SBLAW would like to attach hereto the form of cooperation contract for your kind consideration.
COOPERATION CONTRACT
between
___________________
and
COMPANY
1. PURPOSE AND SCOPE
(…) will provide services according to the scope of work attached hereto and agreed to by (…). (…) is appointed on a project by project basis and subject to a scope of work being agreed to between (…) and (…) and same being reduced to writing and signed by both parties.
2. PARTIES
2.1 (…), registration number (…).
2.2 (…), registration number (…)
3. INTERPRETATION
3.1 The headings to the clauses of this Agreement are for reference purposes only and shall in no way govern or affect the interpretation of nor modify nor amplify the terms of this Agreement or any clause hereof.
3.2 Unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
| “Agreement” and “this Agreement” | this Cooperation Agreement | |
| “Client” | any client or clients for whom it is intended that the Parties will render the Services to | |
| (…) | the Party mentioned in clause 1.1 | |
| (…) | the Party mentioned in clause 1.2 | |
| “Parties” | The parties described in clause 1 | |
| “Services” | The services provided by the Parties in cooperation with each other, as agreed uponfrom time to time and described in the Statement(s) of Work attached to and incorporated in this Agreement | |
| “Signature Date” | the date of last signature thereof | |
| “Statement(s) of Work” | specific and agreed statement(s) of requirements, tasks and deliverables describing the scope, cost and delivery schedule of the Services to be provided from time to time as the opportunity arises |
3.3 Any reference in this Agreement to:
3.3.1 a “clause” shall, subject to any contrary indication, be construed as a reference to a clause hereof;
3.3.2 “law” shall be construed as any law (including common law), or statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order or any other legislative measure of any government, supranational, local government, statutory or regulatory body or court;
3.3.3 a “person” shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing.
3.4 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 of this Agreement.
3.5 Unless the context dictates otherwise, an expression which denotes any gender includes both the others; and reference to a natural person includes an artificial person and to the singular includes the plural, and vice versa in each case.
3.6 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 day which is not a Business Day, in which case the last day shall be the next succeeding Business Day.
3.7 Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
3.8 The use of the word “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples.
3.9 Any reference in this Agreement to an enactment is to that enactment as at the signature date and as amended or re-enacted from time to time.
3.10 The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of this Agreement.
3.11 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.
3.12 Save where the contrary is indicated, any reference in this Agreement to this Agreement or 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 same may have been, or may from time to time be, amended, varied, novated or supplemented.
4. RECITALS
The Parties both carry on business, inter alia, in the provision of certain Services as described from time to time in Statement(s) of Work attached as Annexures to this Agreement, for reward, to Clients and have agreed to enter into a master cooperation agreement as set forth in terms of the following provisions of this Agreement.
5. TERM
5.1 This Agreement shall come into force on the Signature Date, and shall thereafter remain in effect indefinitely (but unless earlier terminated for material breach or by mutual written agreement of the Parties), subject to thirty days’ written notice by either Party to the other.
5.2 Notwithstanding termination of this Agreement for any of the reasons set out in clause 5.1, the Agreement shall remain in effect only to the extent necessary to give effect to its terms in respect of any Projects, as defined in the annexure, in which the Parties are engaged pursuant to this Agreement and which as at the date of termination of this Agreement remain uncompleted, and to the necessary extent to give effect to the confidentiality provisions hereof.
6. ESTABLISHMENT OF COOPERATION ARRANGEMENT
6.1 General Provisions
6.1.1 The Parties hereby associate themselves in a relationship of cooperation solely for the purposes of entering into and carrying out provisions of this Agreement, and within the limitations of this Agreement.
6.1.2 This Agreement is not to be construed as a partnership between the Parties, and is entered into solely for the purposes of facilitating the cooperation between the Parties in providing the Services. This Agreement establishes the standard terms and conditions pursuant to which the Parties will provide the Services as agreed upon from time to time by the Parties in a Statement of Work.
