Recent contracts drafted
August 29, 2017
ACKNOWLEDGEMENT OF DEBT
September 14, 2017

 

A G R E E M E N T

 

entered into between

 

 

………………………………………………………

(Registration No._______________)

herein represented by

_____________________

(Identity No. _________________)

in his capacity as Director of

……………………………………. (PTY) LTD

 

 

and

 

 

………………………………………………………………

(Registration No._____________)

 

herein represented by

………………………………………..

(Identity No. ______________)

in his capacity as Director of the ……………………………………… (PTY) LTD

NOW THEREFORE:

 

  1. INTERPRETATION
    • In this agreement, unless inconsistent with the context, the following words and expressions shall have the meanings assigned thereto:
      • “this agreement” means the agreement between the parties as recorded in this document together with all schedules and annexures to this document and all amendments and amplifications thereof;
      • “the Auditor” means any partner in the firm of chartered accountants appointed to act as auditors to the Joint Venture,
      • “the commencement date” means the _______ day of __________ 20..;
      • “Deemed Value” means the value of a participant’s Participation as determined by the Valuator in accordance with the provisions of clause 33 hereunder;
      • “joint account” means the account maintained in accordance with the accounting procedure showing the charges and credits accruing to the parties;
      • “Joint Venture” means the contractual joint venture relationship between the parties established in terms of this agreement and governed by the terms and conditions of this agreement;
      • “the Management Committee” means the committee constituted by two representatives of ……………………. and two representatives of ……………………….. in accordance with the provisions of clause 5 of this agreement;
      • “……………………………” means ………………………….. (Proprietary) Limited (registration number _______________ ), a company with limited liability incorporated under the laws of South Africa and with its main place of business at ___________________________________ or any other statutory body or legal entity to which its assets may be transferred;
      • “participant” means ……………………………… and ………………. jointly or individually as the context may indicate;

 

  • “Participation” means in relation to the participation of ………………….. and ………………. in the Joint Venture, the proportion in which the participant concerned shares in the profits and losses of the Joint Venture as well as the value of the participant’s share in the assets of the Joint Venture from time to time;
  • “……………………….” means …………….. (Proprietary) Limited (registration number ……………………), a company with limited liability incorporated under the laws of South Africa and with its main place of business at ____________________________, or any other statutory body or legal entity to which its assets may be transferred;
  • “surplus cash” means all cash generated by the operations of the Joint Venture which is not required to fund …………………. and operating expenditure (as determined by the Management Committee);
  • “the Valuator” means the Auditor of the Joint Venture or, if any of the participants shall object to the Auditor doing the valuation, or if the Auditor shall decline to make the valuation, then the Valuator shall be a chartered accountant agreed upon between the participants or if no chartered accountant can be agreed upon then a chartered accountant nominated by the President for the time being of the South African Institute of Chartered Accountants, Gauteng region or the President for the time being of the successor of such society in the Gauteng;
  • any reference in this agreement to “date of signature hereof” shall be read as meaning a reference to the date of the last signature of this agreement;
  • if any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement;
  • when any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;

 

  • where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
  • expressions defined in this agreement shall bear the same meanings in schedules or annexures to this agreement which do not themselves contain their own definitions;
  • the use of any expression in this agreement covering a process available under South African law such as a winding-up (without limitation eiusdem generis) shall, if any of the parties to this agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;
  • the expiration or termination of this agreement shall not affect such of the provisions of this agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
  • any reference in this agreement to a party shall, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator, trustee or successor, as the case may be.
  1. RECORDAL:

