JOINT VENTURE AGREEMENT
This Joint Venture Agreement ("Agreement") is made on this ________ at ________, Andaman and Nicobar Islands:
BY AND BETWEEN
________ residing at ________ (hereinafter referred to as "First Party" or "Party 1" which expression shall mean and include its legal heirs, administrators and permitted assigns),
AND
________ residing at ________ (hereinafter referred to as "Second Party" or "Party 2" which expression shall mean and include its legal heirs, administrators and permitted assigns).
(referred to herein as "Parties" or individually as "Party")
WHEREAS
A. The Parties are interested in working together to carry on the following business:
________
(hereinafter the "Business");
B. This Agreement sets out the relationship between the Parties as well as the respective rights and responsibilities of each Party.
NOW THEREFORE IN CONSIDERATION OF the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
1. Definitions
1.1. Affiliate: any entity that directly or indirectly Controls is Controlled by, or is under common Control with, another entity;
1.2. Authorised Persons: a party's, and its Affiliates (if applicable) officers, directors, members, partners, and any of their employees, consultants, agents, representatives or professional advisers;
1.3. Business Day: a day other than a Saturday, Sunday or bank or public holiday in India;
1.4. Commencement Date: the formal date on which the joint venture will commence, i.e. ________;
1.5. Contract Year: each consecutive period of 12 months commencing from the Commencement Date;
1.6. Control: has the meaning given in the Companies Act, 2013 and Controls and Controlled shall be interpreted accordingly;
1.7. Intellectual Property Rights: copyright, patents, rights in inventions, rights in confidential information, Know-how, trade secrets, trademarks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semiconductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
1.8. Know-how: inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, tests, reports, component lists, manuals, instructions, drawings, and information relating to customers and suppliers (whether written or in any other form and whether confidential or not);
1.9. Losses: all damages, liabilities, demands, costs, expenses, claims, actions and proceedings (including all consequential, direct, indirect, special or incidental loss or punitive damages or loss, legal and other professional fees, cost and expenses, fines, penalties, interest and loss of profit or any other form of economic loss (including loss of reputation));
1.10. GST Act: the Goods and Services Act, 2017 and amendments and re-enactments thereto.
2. Term & Background to Joint Venture
2.1. The Joint Venture shall commence from ________ and shall continue in force until terminated by the parties in accordance with clause (Termination) of this agreement.
2.2. Party 1 is engaged in the following business:
________
2.3. Party 2 is engaged in the following business:
________
2.4. The Parties have agreed to enter into a joint venture to carry on the following business:
________
(hereinafter the "Business");
and envisage that the joint venture will leverage upon and benefit from the combined technical, financial and management expertise and strengths of the Parties.
3. Ownership of the joint venture
3.1. The joint venture shall be equally owned by all the Parties in the following percentage:
3.1.1. Party 1: 50%
3.1.2. Party 2: 50%
4. Obligations of the Parties
4.1. During the term of this Agreement Party 1 shall have the following obligations:
________
4.2. During the term of this Agreement Party 2 shall have the following obligations:
________
5. Representations and Warranties
5.1. Each party represents and warrants to each of the other Parties that:
5.1.1. It has the requisite power and authority to enter into the JV agreement, and any other agreement required for the operation of the JV and grant to the other party the rights (if any) contemplated in this Agreement.
5.1.2. This Agreement has been duly executed by it / on its behalf and this Agreement constitutes its legal, valid and binding obligation enforceable in accordance with the terms contained herein;
5.1.3. The execution, delivery and the performance by it of this Agreement does not and will not (a) (in case of corporates) breach or constitute a default under its constitutive documents, or (b) result in a breach of, or constitute a default under, any agreement to which it is a party or by which it is bound, or (c) result in the creation of any lien, charge or encumbrance, upon any of its assets or properties.
6. Structure, Investment, Valuation, Control, Profits and Losses
6.1. Each party agrees to contribute the following investment to the joint venture:
6.1.1. Party 1 will contribute the following investment:
________
6.1.2. Party 2 will contribute the following investment:
________
7. Additional Capital
In case at any time additional capital is required by the Joint Venture, the same will be contributed by all the Parties in proportion to their ownership in the Joint Venture.
8. Termination
8.1. This Agreement may be terminated by either party giving a minimum of 30 (thirty) business days notice to other parties.
8.2. Either party may terminate this Agreement at any time by giving notice in writing to the other party if:
8.2.1. the other party commits a material breach of this Agreement, and such breach is not remediable;
8.2.2. the other party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach;
8.2.3. the other party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 14 days after the other party has received notification that the payment is overdue; or
8.2.4. any consent, license or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.
8.3. Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:
8.3.1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
8.3.2. is unable to pay its debts;
8.3.3. becomes the subject of a voluntary arrangement for insolvency;
8.3.4. has a receiver, manager, administrator, or administrative receiver appointed over all or any part of its undertaking, assets or income;
8.3.5. has a resolution passed for its winding up;
8.3.6. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
8.4. Either party may terminate this Agreement at any time by giving not less than sixty days' notice in writing to the other party if the other party undergoes a change of control without the prior consent of the other parties. For the purposes of this clause, 'control' shall mean beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of a company.
