Please note that all work is undertaken following the
signing of and instrument securitising Confidentiality, Intellectual Property
and Non-circumvention appearing under Annexure
“A” attached hereto.
The signing of the CIPNC is followed by the signing of
a mandate an example of which appears in the following link: - MANDATE.htm
A Consultancy agreement usually develops from the
mandate where it is appropriate and necessary to do so as in circumstances
where the mandate includes such aspects as project management and
implementation. The Specific clauses in the consultancy agreement will be
adjusted to suite the Questionnaire detailed below.
In the case of this consultancy, the implications
relating to its obligations in respect to full and frank disclosure of mandate
and risks between the parties as required by its affiliations to the Australian
and International securities, Investment and Financial Planning entities is pre
disclosed as per the heading marked Pre
disclosures below.
So as to minimize the risk of conflicting interests
this consultancy also makes disclosure of its obligations in respect of other
projects currently handled by the consultancy as set out under the heading
markedClauses relating to consultant’s disclosure. Other projects
are listed on the website www.izak.co.za under the tab marked Projects.
Projects not listed there are listed in Annexure
“B” below.
So
as to enable this consultancy to determine whether it is able to accept a mandate,
please complete the following Questionnaire.
Any
comments or proposed amendments to the Intellectual Property, Agreement.
_________________________________________________________________
Pre
disclosure of investment or participators risks in project other than such as
supplied by Business Planning supplied (where such planning material is
supplied)
_________________________________________________________________
__________________________________________________________________
Comments
if any with respect to pre disclosure of risk
_____________________________________________________________________
Please
specify where applicable or mark as not applicable
Strategic
Planning _____________________________________________________
Business
Plan Construction ____________________________________________
Project
Implementation ________________________________________________
Project
Management ___________________________________________________
Term
__________________________
This
consultancy requires that expenses be covered. Please provide details of how it is
proposed to do so in respect of the following: -
Communication
costs – cell phone Internet fax etc. ___________________________
Traveling
to and from project sites ________________________________________
Accommodation
at project site ___________________________________________
Supply
of Infrastructure and services on site
Office
_______________________________________________________________
Office
equipment____________________________________________________________
Office
Staff ___________________________________________________________
Vehicle _____________________________________________________________
Lease
and ownership ___________________________________________________
Monthly
retainer gross __________________________________________________
Monthly
retainer Tax paid _______________________________________________
Term
of retainer _______________________________________________________
Increment
per annum _________ % ____
Sourcing
of financing _______________________________________________
Raising
fee as percentage of funds or equity partners sourced __________ %
Identification
of and negotiation of stakeholders roles _____________________
Development
of Strategic plan ________________________________________
_________________________________________________________________
Development
of Business Plan as application for finance ____________________
Development
and construction of Legal regime
Offer
to purchase ___________________________________________________
Sole
Mandate for Agents sales commission (Where applicable) ________________
Trust
formation ______________________________________________________
Company
formation __________________________________________________
Shareholders
agreement ________________________________________________
Production
Agreements ________________________________________________
Joint
Venture agreements _______________________________________________
Agency
Agreements ___________________________________________________
Finance
agreements ____________________________________________________
Up front
_______________________________________________________
Fees payable on acquisition of
finance
Independently
__________________________
As part of business Plan expense
____________________________________
Percentage
______%
Entities
Terms
Dividend
flow policy __________________________________________________
Exit
strategy _________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
1. In order to
benefit from any intellectual property and disclosure that the consultant may
wish to deploy in respect of his mandate from the Contractor (as more fully
described herein),
1.1. The contractor
recognizes that the consultant is party to Intellectual property,
Confidentiality and Non Circumvention Agreements with various organizations,
persons and entities
WHEREFORE the
Contractor hereby agrees to the terms and conditions set out in the Working
Agreement attached hereto under annexure
“A”, adopting such terms as
terms of this agreement.