IT IS RECORDED AND AGREED THAT:-

  • ………………………….. is the beneficial owner of the certain know-how and expertise in the promotion, distribution, marketing and sale of mobile software.
  • ……………………….. is the beneficial owner of the certain software known as “………………” and ”…………………”.
  • The parties are desirous of recording the terms and conditions of the Joint Venture in writing.
  1. THE JOINT VENTURE
    • The relationship between …………………….. and ……………………… is that of contractual parties to a joint venture.
    • Nothing contained in this agreement shall constitute either party the partner of the other, nor, except as otherwise herein expressly provided, constitute either party the agent or legal representative of the other, nor create any fiduciary relationship between them. It is not the intention of the parties to create, nor shall this agreement be construed to create, any commercial or other partnership.  Neither party shall have any authority to act for or to assume any obligation or responsibility on behalf of the other party, except as otherwise expressly provided herein.  The rights, duties, obligations and liabilities of the parties shall be several and not joint.  Each party shall be responsible only for its obligations as herein set out and shall be liable only for its share of the costs and expenses as provided for herein, it being the exclusive purpose and intention of the parties that their ownership of assets and the rights acquired hereunder is limited to their undivided shares therein, save as expressly stated to the contrary in this agreement.
    • The Joint Venture is for the purpose of creating and selling of a combined technology value proposition so as to ensure that a complete transaction and financial management system can be offered to prospective clients.
    • ……………………. will make available to the Joint Venture the know-how and expertise in the promotion, distribution, marketing and sale of software free of any charge or at such a charge as the Management Committee shall decide.
    • ………………… will make available to the Joint Venture its technology free of any charge or at such a charge as the management Committee may decide.
    • The Participations of the respective parties to the Joint Venture shall be determined by the parties for each project of the Joint Venture individually.
    • The financial year of the Joint Venture shall terminate on the last day of February in each year or on a date agreed to in writing by the parties.
  2. COMMENCEMENT DATE AND PERIOD

The Joint Venture shall be deemed to have commenced on the commencement date, notwithstanding the date of execution hereof and shall continue, subject to clause 9.3, for a period of 10 (ten) years from the commencement date (“termination date”), whereafter it will automatically renew unless the parties agree in writing to terminate this agreement at least 6 (six) months prior to the termination date.

  1. MANAGEMENT COMMITTEE
    • The affairs of the Joint Venture shall be controlled by the Management Committee.
    • All decisions of the Management Committee shall be unanimous.

 

  • The Management Committee shall comprise of 2 (two) representative of the …………………..and 2 (two) representatives of …………………… Every member of the Management Committee will have specialised knowledge and proficiency in one or more aspects of the business of the Joint Venture so that the Management Committee will have the necessary expertise and technical knowledge to manage all aspects of the business of the Joint Venture efficiently.
  • Proper minutes shall be kept of all proceedings of the Management Committee.
  • Unless the parties otherwise agree, the meetings of the Management Committee will be held in Johannesburg or such other suitable venue close to the operations of the Joint Venture. All reasonable costs of attending Management Committee meetings shall be borne by the Joint Venture.
  • There will not be a quorum for the making of any decision of the Management Committee unless at least one member representing ………………………… and one member representing …………………. participates in making that decision.
  • The Management Committee shall meet whenever necessary after at least 2 (two) days’ notice in writing, which may be given by any party hereto, for the proper conduct of the business of the Joint Venture, but in any event not less than once monthly. Notice of a meeting may be waived by both parties to deal with urgent business.
  • The Management Committee shall appoint ___________________ as the person that will be responsible for the management of the day-to-day operations of the business of the Joint Venture.
  • The management committee shall procure that accounts are audited for every year within three months of the end of that year by the Auditor on the basis that the Auditors will co-operate fully to provide the respective auditors of the parties with such information as they may require. The respective auditors of the parties shall in any event have unrestricted access to inspect and examine all financial and other records of the Joint Venture at all reasonable times including (without limitation) all documents and records relating to the assets of the Joint Venture.