8.5. If a party becomes aware that any event has occurred, or circumstances exist, that may entitle the other party to terminate this Agreement under this clause, it shall immediately notify the other party in writing.
8.6. Termination or expiry of this Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination.
9. Consequences of termination
9.1. In the event that this Agreement is terminated:
9.1.1. In the event that a Party ("First Party") is in possession of any equipment, materials, documents, intellectual property, data or other information ("Items") that are the property of the Joint Venture or other Parties ("Second Party"), then the First Party must promptly return all Items to the Second Party, or destroy any Items if directed to do so by the Second Party;
10. Confidentiality
10.1. The Parties each hereby acknowledge and agree that in connection with this Agreement, they may have access to information that is confidential and/or commercially valuable to one or more of the other Parties ("Confidential Information").
10.2. The Parties each hereby acknowledge and agree that they may be both the receiving party in relation to some Confidential Information ("Receiving Party"), and the disclosing party in relation to some other Confidential Information ("Disclosing Party"), and that the terms of this Agreement may apply to a Party as both a Receiving Party and as a Disclosing Party, as the context so provides.
10.3. For the purpose of this Agreement, Confidential Information may include but is not limited to:
10.3.1. information of whatever nature relating to the Project or to another Party (whether relating to the Project or otherwise);
10.3.2. any information derived from any other information which falls within this definition of Confidential Information; and
10.3.3. any copy of any Confidential Information.
10.4. but does not include information which:
10.4.1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Disclosing Party, provided that it was known or in the possession of the Receiving Party through legal means, and not as a result of any breach of this Agreement or any other agreement or obligation relating to confidentiality (whether or not the Receiving Party was a party to such other agreement or obligation);
10.4.2. is, or becomes, publicly available, through no fault of the Receiving Party;
10.4.3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
10.4.4. is provided to the Receiving Party by the Disclosing Party and is marked "Non Confidential"; or
10.4.5. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Disclosing Party is first consulted to establish whether and if so, how far it is possible to prevent or restrict such enforced disclosure.
10.5. In relation to any Confidential Information:
10.5.1. the Receiving Party shall keep the Confidential Information confidential and secret.
10.5.2. the Receiving Party shall only use the Confidential Information for the purpose of working in good faith on the Project in accordance with this Agreement.
10.5.3. the Receiving Party shall not release the Confidential Information to any other party unless that other party is an advisor who is under a duty of confidentiality, is assisting with the Project, and needs to have the Confidential Information in order to assist with the Project.
10.6. If there is any doubt as to whether any particular information constitutes Confidential Information, the Receiving Party should presume it is Confidential Information, until the Receiving Party obtains explicit confirmation from the Disclosing Party that it is not Confidential Information.
10.7. Each Party's respective obligations of confidentiality under this clause will survive the termination or expiration of this Agreement and will continue after that Party ceases to participate in the Project.
11. Non-Compete
11.1. Each Party respectively agrees that, for the period of time as set out in this clause ("the Time Period") after the Party ceases to participate in the Joint Venture, and within the geographical area as set out in this clause ("the Geographical Area"), the Party will not, either directly or indirectly, whether as an employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:
11.1.1. engaging in a business or project which is the same as, similar to or in competition with the business of the Joint Venture; or
11.1.2. soliciting, hiring, or attempting to hire any other Parties or any employees or staff that are working in the Joint Venture;
11.1.3. soliciting any customers or clients of the Joint Venture;
11.2. For the purposes of this clause, "the Time Period" means, from the date that the Party ceases to participate in the Joint Venture: ________
11.3. For the purposes of this clause, "the Geographical Area" means:
________
11.4. Each Party's respective obligations under this clause will survive the termination or expiration of this Agreement and will continue after that Party ceases to participate in the Project.
12. Intellectual Property
12.1. In connection with each Party's participation in the Joint Venture, each Party respectively may generate, create, contribute to, write, or produce intellectual property ("Project Intellectual Property").
12.2. For the purposes of this Agreement, "Project Intellectual Property" includes but is not limited to:
12.2.1. information, ideas, innovations, developments, improvements, inventions, discoveries, plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property; and
12.2.2. intellectual property that results in any way from work performed for or on behalf of the Project (whether performed by the Party or by somebody else); and
12.2.3. intellectual property, whether the Party generates, creates, contributes to, writes or produces that intellectual property:
12.2.3.1. directly, indirectly, independently or in cooperation or conjunction with another person or persons; and
12.2.3.2. during the Party's ordinary working hours, or outside of the Party's ordinary working hours; and
12.2.3.3. at the location where the Party ordinarily participates in the Project, or at some other location.
12.2.4. intellectual property that results in any way from the use of resources or assets in connection with the Project, including reference or other materials, personnel, facilities, or other resources; and
12.2.5. intellectual property that relates in any other way to the Project or any business that is developed in connection with the Project.
12.3. Unless otherwise expressly agreed between the Parties, nothing in this Agreement is intended to create any transfer or assignment of any intellectual property rights in relation to any Project Intellectual Property.