2. The Contractor
recognizes that the consultant operates under the laws, ethics, modus operandi and rules governing his positions as;
-
2.1. Australian
Certified Investment Planner registered as Dealers Representative of the Stock
Exchange of Sydney under the laws of News South Whales in Australia;
2.2. Member of the
International Investment Planners Association (Australia),
2.3. Advisor for the
Bank of New Zealand’s Cash-Link facility (Australia),
2.4. Chief Executive
Officer of the SADC Development Fund Trust registered under the hand of the
Master of the High Court of South Africa (Natal Provincial Division) (South
Africa)
2.5. Chief
Investigating officer of the actio
popularis Commission of Inquiry
set up under Section 38 of Act 108/1996 in Case No A175/93 before the High
Court of South Africa (Durban and Coast Local Division), (South Africa)
2.6. WHEREFORE the
Contractor agrees to advise the consultant of any activity or aspect in a
project under the mandate of the consultant which activity or aspect may place
any of the consultant’s positions at risk, provided the contractor is aware
that an activity or aspect will place the consultant’s position at risk.
3. The consultant hereby makes disclosure of his mandates from certain
other projects as set out in Annexure
“B” and on the web page www.izak.co.za under the tab marked “ Projects”. The
parties agree to disclose any conflict of interest that may arise between then
and agree to collaborate to the ends of managing such conflicts of interest to
their best ability without restraining the other party in their respective
mandates.
By
and between
Of
___________________________
And
Duly authorized thereto
And
WHEREAS
the above-named parties intend to disclose to each other proprietary and
confidential information and relating to the ________________________ project
(the "Project").
AND WHEREAS the
Parties wish to protect such intellectual
property, proprietary and
confidential information in accordance with the provisions set out below and in
the International Chamber of Commerce’s (France) Intellectual Property,
Confidentiality and Non Circumvention Agreement attached hereto as annexure
“A”.
1. In
this Agreement:
1.1. "Proprietary
Information and intellectual property" means any technical or commercial
information including (without limitation) business plans, budgets, legal
documents, Strategic plans, documentation, correspondence, cost estimates or
other financial information or data, specifications, drawings, designs and
know-how originally disclosed by one Party ("the Disclosing Party")
to the other Party ("the Receiving Party") under this Agreement which
is in written, other visual or machine readable form and clearly marked or
designated by the Disclosing Party as "Proprietary" or "Confidential"
(or is communicated orally on a basis of confidentiality.
1.2. Proprietary
Information does not include any information which:
1.2.1. Is
in or which comes into the public domain otherwise than as a result of a breach
of this Agreement by any person to whom a disclosure of Proprietary Information
is made as permitted under this Agreement or of any other duty of
confidentiality relating to the Proprietary Information of which the Receiving
Party has knowledge;
1.2.2. Or
was lawfully obtained by the Receiving Party from a third party with full
rights of disclosure;
1.2.3. Or
the Receiving Party can show was
already in its unrestricted possession at the date of receipt of the
information under this Agreement;
1.2.4. Or the Receiving Party can show has been
developed by it or for it at any time, independently of any Proprietary
Information.
2. In
consideration of the foregoing, the Receiving Party undertakes during the term
of this Agreement and for a period of 10 years following the first to occur of the date
of expiry or termination of this Agreement:
2.1. To
keep confidential and not to disclose Proprietary Information received under
this Agreement to any third party except with the prior written consent of the
Disclosing Party;
2.2. Not
to disclose such Proprietary Information to any personnel within its own
company other than those personnel who have a need to receive such Proprietary
Information for the purposes of this Agreement referred to in the Recitals;
2.3. Not
to use or allow to be used such Proprietary Information otherwise than solely
for the purposes referred to in the Recitals to this Agreement, unless (and
then only to the extent to which) a further use is specifically authorised in
writing by the Disclosing Party;
2.4. To
procure that each third party to whom Proprietary Information is disclosed
under this Agreement is made aware of the provisions of this Agreement prior to
such disclosure to it and that each such third party is bound by obligations of
confidentiality which are no less onerous than those contained in this
Agreement;
2.5. Not
to copy reproduce or reduce to writing any part of such Proprietary Information
except as may be reasonably necessary for the purpose referred to in the
Recitals of this Agreement
2.5.1. PROVIDED
THAT the Receiving Party shall be entitled to disclose Proprietary
Information:
2.5.1.1. To
any party specifically condoned in writing by the disclosing party.
