sambofortune14@gmail.

com

AGREEMENT

ENTERED INTO BY AND BETWEEN

NESTLE
(represented by Eunice Ganyawu-Magwali in her capacity as the Chief Executive
Officer)

AND

THINK TANK (PVT) LTD

(represented by Audrey Abram in her capacity as the Operations Manager)

FOR THE OUTSOURCING OF THE MARKETING AND ADVERTISING

FUNCTION

1. PREAMBLE
WHEREAS …………….. having its principal place of business at ……………………,
WHEREAS Think Tank (Pvt) Ltd (hereinafter referred to as “the Supplier”) is a
company duly registered in terms of the Companies and Other Business
Entities Act [Chapter 24:31], having its principal place of business at ……………
Harare, and that it has the capacity to carry out the activities under this Agreement;
WHEREAS the Supplier specializes in the marketing and advertising industry
AND WHEREAS the Supplier and …… (hereinafter jointly referred to as “the Parties”)
have mutually agreed that the following constitute terms and conditions of their
Agreement;
NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:

2. INTERPRETATION
2.1 In this Agreement, words and expressions shall have the meanings as assigned
to them herein. Words and phrases defined in this Agreement shall also apply
in the interpretation of the same words and phrases in any annexures, save
where specifically otherwise indicated.
2.2 Unless the context otherwise requires:
2.2.1 the singular includes the plural and vice versa;
2.2.2 words indicating one gender include the other gender;
2.2.3 words indicating natural persons shall include juristic persons as well;
and
2.2.4 references to any annexures, schedules, parts and sections are, unless
otherwise provided, references to annexures, schedules, parts and
sections of this Agreement.
2.3 Should any provision in a definition be a substantive provision conferring rights
or imposing obligations on anyone, then effect shall be given to it as if it were a
substantive provision in the body of this Agreement.
2.4 The use of the word "including" followed by (a) specific example/s 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/s.
2.5 When any number of days is prescribed in this Agreement, the same shall be
reckoned inclusively of the first and exclusively 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 immediately following business day.
2.6 Any reference to any legislation is to such legislation as at the signature date
hereof and as amended or re-enacted from time to time.
2.7 Where figures are referred to in numerals and in words, if there is any conflict
between the two, the words shall prevail.
2.8 Any provisions of this Agreement which either expressly or by their nature
extend beyond the expiry or termination of this Agreement shall survive such
expiry or termination.
2.9 The Parties agree that the rule of construction that an agreement shall be
interpreted against the Party responsible for the drafting of the agreement, shall
not apply in this Agreement.
2.10 The clause headings in this Agreement have been inserted for convenience only
and shall not be taken into account in its interpretation.
2.11 Where there is a conflict between this Agreement and any annexures or tender
documents, the following order of priority shall apply to resolve the conflict:
2.11.1 The annexure or tender document; and then
2.11.2 The Agreement.
2.12. This Agreement represents the complete understanding between the Parties and
supersedes all other agreements, communications and representations, whether
oral or written, concerning the activities under this Agreement.

3. TENURE OF AGREEMENT
3.1 This Agreement shall be effective upon the last date of signature of the
approving officials and remain in force for a period of one (1) year unless
terminated in accordance with clause 18.

4. APPOINTMENT
4.1 The Supplier is hereby appointed to NESTLE as and when required.

5. SCOPE OF AGREEMENT
5.1 The Supplier shall market and advertise on behalf of NESTLE.

6. COOPERATION
6.1 The Parties shall carry out their respective responsibilities in accordance with
the provisions of this Agreement. The Parties agree to cooperate with each
other at all times and maintain close working relationships in order to achieve
the objectives and scope of the Agreement.
6.2 The Parties shall keep each other informed of all activities pertaining to this
Agreement and shall consult when necessary on issues that may affect the
achievement of the objectives of the Agreement.