12.4. Unless otherwise expressly agreed between the Parties, in the event that a particular Party generates, creates, contributes to, writes or produces an item of Project Intellectual Property, that Party shall retain any and all intellectual property rights in relation to that item of Project Intellectual Property.
12.5. Each Party's respective obligations under this clause will survive the termination or expiration of this Agreement and will continue after that Party ceases to participate in the Project.
13. Indemnity
13.1. Each Party (the "Indemnifying Party") will, to the extent that a claim does not arise from the negligence or wilful default of the other or any of its Authorised Persons, indemnify and keep indemnified on demand and hold harmless the other (the "Indemnified Party") and its Authorised Persons from and against all Losses suffered or incurred by them arising out of or in connection with:
13.1.1. any act or omission by the Indemnifying Party or any of its Authorised Persons that is in breach of this Agreement;
13.1.2. any breach of the warranties set out in this Agreement; and
13.1.3. any third-party claim relating to the activities of this Joint Venture to the extent that any such claim relates to any act, neglect, or default of the Indemnifying Party or any of its Authorised Persons.
13.2. Where the Indemnifying Party is liable to make a payment under this clause and the payment is itself liable to taxation in the hands of the Indemnified Party then the amount of the indemnity payment shall be deemed to be increased so as to ensure that the Indemnified Party receives (after any applicable taxes have been paid) the same amount as it would have received had no such taxes have been levied.
13.3. The following procedures will apply in relation to any third-party claims:
13.3.1. as soon as reasonably practicable after the Indemnified Party receives notice of any third-party claim qualifying for an indemnity ("TP Claim"), it will give written notice to the Indemnifying Party specifying details of the TP Claim. Within 30 days of being so notified (but no later than 10 days before the date on which any response to a TP Claim is due), the Indemnifying Party may assume control of the action and settlement of the TP Claim by giving a notice (Notice of Election) to the Indemnified Party. The Indemnified Party shall provide to the Indemnifying Party reasonable assistance and access relating to any such claim at the Indemnifying Party's reasonable request and cost; and
13.3.2. the Indemnified Party shall not make any admissions or agreements in relation to any TP Claim without the Indemnifying Party's prior written consent. The amount due pursuant to the relevant indemnity shall be reduced by the extent to which the Indemnified Party has made any admissions (save where required by court order or governmental regulations), or agreements, without the Indemnifying Party's prior written consent.
13.3.3. If the Indemnifying Party does not deliver a Notice of Election pursuant to sub-clause (a) above, fails to defend the claim in time, or ceases to defend the claim, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate provided the Indemnifying Party is not prejudiced by any such action.
14. Limitation of liability
14.1. The extent of the parties' liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.
14.2. Notwithstanding anything contained in this Agreement, a Party's liability for any loss or damage, direct or indirect, for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement) with respect to claims (whether third party claims, indemnity claims or otherwise) shall not under any circumstances exceed the total project amount.
14.3. Neither party shall be liable for any consequential, indirect, or special loss including loss of profit, loss of or corruption to data, loss of contract, loss of commercial opportunity and loss of goodwill.
14.4. Except as expressly stated in this Agreement, all warranties, and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
14.5. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
14.5.1. death or personal injury caused by negligence or willful misconduct;
14.5.2. fraud or fraudulent misrepresentation;
14.5.3. any other losses that cannot be excluded or limited by applicable law;
14.5.4. Neither Party will be liable for, nor will the measure of damages include, any punitive or consequential or indirect losses or damages, including lost profits or third-party claims arising out of or relating to its performance or failure to perform under this Agreement. Liability for all punitive or consequential or indirect losses or damages is hereby expressly excluded.
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18. Exclusivity
18.1. Each Party (which, for the purpose of this clause is referred to as the "Representing Party") hereby represents to the other Party that:
18.1.1.Upon the signing of this Agreement, the Representing Party will terminate any discussions or negotiations with any party other than a Party to this Agreement ("Third Party"), which relate to the Joint Venture or to the Project ("Third Party Discussions"), in which the Representing Party, or any employee, agent, advisor, contractor or other representative of the Representing Party, may be engaged.
18.1.2.While this Agreement is in effect, the Representing Party will not, directly or indirectly:
18.1.2.1. Engage in any Third-Party Discussions; or
18.1.2.2. Invite, encourage, seek, or otherwise solicit any Third Party to engage in Third-Party Discussions; or
18.1.2.3. Respond to any invitation or solicitation from any Third Party in relation to any Third-Party Discussions (except to explicitly reject such invitation or solicitation); or
18.1.2.4. Enter into any agreement, memorandum of understanding, heads of agreement, letter of intent, or other arrangement with any Third Party in relation to any Third-Party Discussions (whether legally binding or non-binding).
18.1.3. The Representing Party will ensure that any employee, agent, advisor, contractor, or other representative of the Representing Party also complies with the obligations under this clause.
18.2. For the sake of clarity, "Third Party Discussions" do not include discussions or negotiations in which the Representing Party may engage with any Third Party in order to pursue the Business in good faith and in the spirit of this Agreement.