2.5.1.2. Pursuant
to a court order or government or regulatory requirement requiring disclosure
of the Disclosing Party's Proprietary Information subject to notifying the
Disclosing Party as soon as possible of such requirement.
3. The obligation to keep Proprietary Information
confidential to itself will be satisfied if the Receiving Party uses the same
controls as it employs to avoid disclosure, publication and dissemination of
its own Proprietary Information of a similar nature, provided not less than a
reasonable standard of care is used.
4. Nothing
in this Agreement shall replace or prejudice any government security
classification referenced on any part of the Proprietary Information and the
Receiving Party undertakes to respect and observe any such classification and
comply with all matters relating to it. The
provisions of this Clause shall survive termination of this Agreement.
5. Subject
to Clause 4 this Agreement shall apply in lieu of the terms or conditions in
any specific legend or restrictive statement associated with any Proprietary
Information exchanged under this Agreement.
6. No right or licence is granted to the Receiving
Party in relation to any Proprietary Information of the Disclosing Party.
7. Each
Party shall perform its respective obligations under this Agreement without
charge to the other Party.
8. This
Agreement is intended to facilitate only the exchange of Proprietary
Information and is not intended to be, and shall not be construed to create a
teaming agreement, joint venture, association, partnership, or other business
organisation or agency arrangement and no Party shall have the authority to
bind the other Party without the other Party's separate prior written
agreement. No Party has an
obligation to supply information under this Agreement and no Party has an
obligation to enter into any contract with the other Party.
9. This
Agreement shall remain in force for 10
years duration from the
date of this Agreement and shall then automatically terminate unless renewed by
mutual consent in writing.
10. On
termination of this Agreement for any reason the Receiving Party shall retain
no Proprietary Information disclosed to it under this Agreement and shall upon
the request of the Disclosing Party either return to the Disclosing Party or
destroy all such Proprietary Information which is in a tangible form and is in
the possession of the Receiving Party pursuant to this Agreement, together with
all copies.
10.1.1.The
domicillia of the parties shall be as appears in the citation of the parties.
10.1.2. Notices
under this Agreement shall be in writing in the English language and shall be
deemed validly given if delivered by hand or post (recorded delivery with proof
of posting or in the case of a notice to be sent overseas, by registered
airmail) to the individual and address referred to in Clause 11.1 and shall be
deemed to have been received, if delivered by hand, at the time of delivery, or
in the case of a notice sent by post as above, 72 hours after the date of
posting.
11. No
exercise, or failure to exercise, or delay in exercising any right, power or
remedy vested in either Party
under or pursuant to this Agreement shall constitute a waiver by that Party of
that or any other right, power or remedy.
12. This
Agreement contains the complete and entire understanding between the Parties on
the subject matter of this Agreement and supersedes all discussions, proposals,
understandings or agreements, oral or written, relating to such subject matter
provided that nothing in this Clause shall exclude any liability for fraudulent
misrepresentation.
13. No
Party shall assign or transfer its rights and/or obligations pursuant to this
Agreement (other than for the purposes of internal corporate reconstruction,
reorganisation, merger or analogous proceeding) without the prior written
consent of the other Party.
14. This
Agreement shall be governed by and construed in accordance with the laws of the
Republic of South Africa, and the Parties agree to submit to the jurisdiction
of the High Court of South Africa (any Division having jurisdiction), save
where there is also an Intellectual Property and Non circumvention agreement of
the International Chamber of Commerce attached to any information disclosed by
any party in which case the court of final instance shall be court having
jurisdiction in terms of the latter agreement in Paris France with the
exception that the parties may agree to have the matter dispensed with in South
Africa provided that the body of precedent applicable to the French Courts be
applicable in the adjudication of the matter.
