JOINT VENTURE AGREEMENT
This Joint Venture Agreement ("Agreement"), made on _____________(Date) by
and between______________ of ___________________________ (first party) and
______________ of _____________________ (Second Party). The parties are
hereinafter sometimes referred to together as the "Joint Venturers" or the "Parties"
and individually as a "Joint Venturer" or "Party."
The Parties wish to establish a Joint Venture for the purpose set forth below (the
"Joint Venture"); and
The Parties wish to enter into an agreement to carry out the purpose of the Joint
Venture and to define the respective rights and obligations of the Parties with
respect to the Joint Venture.
Therefore, in consideration of the mutual promises, covenants, warranties and
conditions herein, the Joint Venturers agree as follows:
NAME.
The parties hereby form and establish a Joint Venture to be conducted under the
name of ___________, (hereinafter referred to as the "Joint Venture"). The Joint
Venturers agree that the legal title to the Joint Venture property and assets,
including the Joint Venture itself, shall remain in the name of the Joint Venture.
TERM.
The term of the Joint Venture shall commence on the execution date hereof and
shall continue for a term of three (3) years, however, an annual year performance
review will be made at the end of each year and if the annual performance of the
parties are satisfactory then the agreement will be extended for another year
otherwise the agreement will stand terminated upon non satisfactory annual
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performance. Moreover, the Joint Venture shall be dissolved prior to such date
upon the sale or disposal of the Joint Venture and the payment or satisfaction of all
debts of the Joint Venture.
PURPOSE.
The Joint Venturers form this Joint Venture to:
To express the willingness of both parties to engage in an effort to promote the
competitiveness of the Product globally as well as its activities to develop and
expand relationships that results in increasing the market share of the business in
the markets that the product is launched.
To the extent set forth in this Agreement, each of the Joint Venturers shall own an
undivided fractional part in the business. The Joint Venture shall not engage in any
other business or activity without the written consent of the Joint Venturers.
PERCENTAGE INTEREST IN THE JOINT VENTURE.
The respective percentage interest in the Joint Venture owned by each Joint
Venturer, respectively, is as follows:
________________ (first party) 50%
________________ (Second party) 50%
PROFITS.
The net profits as they accrue for the term of this Agreement, or so long as the
Joint Venturers are the owners in common of the business interest, shall be
distributed between the Joint Venturers, based on the respective percentage interest
in the Joint Venture owned by each Joint Venturer as follows:
________________ (first party) 50%
________________ (Second party) 50%
EXPENSES OF VENTURE.
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All losses and disbursements in acquiring, holding and protecting the business
interest and the net profits shall, during the period of the venture, be paid by the
Joint Venturers, in the ratio which the contribution of each Joint Venturer bears to
the total contributions.
DUTIES OF JOINT VENTURERS.
The duties of ______________ (first party) are: Commercialization, Business
Development, Sales and Marketing.
The duties of ______________ (second party) are: Product Development,
Operations.
POWERS OF JOINT VENTURERS.
The following powers may be exercised only upon the consent of the Joint
Venturers:
a. The power to borrow money on the general credit of the Joint Venture in
any amount, or to create, assume, or incur any indebtedness to any person or
entity;
b. The power to make loans in any amount, to guarantee obligations of any
person or entity, or to make any other pledge or extension of credit;
c. The power to purchase or otherwise acquire any other property except in the
ordinary course of business of the Joint Venture;
d. The power to sell, encumber, mortgage or refinance any loan or mortgage on
any of the Joint Venture property;
e. The power to confess any judgment against the Joint Venture, or to create,
assume, incur or consent to any charge (including any deed of trust, pledge,
encumbrance or security interest of any kind) upon any property or assets of
the Joint Venture;
f. The power to spend any renovation or remodeling funds or to make any
other expenditures except for routine day-to-day maintenance and operation
of the Joint Venture.
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CONFIDENTIAL INFORMATION.
"Confidential Information" means non-public information that (a) the disclosing
Party designates as confidential, or (b) information which, under the circumstances
surrounding disclosure, ought to be treated as confidential. Confidential
Information may include, without limitation, Technology, Technology
Improvements, Derivative Works, Intellectual Property Rights, Marketing
Materials, ideas, know-how, methods, formulae, processes, designs, apparatus,
devices, techniques, systems, flow charts, sketches, photographs, plans, drawings,
specifications, computer programs or software, samples, studies, findings, data,
reports, projections, plant and equipment expansion plans, lists or identities of
employees, customers or X6Ds, financial statements or other financial information,
pricing information, cost and expense information, product development and
marketing plans, compositions of matter, discoveries and inventions (whether or
not patentable), works of authorship (whether or not protected under copyright
laws), information, algorithms, procedures, notes, summaries, descriptions, results
and the like.
