Joint Venture Agreement - Template, Sample Form Pro · AU-law

JOINT VENTURE AGREEMENT

________

This Joint Venture Agreement (the "Agreement") is made and entered into on ________ (the "Execution Date").

BETWEEN:

________ (ABN/ACN ________)

Of the following address:

________

AND:

________ (ABN/ACN ________)

Of the following address:

________

RECITALS:

A. Each party to this Agreement may be referred to individually as a "Party" and collectively as the "Parties".

B. The Parties wish to enter into an unincorporated joint venture for the Purpose set out below.

C. The Parties wish to record in writing the terms and conditions governing their relationship.

NOW, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration (the receipt and sufficiency of which is acknowledged), the Parties agree as follows.

(1) INTERPRETATION

In this Agreement, unless the context otherwise requires, the following rules of interpretation apply:

(a) Words referring to one gender include every other gender.

(b) Words in the singular include the plural and vice versa.

(c) A grammatical variation of a defined word or phrase has a corresponding meaning.

(d) A reference to a person includes individuals, firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.

(e) A reference to time is a reference to time in ________.

(f) If anything must be done on or before a particular date which is not a business day, it must be done on or before the next business day.

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(2) PURPOSE OF JOINT VENTURE

(a) Subject to the terms of this Agreement, the Parties establish a joint venture named (the "Joint Venture"):

________

(b) The purpose and description of the Joint Venture is as follows (the "Purpose"):

________

(3) NATURE OF JOINT VENTURE

(a) The relationship between the Parties is exclusively that of joint venturers in an unincorporated joint venture. Nothing in this Agreement creates a partnership under the Partnership Act 1892 (NSW) (or equivalent State or Territory legislation), an employment relationship, an agency, or any fiduciary relationship between the Parties, save as expressly stated.

(b) Except as expressly provided in this Agreement, or as otherwise expressly permitted in writing by the other Parties, no Party may deal with or encumber the assets of the Joint Venture or create any binding legal obligation for any other Party.

(c) Each Party covenants and agrees that:

(I) it will act in good faith in accordance with the Purpose and this Agreement;

(II) it will diligently comply with its obligations under this Agreement;

(III) it will strive to develop and maintain a relationship of good faith and mutual trust with the other Parties;

(IV) the Joint Venture will be conducted as a commercial enterprise based on sound commercial practice;

(V) each Party has the right to participate in the Joint Venture and to share in its profits on the terms set out in this Agreement;

(VI) except as set out in this Agreement, no Party has authority to act for or accept any liability or obligation on behalf of any other Party; and

(VII) it will not undertake any act which may reasonably be expected to negatively impact the financial position or commercial reputation of the Joint Venture or any other Party.

(4) PRINCIPAL PLACE OF BUSINESS

The principal place of business of the Joint Venture is:

________

(5) PARTIES' CONTRIBUTIONS TO JOINT VENTURE

The initial capital contributions of the Parties are as follows:

________

Total capital value of contribution:

$________ (________)

Form of contribution:

________

________

Total capital value of contribution:

$________ (________)

Form of contribution:

________

(6) ADDITIONAL CONTRIBUTIONS

If additional funds are required for the Joint Venture, the Parties will contribute additional funds in the following proportions: ________.

(7) USE OF FUNDS

(a) The Parties will open a bank account for the Joint Venture (the "Bank Account").

(b) The Bank Account will hold all funds contributed by the Parties under clauses (5) and (6) (the "Joint Venture Funds").

(c) The Joint Venture Funds must only be used for the Joint Venture in accordance with the Purpose and this Agreement, unless otherwise agreed in writing by all Parties.

(8) DISTRIBUTION OF PROFITS

The profits of the Joint Venture will be distributed between the Parties in the following proportions: ________.

(9) LIMITS ON RETURN OF CONTRIBUTIONS AND DISTRIBUTIONS

No Party is entitled to call for any distribution of profits or return of capital or assets contributed to the Joint Venture, except:

(a) upon termination of this Agreement or of the Joint Venture;

(b) as otherwise expressly provided in this Agreement; or

(c) as otherwise expressly agreed in writing by the Parties.

(10) MANAGEMENT

The Joint Venture will be managed in the following manner:

________

(11) DECISION MAKING

All decisions in relation to the Joint Venture will be made by unanimous consent of the Parties, unless otherwise expressly provided in this Agreement.

