Collaboration Agreement - ImpactHer RSA
1 PARTIES 2 2 INTERPRETATION 2 3 INTRODUCTION 2 4 COMMENCEMENT AND DURATION 2 5 COLLABORATION AND CO-OPERATION 2 6 EXISTING ARRANGEMENTS 2 7 PROPOSALS AND PROJECTS 2 8 CUSTOMERS 2 9 INFORMATION FLOW AND PROJECT MANAGEMENT 2 10 CHARGES 2 11 INVOICING AND PAYMENT 2 12 SET-OFF 2 13 CONFIDENTIALITY 2 14 ANNOUNCEMENTS 2 15 DATA PROTECTION 2 16 INTELLECTUAL PROPERTY 2 17 EMPLOYEES AND NON-SOLICITATION 2 18 TERMINATION OF A PROJECT 2 19 TERMINATION OF AGREEMENT 2 20 CONSEQUENCES OF TERMINATION 2 21 GENERAL WARRANTIES 2 22 SUPPORT 2 23 FORCE MAJEURE 2 24 BREACH 2 25 DISPUTE RESOLUTION 2 26 NOTICES AND DOMICILIA 2 27 BENEFIT OF THE AGREEMENT 2 28 APPLICABLE LAW AND JURISDICTION 2 29 NO PARTNERSHIP 2 30 GENERAL 2 31 COSTS 2 32 SIGNATURE 2
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ANNEXURES
Annexure A - Project Schedule Template
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1 PARTIES
1.1 The Parties to this Agreement are –
1.1.1 ; and
1.1.2 .
1.2 The Parties agree as set out below.
2 INTERPRETATION
2.1 In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –
2.1.1 "AFSA" means the Arbitration Foundation of Southern Africa;
2.1.2 "Agreement" means the Agreement contained in this document, including all annexures (if any) hereto;
2.1.3 "Charges" means any charges payable by a Party to the other Party in relation to a Project (if any), as set out in each case in a Project Schedule;
2.1.4 "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a company, whether through the ownership of voting securities (or other ownership interests), by contract or otherwise, and (without derogating from the generality of the aforegoing) includes –
2.1.4.1 owning (directly or indirectly) the majority of the issued ordinary shares or membership interests of such company; and/or
2.1.4.2 controlling (directly or indirectly) the majority of voting rights in relation to such company; and/or
2.1.4.3 the right to appoint or to procure the election of so many directors on the board of directors or so many trustees or so many other individuals (who, in relation to such company perform a similar decision making function as directors perform in respect of a company and as trustees perform in respect of a trust), as the case may be, of such company as controls or control the majority of the voting rights of all such directors, trustees or individuals, as the case may be,
and the terms "Controls", "Controlled' and the expression "Change of Control" shall be construed accordingly;
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2.1.5 "Focus" means ;
2.1.6 "Input" means, in relation to a Party, the services, resources, workforce or other tangibles or intangibles that such Party provides in accordance with this Agreement in relation to a Project, as set out in a Project Schedule.
2.1.7 "Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
2.1.8 "Parties" means the Parties to this Agreement;
2.1.9 "[Party 1]" means [insert name], registration number [insert registration number], a company duly incorporated in [insert country of incorporation];
2.1.10 "[Party 2]" means [insert name], registration number [insert registration number], a company duly incorporated in [insert country of incorporation];
2.1.11 "Project" means the project agreed by the Parties in accordance with 7, in relation to which the Parties will collaborate in accordance with this Agreement, as further described in a particular Project Schedule;
2.1.12 "Project Period" means, subject to the duration of this Agreement recorded in clause 4 or the earlier termination in accordance with this Agreement, the period from the start date to the end date for a Project, as set out in a Project Schedule;
2.1.13 "Project Schedule" means a document specifying particulars in relation to a particular Project, agreed by the Parties in accordance with clauses 5 and 7, and taking the form of the template schedule attached hereto as "Annexure A";
2.1.14 "Signature Date" means the date of signature of this Agreement by the Party last signing;
2.1.15 "VAT" means value-added tax as levied from time to time in terms of the VAT Act; and 2.1.16 "VAT Act" means the Value-Added Tax Act, No 89 of 1991.