DERIVATIVE WORKS.
"Derivative Works" means works that are based upon one or more preexisting
works, such as: (a) for copyrightable or copyrighted material, any translation,
portation, modification, correction, addition, extension, upgrade, improvement,
compilation, abridgment, revision or other form in which such material may be
recast, transformed, or adapted; (b) for patentable or patented material, any
improvement thereon; and (c) for material that is protected by trade secret, any new
material derived from such existing trade secret material, including new material
that may be protected by any of copyright, patent, and trade secret.
INTELLECTUAL PROPERTY RIGHTS.
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"Intellectual Property Rights" means any and all patent, copyright, trademark, trade
secret, know-how, trade dress or other intellectual or industrial property rights or
proprietary rights (including, without limitation, all claims and causes of action for
infringement, misappropriation or violation thereof and all rights in any
registrations, applications and renewals thereof), whether existing now or in the
future, whether worldwide or in individual countries or political subdivisions
thereof.
TECHNOLOGY.
"Technology" means materials, packaging, products, know-how and methods of
manufacturing thereof as provided by a Party herein, and including all Intellectual
Property Rights embodied therein and any Derivative Works thereof. Technology
further means, without limitation any designs, materials, methods, formulae,
processes, technology, apparatus, devices, techniques, systems, flow charts,
sketches, photographs, plans, drawings, specifications, proprietary information,
know-how, trade secrets, computer programs or software, samples, studies,
findings, data, reports, projections, manufacturing specifications and methods,
testing specifications and methods, pricing information, cost and expense
information, product development and marketing plans, compositions of matter,
discoveries and inventions (whether or not patentable), works of authorship
(whether or not protected under copyright laws), information, algorithms,
procedures, notes, summaries, descriptions and development results related to any
materials, packaging, products, know-how and methods of manufacturing thereof.
TECHNOLOGY IMPROVEMENTS.
"Technology Improvements" means any proprietary information, know-how, trade
secrets, programs, designs, processes, methods, formulae, compositions of matter,
documents, materials, technology, data, Intellectual Property Rights, or Derivative
Works in developments and/or conceptions created, obtained or developed by
either Party alone (including through the efforts of any independent contractor or
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affiliate of that Party) or together with the other Party that: (a) are based on,
derived from or are direct improvements to Technology, (b) can be used in or in
the production of Technology, or (c) provide alternatives for use in the production
of Technology that, if so used, reasonably would: (i) add Technology capability or
increase Technology efficiency or quality, (ii) reduce Technology manufacturing
or Technology costs, and/or (iii) facilitate the manufacturing of Technology.
TREATMENT OF PROPRIETARY AND CONFIDENTIAL
INFORMATION.
1. In connection with the performance of this Agreement, each Party
contemplates the disclosure by it of certain Confidential Information to the
other Party. Each Party considers its Confidential Information to be an asset
of substantial commercial value, having been developed at considerable
expense, but will disclose such information to the other Party under the
terms and conditions of this Agreement.
a. During the Term and continuing thereafter for 2 year(s) from the
termination or expiration of the Agreement, the Party receiving
Confidential Information ("Receiving Party") from the disclosing Party
("Disclosing Party") shall (i) treat all Confidential Information disclosed
by the Disclosing Party as secret and confidential and shall not disclose
all or any portion of the Confidential Information to any other Person,
except as provided in section 1.1(b), (ii) not use any of such Confidential
Information except in the performance of the Receiving Party's
covenants and obligations or otherwise as contemplated under this
Agreement, and (iii) restrict access to Confidential Information to the
Receiving Party's employees (including contractors, accountants and
counsel and similar representatives) who have a need to know such
information in connection with the performance of the Receiving Party's
obligations and covenants under this Agreement and shall be responsible
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to ensure that such employees maintain the terms of confidentiality and
nonuse as required in this Agreement.
b. In the event that either Party desires to use a third party service provider
("Service Provider"), including, for example, an engineering design firm
or a contract manufacturer, to develop or produce the Product using
Technology or Technology Improvements, all Parties to this Agreement
must first enter into at least an acceptable non-disclosure and technology
ownership agreement with the Service Provider. Neither Party to this
Agreement may disclose any Confidential Information to a Service
Provider unless both parties to this Agreement have individually entered
into a non-disclosure agreement with the Service Provider.