 

  • Both parties shall at all times take all the actions necessary to as expeditiously as possible resolve any operational issues.
  • ENGAGEMENT OF MANAGER
    • The Joint Venture will engage ___________________ or such other person appointed, subject to the prior written approval of both parties, by ………………………… from time to time, to manage the day-to-day affairs of the conduct of the Joint Venture’s business within the framework and in accordance with the guidelines determined by the parties from time to time, subject to the conditions contained in this clause 6.
    • In carrying out his duties as manager, _____________________ shall give effect to all decisions made by the Management Committee from time to time and report fully to the Management Committee and provide them with substantiating documents and records of all transactions concluded in the conduct of the business of the Joint Venture and any other matters reasonably required by the Management Committee from time to time, including (without limitation) all expenses incurred and revenue earned in the conduct of the Joint Venture’s business.
    • ___________________ shall devote such portion of his time as shall be necessary  or  desirable for the performance of his duties hereunder.
    • ______________________ shall comply with all applicable law, policies and procedures, especially those relating to ITC matters as determined by the parties from time to time and will subscribe to and sign all documentation relating to risk control issues as laid down by the Management Committee  from time to time.
  • ENGAGEMENT OF ACCOUNTANT
    • The Joint Venture appoints ____________________ to attend to the financial administration and control of the Joint Venture’s business, subject to the terms and conditions hereinafter set out.
    • ______________________________ shall cause proper books of account and records to be kept recording all transactions and matters reasonably required to be recorded in accordance with generally accepted accounting practices.
    • _____________________________ shall be paid such reasonable remuneration as may be agreed between it and the Management Committee from time to time. The initial fee will be R_____________ (___________________ Rand) per month excluding VAT.
  • EXPENDITURE

The Joint Venture shall be responsible for and shall bear all expenses incurred in the conduct of the business of the Joint Venture and any amounts expended by either …………………. or ………………. on behalf of the Joint Venture shall be recoverable from the Joint Venture in equal shares, provided that such amounts were approved by the Management Committee.

  • PRODUCTION OF INCOME

The business of the Joint Venture shall be conducted on the basis that it shall design, build and sell financial and transactional solutions.

  • PROFITS AND LOSSES AND …………………………… CONTRIBUTIONS

10.1   All or any profits made and all or any losses incurred by the Joint Venture in the conduct of its business or any ………………….. contributions to be made to the Joint Venture  during the terms of this agreement shall be shared or borne equally between ……………….. and …………………..

  • In the event that any of the Parties are unable or unwilling to supply the required ……………………… or funding, another Shareholder (“the Funder”) may elect to provide the ……………………… or funding on the terms and conditions agreed by negotiation between the Funder and the Management Committee. In the event that none of the Parties is able or willing to provide such funding and funding is sought from a third party, any sureties or security required in respect of such funding from any of the Parties shall be provided by the Parties proportionate to their shareholdings in the Company.

10.3   After the initial six months of operation, an analysis of how The Joint Venture has been able to meet its initial goals will be made by the Management Committee and a decision taken as to whether or not The Joint Venture should proceed with the Business. It is anticipated that the initial …………………… raised will enable The Joint Venture to reach that point and no further. At that stage, if a decision is made to progress with the Business, another round of fund-raising / ……………….-raising will probably take place. In such a case, the Parties will have the option to either: participate and retain profit sharing percentage; or face dilution as further funders take up profit share.

10.4   Any profits which may be realised and all or any contributions which may be required to be made shall be distributed to or contributed by (as the case may be) ………………….. and ………………… as and when determined by the Management Committee from time to time, provided that in the event of the Management Committee being unable to reach agreement as to the amount of or the date for payment of any contribution or distribution then such dispute shall be summarily determined by the chairman for the time being of the South African Institution of Chartered Accountants of Gauteng whose decision (acting as an expert and not as an arbitrator) shall be final and binding on the parties.

  • SUNDRY MUTUAL OBLIGATIONS

11.1   All books of account, papers and documents and other records belonging to the Joint Venture shall at all times be accessible to …………………………. and ………………. or their duly authorised agents.