2.2 In this Agreement —
2.2.1 clause headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation;
2.2.2 an expression which denotes —
2.2.2.1 any gender includes the other genders;
2.2.2.2 a natural person includes a juristic person and vice versa;
2.2.2.3 the singular includes the plural and vice versa;
2.2.2.4 a Party includes a reference to that Party's successors in title and assigns allowed at law; and
2.2.2.5 a reference to a consecutive series of two or more clauses is deemed to be inclusive of both the first and last mentioned clauses.
2.3 Any reference in this Agreement to –
2.3.1 "business hours" shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
2.3.2 "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
2.3.3 "laws" means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgements, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; Agreements with, requirements of, or instructions by any Governmental Body; and the common law, and "law" shall have a similar meaning; and
2.3.4 "person" means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality.
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2.4 The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
2.5 Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause 2 or elsewhere in this Agreement, shall be given effect to as if it were a substantive provision in the body of the Agreement.
2.6 Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.
2.7 Unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.
2.8 A reference to any statutory enactment shall be construed as a reference to that enactment as at the Signature Date and as amended or substituted from time to time.
2.9 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
2.10 Except to the extent that any provision of this Agreement expressly provides otherwise, if the only day or the last day for the exercise of any right, performance of any obligation or taking (or procuring the taking of) any action in terms of any provision of this Agreement falls on a day which is not a business day, such right shall be capable of being exercised, or such obligation performed or action taken on the immediately succeeding business day.
2.11 The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
2.12 No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement.
2.13 The use of any expression in this Agreement covering a process available under South African law, such as winding-up, shall, if either 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 other jurisdiction.
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2.14 Any reference in this Agreement to "this Agreement" or to any other Agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other Agreement or document, as amended, varied, novated or supplemented from time to time.
2.15 In this Agreement the words "clause" or "clauses" and "annexure" or "annexures" refer to clauses of and annexures to this Agreement.
3 INTRODUCTION
3.1 [Party 1] carries on, inter alia, the business of [●].
3.2 [Party 2] carries on, inter alia, the business of [●].
3.3 The Parties to this Agreement wish to establish a framework to govern their respective rights and obligations in relation to particular Projects in respect of which they wish to co-operate, where such Projects fall within the Focus of this Agreement.
3.4 The Parties wish to record in writing the terms and conditions which will apply to the conduct and implementation of the Projects and to record their respective rights, duties and obligations.
4 COMMENCEMENT AND DURATION
This Agreement shall commence on the Signature Date and shall continue for a term of [insert time period in years or months], unless terminated earlier in accordance with this Agreement.
5 COLLABORATION AND CO-OPERATION
5.1 The Parties shall co-operate within the Focus of this Agreement in relation to Projects.
5.2 The Parties shall collaborate in relation to Project Schedules agreed in accordance with 7.
6 EXISTING ARRANGEMENTS
6.1 Nothing in this Agreement shall restrict either Party's right to continue to conduct its business activities or arrangements that existed on the Signature Date or that otherwise come into being outside the scope of this Agreement.
6.2 However, as the Parties will be working together in relation to Projects where each Party may have access to information or Intellectual Property Rights of the other, each Party acknowledges that the other Party will need to protect such information and Intellectual Property Rights in accordance with 13 and use 16.
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7 PROPOSALS AND PROJECTS
7.1 The Parties agree that the terms of this Agreement shall apply when either Party ("Proposing Party") wishes to propose to the other Party ("Receiving Party"), a Project falling within the scope of the Focus.
7.2 A Proposing Party may submit a proposal for a proposed Project falling within the scope of the Focus to the Receiving Party at any time. The proposal shall contain high level details of the proposed Project, including an indication of the Parties' likely respective Inputs and any Charges the Proposing Party intends to make for its own Inputs (if applicable).
7.3 On receipt of a proposal, the Receiving Party shall consider it, provide the Proposing Party with its comments and the Parties shall then discuss whether they wish to formalise the proposal so that it becomes a Project. Either Party may, in its absolute discretion, decline to agree to formalise a proposal into a Project.