6.2 Statement of Work
6.2.1 Each time the Parties are awarded a contract to perform the Services, the Parties will enter into a mutually agreeable Statement of Work. To the extent of any express conflict or inconsistency between the terms and conditions of a Statement of Work and the terms and conditions of this Agreement, the terms and conditions of the Statement of Work will prevail.
6.2.2 Each particular Statement of Work, inclusive of any annexure thereto entered into by the Parties shall:
6.2.2.1 refer expressly to this Agreement, which shall be incorporated by reference as if set forth fully therein;
6.2.2.2 identify the Client for the particular Statement of Work;
6.2.2.3 describe the Services to be performed or obligations to be discharged by the Parties pursuant to the Statement of Work;
5.2.2.4 designate the date as of which the provisions of the Statement of Work will be effective and, if applicable, the term during which the Parties will perform the Services or otherwise discharge its obligations as specified in the Statement of Work;
6.2.2.5 describe the obligations of the Parties related to the Statement of Work, including any facilities, equipment, personnel and tasks or other support to be provided or performed by the Parties;
6.2.2.6 specify the fee arrangements between the Parties under the Statement of Work, or, if applicable, the basis on which payments will be computed; and
6.2.2.7 specify any other terms and conditions appropriate to the Services to be performed and the obligations of the Parties.
6.2.3 It is understood that the services rendered by (…) are not offered by (…). It is further understood that (…) have been contracted to provide services in respect of the Scope of Work annexured hereto. (…) reserve the right to take on work from any client provided that this does not interfere with (…)’s ability to deliver in respect of the annexured scope of work.
6.2.4 Where either Party has a pre-existing arrangement with a third party to provide the Services, such arrangement shall be honoured.
6.2.5 Either Party may pursue work other than the Services provided under this Agreement as it sees fit whether on its own behalf or in association with a third party.
7. CONFIDENTIALITY
7.1 Each Party shall treat all information, data, strategies and processes (“Information”) provided by the other Party in terms of this Agreement as confidential.
7.2 All Information provided by a Party shall at all times remain the property of that Party and shall be used, duplicated, disseminated and disclosed by the other Party only to the extent required to accomplish the purpose of this Agreement.
7.3 Personnel of the recipient Party receiving such Information shall keep it confidential and shall not disclose such to anyone not authorised to receive it.
7.4 The protections above in this clause 6 do not apply to Information which is:
7.4.1 already published or which comes into the public domain during the period of the Agreement;
7.4.2 furnished to a third party by the submitting Party without similar restrictions regarding use and disclosure;
7.4.3 approved for release or use by written authorisation of the submitting Party.
7.5 Neither Party shall issue a news release, announcement, advertisement or other form of publicity in connection with this Agreement without prior consent in writing of the other Party.
7.6 Each of the Parties’ pre-existing intellectual property rights shall remain vested in such Party.
8. LIMITATION OF LIABILITY
8.1 In no event shall a Party or its affiliates be liable to another Party for any direct, indirect, incidental, special or consequential damages arising out of performance or failure to perform in accordance with the terms of this Agreement including lost profits, lost revenues, loss of the use of equipment or facilities, or for substitute equipment or facilities regardless of whether the claim or claims therefore sound in contract or delict (including negligence), strict liability or otherwise and regardless of whether a Party has been notified of the possibility or should have foreseen the possibility of such damages, other than penalty clauses specifically included in a Statement of Work.
8.2 A Party’s and its affiliates’ entire and collective liability arising out of or relating to the Agreement, including without limitation on account of performance or non-performance of obligations hereunder, regardless of the form of the cause of action, whether in contract, delict (including without limitation negligence), statute or otherwise, shall in no event exceed the amount paid to that Party under the applicable Statement of Work.
9. RESTRAINTS
9.1 Neither Party shall during the currency of this Agreement and for six months after its termination for any cause whatsoever solicit, entice away or offer employment to staff from either Party.
9.2 Each Party irrevocably undertakes to procure that its subsidiaries and any firms, companies or persons over whom it exercises control (including its employees and the employees of any such persons as aforesaid) shall not undertake any activities which in terms of this clause 8 the relevant Party is itself prohibited from carrying out.