7. PAYMENT TERMS
7.1 The contract price for the service is stipulated in the Supplier’s Bidding
document.
7.2 NESTLE shall issue a Purchase Order to the Supplier detailing what is needed.
7.3 Upon receipt of the NESTLE’s Purchase Order, the Supplier shall invoice
NESTLE for the order within 3 days.
7.4 NESTLE shall approve in writing the amount indicated on the invoice before the
cartridges are delivered, once approval is granted the Supplier shall proceed
within three (3) days. NESTLE shall not unreasonably withhold approval.
7.5 Payment to the Supplier shall be due within, fourteen (14) days.
7.6 Payment shall be made in Zimbabwe dollars by bank transfer into the bank
account provided by the Supplier.

8. PRICE ADJUSTMENTS AND INCREASES

8.1 The contract price may be varied once, in the event of an increase in the cost of
materials or labour during the term of this agreement.
8.2 Any variation to the contract price or balance owing shall correspond to the
percentage increase in the cost of materials or labour provided that the increase
shall not exceed twenty percent.
8.3 To effect price adjustment, the Supplier shall notify NESTLE of the proposed
price adjustment stating the reasons thereof. Adjustment of contract price shall
be done with the written consent of NESTLE.

9. STATUS OF THE SUPPLIER AND ITS PERSONNEL

9.1 The Supplier’s personnel, employees, the Supplier and contractors working on
the execution of this Agreement or otherwise (hereinafter referred to as
“Personnel” are not employees of NESTLE.
9.2 The Supplier shall be solely and completely responsible and accountable for all
services performed by its Personnel for this Agreement.
9.3 Save to the extent otherwise provided for in this Agreement, neither Party shall
act as the agent of the other, and neither Party shall have the authority, or
represent that it has the authority, to bind the other Party.
9.4 Nothing in this Agreement shall be construed as creating a partnership,
consortium or joint venture arrangement between the Parties, and neither Party
shall have any authority to incur any liability on behalf of the other or to pledge
the credit of the other Party, unless such has been expressly agreed between
the Parties and recorded in writing.
9.5 No person who is not a Party to this Agreement shall have any rights or
obligations under the Agreement, or to enforce any of its terms.
9.6 The Parties acknowledge that they may from time to time conclude other
agreements unrelated to this Agreement. The Parties agree that all other
agreements entered into between them shall be separate and independent, and
rights and obligations existing under any agreement between them will not
result in rights and obligations under this Agreement. No Party shall be entitled
to enforce its rights in such other agreements by withholding performance or
applying set-off under this Agreement, or vice-versa.
9.7 The relationship between the Parties shall be one of good faith and each Party
therefore undertakes to observe good faith towards the other, and to act
reasonably with respect to matters that relate to the Agreement.

10. DUTIES OF THE SUPPLIER

10.1 The Supplier shall:
10.1.1 Invoice NESTLE for the submitted Purchase Order within 3 days.

11. DUTIES OF NESTLE

11.1 NESTLE shall
11.1.1 Issue a Purchase Order to the Supplier detailing the required material.
11.1.2 Approve in writing the invoice submitted by the Supplier.
11.1.3 Pay the Supplier within fourteen (14) days.
12. RESPONSIBILITY FOR CLAIMS AND INDEMNITY
11.1. The Supplier shall be solely responsible for any salaries, wages, insurance and
benefits due or payable to its Personnel, including without limitation, any
severance, termination, or disability payments to such Personnel and shall be
solely responsible for any claims for death, bodily injury, disability, damage to
property or other hazards that may be suffered by the Supplier’s Personnel as a
result of their work for this Agreement. NESTLE shall entertain no claims and
have no liability whatsoever in respect of the Supplier’s Personnel.
11.2. The Supplier shall indemnify, save and hold harmless, and defend at its own
expense, their officials and other personnel, from and against all suits, claims,
demands and liability of any nature and kind, including their cost and expense,
arising out of the actions or omissions of the Supplier or its Personnel.
11.3. NESTLE shall not be held responsible for any loss, damage, theft, or injury
which may occur to any persons or vehicles during the performance of this
Agreement.