11.2  ………………… and ………………… shall use their best endeavours to promote the interests of the Joint Venture and each of them shall be just and faithful to the other of them in all transactions relating to the business of the Joint Venture and shall give a true account of the same to such other party as often as reasonably required.

  • No party shall, without the prior written consent of the other:
    • draw, accept or sign any bill of exchange or promissory note or contract any debt on account of the Joint Venture or employ any of the monies or effects thereof or in any manner pledge the credit thereof except in the usual and regular course of the business of the Joint Venture but provided that such bill of exchange, promissory note, contract, employ of the monies or pledge does not exceed an amount of R ………… (……………….Rand); and
    • compound, release or discharge any debt which shall be due or owing to the Joint Venture, without receiving the full amount thereof, or assign or mortgage its share or interest in the Joint Venture.
    • Do or knowingly permit anything to be done whereby the property of the Business or any portion thereof may be attached or taken in execution;
    • Cede or in any way dispose of or encumber any of the fixed assets of the Business, including any intellectual property, other than in the normal and reasonable course of business;
    • Use the property of the Business or bind or render the Business liable in any matter, except in the ordinary course of business;
    • Have any dealings of behalf of the Business with any person, company, partnership or association with whom the Management Committee had decided not to deal with.
    • The Parties agree that there is a restriction on their ability to compete with each other, for a period of 18 months following the termination of this agreement. The parties agree that they will not compete in any way with Joint Venture anywhere in the world without the prior written approval of Joint Venture. Such approval shall be provided at the sole discretion of Joint venture. Such restraint applies to the members of the Management Committee individually, together and/or with others, directly or indirectly. These restrictions are intended to prohibit the members of the Management Committee from collaborating or working in concert with any other person in any manner in competition with the Business anywhere in the world without the prior written approval of joint venture.
  • BREACH

12.1   If any party breaches any provision or term of this agreement and fails to remedy such breach within 14 (fourteen) days of the receipt of written notice requiring it to do so, then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at law or under this agreement, including obtaining an interdict, to cancel this agreement; and

12.1.1   if the aggrieved party is ………………… to require ………………. to sell its Participation to …………………….. or a third party approved by …………….. in writing at purchase price equal the Deemed Value thereof as at the date the agreement is cancelled; or

12.1.2     if the aggrieved party is ………………….., ……………….. may elect to sell its Participation to ………………………., in writing at a purchase price equal to the Deemed Value thereof as at the date the agreement is cancelled;

or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved party’s right to claim damages.

12.2   In addition to the provisions set out in clause 11.1, if any party fails to remedy the breach contemplated in the notice referred to in clause 11.1 above within 7 (seven) days from the date of such written notice or a shorter period in instances where time is of the essence then the aggrieved party shall be entitled to take whatever steps may be reasonably necessary, including appointing third party contractors, to mitigate the damages and/or losses that the aggrieved party may suffer as a result of such breach.  All of the costs resulting from the aforegoing mitigating steps taken by the aggrieved party shall be debt due by the party in breach to the aggrieved party (“mitigating costs”).  The party in breach will pay the mitigating costs, or if such costs amount to a cost of the joint venture its 50% (fifty per cent) share thereof, within 10 (ten) days from the date upon which the aggrieved party notify it in writing of the amount of the mitigating costs and how the amount was made up.  Notwithstanding the latter provision, the aggrieved party may elect for the amount of the mitigating costs to be deducted from any amount due to the other party in terms of this agreement.