2. Notwithstanding anything to the contrary herein, Confidential Information
shall not include any information that: (a) is presently in the Receiving
Party's possession, provided that such information has not been obtained
from the Disclosing Party and that such possession can be demonstrated by
the Receiving Party's written records; (b) is, or becomes, generally available
to the public through no act or omission of the Receiving Party; (c) is
received by the Receiving Party in written form from a third party having no
binding obligation to keep such information confidential; or (d) is required
to be disclosed by law, upon the advice of legal counsel.
3. Specific Confidential Information shall not be deemed to be available to the
public or in the possession of the Receiving Party merely because it is
embraced by more general information so available or in said Receiving
Party's possession, nor shall a combination or aggregation of features which
form confidential information be deemed to be non-confidential merely
because the individual features, without being combined or aggregated, are
non-confidential.
4. Each of the Parties hereby agrees that all written or other tangible forms of
Confidential Information (including any materials generated by the
Receiving Party related to any Confidential Information) shall be and
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remain the property of its owner and shall be promptly returned to the owner
upon the written request of the owner.
5. Neither the Agreement nor the disclosure of any information by the
Disclosing Party shall be deemed to constitute by implication or otherwise, a
vesting of any title or interest or a grant of any license, immunity or other
right to the Receiving Party with regard to the Confidential Information.
Additionally, except as expressly provided in this Agreement, the execution
of the Agreement shall not operate, directly or indirectly, to grant to either
Party any rights under any patent, trade secret or know-how now or
hereafter owned by or licensed to the other Party.
6. Each Party warrants that it is the rightful owner of the Confidential
Information to be disclosed under this Agreement and that it has the lawful
right to make such disclosure.
7. In the event that the Receiving Party or any of its representatives are
requested or required to disclose Confidential Information pursuant to a
subpoena or an order of a court or government agency, the Receiving Party
shall (a) promptly notify the Disclosing Party of the existence, terms and
circumstances surrounding the governmental request or requirements; (b)
consult with the Disclosing Party on the advisability of taking steps to resist
or narrow the request; (c) if disclosure of Confidential Information is
required, furnish only such portion of the Confidential Information as the
Receiving Party is advised by counsel is legally required to be disclosed;
and (d) cooperate with the Disclosing Party in its efforts to obtain an order
or other reliable assurance that confidential treatment be accorded to that
portion of the Confidential Information that is required to be disclosed.
Because money damages may not be a sufficient remedy for any breach of
this Section of the Agreement by the Receiving Party, the Disclosing Party
shall be entitled to seek equitable relief, including injunction and specific
performance, as a remedy for any such breach of this section. Such remedy
shall not be deemed to be the exclusive remedy for a breach of this Section
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of the Agreement by the Receiving Party, but shall be in addition to all other
remedies available at law or equity to the Disclosing Party. In the event of
litigation relating to the Agreement, if a court of competent jurisdiction
determines that the Receiving Party has breached this section of the
Agreement, then the receiving Party shall be liable and pay to the Disclosing
Party the reasonable attorneys' fees, court costs and other reasonable
expenses of litigation, including any appeal therefrom. The Receiving Party
further agrees to waive any requirement for the posting of a bond in
connection with any such equitable relief.
NO LIABILITY TO THIRD PARTIES.
The debts, obligations and liabilities of either Joint Venturer, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and liabilities of
such Joint Venturer, and no other Party shall be obligated for any such debt,
obligation or liability of such Joint Venturer solely by reason of being a party to
this Agreement or an equity holder of a JV Company
LEGAL TITLE TO THE JOINT VENTURE.
The Joint Venturers agree that the legal title to the Joint Venture property and
assets, including the Joint Venture itself, shall remain in the name of the Joint
Venture.
TRANSFERS OF JOINT VENTURERS' INTERESTS.
Except as otherwise expressly permitted herein, no Joint Venturer may sell,
transfer, assign or encumber its interest in the Joint Venture, or admit additional
Joint Venturers, without the prior written consent of the other Joint Venturer. Any
attempt to transfer or encumber any interest in the Joint Venture in violation of this
Section shall be null and void.