12. SUBCONTRACTING
12.1. The Supplier shall not subcontract any part of this agreement except with the
written consent of NESTLE on terms and conditions as may be issued by
NESTLE including but not limited to the Supplier meeting the Sub contractor’s
costs.
12.2. Save for communication and interaction required for purposes of the day to day
rendering of the Services, NESTLE undertakes to only communicate with the
Supplier in relation to all rights, obligations and other material matters relating
to this Agreement.
12.3. NESTLE will not interfere with or impede the relationship between the Supplier
and its subcontractors, or suggest or cause the subcontractors to modify,
cancel, fail to renew or extend their agreements.
12.4. The Supplier shall assume full responsibility for making payment to its
subcontractors, and no subcontractor will be entitled to seek payment directly
from NESTLE for products or services rendered to the Supplier.

13. UTMOST GOOD FAITH

13.1. Both parties shall, at all material times demonstrate utmost good faith and
diligence in executing their duties.
13.2. The Parties recognize that it is impractical in the agreement to provide for every
contingency which may arise during the life of the agreement, and the Parties
hereby agree that it is their intention that the agreement shall operate fairly as
between them, and without detriment to the interest of either of them, and that,
if during the term of the agreement either Party believes that the agreement is
operating unfairly, the Parties will use their best efforts to agree on such action
as may be necessary to remove the cause or causes of such unfairness.

14. CONFIDENTIALITY
14.1. The Parties bind themselves to keep confidential the contents of this agreement
and any information that will be accessible to them during the course of the
implementation of this agreement unless the other party consents thereto in
writing or where such information is commonly known to the public or required
by law.
14.2. All information which the Supplier acquires in writing from NESTLE in
connection with the project or which NESTLE regards as confidential and all
information which becomes the property of NESTLE shall be treated as
confidential unless otherwise agreed on.
14.3. Each party acknowledges that the wrongful use or disclosure of Confidential
Information of the other party may result in irreparable harm for which there
will be no adequate remedy at law. In the event of a breach by the other party or
any of its officers, employees or agents of its or their obligations under this
Section, the non-breaching party may immediately terminate this Agreement
without liability to the other party, and may bring an appropriate legal action to
enjoin such breach, and shall be entitled to recover from the breaching party
reasonable legal fees and cost in addition to other appropriate relief.

15. BREACH
15.1. In the event of a breach of any condition or obligations in terms of this
Agreement, the Parties shall promptly remedy any defect or deficiency in the
fulfilment of their respective obligations in terms of this Agreement and shall
advise the other Party verbally and in writing as soon as either of the Parties
become aware of anything, which may hamper or delay the other Party in
fulfilling its obligations in terms of this Agreement.
15.2. Should any Party (the “Defaulting Party”) commit a breach of any of the
provisions of this Agreement, then the other Party (the “Aggrieved Party”) shall
be obliged to give the Defaulting Party 10 (ten) Business Days’ written notice (or
such longer period as the Aggrieved Party may specify), to remedy the breach. If
the Defaulting Party fails to comply with such notice, the Aggrieved Party shall,
without prejudice to the Aggrieved Party's rights to claim damages or such other
rights it may have in law, be entitled to:
15.2.1. Terminate this Agreement for a material breach, such termination to be
effective immediately upon receipt by the Defaulting Party of a written notice to
that effect; and/or
15.2.2. Claim immediate payment of all monies due or specific performance by
the Defaulting Party of all the Defaulting Party's obligations.

16. SUSPENSION
16.1. NESTLE may, by written notice of suspension to the Supplier, suspend all
payments to the Supplier under this agreement if the Supplier fails to perform
any of its obligations under this agreement, including the supply and delivery of
cartridges, provided that such notice of suspension;
 shall specify the nature of the failure, and shall request the Supplier to remedy
such failure within a period not exceeding fourteen (14) days after receipt by the
Supplier of such notice of suspension.