19. Force Majeure
19.1. If and to the extent that a Party's performance of any of its obligations under this Agreement, is hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party (each, a "Force Majeure Event"), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered, or delayed by a Force Majeure Event will immediately notify the other Parties of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.
19.2. If the Force Majeure Event continues for a continuous period exceeding 30 (thirty) days, the Parties shall mutually agree on the future course of action. However, despite all efforts made by the Parties in good faith, if the Force Majeure Event continues for a period of 90 (ninety) days, either of the Parties shall have the right to terminate this Agreement by giving the other Parties notice of termination in writing.
20. Non-solicitation
20.1. Notwithstanding any provision to the contrary, each of the Parties agree that the Parties (or any Person forming part of the Parties) shall not during the term of this Joint Venture Agreement and for a period of 2 (two) years after termination thereof:
20.1.1. directly or indirectly, partner with or enter into any activity or hire or attempt to hire for any purpose whatsoever (whether as an employee, consultant, advisor, independent contractor, partner or otherwise) any employee or consultant of the other Party;
20.1.2. directly or indirectly, approach, canvass, solicit, or otherwise entice using any incentive whatsoever (whether such incentive is in cash, kind, or a composite of the same or in any other manner), any employees, vendors, customer, consultant, contractor or agent of the other Party.
20.2. The Party breaching the provisions of this clause shall be liable to pay damages to the extent of twice the project amount to the other Parties and the same shall be considered a genuine pre-estimate of the loss suffered by the other Parties due to breach by the said Party.
21. Severability
If any provision of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision that is valid, enforceable, and most nearly gives effect to the original intent of the invalid/unenforceable provision.
22. Entire Agreement
This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings duties or obligations between the Parties with respect to the subject matter hereof.
23. No other rights granted
Nothing in this Agreement is intended to grant any rights under any patent, copyright or other intellectual property rights of any Party in favour of the other, nor shall this Agreement be construed to grant any Party any rights in or to the other Party's Confidential Information, except the limited right to use such Confidential Information in connection with the Project under this Agreement.
24. Amendments
Any change, alteration, amendment, or modification to this Agreement must be in writing and signed by authorized representatives of both the Parties.
25. Dispute resolution
25.1. Any dispute(s) arising out of this Agreement shall, as far as possible, be settled amicably between the Parties hereto failing which the following shall apply:
25.2. Any dispute under this Agreement shall be referred to arbitration by a sole arbitrator to be appointed jointly by the Parties.
25.3. The arbitration proceedings shall be held in ________, Andaman and Nicobar Islands in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force.
25.4. The Parties agree that the arbitration award shall be final and may be enforced as a decree.
25.5. The Parties further agree that subject to the above only the competent courts at ________, Andaman and Nicobar Islands shall have jurisdiction in all matters arising hereunder.
25.6. The Parties further agree to keep the arbitration proceedings and the arbitral award confidential.
25.7. If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable costs and attorneys' fees.
26. Notices
Except as otherwise specified in this Agreement, all notices, requests, consents, approvals, agreements, authorizations, acknowledgements, waivers and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when sent to the address specified in the title clause of this Agreement.
Either Party may change its address for notification purposes by giving the other Party 10 (ten) days' notice of the new address and the date upon which it will become effective.
27. Governing Law
This Agreement and all issues arising out of the same shall be construed in accordance with the laws of India.
28. Conflicts within agreement
28.1. In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:
28.1.1. the terms and conditions in the main body of this Agreement; and
28.1.2. any Schedules.
28.2. Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
29. Announcements
29.1. Subject to clause (b) below, no announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). The parties shall consult on the form and content of any such announcement or other public disclosure, as well as the manner of its release.
29.2. If a party is required to make an announcement or other public disclosure concerning this Agreement or any of the matters contained in it by law, any court, any governmental, regulatory or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction, it may do so. Such a party shall:
29.2.1. notify the other party as soon as is reasonably practicable upon becoming aware of such requirement to the extent it is permitted to do so by law, by the court or by the authority requiring the relevant announcement or public disclosure;
29.2.2. make the relevant announcement or public disclosure after consultation with the other party so far as is reasonably practicable; and
29.2.3. make the relevant announcement or public disclosure after considering all reasonable requirements of the other party as to its form and content and the manner of its release, so far as is reasonably practicable.
30. Further assurance
Each party shall at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.
31. Assignment
No party may assign, subcontract, or encumber any right or obligation under this Agreement, in whole or in part, without the other party's prior written consent; such consent not to be unreasonably withheld or delayed.
32. Set off
Except as expressly set out in this Agreement, each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
33. Equitable relief
Each party recognises that any breach or threatened breach of this Agreement may cause the other party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the other party, each party acknowledges and agrees that the other party is entitled to the remedies of specific performance, injunction, and other equitable relief without proof of special damages.
34. Waiver
34.1. No failure, delay, or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power, or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power, or remedy.
34.2. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power, or remedy.