7.4 In order to formalise a proposal into a Project:
7.4.1 either Party may submit to the other a draft Project Schedule. Such document shall be based substantially on the template Project Schedule set out in Annexure A of this Agreement but it may include additional matters or exclude matters contained in the template that are not relevant to the particular Project;
7.4.2 each Party may elect to sign the Project Schedule or decline to do so. A Project Schedule shall not have operative effect under this Agreement unless it is signed by both Parties. Once signed by both Parties, a Project Schedule becomes part of the Agreement.
7.5 A Project Schedule that has been signed by both Parties may be amended at any time in accordance with clause 30.2.
7.6 Unless terminated earlier in accordance with this Agreement, each Project Schedule has contractual effect during the applicable Project Period.
7.7 Each Party shall in relation to the obligations allocated to it in a Project Schedule agreed in accordance with this clause:
7.7.1 perform such obligations, including by providing the Inputs in accordance with timeframes or milestones (if any) specified in the Project Schedule;
7.7.2 use reasonable care and skill in performing such obligations;
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7.7.3 comply with good industry practice;
7.7.4 comply with all laws applicable to it;
7.7.5 obtain and maintain consents, licences and permissions (statutory, regulatory, contractual or otherwise) that are necessary to enable it to comply with such obligations;
7.7.6 ensure that the Inputs it provides conform with descriptions and specifications (if any) set out in the applicable Project Schedule; and
7.7.7 if on the other Party's premises, comply with that Party's health and safety and site regulations made known to it.
7.8 Each Party shall ensure that it uses employees in performing its obligations under a Project Schedule who are suitably qualified and experienced.
8 CUSTOMERS
8.1 Each Party agrees that it has no right to bind the other Party in contract or otherwise in relation to any customers of either Party, and it shall not represent that it has such right.
8.2 Neither Party has the right to bind the credit of the other Party in any manner whatsoever.
8.3 Nothing in this Agreement constitutes one Party a partner, employer, employee or agent of the other Party in relation to either Party's customers.
8.4 Neither Party may provide to any of its customers any information, or make any representation, relating to the other Party's products or services, unless that information or representation is approved in writing by that Party for use in those circumstances.
9 INFORMATION FLOW AND PROJECT MANAGEMENT
9.1 To enable the Parties to maximise the benefits of their collaboration, each Party shall: 9.1.1 engage the other in planning discussions in relation to the Focus from time to time; 9.1.2 keep the other Party informed about its own progress in relation to each Project; and
9.1.3 facilitate regular discussions between appropriate members of its personnel and those of the other Party in relation to each Project, including in relation to:
9.1.4 performance and issues of concern in relation to each Project; 9.1.5 new developments and resource requirements;
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9.1.5.1 compliance with deadlines; and
9.1.5.2 such other matters as may be agreed between the Parties from time to time. 9.2 Each Party shall:
9.2.1 supply to the other Party information and assistance reasonably requested by it relating to a Project as is necessary to enable that other Party to perform its own obligations in relation to the Project; and
9.2.2 review documentation, including draft specifications or service descriptions or other technical documentation, for use when performing its obligations in relation to a Project (if any), as soon as reasonably practicable at the request of the other Party, and notify it of any errors or incorrect assumptions made in any such documents so far as it is aware.
10 CHARGES
10.1 Except as provided for in 10.2, a Party shall:
10.1.1 not be entitled to charge the other Party for the provision of anything (including Inputs) it provides in connection with each Project and this Agreement; and
10.1.2 be otherwise responsible for its own costs incurred in connection with each Project and this Agreement, including all Inputs it provides.
10.2 If a Project Schedule provides that a Party is responsible for paying the other Party any Charges, such Charges shall be invoiced and paid for in the currency specified in the Project Schedule in accordance with 11.
11 INVOICING AND PAYMENT
11.1 If a Project Schedule provides that a Party will pay the other Party any Charges in relation to a Project, the other Party may issue invoices for such Charges:
11.1.1 in accordance with the invoicing procedure (if any) provided for in the Project Schedule; or
11.1.2 if no invoicing procedure is provided for in the Project Schedule, at the end of each calendar month.
11.2 Unless otherwise provided in a Project Schedule, the Charges specified in a Project Schedule are exclusive of VAT, which shall be included in invoices and payable, if applicable, in addition to the Charges.