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Signed
for and on behalf of |
Signed
for and on behalf of |
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INTERNATIONAL CHAMBER OF COMMERCE (ICC)
Wittnesseth:
-
For
and in consideration of their mutual promises, assertions and covenants set
forth herein, whereas the parties herein mentioned above and below are mutually
desirous in working together for their mutual benefit, said parties agree to
abide by the following terms and conditions: -
1 Each
of the parties hereto, separately or individually and their associates hereby
agree that they or their Corporate, Subsidiaries, Employees, Agents, or
Consultants will not make any contact with, deal with or otherwise involve in
any transaction whatsoever with any party to this Agreement separately and
individually or their associates, without the written consent of the Introducing
Party.
2 The
parties will maintain complete confidentiality regarding each other’s business
sources and/or their affiliates and will disclose only to named parties
pursuant to the express written permission of the party who made available said
source, and
3 That
they will not in any way whatsoever, circumvent or attempt to circumvent each
other, any of the parties involved in any of the transactions the parties are
desirous of entering into and to the best of their abilities assure one another
that the original transaction codes will not be tampered with.
4 The
parties hereby agree without reservation or exemption to keep completely
confidential, the names and details of Banks, Lending Institutions,
Participating Corporations or Individuals introduced by the parties or their
Agents or Associations. Such identity shall remain the sole property of the
Introducing Party and shall remain confidential throughout the duration of this
Agreement and shall include by way of example, any telephone numbers,
addresses, telefax, fax or other details etc.
5 It
is also agreed by all parties that they will not enter into any direct contact,
negotiations or transactions with such contacts revealed by the other parties
without the express written permission of the other parties.
6 In
the event of both parties signing a Agreement
or Mandate, as the case may
be, each party agrees with the other party that upon any breach of the said
Agreement/s, the party in default will pay to the other party(s): -
6.1 The
legal monetary penalty equal to the maximum commission administration fee
covered in the Agreement or
Mandate.
6.2 All
and any expenses including legal, that would involve the recovery of these
funds.
7 The
parties hereby agree to keep each other informed of the monetary value of all
transactions closed through third parties and that the commissions agreed to
will be put in place for each
transaction.
8 Furthermore,
all consideration, benefits, bonuses, participation fees and /or commissions
received as a result of the contributions of the parties to this Agreement will
be allocated as mutually agreed to.
9 Any
duly signed facsimile of this Agreement shall be deemed to be valid and
enforceable as if it were the original and shall be legal and binding upon all
parties.
10 This
Agreement is valid for any and all transactions between the parties and is a
full recourse consensual agreement conducted under the laws of Switzerland,
United Kingdom, the United States of America and South Africa, whose laws shall
govern the construction, interpretation, execution, validity, enforcement and
performance and any other matters in respect of this Agreement. The signing Parties hereby agree to
such jurisdiction as may be selected as the exclusive venue.
11 This
agreement is valid for a period coinciding with the period that starts from the
time of initiation of the Agreement
or Mandate until all the
terms and conditions to it have been successfully concluded.
12 This
contract incorporates the rules of non-circumvention and non-disclosure
established by the
International Chamber of Commerce, Paris, France (ICC), which rules are
made part of this Agreement.
13 In
the event of this Agreement being disputed by any of the parties and a
resolution cannot be reached, the parties agree to have the dispute arbitrated
in the country selected by the Arbitration Association of South Africa, (being accepted as such
by the parties) being a signatory as intermediary to this agreement in either
this or a related similar document forming part of the project in question,
under ICC Rules of Conciliation and
Arbitration then in
force.
13.1 Judgment
upon an award may be entered and enforced in any court of competent
jurisdiction.
13.2 The
injured party will receive full remuneration, in addition to all legal costs,
attorney’s fees and other charges as set out by the Arbitrator(s).
14 The
undersigned parties hereby warrant and affirm under the international penalty
of perjury that they have the Full Capacity and Authority to execute and
perform fully to perfect this Agreement.
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Signed for and
on behalf of |
Signed for and
on behalf of |
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