34.3. A waiver of any term, provision, condition, or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
SIGNED BY THE PARTIES
___________________________
________
___________________________
________
Signed at the behest of the following witnesses:
____________________________________________
Witness-1
Name and Address:
_____________________________________________
Witness -2
Name and Address:
JOINT VENTURE AGREEMENT
This Joint Venture Agreement ("Agreement") is made on this ________ at ________, Andaman and Nicobar Islands:
BY AND BETWEEN
________ residing at ________ (hereinafter referred to as "First Party" or "Party 1" which expression shall mean and include its legal heirs, administrators and permitted assigns),
AND
________ residing at ________ (hereinafter referred to as "Second Party" or "Party 2" which expression shall mean and include its legal heirs, administrators and permitted assigns).
(referred to herein as "Parties" or individually as "Party")
WHEREAS
A. The Parties are interested in working together to carry on the following business:
________
(hereinafter the "Business");
B. This Agreement sets out the relationship between the Parties as well as the respective rights and responsibilities of each Party.
NOW THEREFORE IN CONSIDERATION OF the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
1. Definitions
1.1. Affiliate: any entity that directly or indirectly Controls is Controlled by, or is under common Control with, another entity;
1.2. Authorised Persons: a party's, and its Affiliates (if applicable) officers, directors, members, partners, and any of their employees, consultants, agents, representatives or professional advisers;
1.3. Business Day: a day other than a Saturday, Sunday or bank or public holiday in India;
1.4. Commencement Date: the formal date on which the joint venture will commence, i.e. ________;
1.5. Contract Year: each consecutive period of 12 months commencing from the Commencement Date;
1.6. Control: has the meaning given in the Companies Act, 2013 and Controls and Controlled shall be interpreted accordingly;
1.7. Intellectual Property Rights: copyright, patents, rights in inventions, rights in confidential information, Know-how, trade secrets, trademarks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semiconductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
1.8. Know-how: inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, tests, reports, component lists, manuals, instructions, drawings, and information relating to customers and suppliers (whether written or in any other form and whether confidential or not);
1.9. Losses: all damages, liabilities, demands, costs, expenses, claims, actions and proceedings (including all consequential, direct, indirect, special or incidental loss or punitive damages or loss, legal and other professional fees, cost and expenses, fines, penalties, interest and loss of profit or any other form of economic loss (including loss of reputation));
1.10. GST Act: the Goods and Services Act, 2017 and amendments and re-enactments thereto.
2. Term & Background to Joint Venture
2.1. The Joint Venture shall commence from ________ and shall continue in force until terminated by the parties in accordance with clause (Termination) of this agreement.
2.2. Party 1 is engaged in the following business:
________
2.3. Party 2 is engaged in the following business:
________
2.4. The Parties have agreed to enter into a joint venture to carry on the following business:
________
(hereinafter the "Business");
and envisage that the joint venture will leverage upon and benefit from the combined technical, financial and management expertise and strengths of the Parties.
3. Ownership of the joint venture
3.1. The joint venture shall be equally owned by all the Parties in the following percentage:
3.1.1. Party 1: 50%
3.1.2. Party 2: 50%
4. Obligations of the Parties
4.1. During the term of this Agreement Party 1 shall have the following obligations:
________
4.2. During the term of this Agreement Party 2 shall have the following obligations:
________
5. Representations and Warranties
5.1. Each party represents and warrants to each of the other Parties that:
5.1.1. It has the requisite power and authority to enter into the JV agreement, and any other agreement required for the operation of the JV and grant to the other party the rights (if any) contemplated in this Agreement.
5.1.2. This Agreement has been duly executed by it / on its behalf and this Agreement constitutes its legal, valid and binding obligation enforceable in accordance with the terms contained herein;
5.1.3. The execution, delivery and the performance by it of this Agreement does not and will not (a) (in case of corporates) breach or constitute a default under its constitutive documents, or (b) result in a breach of, or constitute a default under, any agreement to which it is a party or by which it is bound, or (c) result in the creation of any lien, charge or encumbrance, upon any of its assets or properties.
6. Structure, Investment, Valuation, Control, Profits and Losses
6.1. Each party agrees to contribute the following investment to the joint venture:
6.1.1. Party 1 will contribute the following investment:
________
6.1.2. Party 2 will contribute the following investment:
________
7. Additional Capital
In case at any time additional capital is required by the Joint Venture, the same will be contributed by all the Parties in proportion to their ownership in the Joint Venture.
8. Termination
8.1. This Agreement may be terminated by either party giving a minimum of 30 (thirty) business days notice to other parties.
8.2. Either party may terminate this Agreement at any time by giving notice in writing to the other party if:
8.2.1. the other party commits a material breach of this Agreement, and such breach is not remediable;
8.2.2. the other party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach;
8.2.3. the other party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 14 days after the other party has received notification that the payment is overdue; or
8.2.4. any consent, license or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.
8.3. Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:
8.3.1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
8.3.2. is unable to pay its debts;
8.3.3. becomes the subject of a voluntary arrangement for insolvency;
8.3.4. has a receiver, manager, administrator, or administrative receiver appointed over all or any part of its undertaking, assets or income;
8.3.5. has a resolution passed for its winding up;
8.3.6. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
8.4. Either party may terminate this Agreement at any time by giving not less than sixty days' notice in writing to the other party if the other party undergoes a change of control without the prior consent of the other parties. For the purposes of this clause, 'control' shall mean beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of a company.