17. TERMINATION
17.1. NESTLE shall consult with the Supplier if any circumstances arise that, in
NESTLE’s judgement, interfere or threaten to interfere with the successful
execution of this Agreement, or the accomplishment of its purposes. These
include, but are not limited to, any failures by the Supplier to meet its
obligations under the terms of this Agreement. Likewise, the Supplier shall
promptly inform NESTLE of any circumstances that may interfere with the
execution of this Agreement, that come to its attention. The Parties shall
cooperate towards the rectification or elimination of the circumstances in
question and shall exert all reasonable efforts to that end, including prompt
corrective steps by the Supplier, where such circumstances are attributable to
it or within its responsibility or control.
17.2. Either Party shall be entitled without prejudice to its rights whatsoever, to
terminate this Agreement by giving fourteen (14) days written notice of its
intention to terminate this Agreement to the other Party.
17.3. Either Party may terminate the Agreement immediately by giving written notice
to the other Party if the other Party: is placed in business rescue, judicial
management, liquidation proceedings or similar proceedings in Zimbabwe are
instituted (except where the Services relate to the reorganisation, liquidation or
judicial management of NESTLE); or does not cure a material breach within the
required notice period;
17.4. NESTLE may in addition terminate the Agreement with immediate effect upon
written notice to the Supplier if NESTLE in its sole and absolute discretion
determines that: a governmental, regulatory, professional, or an entity having
the force of law, has introduced a new, or modified an existing law, rule,
regulation, interpretation, or decision, the result of which would render the
Supplier or NESTLE’s performance of any part of the Agreement otherwise
unlawful or in conflict with independence or professional rules; or
circumstances change (including changes in ownership) such that performance
of any part of the Agreement would be illegal or otherwise unlawful or in conflict
with independence or professional rules; or The Supplier’s fails to remedy a
failure in the performance of its obligations hereunder, as specified in a notice
of suspension pursuant to Clause 20, within thirty (30) days of receipt of a
notice of suspension or within such further period as NESTLE may have
subsequently approved in writing.
17.5. Upon notice of termination by either Party under this Clause, the Parties shall
take immediate steps to wind up activities under this Agreement in a prompt
and orderly manner, so as to minimize losses and/ or further expenditures. The
Supplier shall undertake no forward commitments, and shall return to NESTLE
all unspent funds. NESTLE shall reimburse The Supplier only for those costs
 incurred to execute this Agreement, in conformity with the express terms of this
Agreement. Any such reimbursements, when added to amounts previously
remitted to the Supplier by NESTLE for the execution of this Agreement, shall
not exceed the total NESTLE contribution for this Agreement. NESTLE shall
make any such reimbursements within 60 (sixty) days of notice of termination.
17.6. The Supplier shall be required to deliver to NESTLE, whenever required to do so
or, in any event, on expiration or termination of this Agreement, all property or
documentation issued to the same in connection with the provision of services
hereunder.
17.7. Upon termination, the Parties shall settle outstanding accounts as may be
necessary, for the avoidance of doubt, the fees due to the Supplier on
termination shall be for services actually rendered plus incurred expenses.

18. CESSATION OF RIGHTS AND OBLIGATIONS

18.1. Upon termination of the Agreement pursuant to Clause 18 or upon expiration of
the Agreement pursuant to Clause 3, all rights and obligations of the Parties
under the Agreement shall cease, except: such rights and obligations as may
have accrued on the date of termination or expiration; the obligation of
confidentiality set forth in clause 15; any right which a Party may have under
the laws of Zimbabwe.

19. DISPUTE RESOLUTION

19.1. In the event of a dispute arising between the parties in respect of any matter
contained in this Agreement: the aggrieved party shall notify the other party in
writing of the existence and nature of the dispute within a reasonable time of
the dispute arising: and Thereafter the parties shall negotiate in good faith to
settle the dispute in question as expeditiously as possible, which may include
submitting the matter to a mediation process, but in any event within a period
of seven (7 days) of the matter being referred to them or such longer time as the
parties may agree upon in writing. Should the parties be unsuccessful in
settling such dispute within the aforesaid period or such longer period as the
parties may agree to in writing the dispute must be resolved through a process
of arbitration by the Commercial Arbitration Centre in Harare. Nothing in this
clause shall preclude any party from seeking interim relief from a court of
competent jurisdiction.