(12) DISPUTE RESOLUTION

If the Parties cannot agree on a material issue related to the Joint Venture (the "Dispute"), no Party may commence court proceedings (other than for urgent interlocutory relief) unless the following steps have first been undertaken:

(a) the Parties must first attempt in good faith to resolve the Dispute between themselves;

(b) any Party may offer in writing to purchase the other Party's interest in the Joint Venture at a price mutually agreed, which may be determined by an external valuation;

(c) if the Dispute remains unresolved, the Parties must attempt in good faith to resolve it through mediation administered by a mediator agreed by the Parties or, failing agreement, appointed by the President of the Law Society of ________ or their nominee (the "Mediation");

(d) the costs of the mediator will be borne equally between the Parties; and

(e) each Party will bear its own costs in relation to the Mediation.

(13) MEETINGS

Meetings will be called and conducted as follows:

________

(14) DUTIES AND OBLIGATIONS

The duties and obligations of the Parties are as follows:

________

________

________

________

(15) ACCOUNTING AND TAXATION

(a) The accounting records of the Joint Venture will be kept in accordance with the Australian Accounting Standards and will be available for inspection by any Party at any reasonable time.

(b) The Parties will comply with their respective obligations under the Income Tax Assessment Act 1997 (Cth), the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all other applicable taxation laws. Unless otherwise stated, all amounts payable under this Agreement are exclusive of GST.

(16) TERM & TERMINATION

(a) The Joint Venture commences on the Execution Date and terminates on ________. The Joint Venture may be terminated earlier if the Purpose has been completed and the Joint Venture has been sold or dissolved following repayment of any debts owed.

(b) On termination, the Joint Venture and any remaining assets will be liquidated and the Parties will share the proceeds in proportion to their respective contributions.

(c) The Joint Venture may be terminated prior to dissolution, sale or completion in the following circumstances:

(I) if any Party commits a material breach of this Agreement that is not capable of remedy, or that is capable of remedy but is not remedied within fourteen (14) days of a written request to do so, the non-breaching Party may terminate this Agreement in writing and force the sale or dissolution of the Joint Venture and its assets;

(II) if any Party becomes insolvent, or unable to perform its duties (including a duty to pay or perform), any other Party may terminate this Agreement in writing and force the sale or dissolution of the Joint Venture and its assets; and

(III) any termination under this clause does not affect the accrued rights or liabilities of any Party under this Agreement or at law, and is without prejudice to any other rights or remedies. Any provision intended to survive termination is unaffected by this clause.

(17) CONFIDENTIALITY

(a) Each Party acknowledges that it and the other Parties may possess certain non-public Confidential Information (as defined) and Trade Secret Information (as defined) (collectively, the "Proprietary Information") regarding their business operations. The Parties agree that the Proprietary Information is secret and valuable. "Receiving Party" means the Party receiving Proprietary Information and "Disclosing Party" means the Party disclosing it. A Party may be both a Receiving Party and a Disclosing Party as the context requires.

(b) Confidential Information means any information which is confidential and commercially valuable to a Party, in any form, including documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs or other oral or written knowledge or secrets, and may pertain to research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property or finance.

(c) Confidential Information includes any information that ought to be treated as confidential in the circumstances of its disclosure, whether or not labelled as such.

(d) Confidential Information does not include information which:

(I) is or becomes publicly available other than through a breach by the Receiving Party;

(II) is already lawfully known to the Receiving Party;

(III) is disclosed by the Disclosing Party to third parties without restriction;

(IV) is received from a third party who lawfully held it and had the right to disclose it; or

(V) is independently developed by the Receiving Party, as the Receiving Party can demonstrate.

(e) Trade Secret Information means any formula, process, method, pattern, design or other information not known or reasonably ascertainable by the public, consumers or competitors, by which, because of its secrecy, an economic or commercial advantage can be achieved.

(f) The Parties agree that they will:

(I) not disclose the Proprietary Information by any unauthorised means to third parties during the term of this Agreement, unless (in the case of Confidential Information) the third party is a service provider necessary for the Joint Venture and signs a non-disclosure agreement acceptable to each Party;

(II) not disclose the Confidential Information by any unauthorised means to third parties for three (3) years following termination of this Agreement;

(III) not disclose the Trade Secret Information to any third party at any time, for so long as it remains a trade secret under applicable law; and

(IV) not use the Confidential Information or Trade Secret Information for any purpose other than the Purpose or as expressly authorised by the Disclosing Party.