8.5. If a party becomes aware that any event has occurred, or circumstances exist, that may entitle the other party to terminate this Agreement under this clause, it shall immediately notify the other party in writing.
8.6. Termination or expiry of this Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination.
9. Consequences of termination
9.1. In the event that this Agreement is terminated:
9.1.1. In the event that a Party ("First Party") is in possession of any equipment, materials, documents, intellectual property, data or other information ("Items") that are the property of the Joint Venture or other Parties ("Second Party"), then the First Party must promptly return all Items to the Second Party, or destroy any Items if directed to do so by the Second Party;
10. Confidentiality
10.1. The Parties each hereby acknowledge and agree that in connection with this Agreement, they may have access to information that is confidential and/or commercially valuable to one or more of the other Parties ("Confidential Information").
10.2. The Parties each hereby acknowledge and agree that they may be both the receiving party in relation to some Confidential Information ("Receiving Party"), and the disclosing party in relation to some other Confidential Information ("Disclosing Party"), and that the terms of this Agreement may apply to a Party as both a Receiving Party and as a Disclosing Party, as the context so provides.
10.3. For the purpose of this Agreement, Confidential Information may include but is not limited to:
10.3.1. information of whatever nature relating to the Project or to another Party (whether relating to the Project or otherwise);
10.3.2. any information derived from any other information which falls within this definition of Confidential Information; and
10.3.3. any copy of any Confidential Information.
10.4. but does not include information which:
10.4.1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Disclosing Party, provided that it was known or in the possession of the Receiving Party through legal means, and not as a result of any breach of this Agreement or any other agreement or obligation relating to confidentiality (whether or not the Receiving Party was a party to such other agreement or obligation);
10.4.2. is, or becomes, publicly available, through no fault of the Receiving Party;
10.4.3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
10.4.4. is provided to the Receiving Party by the Disclosing Party and is marked "Non Confidential"; or
10.4.5. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Disclosing Party is first consulted to establish whether and if so, how far it is possible to prevent or restrict such enforced disclosure.
10.5. In relation to any Confidential Information:
10.5.1. the Receiving Party shall keep the Confidential Information confidential and secret.
10.5.2. the Receiving Party shall only use the Confidential Information for the purpose of working in good faith on the Project in accordance with this Agreement.
10.5.3. the Receiving Party shall not release the Confidential Information to any other party unless that other party is an advisor who is under a duty of confidentiality, is assisting with the Project, and needs to have the Confidential Information in order to assist with the Project.
10.6. If there is any doubt as to whether any particular information constitutes Confidential Information, the Receiving Party should presume it is Confidential Information, until the Receiving Party obtains explicit confirmation from the Disclosing Party that it is not Confidential Information.
10.7. Each Party's respective obligations of confidentiality under this clause will survive the termination or expiration of this Agreement and will continue after that Party ceases to participate in the Project.
11. Non-Compete
11.1. Each Party respectively agrees that, for the period of time as set out in this clause ("the Time Period") after the Party ceases to participate in the Joint Venture, and within the geographical area as set out in this clause ("the Geographical Area"), the Party will not, either directly or indirectly, whether as an employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:
11.1.1. engaging in a business or project which is the same as, similar to or in competition with the business of the Joint Venture; or
11.1.2. soliciting, hiring, or attempting to hire any other Parties or any employees or staff that are working in the Joint Venture;
11.1.3. soliciting any customers or clients of the Joint Venture;
11.2. For the purposes of this clause, "the Time Period" means, from the date that the Party ceases to participate in the Joint Venture: ________
11.3. For the purposes of this clause, "the Geographical Area" means:
________
11.4. Each Party's respective obligations under this clause will survive the termination or expiration of this Agreement and will continue after that Party ceases to participate in the Project.
12. Intellectual Property
12.1. In connection with each Party's participation in the Joint Venture, each Party respectively may generate, create, contribute to, write, or produce intellectual property ("Project Intellectual Property").
12.2. For the purposes of this Agreement, "Project Intellectual Property" includes but is not limited to:
12.2.1. information, ideas, innovations, developments, improvements, inventions, discoveries, plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property; and
12.2.2. intellectual property that results in any way from work performed for or on behalf of the Project (whether performed by the Party or by somebody else); and
12.2.3. intellectual property, whether the Party generates, creates, contributes to, writes or produces that intellectual property:
12.2.3.1. directly, indirectly, independently or in cooperation or conjunction with another person or persons; and
12.2.3.2. during the Party's ordinary working hours, or outside of the Party's ordinary working hours; and
12.2.3.3. at the location where the Party ordinarily participates in the Project, or at some other location.
12.2.4. intellectual property that results in any way from the use of resources or assets in connection with the Project, including reference or other materials, personnel, facilities, or other resources; and
12.2.5. intellectual property that relates in any other way to the Project or any business that is developed in connection with the Project.
12.3. Unless otherwise expressly agreed between the Parties, nothing in this Agreement is intended to create any transfer or assignment of any intellectual property rights in relation to any Project Intellectual Property.