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11.3 A Party shall pay an invoice issued to it in accordance with this Agreement within 30 days of the date of receiving the invoice.
12 SET-OFF
All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as may be required in accordance with any laws) and Charges for any Project shall be accounted for separately from any other Project.
13 CONFIDENTIALITY
13.1 "Confidential Information" means all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives or advisers (collectively "Representatives") to the other Party and that Party's Representatives whether before or in connection with the Focus or any Project, including information which:
13.1.1 relates to the terms of this Agreement or any agreement entered into in connection with the Focus or a Project;
13.1.2 would be regarded as confidential by a reasonable business person relating to:
13.1.2.1 the business, assets, affairs, customers, clients, suppliers, or plans of the disclosing Party; and
13.1.2.2 the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing Party;
13.1.3 is developed by the Parties in the course of carrying out this Agreement or any Project; and
13.1.4 may be specified as confidential in any Project Schedule.
13.2 The provisions of this clause shall not apply to any Confidential Information that:
13.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the Receiving Party or its Representatives in breach of this clause); or
13.2.2 was available to the Receiving Party on a non-confidential basis before disclosure by the disclosing Party; or
13.2.3 was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party's knowledge, is not bound by a confidentiality
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Agreement with the disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party; or
13.2.4 the Parties agree in writing is not confidential or may be disclosed.
13.3 Each Party shall keep the other Party's Confidential Information confidential and shall not:
13.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement in relation to the Focus and any Project ("Permitted Purpose"); or
13.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
13.4 A Party may disclose the other Party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
13.4.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
13.4.2 it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a Party to this Agreement,
and at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this clause 13.
13.5 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority and to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.
13.6 On termination of this Agreement, each Party shall:
13.6.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party's Confidential Information;
13.6.2 erase all the other Party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third Parties (to the extent technically practicable); and
13.6.3 certify in writing to the other Party that it has complied with the requirements of this clause, provided that a recipient Party may retain documents and materials containing,
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reflecting, incorporating or based on the other Party's Confidential Information to the extent required by law. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient Party.
13.7 The provisions of this 13 shall continue to apply after termination of this Agreement. 14 ANNOUNCEMENTS
14.1 Subject to clause 14.3, each Party undertakes to keep confidential and not to disclose to any third party, save as may be required in law (including by the rules of any recognised securities exchange, where applicable) or permitted in terms of this Agreement, the nature, content or existence of this Agreement and any and all information given by a Party to the other Party pursuant to this Agreement.
14.2 No announcements of any nature whatsoever will be made by or on behalf of a Party relating to this Agreement without the prior written consent of the other Party, save for any announcement or other statement required to be made in terms of the provisions of any law or by the rules of any recognised securities exchange, in which event the Party obliged to make such statement will first consult with the other Party in order to enable the Parties in good faith to attempt to agree the content of such announcement, which (unless agreed) must go no further than is required in terms of such law or rules. This will not apply to a Party wishing to respond to the other Party which has made an announcement of some nature in breach of this clause 14.
14.3 This clause 14 shall not apply to any disclosure made by a Party to its professional advisors or consultants, provided that they have agreed to the same confidentiality undertakings, or to any judicial or arbitral tribunal or officer, in connection with any matter relating to this Agreement or arising out of it.
15 DATA PROTECTION
Each Party shall, at its own expense, ensure that it complies with and assists the other Party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications.
16 INTELLECTUAL PROPERTY
16.1 This Agreement does not transfer any interest in Intellectual Property Rights. All Intellectual Property Rights developed or created by a Party pursuant to a Project shall be owned by that Party ("Created IPR").
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16.2 Each Party grants to the other Party a non-exclusive, personal, royalty-free licence during the applicable Project Period to use its Created IPR in relation to a Project, to the extent necessary for the other Party to carry out its obligations in relation to that Project.
16.3 At the end of the applicable Project Period, a Party licensed to use Created IPR under 16.2 shall cease to use that Created IPR and shall return any physical embodiment of the Created IPR (including any copies) in its possession or control to the other Party.
16.4 Each Party shall immediately give written notice to the other Party of any actual, threatened or suspected infringement of any Party's Intellectual Property Rights (including Created IPR) used in connection with a Project of which it becomes aware.