  • In the event that the aggrieved party elects one of the options in clause 0 or 0 then the parties will appoint the Valuator to determine the Deemed Value of the Participation of the selling party and the purchasing party shall pay the purchase price in cash of the Participation within 10 (ten) days of the Valuator notifying the parties of the Deemed Value thereof. If the Valuator is appointed to determine the Deemed Value of any party’s Participation in the Joint Venture, such Valuator shall be obliged to value such Participation in the manner set forth in Annexure B
  • It will be breach by a party of its respective obligations under this agreement, all of which will be deemed to be material,
    • if the party:
      • commits an act which is or would (if committed by a natural person) be an act of insolvency within the meaning of section 8 of the Insolvency Act, 1936 or section 344 of the Companies Act, 1973; or
      • allows any judgment against it to remain unsatisfied for a period of 14 (fourteen) days after it becomes aware thereof, or if it fails within such period to apply for the rescission of such judgement or to appeal against the judgement and thereafter it fails to prosecute such rescission or appeal either expeditiously or al all; or
      • compromises or attempts to compromise the debt owing by it to its creditors generally; or
      • is provisionally or finally sequestrated or placed in provisional or final voluntary or compulsory liquidation or under provisional or final judicial management; or
      • being a juristic person, undergoes a change of control;
    • THE AUDITOR
      • The Auditor of the Joint Venture shall be the appointed by the Management Committee.
      • Whenever the Auditor acts in terms of this agreement, he shall act as an expert and not as an arbitrator and his determinations, decisions and certificates shall be final and binding upon the parties affected thereby.
      • The parties do hereby waive and abandon all and/or any claims which all and/or any of them may have against the Auditor arising out of the determination or decisions made or certificates given in good faith by the Auditor pursuant to the provisions of this agreement.
    • TAXATION
      • The Management Committee shall be responsible for attending to the payment of all duties and taxes of every kind (except income tax, but including in particular value added tax) assessed or levied upon the operations.
      • Each party will be directly responsible for and shall pay directly all taxes applicable to such party in South Africa (or elsewhere where operations are conducted) in accordance with the operations. In particular, each party shall individually file its own South African tax returns with the relevant authorities and independently file pertinent claims, including allowances, and recover tax credits.  Any section and the results thereof which a party may take in respect of any such tax matters shall always take place independently of the other party.
    • ARBITRATION
      • Save in respect of those provisions of the agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises in regard to –
        • the interpretation of; or
        • the carrying into effect of; or
        • any of the parties’ rights and obligations arising from; or
        • the termination or purported termination of or arising from the termination of; or
        • the rectification or proposed rectification of this agreement, or out of or pursuant to this agreement or on any matter which in terms of this agreement requires agreement by the parties, (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction).
      • That arbitration shall be held –
        • with only the parties and their representatives other than legal representatives, present thereat;
        • in Johannesburg in Republic of South Africa.

It is the intention that the arbitration shall, where possible, be held and concluded in 21 (twenty one) working days after it has been demanded.  The parties shall use their best endeavours to procure the expeditious completion of the arbitration.