12.4. Unless otherwise expressly agreed between the Parties, in the event that a particular Party generates, creates, contributes to, writes or produces an item of Project Intellectual Property, that Party shall retain any and all intellectual property rights in relation to that item of Project Intellectual Property.
12.5. Each Party's respective obligations under this clause will survive the termination or expiration of this Agreement and will continue after that Party ceases to participate in the Project.
13. Indemnity
13.1. Each Party (the "Indemnifying Party") will, to the extent that a claim does not arise from the negligence or wilful default of the other or any of its Authorised Persons, indemnify and keep indemnified on demand and hold harmless the other (the "Indemnified Party") and its Authorised Persons from and against all Losses suffered or incurred by them arising out of or in connection with:
13.1.1. any act or omission by the Indemnifying Party or any of its Authorised Persons that is in breach of this Agreement;
13.1.2. any breach of the warranties set out in this Agreement; and
13.1.3. any third-party claim relating to the activities of this Joint Venture to the extent that any such claim relates to any act, neglect, or default of the Indemnifying Party or any of its Authorised Persons.
13.2. Where the Indemnifying Party is liable to make a payment under this clause and the payment is itself liable to taxation in the hands of the Indemnified Party then the amount of the indemnity payment shall be deemed to be increased so as to ensure that the Indemnified Party receives (after any applicable taxes have been paid) the same amount as it would have received had no such taxes have been levied.
13.3. The following procedures will apply in relation to any third-party claims:
13.3.1. as soon as reasonably practicable after the Indemnified Party receives notice of any third-party claim qualifying for an indemnity ("TP Claim"), it will give written notice to the Indemnifying Party specifying details of the TP Claim. Within 30 days of being so notified (but no later than 10 days before the date on which any response to a TP Claim is due), the Indemnifying Party may assume control of the action and settlement of the TP Claim by giving a notice (Notice of Election) to the Indemnified Party. The Indemnified Party shall provide to the Indemnifying Party reasonable assistance and access relating to any such claim at the Indemnifying Party's reasonable request and cost; and
13.3.2. the Indemnified Party shall not make any admissions or agreements in relation to any TP Claim without the Indemnifying Party's prior written consent. The amount due pursuant to the relevant indemnity shall be reduced by the extent to which the Indemnified Party has made any admissions (save where required by court order or governmental regulations), or agreements, without the Indemnifying Party's prior written consent.
13.3.3. If the Indemnifying Party does not deliver a Notice of Election pursuant to sub-clause (a) above, fails to defend the claim in time, or ceases to defend the claim, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate provided the Indemnifying Party is not prejudiced by any such action.
14. Limitation of liability
14.1. The extent of the parties' liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.
14.2. Notwithstanding anything contained in this Agreement, a Party's liability for any loss or damage, direct or indirect, for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement) with respect to claims (whether third party claims, indemnity claims or otherwise) shall not under any circumstances exceed the total project amount.
14.3. Neither party shall be liable for any consequential, indirect, or special loss including loss of profit, loss of or corruption to data, loss of contract, loss of commercial opportunity and loss of goodwill.
14.4. Except as expressly stated in this Agreement, all warranties, and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
14.5. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
14.5.1. death or personal injury caused by negligence or willful misconduct;
14.5.2. fraud or fraudulent misrepresentation;
14.5.3. any other losses that cannot be excluded or limited by applicable law;
14.5.4. Neither Party will be liable for, nor will the measure of damages include, any punitive or consequential or indirect losses or damages, including lost profits or third-party claims arising out of or relating to its performance or failure to perform under this Agreement. Liability for all punitive or consequential or indirect losses or damages is hereby expressly excluded.
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18. Exclusivity
18.1. Each Party (which, for the purpose of this clause is referred to as the "Representing Party") hereby represents to the other Party that:
18.1.1.Upon the signing of this Agreement, the Representing Party will terminate any discussions or negotiations with any party other than a Party to this Agreement ("Third Party"), which relate to the Joint Venture or to the Project ("Third Party Discussions"), in which the Representing Party, or any employee, agent, advisor, contractor or other representative of the Representing Party, may be engaged.
18.1.2.While this Agreement is in effect, the Representing Party will not, directly or indirectly:
18.1.2.1. Engage in any Third-Party Discussions; or
18.1.2.2. Invite, encourage, seek, or otherwise solicit any Third Party to engage in Third-Party Discussions; or
18.1.2.3. Respond to any invitation or solicitation from any Third Party in relation to any Third-Party Discussions (except to explicitly reject such invitation or solicitation); or
18.1.2.4. Enter into any agreement, memorandum of understanding, heads of agreement, letter of intent, or other arrangement with any Third Party in relation to any Third-Party Discussions (whether legally binding or non-binding).
18.1.3. The Representing Party will ensure that any employee, agent, advisor, contractor, or other representative of the Representing Party also complies with the obligations under this clause.
18.2. For the sake of clarity, "Third Party Discussions" do not include discussions or negotiations in which the Representing Party may engage with any Third Party in order to pursue the Business in good faith and in the spirit of this Agreement.