(g) Nothing in this clause prevents disclosure required by law, by a court or by a regulatory authority, or to a Party's professional advisers on a confidential basis.

(18) PRIVACY

Each Party must, in connection with the Joint Venture, comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in relation to the collection, use, storage and disclosure of any personal information.

(19) INTELLECTUAL PROPERTY

Title and interest in and to intellectual property belonging to each Party prior to this Joint Venture, including plans, drawings, specifications, reports, advice, analyses, designs, methodologies, code, artwork or any other intellectual property (whether registered or not), remains with that Party throughout the term of this Agreement and thereafter, unless otherwise expressly agreed in writing by the Parties.

(20) INDEMNITY

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(21) REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants to each other Party that:

(a) it has full right, power and authority to enter into this Agreement and to perform its obligations;

(b) the execution and performance of this Agreement does not violate or conflict with any other agreement, obligation, law or regulation by which it is bound;

(c) if it is a corporation, it is duly incorporated and validly existing under the Corporations Act 2001 (Cth) or the laws of its place of incorporation;

(d) it has obtained all necessary consents, approvals and authorisations required to enter into and perform this Agreement;

(e) this Agreement constitutes a legal, valid and binding obligation enforceable in accordance with its terms;

(f) there are no proceedings pending or, to its knowledge, threatened that would materially affect its ability to perform its obligations;

(g) it is not insolvent and no step has been taken for its winding up, administration or dissolution;

(h) it will comply with all applicable laws, regulations and codes of practice relevant to the Joint Venture;

(i) all information provided to any other Party in connection with this Agreement is true, accurate and not misleading in any material respect; and

(j) it has the necessary skills, resources, expertise and capacity to perform its obligations.

Each Party acknowledges that the other Parties enter into this Agreement in reliance on these representations and warranties.

(22) LIMITATION OF LIABILITY

(a) Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy conferred by the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other law where it would be unlawful to do so.

(b) Except in cases of death or personal injury caused by a Party's negligence, fraud, or any liability that cannot lawfully be limited, a Party's liability in contract, tort or otherwise arising in connection with this Agreement is limited to the amount that Party profited from the Joint Venture in the preceding three (3) months.

(c) To the extent permitted by law, no Party is liable to any other Party for any indirect or consequential loss, including any economic loss, data loss, loss of goodwill, or loss of turnover, profits or business.

(23) NO COMPETITION

(a) Each Party agrees that during the term of the Joint Venture, and for the Time Period after termination of this Agreement, and within the Geographical Area, it will not, directly or indirectly, whether as employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise:

(I) engage in a business or project that is the same as, similar to, or in competition with the Joint Venture;

(II) solicit, hire or attempt to hire any other Party, or any employee or staff of the other Parties or of the Joint Venture; or

(III) solicit any customer or client of the other Parties or of the Joint Venture.

(b) "Time Period" means, from the date the Joint Venture is terminated, a period of: ________.

(c) "Geographical Area" means a radius of ________ from the following location:

________

(d) The restraints in this clause are reasonable and necessary to protect the legitimate interests of the Parties. Each combination of Time Period and Geographical Area constitutes a separate and severable restraint. If any restraint is held to be unenforceable but would be enforceable if a Time Period or Geographical Area were reduced, the restraint applies with the reduction necessary to make it enforceable.

(24) INSURANCE

The Parties will obtain and maintain insurance appropriate to the industry in which the Joint Venture operates, including any insurance required by law such as workers' compensation insurance.

(25) WARRANTIES REGARDING COMPETITION

Each Party warrants that this Agreement does not constitute or relate to:

(a) a contract, arrangement or understanding, or a concerted practice, having the purpose or likely effect of substantially lessening competition contrary to the Competition and Consumer Act 2010 (Cth) ("CCA");

(b) exclusive dealing having the purpose, effect or likely effect of substantially lessening competition contrary to the CCA;

(c) any cartel conduct involving price fixing contrary to the CCA;

(d) any cartel conduct involving output restrictions contrary to the CCA;

(e) any cartel conduct involving market sharing contrary to the CCA; or

(f) any cartel conduct involving bid rigging or collusive tendering contrary to the CCA.

(26) WARRANTIES REGARDING LEGAL ADVICE

Each Party (the "Warranting Party") warrants that:

(a) it fully understands the terms of this Agreement;

(b) it has had the opportunity to obtain independent legal advice in relation to this Agreement and has either:

(I) taken such independent legal advice; or

(II) elected not to take such independent legal advice; and

(c) it has not been induced to enter this Agreement by any representation made by any other Party or its representatives, except as set out in this Agreement.

