828, 828855822 52828 525 22525 282528858 28882528228, 85588 522582 828 282 88588882828 525 85588 222 828222 252 88588882828 22 522 22525 25522.
(20) 588528525885588
(________) 5585 25522 (52528252225 252 "525222822822 25522") 525282 82522282828, 22228 82522282825, 525 52858 55528288 2585 22525 25522 ("82525 25522") 225 522 525 588 828828, 5525228 25 885828 22 522 252552 8552822825 85885 252 82525 25522 8522258 25 828558 58 5 528582 22 252 525222822822 25522'8:
(________) 8228822282; 25
(________) 288258 2888225582; 25
(________) 852585 22 2588 825222222; 25
(________) 8225582 82 252 22522525282 22 828 28882528228 52525 2588 825222222.
(________) 552 825222822 822 252 82 2588 885582 8888 8558882 22528252822 22 2588 825222222 25 22 252 82822 5222552 525 8888 222 82 52228225 25 52825825 82:
(________) 822 858825, 8255822282, 25 2228282 22 252 2552 22 522 22525 25522; 25
(________) 822 855852822 22 2588 825222222; 25
(________) 552 2588822 22 2822; 25
(________) 552 8582 22 85258822 22 522 25522 22 22225 2588 825222222; 25
(________) 552 2588552 82 522 82525 25522 22 5582 2528522 2588 825222222; 25
(________) 822 22525 582, 252225 25 25822 85885 82585 (852 225 2588 885582) 225822 25 5282582 252 825222822 822 252 82 2588 885582.
(21) LIMITATION OF LIABILITY
(a) Except in cases of death or personal injury caused by any Party's negligence, or except for any liability otherwise set out in this Agreement, any Party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement shall be limited to the amount each Party profited from the Joint Venture in the preceding three (3) months.
(b) To the extent it is lawful, no Party shall be liable to any other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits, or business.
(22) NO COMPETITION
(a) Each Party hereby respectively agrees that, during the term of the Joint Venture (as defined in the "Term & Termination" clause of this Agreement), and for the period of time as set out in this clause ("the Time Period") after termination of this Agreement, and within the geographical area as set out in this clause ("the Geographical Area"), the Party will not, either directly or indirectly, whether as employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:
(I) engaging in a business or project which is the same as, similar to or in competition with the Joint Venture; or
(II) soliciting, hiring, or attempting to hire any other Parties, or any employees or staff of the other Parties or of the Joint Venture;
(III) soliciting any customers or clients of the other Parties, or of the Joint Venture.
(b) For the purposes of this clause, "the Time Period" means, from the date that the Joint Venture is terminated (in accordance with the "Term & Termination" clause of this Agreement):
six months.
(c) For the purposes of this clause, "the Geographical Area" means, from the following location:
________
a distance of:
one kilometre.
(23) INSURANCE
The Parties will obtain and maintain appropriate insurance for the particular industry the Joint Venture operates in.
(24) WARRANTIES REGARDING COMPETITION
Each Party hereby respectively warrants:
(a) That this Agreement does not relate to a contract, arrangement, or understanding, or a concerted practice for the purpose, or with the likely effect, of substantially lessening competition according to the Competition and Consumer Act 2010 (Commonwealth) ("CCA");
(b) That this Agreement does not relate to some kind of exclusive dealing between the parties, for the purpose, or with the effect or likely effect, of substantially lessening competition according to the CCA;
(c) That this Agreement does not relate to some kind of arrangement involving "price fixing" according to the CCA, whereby competitors have agreed on pricing rather than competing against each other;
(d) That this Agreement does not relate to some kind of arrangement involving "output restrictions" according to the CCA, whereby competitors have agreed to prevent, restrict, or limit the volume or type of particular goods or services available;
(e) That this Agreement does not relate to some kind of arrangement involving "market sharing" according to the CCA, whereby competitors have agreed to divide or allocate customers, suppliers, or territories among themselves rather than allowing competitive market forces to work; and
(f) That this Agreement does not relate to some kind of arrangement involving "bid rigging" or "collusive tendering" according to the CCA, whereby competitors have agreed they will not compete genuinely with each other for tenders, allowing one of the competitors to 'win' the tender.