20. FORCE MAJEURE

20.1. The Parties shall not be held liable for liquidated damages or termination for
default or delay, if and to the extent that the delay or such default in
performance or other breach or failure to perform its obligations under this
agreement is the result of an event of force majeure, provided that such event
has not been occasioned or prompted by the negligent actions of the Party so
claiming to have experienced an event force majeure.
20.2. In the event a force majeure event or situation arises, the party experiencing the
event or situation shall notify the other in writing of the occurrence of the event
within five (5) days of the occurrence of the event and cause thereof. Unless
directed otherwise the Parties shall attempt to continue to perform their
obligations under this agreement as far as is reasonably practical and shall
seek all reasonable alternative means for the performance not prevented by
such event or situation.

21. APPENDICES
21.1. The following documents shall be deemed to form this Agreement:
21.1.1. The Request For Proposal (RFP)
21.1.2. Supplier’s Bidding document

22. WHOLE AGREEMENT, SEVERABILITY AND WAIVER

22.1. This Agreement including the appendices constitutes the whole agreement
between the parties concerning the subject matter thereof.
22.2. No variation of, or addition or amendment to the Agreement, including this
clause, or consensual termination of the Agreement, shall be of any force or
effect unless it is recorded in writing and signed by all the parties or their duly
authorised representatives.
22.3. If any clause or portion of this agreement is held to be invalid or unenforceable,
the rest of the Agreement shall remain unaffected and shall retain full force and
effect.
22.4. No condonation, relaxation or indulgence afforded by any party to the party will
prejudice the rights of the former, and the former will not be estopped from
exercising such rights due to its actions.
22.5. The Parties shall inform each other from time to time in writing of the respective
names of their representatives duly authorised to act as such on behalf of each
parties.

23. AMENDMENTS
23.1. The Parties may amend this Agreement, including its Annexes, by mutual
written agreement which shall be signed off by both/all parties to the
Agreement.
23.2. No relaxation, forbearance, delay, or indulgence by either party in enforcing any
of the terms and conditions of the Agreement or the granting of time by either
party to the other shall prejudice, affect, or restrict the rights of that party
under the Agreement, neither shall any waiver by either party of any breach of
Agreement operate as waiver of any subsequent or continuing breach of
Agreement. Any waiver of a party’s rights, powers, or remedies under the
Agreement must be in writing, dated, and signed by an authorized
representative of the party granting such waiver, and must specify the right and
the extent to which it is being waived.
24. GOVERNING LAW
25.1 This Agreement shall, in all respects and for all purposes, be governed and
construed in accordance with the laws of Zimbabwe.
25. DOMICILIUM CITANDI ET EXECUTANDI
26.1 The Parties choose as their domicilium citandi et executandi for the purpose of
giving of any notice, the payment of any sum of money, the service of any
process, and for any purpose arising from this agreement, as follows:
NESTLE:
Harare
Tel: 04-780010
E-mail: [email protected]
Attention: Mr. F. Sambo

THE SUPPLIER
Address
Harare
Tel:
E-mail:
Attention:

The addresses referred to in this paragraph may be changed by written notice

thereof to the other party, provided that the new address chosen by the party will
be or includes a physical address at which process can be served.
The new address shall become effective seven (7) working days after the notice has
been given.
Any notice given in terms of this agreement will be delivered by hand, or sent by
prepaid registered post or by telefax to the domocilium of the other party.
In witness whereof the Parties hereto acting through their representatives’
thereunto duly authorised, have caused this agreement to be signed;
For and behalf of For and behalf of
NESTLE THINK TANK (PVT) LTD
NAME: NAME:

DESIGNATION: DESIGNATION:
Chief Executive Officer Director

SIGNATURE: DATE: SIGNATURE: DATE:

WITNESS NAME: WITNESS NAME:

SIGNATURE: DATE: SIGNATURE: DATE:

WITNESS NAME: WITNESS NAME:

SIGNATURE: DATE: SIGNATURE: DATE: