NIG-IMPACTHER - PARTNERSHIP AGREEMENT
This Partnership Agreement is made on (this “Agreement”)
BETWEEN
whose address is at (hereinafter referred to as “Partner 1”) of the one part; AND
whose address is at (hereinafter referred to as “Partner 2”) of the other part.
WHEREAS
NOW IT IS HEREBY AGREED as follows:
1.1 INTERPRETATION -
1.2 In this Agreement, the following terms shall, unless the context otherwise requires, have the following meanings:
Applicable Law - means all applicable constitutions, treaties, statutes, laws, ordinances, regulations, directives, codes, decrees, orders, by-laws and common law or any other rule or requirement having the force of law to which the Company or the Partners, in each case as the context requires, is subject;
Business - ;
Business Day - means a day on which banks are ordinarily open for the transaction of normal banking business in Lagos, Nigeria (excluding Saturdays and Sundays and public holidays in the relevant jurisdiction);
Commencement Date - means the date on which this Agreement is signed by the Partners or where the Agreement is signed on different dates, the date on which the last Party to sign does so;
Company means ;
Shares mean - the ordinary voting equity shares of each in the capital of the Company;
Partners mean - Partner 1 and 2 together and Partner shall be construed accordingly.
1.3 In this Agreement, unless the context otherwise requires:
(a) a reference to any document, agreement or contract is to that document, agreement or contract as amended, modified or supplemented from time to time in accordance with its terms;
(b) a reference to any Section, Clause or Schedule is to a Section, Clause or Schedule of, or to, this Agreement and a reference to a subsection or paragraph is to a sub-clause or paragraph of the Section or Schedule in which it appears;
(c) whenever the words “include”, “includes” or “including” are used, they will be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import;
(d) any reference to an individual includes such person’s estate and personal representatives;
(e) any reference to a time of a day is a reference to a time of a day in the city of Lagos, Nigeria;
(f) any word denoting the singular will include the plural and vice versa;
(g) any word denoting one gender will include each gender and all genders;
(h) the descriptive headings in this Agreement are inserted for convenience only, have no legal effect and shall be ignored in the interpretation of this Agreement; and
(i) the Schedules to this Agreement form a part of the Agreement.
1.4 Where any obligation in this Agreement is expressed to be undertaken or assumed by any Partner, that obligation is to be construed as including a requirement that the Partner concerned exercises all rights and powers of control over the affairs of any other person which that Partner is able to exercise (whether directly or indirectly) in order to secure performance of the obligation.
2.0 BUSINESS OF THE COMPANY
2.1 The Partners shall co-operate with each other in the running and operation of the Company and the Business.
2.2 The Partners shall exercise their respective rights and powers to ensure that the Business is conducted in accordance with good business practice and on sound commercial and profit-making principles and in accordance with Applicable Law.
3.0 CAPITAL AND CONSIDERATION
3.1 In consideration of the time, skill and effort to be expended by the Partner in running the Company and developing the Business, he shall be allotted of the Shares of the Company which shall be fully paid-up.
4.0 WARRANTIES
4.1 Each Partner warrants that he shall:
(a) use his reasonable endeavours to promote the success of and develop the Business, in each case for the benefit of the Company as a whole;
(b) comply with all legislation, regulations, professional standards and other provisions as may govern the conduct of the Business and as may be determined by the Partners as standards to be voluntarily applied to the Business;
(c) show utmost good faith to the other Partner in all transactions relating to the Business and give a true account of, and full information about, all things affecting the Business and the Company; and
(d) inform the other Partner without delay on becoming a party to any legal proceedings.
4.2 Each Partner warrants that he shall at all times:
(a) devote the whole of his time and attention or such time and attention as is necessary for the proper performance of his duties to the Company, other than during periods of absence due to illness, injury, holiday;
(b) except in the ordinary course of the Business, not enter into any arrangement as a result of which the Company may risk the loss of, or be made liable for, any sum or sums in respect of that transaction in aggregate exceeding ;
(c) not give any guarantee or undertaking on behalf of the Company in respect of any sum or sums in aggregate exceeding ;
(d) not compromise, compound, release or discharge (except on payment in full) any debt or connected debts due to the Company in aggregate exceeding ; and
(e) `account to the Company for any profit derived from a business, office or appointment accepted by him in breach of this Agreement, or any personal benefit derived by him from the Business or the use of the Company’s business connections.
5.0 RESTRICTIONS ON THE PARTNERS
5.1 No Partner shall (unless otherwise agreed in writing by the other Partner), during the times specified below in clause 5.5, carry on or be employed, engaged or interested in any business which would be in competition with any part of the Business, including any developments in the Business after the date of this Agreement.
5.2 No Partner shall deal with or seek the custom of any person that is, or was within the previous 12 months, a client or customer of the Company.
5.3 No Partner shall, during the times specified below in clause 5.5, offer employment to, enter into a contract for the services of, or attempt to solicit or seek to entice away from the Company any individual who is, at the time of the offer a director, officer or employee of the Company, or procure or facilitate the making of any such offer or attempt by any such person.
5.4 No Partner shall, during the times specified below in clause 5.5, solicit or endeavour to entice away from the Company, any supplier who supplies, or has supplied within the previous 12 months, services to the Company if that solicitation or enticement causes or would cause such supplier to cease supplying, or materially reduce its supply of, those services to the Company.
5.5 The times during which the restrictions in this Clause 5 apply are:
5.6 The undertakings in this Clause 5 are given by each Partner to the other Partner and apply to actions carried out by each Partner in any capacity and whether directly or indirectly, on the Partner’s own behalf, on behalf of any other person or jointly with any other person.
5.7 Each of the covenants in this Clause 5 is considered fair and reasonable by the Partners.
6.0 TERMINATION
6.1 Subject to Clause 6.2, this Agreement shall cease to have effect:
6.2 On termination of this Agreement, the following clauses shall continue in force:
(a) Clause 1 (Interpretation);
(b) Clause 5 (Restrictions on the Partners);
(c) Clause 6 (Termination);
(d) Clause 7 (Confidentiality);
(e) Clause 8 (Indemnity);
(f) Clause 11 (Releases, Waivers and Remedies);
(g) Clause 12 (Severance);
(h) Clause 13 (Variation and waiver);
(i) Clause 16 (Entire Agreement);
(j) Clause 17(Notices);
(k) Clause 18 (Governing Law); and
(l) Clause 19 (Jurisdiction).
7.0 CONFIDENTIALITY
7.1 For the purpose of this Agreement, Confidential Information means all confidential information (however recorded or preserved) disclosed by a Partner or its representatives or advisers to another Partner and his representatives or advisers concerning:
(a) the existence and terms of this Agreement;
(b) any information relating to the Business, technical processes, computer software, intellectual property rights or finances of the Company including price lists, lists and details of customers and suppliers;
(c) any information relating to the affairs of any customer, supplier, agent, distributor or sub-contractor of the Company;
(d) all documents, papers and property that may have been made or prepared by, or at the request of any Partner or which come into any Partner’s possession or under his control in the course of the Business; and
(e) compilations of two or more items of such information and all information that has been, or maybe, derived or obtained from any such information which, at any time, comes into any Partner’s possession or under his control in the course of the Business and which is regarded or could be reasonably expected to be regarded as confidential.
7.2 Save as otherwise provided in this Agreement, each Partner undertakes that he shall not, at any time, disclose any Confidential Information to any person and shall use his best endeavours to keep all Confidential Information of the Company and the other Partner confidential.
7.3 No Partner shall make, or permit any person to make, any public announcement, communication or circular concerning this Agreement or the Business without first obtaining the other Partner’s Consent.
7.4 Each Partner may disclose the other Partner’s and the Company’s Confidential Information:
(a) to his advisers who may need to know such information for the purposes of carrying out the Partner’s obligations under or in connection with this Agreement. Each Partner shall ensure that its representatives or advisers to whom it discloses the Confidential Information comply with this clause.