(27) NOTICES

(a) Any notice, demand, request or other correspondence in connection with this Agreement that is required or permitted to be given in writing is deemed validly given to a Party if delivered to that Party's address set out at the head of this Agreement or by email to that Party's email address set out in this clause, or to any other address subsequently notified.

(b) A Party (the "Nominating Party") may nominate a new address or email address by notifying all other Parties in writing, after which notices delivered to the new address or email address are deemed validly given.

(c) The email contact information for the Parties is as follows:

________: ________

________: ________

(d) The telephone contact information for the Parties is as follows:

________: ________

________: ________

(28) WRITTEN COMMUNICATION

(a) In relation to any notice required to be given in writing from one Party to another:

(I) such notice is properly given if given:

(A) by email to an email address the other Party has nominated, acknowledged or used in connection with this Agreement; or

(B) by post to a postal address the other Party has nominated, acknowledged or used in connection with this Agreement.

(II) such notice is taken to be received:

(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address, subject to the Electronic Transactions Act 2000 (NSW) (or equivalent State or Territory or Commonwealth legislation);

(B) if sent by prepaid post within Australia, five (5) business days after the date of posting; and

(C) if sent by prepaid post to or from an address outside Australia, twenty (20) business days after the date of posting.

(b) In proving service it is sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the relevant electronic transmission was addressed, dispatched and confirmed as the case may be.

(29) GENERAL PROVISIONS

(a) GOVERNING LAW: This Agreement is governed by the laws of ________ and the applicable laws of the Commonwealth of Australia. The Parties submit to the exclusive jurisdiction of the courts of that State and the courts of appeal from them.

(b) LANGUAGE: All communications and notices under this Agreement must be in the English language.

(c) AMENDMENTS: This Agreement may only be amended in writing signed by all Parties.

(d) NO WAIVER: No term of this Agreement is waived by any act or acquiescence of a Party. A waiver is effective only if made in writing. No waiver constitutes a waiver of any other term or of the same term on a future occasion. Failure to enforce any term does not constitute a waiver of that or any other term.

(e) SEVERABILITY: If any provision of this Agreement is held unenforceable, it is deemed amended to the minimum extent necessary to make it valid and enforceable. If it cannot be so amended, it is severed and the remaining provisions continue in full force.

(f) PUBLIC ANNOUNCEMENT: No Party may make any public announcement about the existence or terms of this Agreement without the prior written approval of the other Parties, except as required by law.

(g) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes all prior understandings, whether written or oral.

(h) COUNTERPARTS: This Agreement may be executed in counterparts, each of which is an original and all of which together constitute one agreement. Execution by electronic signature is valid.

(i) TRANSFER OF RIGHTS OR OBLIGATIONS: No Party may novate, subcontract, assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of each other Party.

(j) RIGHTS, REMEDIES AND POWERS: Unless expressly provided, the rights, remedies and powers of a Party under this Agreement are cumulative and in addition to any rights, remedies or powers otherwise available at law.

(k) LIABILITY OF PARTIES: The rights, obligations and liabilities of the Parties under this Agreement are several and not joint or joint and several.

(l) SURVIVAL OF OBLIGATIONS: On termination or expiry of this Agreement, any provisions which by their nature are intended to survive remain in full force and effect.

(m) NO RELIANCE ON REPRESENTATIONS: Each Party acknowledges that it has entered into this Agreement voluntarily and without relying on any representation not set out in this Agreement.

(n) FORCE MAJEURE: No Party is liable for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of civil or military authorities, riots, embargoes, natural disasters, epidemics or pandemics, and other unforeseen circumstances, provided that the affected Party uses reasonable endeavours to mitigate and resume performance.

(o) FURTHER ACTS: Each Party must do all things and execute all documents reasonably required to give effect to this Agreement.

(p) COSTS: Each Party is responsible for its own costs in connection with the negotiation, preparation, execution and completion of this Agreement, including legal and accounting costs.

EXECUTED AS AN AGREEMENT ON ________

Signed for and on behalf of ________:

..................................................
________
Position: ________

In the presence of:

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Witness Signature

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Witness Name: ________

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Witness Occupation: ________

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Witness Address: ________

Signed for and on behalf of ________:

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________
Position: ________

In the presence of:

..................................................
Witness Signature

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Witness Name: ________

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Witness Occupation: ________

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Witness Address: ________