(25) WARRANTIES REGARDING LEGAL ADVICE
Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:
(a) That the Warranting Party fully understands the terms of this Agreement.
(b) That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either:
(I) taken such independent legal advice; or
(II) elected not to take such independent legal advice.
(c) That the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
(26) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing, will be deemed validly given to a Party if delivered to the address of the relevant Party set out at the head of this Agreement or by email to the email address of the relevant Party as set out in this clause, or to such other email address as that Party may from time to time notify to the other Parties.
(b) Any Party ("the Nominating Party") may nominate another address ("the New Address") and/or another email address ("the New Email Address") by notifying all other Parties in writing of the New Address and/or of the New Email Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Email Address, be deemed validly given if delivered to the Nominating Party at the New Email Address.
(c) The relevant email contact information for the Parties is as follows:
________:................................
________:...............................
(d) The relevant facsimile contact information for the Parties is as follows:
________:................................
________:...............................
(e) The relevant telephone contact information for the Parties is as follows:
________:................................
________:...............................
(27) WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
(I) such notice is properly given if given to the other Party:
(A) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement.
(B) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with this Agreement.
(C) by post to a postal address the other party has nominated, acknowledged or used in connection with this Agreement.
(II) such notice is taken to be received:
(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
(B) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
(C) if sent by prepaid post within Australia, five (5) Business Days after the date of posting.
(D) if sent by prepaid post to or from an address outside Australia, twenty (20) Business Days after the date of posting.
(b) In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be.
(28) GENERAL PROVISIONS
(a) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of New South Wales and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within New South Wales. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature.
(b) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
(c) AMENDMENTS: This Agreement may only be amended in writing signed by all Parties.
(d) NO WAIVER: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of any Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of any Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.
(e) SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.
(f) PUBLIC ANNOUNCEMENT: No Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Party or Parties.
(g) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.
(h) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement.
(i) TRANSFER OF RIGHTS OR OBLIGATIONS: No Party is permitted to novate, subcontract, assign or otherwise transfer that Party's rights or obligations under this Agreement without the prior written consent of each other Party.
(j) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have. Unless expressly provided in this Agreement, nothing in this Agreement shall in any way reduce, extinguish, postpone or otherwise limit any right, remedy or power which that Party may have.
(k) LIABILITY OF PARTIES: The rights, obligations and liabilities of the Parties under this Agreement are several and are not joint or joint and several.
(l) CUMULATIVE RIGHTS: The rights and remedies provided in this Agreement are cumulative with any rights or remedies provided by law, and do not exclude any such rights or remedies provided by law.
(m) SURVIVAL OF OBLIGATIONS: At the termination or expiration of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive termination and/or expiration.
(n) NO RELIANCE ON REPRESENTATIONS: The Parties each respectively acknowledge and agree that they have entered into this Agreement voluntarily and without relying on any representation by any other Party or by any agent or representative of that other Party.
(o) FORCE MAJEURE/EXCUSE: No Party is liable to any other Party for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
(p) FURTHER ACTS: Each Party must, and must ensure that its employees, agents and representatives, do all things and sign, execute and deliver all documents, agreements and instruments as reasonably required in order to give effect to this Agreement and to the rights and obligations of the Parties created under this Agreement.
(q) COSTS: Each Party is responsible for its own costs in connection with the negotiation, preparation, execution and completion of this agreement, and in connection with giving effect to this Agreement, including but not limited to legal and accounting costs.
EXECUTED AS AN AGREEMENT THIS ________
Signed for and on behalf of ________ :
..................................................
In the presence of:
..................................................
Witness Signature
..................................................
Witness Name
..................................................
Witness Occupation
..................................................
..................................................
Witness Address
Signed for and on behalf of ________ :
..................................................
In the presence of:
..................................................
Witness Signature
..................................................
Witness Name
..................................................
Witness Occupation
..................................................
..................................................
Witness Address
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