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.0 INDEMNITY
Any Partner who is in breach of any of the provisions of this Agreement shall indemnify the other Partner from and against all liabilities, costs, expenses, damages and losses, including but not limited to any direct, indirect or consequential loss, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable costs and expenses resulting from that breach.
9.0 ASSIGNMENT AND OTHER DEALINGS
9.1 Each Partner confirms that it is acting on its own behalf and not for the benefit of any other person.
9.2 No Partner shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of his rights and obligations under this Agreement or any other document referred to in it without the prior written consent of all the other Partner.
10.0 FURTHER ASSURANCE
Each Partner shall execute and procure that any necessary third party shall execute all such documents and/or do, or, so far as each is able, procure the doing of such acts and things as shall be reasonably required to give effect to this Agreement and any documents entered into pursuant to it and to give to the other the full benefit of all the provisions of this Agreement.
11.0 RELEASES, WAIVERS AND REMEDIES
The rights and remedies of each Partner are, except where expressly stated to the contrary, without prejudice to any other rights and remedies available to it. No neglect, delay or indulgence by any Partner in enforcing any provision of this Agreement shall be construed as a waiver and no single or partial exercise of any rights or remedy of any Partner under this Agreement will affect or restrict the further exercise or enforcement of any such remedy.
12.0 SEVERANCE
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision of part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
13.0 VARIATION AND WAIVER
13.1 No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each Partner for the time being.
13.2 A waiver of any right or remedy under this Agreement or by law is only effective if it is given in writing and is signed by the Partner waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default.
13.3 A failure or delay by any Partner to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or
remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
13.4 No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.0 COUNTERPARTS
This Agreement may be entered into in any number of counterparts, and each of the executed counterparts when duly exchanged or delivered shall be deemed to be an original, but, taken together they shall constitute one instrument.
15.0 COSTS
Each Partner shall be responsible for its respective legal and other costs incurred in relation to the negotiation, preparation and completion of this Agreement.
16.0 ENTIRE AGREEMENT
16.1 This Agreement constitutes the entire agreement between the Partners and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each Partner acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty whether made innocently or negligently that is not set out in this Agreement.
16.3 Each Partner agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
16.4 Nothing in this clause shall limit or exclude any liability for fraud.
NOTICES
17.1 Any notice, request, demand or other communication required or permitted to be given under this Agreement shall be written in English and shall be delivered in person, or sent by internationally recognized express courier, or transmitted by facsimile and properly addressed as follows:
In the case of notices to Partner 1, to:
Attention:
Address:
In the case of notices to Partner 2, to:
or at such other address as the Partner to whom such notice, request, demand or other communication is to be given shall have last notified the Partner giving the same in the manner provided in this clause 17, but no such change of address shall be deemed to have been given until it is actually received by the Partner sought to be charged with the knowledge of its contents.
17.2 The notice shall be deemed to be given to and received by the addressee at the time the notice is left at the address of or handed to a representative of the Partner to be served, where sent by first class courier services, on a day not being a Sunday or public holiday, three (3) days after the date the notice is delivered to the courier company and where sent by electronic mail or facsimile, on the day it was transmitted.
17.3 In proving service in the case of the notice sent by courier service, it shall be sufficient to show evidence of delivery or a signed acknowledgement of receipt by or on behalf of the addressee. Where the notice was sent by facsimile or electronic mail it shall be sufficient to show that the appropriate reply was received.
18.0 GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria.
19.0 DISPUTE RESOLUTION
19.1 The Partners shall use their best endeavours to resolve any dispute or difference of opinion between them, arising from or in connection with this Agreement amicably through mutual discussion.
19.2 In the event that the Partners are unable to settle the dispute, difference or controversy amicably, such dispute shall, within 30 days of the breakdown of the settlement, be referred to arbitration. The arbitration shall be conducted in
English language in Nigeria and in accordance with the rules of arbitration in the Arbitration and Conciliation Act, cap A18, Laws of the Federation of Nigeria, 2004.
19.3 The Partners shall jointly appoint one arbitrator who shall be responsible for the arbitral proceedings.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first above written.
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