  • Save as expressly provided in this agreement to the contrary, the arbitration shall be subject to the arbitration legislation for the time being in force in South Africa
  • The arbitrator shall be, if the matter in dispute is principally –
    • a legal matter, an impartial practising advocate of not less than 10 (ten) years’ standing, or an impartial admitted attorney of not less than 10 (ten) years’ standing;
    • an accounting matter, an impartial practising chartered accountant of not less than 10 (ten) years’ standing;
    • any other matter, an independent person agreed upon between the parties.
  • If the parties fail to agree on an arbitrator within 3 (three) days after the arbitration has been demanded, the arbitrator shall be nominated, at the request of either of the parties by the President for the time being of the Law Society of South Africa. If that person fails or refuses to make the nomination, either party may approach the High Court of South Africa to make such an appointment.  To the extent necessary, the court is expressly empowered to do so.
  • If the parties fail to agree whether the dispute is of a legal, accounting or other nature within 3 (three) days after the arbitration has been demanded, it shall be considered a matter referred to in clause 4.3.
  • The arbitrator shall have the fullest and freest discretion with regard to the proceedings save that he shall be obliged to give his award in writing fully supported by reasons. His award shall be final and binding on the parties to the dispute save that a party shall be entitled to apply to the High Court of South Africa to set aside the award in regard to question of law/fact/both.
  • Furthermore the arbitrator –
    • may by notice to the parties within 7 (seven) days after his appointment, dispense wholly or in part with formal submissions or pleadings provided that the parties are given the opportunity to make submissions;
    • shall determine the applicable procedure and shall not be bound by strict rules of evidence;
    • shall allow any party to the arbitration to call any witnesses he determines and shall permit cross examination of witnesses;
    • may, in addition to any other award he may be able to make or determine –
      • that a party has lawfully cancelled or is entitled lawfully to cancel this agreement or require specific performance, with an award of damages without an award of damages
      • award interest with effect from any date, and on any other basis, he considers appropriate in the circumstances;
    • shall make such order as to costs as he deems just.
  • Either party shall be entitled to have the award made an order of court of competent jurisdiction.
  • Any dispute shall be deemed to have been referred or subjected to arbitration hereunder when either party gives written notice to the other of the dispute, demands an arbitration and requests agreement on an arbitrator.
  • The provisions of this clause are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.
  • The parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential unless otherwise contemplated herein.
  • ASSIGNMENT
    • ……………………….. shall not be entitled to cede any of its rights or delegate any of its obligations in terms of this agreement without the prior written consent of ………………, which consent it undertakes shall not be unreasonably withheld. This clause shall be binding on the liquidator/judicial manager/trustee (whether provisional or not) of ………………………………..
    • …………………… shall not be entitled to cede any of its rights or delegate any of its obligations in terms of this agreement without the prior written consent of …………………….., which consent it undertakes shall not be unreasonably withheld. This clause shall be binding on the liquidator/judicial manager/trustee (whether provisional or not) of …………………………………
  • CONFIDENTIALITY AND PUBLICITY

Any information obtained by either party to this agreement in terms, or arising from the implementation, of this agreement shall be treated as confidential by the party and shall not be used, divulged or permitted to be divulged to any person not being a party to this agreement, without the prior written consent of the other party save that –

  • each party shall be entitled to disclose such information to such of its employees (which shall include any of its directors) and/or contractors who need to know for the purposes of this agreement. Before revealing such information to any such employees and/or contractors, it undertakes to procure that the employees and/or contractors are aware of the confidential nature of the information being made available to them;
  • any information which is required to be furnished by law or by existing contract or by any stock exchange on which the shares of either party to this agreement are listed may be so furnished;
  • either party shall be entitled (after consultation with the other party so as to avoid embarrassment or prejudice to the extent possible) to make such information available to its shareholders as may be necessary to enable such shareholders to consider the value and prospects of their shareholdings;
  • neither party shall be precluded from divulging any information to any person who is negotiating with such party for the acquisition of an interest in such party, provided that the person to whom any disclosure is made in the aforesaid circumstances shall first have undertaken in writing not to divulge such information to any other person and to use it only for the purpose of evaluating the business;
  • no party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it.
  • EXECUTION IN COUNTERPARTS

This agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.

  • LEGAL COSTS

Each party will bear its own cost in respect of and incidental to the preparation of this agreement (including prior drafts and consultations).

  • DOMICILIUM CITANDI ET EXECUTANDI
    • The parties choose as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses :
      • ………………………………………………..(PROPRIETARY) LIMITED

 

Physical: ……………………………………………………………………

 

 

Postal: ……………………………………………………………………….

 

 

Telefax: ………………………………………………………………………

 

 

E-mail: ……………………………………………………………………….

 

  • ……………………………………………………(PROPRIETY) LIMITED

 

Physical: ……………………………………………………………………..

 

 

Postal: ………………………………………………………………………..

 

 

Telefax: ………………………………………………………………………

 

 

E-mail: ………………………………………………………………………..