19. Force Majeure
19.1. If and to the extent that a Party's performance of any of its obligations under this Agreement, is hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party (each, a "Force Majeure Event"), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered, or delayed by a Force Majeure Event will immediately notify the other Parties of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.
19.2. If the Force Majeure Event continues for a continuous period exceeding 30 (thirty) days, the Parties shall mutually agree on the future course of action. However, despite all efforts made by the Parties in good faith, if the Force Majeure Event continues for a period of 90 (ninety) days, either of the Parties shall have the right to terminate this Agreement by giving the other Parties notice of termination in writing.
20. Non-solicitation
20.1. Notwithstanding any provision to the contrary, each of the Parties agree that the Parties (or any Person forming part of the Parties) shall not during the term of this Joint Venture Agreement and for a period of 2 (two) years after termination thereof:
20.1.1. directly or indirectly, partner with or enter into any activity or hire or attempt to hire for any purpose whatsoever (whether as an employee, consultant, advisor, independent contractor, partner or otherwise) any employee or consultant of the other Party;
20.1.2. directly or indirectly, approach, canvass, solicit, or otherwise entice using any incentive whatsoever (whether such incentive is in cash, kind, or a composite of the same or in any other manner), any employees, vendors, customer, consultant, contractor or agent of the other Party.
20.2. The Party breaching the provisions of this clause shall be liable to pay damages to the extent of twice the project amount to the other Parties and the same shall be considered a genuine pre-estimate of the loss suffered by the other Parties due to breach by the said Party.
21. Severability
If any provision of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision that is valid, enforceable, and most nearly gives effect to the original intent of the invalid/unenforceable provision.
22. Entire Agreement
This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings duties or obligations between the Parties with respect to the subject matter hereof.
23. No other rights granted
Nothing in this Agreement is intended to grant any rights under any patent, copyright or other intellectual property rights of any Party in favour of the other, nor shall this Agreement be construed to grant any Party any rights in or to the other Party's Confidential Information, except the limited right to use such Confidential Information in connection with the Project under this Agreement.
24. Amendments
Any change, alteration, amendment, or modification to this Agreement must be in writing and signed by authorized representatives of both the Parties.
25. Dispute resolution
25.1. Any dispute(s) arising out of this Agreement shall, as far as possible, be settled amicably between the Parties hereto failing which the following shall apply:
25.2. Any dispute under this Agreement shall be referred to arbitration by a sole arbitrator to be appointed jointly by the Parties.
25.3. The arbitration proceedings shall be held in ________, Andaman and Nicobar Islands in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force.
25.4. The Parties agree that the arbitration award shall be final and may be enforced as a decree.
25.5. The Parties further agree that subject to the above only the competent courts at ________, Andaman and Nicobar Islands shall have jurisdiction in all matters arising hereunder.
25.6. The Parties further agree to keep the arbitration proceedings and the arbitral award confidential.
25.7. If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable costs and attorneys' fees.
26. Notices
Except as otherwise specified in this Agreement, all notices, requests, consents, approvals, agreements, authorizations, acknowledgements, waivers and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when sent to the address specified in the title clause of this Agreement.
Either Party may change its address for notification purposes by giving the other Party 10 (ten) days' notice of the new address and the date upon which it will become effective.
27. Governing Law
This Agreement and all issues arising out of the same shall be construed in accordance with the laws of India.
28. Conflicts within agreement
28.1. In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:
28.1.1. the terms and conditions in the main body of this Agreement; and
28.1.2. any Schedules.
28.2. Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
29. Announcements
29.1. Subject to clause (b) below, no announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). The parties shall consult on the form and content of any such announcement or other public disclosure, as well as the manner of its release.
29.2. If a party is required to make an announcement or other public disclosure concerning this Agreement or any of the matters contained in it by law, any court, any governmental, regulatory or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction, it may do so. Such a party shall:
29.2.1. notify the other party as soon as is reasonably practicable upon becoming aware of such requirement to the extent it is permitted to do so by law, by the court or by the authority requiring the relevant announcement or public disclosure;
29.2.2. make the relevant announcement or public disclosure after consultation with the other party so far as is reasonably practicable; and
29.2.3. make the relevant announcement or public disclosure after considering all reasonable requirements of the other party as to its form and content and the manner of its release, so far as is reasonably practicable.
30. Further assurance
Each party shall at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.
31. Assignment
No party may assign, subcontract, or encumber any right or obligation under this Agreement, in whole or in part, without the other party's prior written consent; such consent not to be unreasonably withheld or delayed.
32. Set off
Except as expressly set out in this Agreement, each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
33. Equitable relief
Each party recognises that any breach or threatened breach of this Agreement may cause the other party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the other party, each party acknowledges and agrees that the other party is entitled to the remedies of specific performance, injunction, and other equitable relief without proof of special damages.
34. Waiver
34.1. No failure, delay, or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power, or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power, or remedy.
34.2. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power, or remedy.
34.3. A waiver of any term, provision, condition, or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
SIGNED BY THE PARTIES
___________________________
________
___________________________
________
Signed at the behest of the following witnesses:
____________________________________________
Witness-1
Name and Address:
_____________________________________________
Witness -2
Name and Address:
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