17 EMPLOYEES AND NON-SOLICITATION
17.1 Each Party agrees that it shall not, without the prior written consent of the other Party, at any time from the Signature Date to a period of 12 (twelve) months from the expiry or termination of this Agreement, solicit or entice away from that Party or employ or attempt to employ any person who is, or has been, engaged as an employee of that Party in relation to a Project.
17.2 Each Party shall provide such supporting evidence of compliance as the other Party may reasonably request in relation to this clause 17.
18 TERMINATION OF A PROJECT
18.1 The grounds and procedures for terminating the Agreement as a whole specified in clause 19 apply mutatis mutandis to a Project Schedule, and either Party to a Project Schedule may terminate it in accordance with such clause.
18.2 In addition, and notwithstanding anything to the contrary herein contained, a Party may terminate a Project Schedule on giving not less than months written notice to the other Party.
18.3 Termination of a Project Schedule in accordance with this clause shall have the effect that:
18.3.1 the terminated Project Schedule shall be severed from the Agreement, which shall otherwise remain in full force and effect; and
18.3.2 the provisions of clause 20 shall otherwise apply (mutatis mutandis) in relation to the Project Schedule.
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19 TERMINATION OF AGREEMENT
19.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party:
19.1.1 if the other Party is in breach of this Agreement as contemplated in clause 24;
19.1.2 if the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion, objectively considered, that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
19.1.3 if the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
19.1.4 if the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
19.1.5 if a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up or business rescue of the other Party (being a company);
19.1.6 if the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
19.1.7 if there is a Change of Control of the other Party; or
19.1.8 the other Party (being an individual) is the subject of a sequestration petition, application or order;
19.2 Without affecting any other right or remedy available to it, either Party may terminate this Agreement on giving not less than [●] months' written notice to the other Party.
20 CONSEQUENCES OF TERMINATION
20.1 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
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20.2 On termination of this Agreement, each Project Schedule then in force at the date of such termination shall continue in full force and effect for the remainder of the applicable Project Period, unless earlier terminated in accordance with the terms of this Agreement.
21 GENERAL WARRANTIES
21.1 Each of the Parties hereby warrants to and in favour of the other that –
21.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
21.1.2 this Agreement constitutes an Agreement valid and binding on it and enforceable against it in accordance with its terms;
21.1.3 the execution of this Agreement and the performance of its obligations hereunder does not and shall not –
21.1.3.1 contravene any law or regulation to which that Party is subject; 21.1.3.2 contravene any provision of that Party's constitutional documents;
21.1.3.3 conflict with, or constitute a breach of any of the provisions of any other Agreement, obligation, restriction or undertaking which is binding on it;
21.1.4 to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of this Agreement;
21.1.5 it is entering into this Agreement as principal (and not as agent or in any other capacity);
21.1.6 the natural person who signs and executes this Agreement on its behalf is validly and duly authorised to do so;
21.1.7 no other Party is acting as a fiduciary for it; and
21.1.8 it is not relying upon any statement or representation by or on behalf of any other Party, except those expressly set forth in this Agreement.
21.2 Each of the representations and warranties given by the Parties in terms of clause 21.1 shall –
21.2.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
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21.2.2 continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
21.2.3 prime facie be deemed to be material and to be a material representation inducing the other Party to enter into this Agreement.
22 SUPPORT
The Parties undertake at all times to do all such things, perform all such actions and take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and/or import of this Agreement.
23 FORCE MAJEURE
23.1 For the purposes of this clause, "Force Majeure Event" means, in respect of any Party to this Agreement, any event or circumstance, or combination of events or circumstances, occurring during the duration of this Agreement, the occurrence of which is beyond the reasonable control (directly or indirectly) of, and could not have been avoided by steps which might reasonably be expected to have been taken by, such Party acting as a reasonable and prudent commercial operator. Without limiting the generality of the aforegoing, such events or circumstances may include any one or more of the following —
23.1.1 an act of God, casus fortuitus, act of public enemy, act or threat of terrorism, war, revolution, riot, insurrection, civil commotion, public demonstration, sabotage, act of vandalism, explosions, lightning, fire, flood, storm, drought, earthquake or extreme weather;
23.1.2 a strike, lockout, work stoppage or other industrial action or disturbance by workers or employees;
23.1.3 a governmental restraint or Act of Parliament or other legislation, by-law, regulation or directive having the force of law (such restraint, Act, other legislation, by-law or directive arising or coming into effect after the Signature Date) of any authority having jurisdiction over any Party to this Agreement, or any inability to obtain, or the cancellation of, any consent, approval or license rendering it unlawful for such Party to comply with its obligations in terms of this Agreement; and/or
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23.1.4 a national or regional shortage of water and/or electricity or any delay or failure in the supply thereof.
