- As correctly observed by the auditors, the above limits ZINARA to make use of Univern for all software in the foreseeable future.
- It is a restraint of trade that cannot be made by a public body subject to the laws of the country.
- As correctly observed by the auditors the clause goes against the Procurement Act and indeed its successor, the Public Procurement and Disposal of Assets Act.
- The main agreement contains three onerous provisions under the heading ‘Intellectual Property and Asset Ownership’. They read as follows:
- “Intellectual Property and Assets Ownership”
- Existing material. All right, title and ownership of any code, forms, algorithms or materials developed UNIVERN ENTERPRISES (PVT) LTD independently and outside of the agreement and provided during the course of the Agreement (“Existing material”) shall remain the sole property of the UNIVERN ENTERPRISES (PVT) LTD.
- Deliverables. All right, title and interest, including all rights under all copyright. Patent and other intellectual property laws, in and to the Software, its source code and any Deliverables shall, unless expressly agreed to the contrary in any Annexure, vest in UNIVERN ENTERPRISES (PVT) LTD.
- Assets. All assets provided by UNIVERN ENTERPRISES (PVT) LTD for the specific use in this concession agreement shall remain the sole property of UNIVERN ENTERPRISES (PVT) LTD at all times.”
- The net effect of the above is to vest sole ownership of the software developed to Univern perpetually. This is a strange and unconscionable provision. The essence of any purchase and seller agreement is for the transfer to the purchaser of the good being sold (the merx).
- In PPPs or joint venture agreements, the capital project constructed must be transferred to the public entity at the end of the defined contractual period be it BOT, BOOT or BLT. The present agreement is strange in that at the end of the contract the software, copyright, patent and other intellectual property remain with Univern.
- This part of the agreement is wrong and offends public morality and the laws of Zimbabwe.
- The mode of payment for fees due to Univern is defined in the main agreement.
- The agreement reads as follows;
“All amounts due and payable by ZINARA shall be paid to Univern in US Dollars….”
- This provision was couched oblivious to changes in the currency and legal tender of the Republic of Zimbabwe. That provision is not immune to Zimbabwean law, in particular changes made to the currency of use through S.I. 33 of 2019, (Amendment of RBZ Act and Issue of RTGS Dollars Regulations), S.I. 142 of 2019 (Reserve Bank of Zimbabwe (Legal Tender) Regulations and the Finance Act (No. 2) of 2019.
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