10. TERMINATION FOR BREACH
10.1 A Party (hereinafter referred to as the “Aggrieved Party”) may cancel the whole or any part of the Agreement if another Party (hereinafter referred to as the “Defaulting Party”):
10.1.1 breaches any of the covenants or terms and conditions set forth in the Agreement;
10.1.2 fails to perform any of the other provisions of the Agreement; or
10.1.3 fails to make progress as to endanger performance of the Agreement in accordance with its terms; and in any of these circumstances, the Defaulting Party does not cure such breach or failure within a period of 5 (five) Business Days after receipt of written notice from the Aggrieved Party of such breach or failure.
10.2 The whole or any part of the Agreement may be terminated by mutual consent between the Parties if the Client terminates the contract with the Parties.
10.3 Upon expiration, cancellation or termination of the Agreement, each Party shall return all materials received from another Party.
11. TERMINATION FOR INDEPENDENCE
(…), at its sole discretion, may terminate this agreement at any time upon providing 30 days written notice to (…), in the event that (…) believes continuation of this agreement would cause it to violate any applicable independence requirements.
12. INDEMNIFICATION
Each Party (“the Indemnifying Party”) agrees to indemnify and hold the other Party (“the Indemnified Party”) harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against the Indemnified Party that result from the acts or omissions of the Indemnifying Party and/or the Indemnifying Party’s employees, agents, or representatives. The indemnities in this clause are contingent upon:
12.1 the Indemnified Party promptly notifying the Indemnifying Party in writing of any claim which may give rise to a claim for indemnification under this clause;
12.2 the Indemnifying Party being allowed to control the defense and settlement of such claim; and
12.3 the Indemnified Party cooperating with all reasonable requests of the Indemnifying Party (at the Indemnifying Party’s expense) in defending or settling a claim.
13 DISPUTE RESOLUTION
13.1 On a deadlock arising as to any issues relating to this Agreement, such issue shall be referred for resolution to [the Advisory Leader of (…)] and [the Chairman of (…)].
13.2 Any dispute between the Parties in regard to this Agreement or any matter arising out of it shall unless resolved by [the Advisory Leader of (…)] and [the Chairman of (…)] be referred to arbitration. The arbitrator shall be an independent person with appropriate qualifications and skills. The provisions of the Arbitration Act, 42 of 1965 shall apply, and the decision of the arbitrator shall be binding on the Parties.
14 DOMICILIA AND NOTICES
14.1 The Parties hereto choose domicilia citandi et executandi for all purposes of and in connection with this Agreement as follows:
(…):
For Attention:
Telefacsimile:
(…):
Address –
For attention:
Tel:
Telefacsimile:
14.2 Either Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other of such change.
14.3 All notices, demands, communications or payments intended for a Party shall be made or given at its domicilium for the time being.
14.4 A notice sent by one Party to the other Party shall be deemed to have been received on the same day if delivered by hand or sent by telefacsimile.
14.5 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.
15 GENERAL
15.1 This document and any subsequent Statement(s) of Work constitute the sole record of the agreement between the Parties in regard to the subject matter thereof.
15.2 Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
15.3 No addition to, variation or consensual cancellation of this Agreement shall be of any force or effect, unless in writing and signed by or on behalf of both Parties.
15.4 No indulgence by either Party to the other, or failure strictly to enforce the terms hereof, shall be construed as a waiver or be capable of founding an estoppel.
15.5 The Parties undertake at all times to do all such things, to perform all such acts and to 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 import of this Agreement.
15.6 Save as is specifically provided in this Agreement, neither of the Parties shall be entitled to cede or delegate any of its rights or obligations under this Agreement without the prior written consent of the other Party.
Thus done and signed at ______________________________on this the _____ day of
_________________________ 20.
For and on behalf of
________________________________
Name:
Capacity:
Who warrants his authority hereto
Thus done and signed at _______________________________ on this the _____day of
___________________________ 200.
For and on behalf of
(…)
_________________________________
Name:
Capacity:
Who warrants his authority hereto
Thus done and signed at _______________________________ on this the _____day of
___________________________ 200.