23.2 Subject to the provisions herein, if either Party (the "Affected Party") is prevented or restricted or delayed directly or indirectly from performing any of its obligations under this Agreement as a consequence of a Force Majeure Event, the Affected Party shall be relieved of the liability for the delay or failure to perform its obligations hereunder during the period that such Force Majeure Event and its consequences continue, but only to the extent so prevented, and shall not be liable for any delay or failure in the performance of any duties or obligations hereunder or loss or damage whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the Affected Party. Either Party alleging a Force Majeure Event shall upon termination of such event giving rise thereto forthwith give written notice thereof to the other Party.
23.3 In the event that the period of the Force Majeure Event prevails longer than a period of from date of commencement of the Force Majeure Event, then unless otherwise agreed between the Parties, either Party shall be entitled, on [●] days' written notice to the other, to terminate this Agreement without any liability for damages.
24 BREACH
24.1 If a Party ("Defaulting Party") commits any breach of this Agreement and fails to remedy such breach within [●] business days ("Notice Period") of written notice requiring the breach to be remedied, then the Party giving the notice ("Aggrieved Party") will be entitled, at its option –
24.1.1 to claim immediate specific performance of any of the Defaulting Party's obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party's obligations; or
24.1.2 to cancel this Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. Neither Party shall be entitled to cancel this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach if —
24.1.2.1 it is capable of being remedied, but is not so remedied within the Notice Period; or
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24.1.2.2 it is incapable of being remedied or is not remedied within the Notice Period, and payment in money will compensate for such breach but such payment is not made within the Notice Period.
24.2 The Parties agree that any costs awarded will be recoverable on an attorney-and-own-client scale unless the Court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client scale.
24.3 The Aggrieved Party's remedies in terms of this clause 23 are without prejudice to any other remedies to which the Aggrieved Party may be entitled in law or this Agreement.
25 DISPUTE RESOLUTION
25.1 In the event of there being any dispute or difference between the Parties arising out of this Agreement, the said dispute or difference shall on written demand by either Party be submitted to arbitration in [●] in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
25.2 Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, or should AFSA refuse to accept the particular request for arbitration for whatever reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by Agreement between the Parties to the dispute or failing Agreement within 10 business days of the demand for arbitration, then any Party to the dispute shall be entitled to forthwith call upon the chairperson of the [●] Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
25.3 Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.
25.4 Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
25.5 Any arbitration in terms of this clause 25 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute
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submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
25.6 This clause 25 will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.
25.7 The Parties declare that it is their intention that this clause 25 will regulate the manner in which they will resolve any dispute or difference regarding the validity or otherwise of this Agreement, regardless of the fact that one of the Parties may dispute the validity or enforceability of the Agreement.
25.8 The Parties agree that the written demand by a Party to the dispute in terms of clause 25.1 that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, No 68 of 1969.
26 NOTICES AND DOMICILIA
26.1 The Parties select as their respective domicilia citandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under this Agreement, the said physical addresses as well as the following email addresses —
Name Physical Address Email Address [Party 1]
Marked for the attention of:
Name Physical Address Email Address [Party 2]
provided that a Party may change its domicilium to another physical address (provided that such physical address is not a post office box or poste restante), or may change its address for the purposes of notices to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective 5 business days after receipt of the notice of the change.
26.2 All notices to be given in terms of this Agreement will be given in writing and will —
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26.2.1 be delivered by hand or sent by email;
26.2.2 if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
26.2.3 if sent by email during business hours, be presumed to have been received on the date of successful transmission of the email. Any email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
26.3 Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 26.