The obligations and Rights of Transferees are as follows:
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a. Any person who acquires in any manner whatsoever any interest in
the Joint Venture, irrespective of whether such person has accepted
and adopted in writing the terms and provisions of this Agreement,
shall be deemed by the acceptance of the benefit of the acquisition
thereof to have agreed to be subject to and bound by all the
obligations of this Agreement that any predecessor in interest of such
a person was subject to or bound by;
b. The person acquiring an interest in the Joint Venture shall have only
such rights, and shall be subject to all of the obligations, as are set
forth in this Agreement; and, without limiting the generality of the
foregoing, such a person shall not have any right to have the value of
its interest ascertained or receive the value of such interest or, in lieu
thereof, profits attributable to any right in the Joint Venture, except as
herein set forth.
TERMINATION.
Upon the termination or dissolution of the Joint Venture, the Joint Venturers shall
proceed to liquidate the Joint Venture, and all proceeds of such liquidation shall be
applied and distributed in the manner set above according to the interests held by
each party in the Joint Venture. A reasonable time shall be allowed for the orderly
liquidation of the Joint Venture's assets in order to minimize losses normally
attendant upon such liquidation.
NOTICE.
Any notices to be given under this Agreement by either party to the other may be
effected either by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices must be addressed to
the addresses of the parties as they appear in the introductory paragraph of this
Agreement. Each party may change its address by written notice in accordance
with this paragraph. Notices delivered personally will be deemed communicated as
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of actual receipt; mailed notices will be deemed communicated as of 45 calendar
days after mailing.
MISCELLANEOUS PARTITION.
The Joint Venturers hereby mutually waive any right of partition which they may
have with respect to the Joint Venture and any noncash assets of the Joint Venture.
FEES AND COMMISSIONS.
Each Joint Venturer hereby represents and warrants to the other that it has not
incurred or obligated the Joint Venture for any brokerage, finder's or other similar
fees or commissions in connection with the transactions covered by this Agreement
or in connection with acquiring the Joint Venture or forming this Joint Venture.
Each Joint Venturer hereby agrees to indemnify and hold harmless the other from
and against all liabilities, costs, damages and expenses from any breach or alleged
breach of the foregoing representation.
WAIVER.
Failure on the part of either Joint Venturer to complain of any act of the other Joint
Venturer or to declare the other Joint Venturer in default, irrespective of how long
such failure continues, shall not constitute a waiver by such Joint Venturer of its
rights hereunder. No waiver of, or consent to, any breach or default shall be
deemed or construed to be a waiver of, or consent to, any future breach or default.
SEVERABILITY.
If any provision of this Agreement or the application thereof shall be determined
by a court of competent jurisdiction to be invalid and unenforceable, the remainder
of this Agreement and the application of the other provisions herein contained shall
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not be affected thereby, and all such other provisions shall remain effective and in
force and shall be enforced to the fullest extent permitted by law.
BINDING EFFECT.
This Agreement shall inure to the benefit of and be binding upon the Joint
Venturers, and their heirs, successors and assigns.
CONSTRUCTION OF AGREEMENT.
(a) The captions contained in this Agreement are inserted only as a matter of
convenience and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision thereof. (b) As used herein, the word
"person" shall include the individuals, corporations, partnerships and other entities
of any type. In this Agreement, the use of any gender shall be applicable to all
genders, and the singular shall include the plural, and the plural shall include the
singular.
OTHER ACTIVITIES OF JOINT VENTURERS.
Any Joint Venturer may engage in other business ventures of every nature and
neither the Joint Venture nor the other Joint Venturer shall have any right in such
independent ventures or the income and profits derived therefrom.
ENTIRE AGREEMENT.
This Agreement is intended by the Joint Venturers to be the final expression of
their agreement and the complete and exclusive statement of the terms thereof,
notwithstanding any representations or statements to the contrary heretofore made.
Amendments. This Agreement may be amended by the Parties hereto at any time
prior; provided, however, that any amendment must be by an instrument or
instruments in writing signed and delivered on behalf of each of the Parties hereto.
GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION.
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This Agreement will be governed by the laws of the State of Vietnam without
regard for conflicts of laws principles. Each Joint Venturer hereby expressly
consents to the personal jurisdiction of the state and federal courts located in the
State of for any lawsuit filed there against any party to this Agreement by any other
party to this Agreement concerning the Joint Venture or any matter arising from or
relating to this Agreement.
IN WITNESS WHEREOF, the Joint Venturers have signed and sealed this
Agreement.
Executed by the Joint Ventures named above with the intent of being legally bound
By _______________________________ Date _____________
(First Party)
By _______________________________ Date _____________
(Second Party)
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