Consensus One Venture Capital Limited Partnership Deed


18. GENERAL

18.1 Notices
18.2 Governing law 
18.3 Jurisdiction 
18.4 Invalidity 
18.5 Waivers 
18.6 Cumulative rights 
18.7 Survival of rights 
18.8 No trust 
18.9 Non-merger 
18.10 Payments 
18.11 Set-off 
18.12 Costs and expenses 
18.13 Further action
18.14 Entire agreement
18.15 Third party rights
18.16 Legal advice
18.17 Litigation fees
18.18 Counterparts 

18.1 Notices

(a) Any notice or other communication given under this deed including, but not limited to, a request, demand, consent or approval, to or by a party:

(i) must be in legible writing and in English;

(ii) must be addressed to the addressee at the address or facsimile number set out below or to any other address or facsimile number that the party notifies to the other parties (if the party is the General Partner) or the General Partner (if the party is not the General Partner) under this clause 18.1:

A. if to the General Partner:

Address: [insert address]
Attention: [insert name of contact person]
Facsimile: [insert facsimile number]

B. if to a Limited Partner, the address or facsimile number specified in the register established under clause 7.1 (Partner register);

(iii) must be signed by an Officer or attorney or under the common seal of the sender if the sender is a body corporate; and

(iv) is regarded as received by the addressee in accordance with paragraph (b).

(b) A notice is regarded as received under paragraph (a):

(i) if sent by hand, when delivered to the addressee;

(ii) if sent by post:

A. 3 Business Days from and including the date of postage if posted to and from a place within Australia; or

B. 7 Business Days from (and including) the date of postage if posted to or from a place outside Australia; or

(iii) if sent by facsimile transmission, on receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent indicating successful transmission of all pages,  

but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (addressee's time) it is regarded as received at 9.00 am on the next Business Day.

(c) A facsimile transmission is regarded as legible unless the addressee telephones the sender within 2 hours after transmission is received or regarded as received under paragraph (b)(iii) and informs the sender that it is not legible.

(d) In this clause 18.1, a reference to an addressee includes a reference to a person who is, or who the sender reasonably believes to be an Officer, agent or employee of the addressee.

18.2 Governing law

The laws of the state specified in clause 21 of schedule A govern this deed and its interpretation.

18.3 Jurisdiction

Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the state specified in clause 21 of schedule A and its appellate courts.

18.4 Invalidity

(a) If a provision of this deed, or a right or remedy of a party under this deed is void or unenforceable in a particular jurisdiction:

(i) it must be read down or severed in that jurisdiction only to the extent it is void or unenforceable; and

(ii) it does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.

(b) This clause 18.4 is not limited by any other provision of this deed in relation to severability, invalidity or unenforceability.

18.5 Waivers

(a) A waiver of a provision of this deed or a right or remedy arising under this deed, including this clause 18.5, must be in writing and signed by the party granting the waiver.

(b) A single or partial exercise of a right or remedy does not prevent a further exercise of that right or remedy or the exercise of another right or remedy.

(c) Failure by a party to exercise, or delay in exercising, a right or remedy does not prevent the further exercise of that or any other right or remedy, or operate as a waiver.

(d) A waiver is only effective in the specific instance and for the specific purpose for which it is given.

18.6 Cumulative rights

The rights and remedies of a party under this deed are in addition to and do not exclude or limit any other right or remedy provided by law.

18.7 Survival of rights

(a) Clauses 1 (Dictionary), 4 (Contribution arrears and other default), 5 (Partnership Profits and Losses), 6 (Distributions other than in dissolution), 7 (Partnership Accounts, records and reports), 10 (Duration and termination of the Partnership), 11 (Liability and indemnification), 13 (Management Fee), 15 (Confidentiality), 16 (Limitation of liability of Limited Partners) and 17 (GST) and this clause 18 survive termination of this deed together with any other term which by its nature is intended to do so.

(b) Subject to the restrictions against unauthorised assignment or transfer in this deed, the provisions of this deed continue for the benefit of, and are binding on, each Partner and the heirs, devises, legatees, personal representatives, successors and assigns of the Partner.

18.8 No trust

This deed does not create a trust in favour of any party.

18.9 Non-merger

No term in this deed merges on completion of any transaction contemplated by this deed.

18.10 Payments

(a) A payment which is required to be made under this deed must be in Australian dollars and in the form of cash or by bank cheque or other immediately available funds.

(b) A payment which is required to be made to the Partnership under this deed must be made to the General Partner as agent of the Partnership.

18.11 Set-off

The General Partner may set-off against any payment by the General Partner on behalf of the Partnership to a person under this deed, any amount that is due and payable by the person to the Partnership under this deed.

18.12 Costs and expenses

(a) Subject to clause 11.4 (Indemnity of the General Partner), each party must pay its own costs and expenses of negotiating, preparing, signing, delivering and registering this deed and any other agreement or document entered into or signed under this deed.

(b) Subject to clauses 11.4 (Indemnity of the General Partner), 11.6 (Indemnity of members of the Advisory Committee), 11.7 (Tax), 11.8 (Indemnity as attorney) and 11.9 (Conduct of Claims), a party must bear the costs and expenses of performing its obligations under this deed, unless otherwise provided in this deed.

18.13 Further action

Each party must do all things necessary to give full effect to this deed and the transactions contemplated by this deed.

18.14 Entire agreement

(a) This deed contains the entire understanding among the Partners and supersedes any prior written or oral agreement between them in respect of the subject matter of this deed or the Partnership.

(b) There are no representations, agreements, arrangements, or understandings, oral or written, among the Partners relating to the subject matter of this deed or the Partnership which are not fully specified in this deed.

18.15 Third party rights

Except as otherwise provided in this deed:

(a) each Partner executes this deed solely in its own legal capacity and not as an agent or trustee of any other person or entity; and

(b) only the Partners have or are intended to have a right or remedy under this deed or obtain a benefit under it.

18.16 Legal advice

Each party acknowledges that it has received legal advice about this deed or has had the opportunity of receiving legal advice about this deed. 

18.17 Litigation fees

The Partner or Partners who do not prevail in any legal action arising out of or in connection with this deed must reimburse to the prevailing Partner or Partners the amount of the reasonable legal, accounting and expert fees and the costs of those actions paid or incurred by the prevailing Partner or Partners.

18.18 Counterparts

This deed may be executed in any number of counterparts and when so executed, all of those counterparts constitute a single instrument binding on all parties even though all parties are not signatories to the original or to the same counterpart.

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