27 BENEFIT OF THE AGREEMENT
This Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or either of them.
28 APPLICABLE LAW AND JURISDICTION
28.1 This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
28.2 Subject to clause 25, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, [●] Division, [●] in any dispute arising from or in connection with this Agreement.
29 NO PARTNERSHIP
The Parties agree and record that this Agreement does not –
29.1 constitute, and nothing contained herein will be construed as constituting, a partnership between the Parties;
29.2 render, and nothing contained herein will be construed as rendering, either Party an agent of the other for any purpose; or
29.3 render either Party liable for any debts, liabilities or obligations of the other, whether now existing or to be incurred in the performance of this Agreement,
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and neither Party shall have any authority to incur any liability on behalf of the other, or to pledge the credit of the other, save as specifically otherwise provided for in this Agreement.
30 GENERAL
30.1 Whole Agreement
30.1.1 This Agreement constitutes the whole of the Agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
30.1.2 This Agreement supersedes and replaces any and all Agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
30.2 Variations to be in Writing
No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
30.3 No Indulgences
No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either Party arising from this Agreement and no single or partial exercise of any right by either Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by that Party or operate as a waiver or a novation of or otherwise affect any of its rights in terms of or arising from this Agreement or estop or preclude it from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of either Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
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30.4 No Waiver or Suspension of Rights
No waiver, suspension or postponement by either Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by that Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
30.5 Provisions Severable
All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
30.6 Continuing Effectiveness of Certain Provisions
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.
30.7 No Assignment
Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by either Party without the prior signed written consent of the other, save as otherwise provided herein.
31 COSTS
Except as otherwise specifically provided herein, each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement.
32 SIGNATURE
32.1 This Agreement is signed by the Parties on the dates and at the places indicated below.
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32.2 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.
32.3 The persons signing this Agreement in a representative capacity warrant their authority to do so.
32.4 The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.
SIGNED at on 2021
For and on behalf of
[PARTY 1]
___________________________________
Signature
Name of Signatory
Designation of Signatory
[PARTY 2]
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Annexure
A
Project
Schedule
Template
Part 1 : This Project Schedule is dated [INSERT] and made between:
[FULL COMPANY NAME] , registration number [●], a limited liability private company duly incorporated in [the Republic of South Africa] whose registered office is at [REGISTERED OFFICE ADDRESS] ([DEFINED TERM FOR PARTY]).
Part 2 : Background
(A) The Parties have entered into a collaboration Agreement dated [DATE] ("Agreement"), allowing the Parties to collaborate on Projects (as defined in the Agreement) where such Projects fall within the Focus (as defined in the Agreement).
(B) In connection with the Agreement, the Parties have agreed to collaborate in accordance with this Project Schedule.
Part 3 : Project provisions
The Parties agree that:
1.1 This Project Schedule forms part of the Agreement.
1.2 The terms and conditions of the Agreement apply to this Project Schedule. Each Party agrees that it shall perform its obligations set out in this Project Schedule in accordance with the Agreement.
1.3 Unless otherwise defined in this Project Schedule, terms used in this Project Schedule shall have the meaning given to them in the Agreement.
[INSERT DETAILED DESCRIPTION OF PROJECT HERE]
The Project shall commence on ] and, unless terminated earlier in accordance with the Agreement, shall continue until (Project Period).
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The Parties shall each provide the following Inputs in relation to the Project, in accordance with the following timeframes (if any):
Input
[SPECIFY THE
FIRST PARTY'S
NAME]
OTHER PARTY'S
timeframe
[INCLUDE
DESCRIPTION OR SPECIFICATION]
The Charges that each Party shall pay the other are as follows:
[SPECIFY ALTERNATIVE INVOICING PROCEDURE IF APPLICABLE]
Without limiting the Confidential Information contemplated in the Agreement, the Parties agree that the following specific information shall be Confidential Information (as defined in clause 13 of the Agreement): [SPECIFY]
[INSERT ANY ADDITIONAL TERMS APPLICABLE TO THE PROJECT ].
Part 4 : Project Schedule signatures
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___________________________________ Signature
___________________________________ Name of Signatory
___________________________________ Designation of Signatory
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Document Name: Collaboration Agreement - ImpactHer RSA
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