 

  • Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice by telefax or e-mail.
  • Either party may by notice to the other party change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in South Africa or its postal address or its telefax number or e-mail address, provided that the change shall become effective on the 5th business day from the deemed receipt of the notice by the other party.
  • Any notice to a party –
    • sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 5th business day after posting (unless the contrary is proved);
    • delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
    • sent by telefax to its chosen telefax number stipulated in clause 1, shall be deemed to have been received on the date of despatch (unless the contrary is proved); or
    • sent by e-mail to its chosen e-mail address stipulated in clause 1, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
  • Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
  • FORCE MAJEURE
    • If vis major or force majeure or casus fortuitus (“the interrupting circumstances”) cause delays in or failure or partial failure of performance by a party of all or any of its obligations hereunder, this agreement, or as the case may be, the affected portion thereof shall be suspended for the period during which the interrupting circumstances prevail, but if the interrupting circumstance affects any material part of the agreement for a period exceeding 7 (seven) days, any party shall be entitled on 10 (ten) days’ written notice to the other party to cancel this agreement.
    • Written notice of the interrupting circumstances specifying the nature and date of commencement thereof shall be despatched by the party seeking to rely thereon (on whom the onus shall rest) to the other as soon as reasonably possible after the commencement thereof. Written notice of the cessation of the interrupting circumstances shall be given by the party who relied thereon within 7 (seven) days after such cessation.
    • For the purposes hereof vis major and force majeure include acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts of war or public enemy, illegal strikes, interruption of transport, lockouts, inability on the part of the seller as a result of force majeure of the nature contemplated in this clause to obtain the goods from the supplier or contemplated supplier thereof, combination of workmen, prohibition of exports, rationing of supplies, flood, storm, fire or (without limitation eiusdem generis) any other circumstances beyond the reasonable control of the party claiming force majeure or vis major and comprehended in the terms force majeure or vis major but does not include for the avoidance of doubt any failure by a third party supplier of any party unless the third party supplier is itself subject to force majeure or vis major.
  • GOVERNING LAW

This agreement shall be governed by and interpreted in accordance with the substantive laws of South Africa.

  • SEVERABILITY

Any provision in this agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this agreement, without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

  • WHOLE AGREEMENT, NO AMENDMENT
    • This agreement constitutes the whole agreement between the parties relating to the subject matter hereof.
    • No amendment or consensual cancellation of this agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising under this agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
    • No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against any party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this agreement.
    • To the extent permissible by law no party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.

 

 

 

 

 

 

 

SIGNED by the parties and witnessed on the following dates and at the following places respectively:

 

SIGNED AT ……………………………………….ON THIS …………DAY OF ………………………………. 20..

 

 

WITNESSES:

 

  1. ……………………………………….

 

  1. ……………………………………….

 

 

SIGNATURE FOR ………………………………………………………. PROPRIETARY LIMITED

 

 

………………………………………………………………………………………………………………………..

 

 

 

SIGNED AT ………………………………………ON THIS …………DAY OF ………………………………. 20..

 

WITNESSES:

 

  1. ……………………………………….

 

  1. ……………………………………….

 

 

SIGNATURE FOR ………………………………………………………. PROPRIETARY LIMITED

 

 

………………………………………………………………………………………………………………………

 

 

 

 

 

 

 

 

 

 

 

 

ANNEXURE A

DETAILS OF ASSETS TRANSFERRED / SHARED

 

 

 

 

 

 


ANNEXURE B

 

  1. In determining the value of a party’s Participation for the purpose of arriving at the Deemed Value thereof, the Valuator shall determine the fair and reasonable market value of such party’s Participation on the date of termination of the agreement,

 

  1. The Valuator will allow each Party a reasonable period of time to make written representations in respect of the fair and reasonable market value of the applicable Participation.

 

  1. In calculating the said value the Valuator will not take into account any deemed interest payable in respect of amounts credited to each Party’s …………………… account in the financial records of the Joint Venture.

 

  1. The Valuator shall be obliged to give its determination, with reasons in writing.

 

  1. The Valuator shall act as expert and not as an arbitrator and the award of the Valuator shall be final and binding on the parties.

 

  1. The Valuator shall determine the liability of the Participants for his charges.

 

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