Non-Circumvention, Non-Competition and Non-Disclosure Agreement
Dated as at the date of electronic acceptance recorded below.
Parties
By accepting below, you — the individual identified in the form above — are “Party 1”, the receiving party; and Axiom Global Fuels Ltd, a private limited company registered in England and Wales with Company number 17191822 and whose registered office is at 66 Paul Street, London, England, United Kingdom, EC2A 4NA, represented by Ross James, is “Party 2”, the disclosing party. Party 1 and Party 2 are each a “Party” and together the “Parties”.
Background
The Parties intend to enter into discussions relating to the Project which will involve the exchange of Confidential Information between them. The Parties have agreed to comply with this agreement in connection with the disclosure and use of Confidential Information.
1. Interpretation
In this Agreement terms used as defined terms shall have the following meanings:
“Affiliate(s)” has the meaning ascribed to it in clause 3.2.
“Agreement” means this agreement.
“Confidential Information” has the meaning ascribed to it in clause 2.1.
“Project” means the various projects of mutual interest as agreed from time to time.
“Receiving Party” means a party to this agreement when it receives Confidential Information, directly or indirectly, from the other party.
“Representatives” has the meaning ascribed to it in clause 3.2.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted, and includes any subordinate legislation made under it. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the preceding words. A reference to writing or written includes email. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to a holding company or a subsidiary means a holding company or a subsidiary as defined in section 1159 of the Companies Act 2006.
2. Confidential Information
In this Agreement, “Confidential Information” means that information disclosed by the Disclosing Party to the Receiving Party, on or after the initial disclosing date, including but not limited to the terms and conditions of this Agreement, the existence of discussions between the Parties, trade secrets of the Disclosing Party, and any oral, written, graphic or machine-readable information including, but not limited to, that which relates to patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, research, development or know-how, markets, software (including source and object code), hardware configuration, computer programs, algorithms, business or marketing plans, business proposals, costs, prices, purchase or sales volume, agreements with third parties, services, actual or potential customers and suppliers, marketing or finances of the Disclosing Party or in connection with the Project, which information is designated in writing to be confidential or proprietary. Notwithstanding the foregoing, all technical and financial information, business plans and pricing information of the Disclosing Party and its subsidiaries or in connection with the Project shall be Confidential Information of the Disclosing Party; provided, however, that Confidential Information will not include information that:
(a) is as of the date of this Agreement, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or readily ascertainable through proper means to persons knowledgeable in the relevant industry;
(b) was acquired or lawfully in the possession of the Receiving Party by proper means without restriction as to use or disclosure before receiving such information from the Disclosing Party;
(c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not known by the Receiving Party to be bound by a confidentiality agreement or otherwise prohibited from disclosing such information; or
(d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
3. Confidentiality undertaking
The Receiving Party shall use Confidential Information only to consider, evaluate, or analyse the Project. The Receiving Party shall maintain all Confidential Information in strict confidence and shall not disclose any Confidential Information to any other party, person or entity, save for the Representatives, unless such disclosure is permitted with the prior written consent of the Disclosing Party.
The Receiving Party may, however, disclose Confidential Information to the Receiving Party’s: (i) holding companies, subsidiaries and subsidiaries of such same holding companies (the “Affiliates”); and (ii) its and its Affiliates’ employees, officers, directors, potential financiers and professional advisors (collectively, the “Representatives”) who have a specific and legitimate business need to know such Confidential Information for the express purpose of considering, evaluating or analysing the Project.
The Receiving Party shall procure that each Representative receiving Confidential Information is informed and fully aware of its confidential nature, and shall procure that each Representative abides by this Agreement as if it were a party hereto. The Receiving Party and its Representatives shall use the same degree of care to avoid unauthorised disclosure of Confidential Information as the Receiving Party employs with respect to their own information of a highly confidential nature. The Receiving Party further agrees to keep confidential, and not disclose to anyone other than their Representatives, the fact that the Confidential Information has been made available or that discussions or negotiations are taking place, or have taken place, with the Disclosing Party in connection with the Project.
4. Non-circumvention and non-competition
No Party to this Agreement may directly or indirectly circumvent, compete with, interfere with, avoid, by-pass or obviate the interests of, or cause, support, or entice any other person(s) to circumvent, compete with, interfere with, avoid, by-pass or obviate the interests of, the other Party to this Agreement by entering into any arrangement with persons or entities introduced to that Party by the other Party in connection with the Opportunity, without first obtaining the written consent of the other Party.
5. Injunctive relief
The Receiving Party acknowledges that the disclosure or use of any of the Disclosing Party’s Confidential Information in violation of the terms of this Agreement would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, the Receiving Party agrees that the Disclosing Party will have the right to obtain an injunction enjoining any use or disclosure of its Confidential Information in violation of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity.
6. Exceptions
Nothing within this Agreement shall prevent the Receiving Party or any Representatives from disclosing Confidential Information to the extent that disclosure is absolutely required by a court of competent jurisdiction or by a governmental agency, provided that the Receiving Party or Representatives: (a) provide the Disclosing Party with prior written notice, to the furthest extent permissible by applicable law and to the extent practicable, of the existence of such legal demand; and (b) so far as is reasonably practicable, disclose only the portion of the Confidential Information they are absolutely required to.
Subject to clauses 6.3 and 6.4, no Party will make, or permit or procure to be made, or solicit or assist any other person to make, any announcement or disclosure of any Confidential Information without the prior written consent of the other Party. Where the Receiving Party becomes (or is reasonably likely to become) compelled to disclose Confidential Information, it will, where and to the extent permitted by law, immediately notify the Disclosing Party so that the Disclosing Party may seek to prevent or minimise that disclosure or waive compliance, and the Parties will co-operate to that end. Any disclosure so compelled will be made after prompt consultation with the Disclosing Party and limited to the portion which legal advisers advise in writing must be disclosed. Each Receiving Party will, to the extent permitted by law, immediately notify the Disclosing Party of any breach, or threatened breach, of this Agreement on becoming aware of it. Any notification under this clause will be made immediately by telephone or email.
7. Return of Confidential Information
If the Disclosing Party requests the return of the Confidential Information, the Receiving Party will, as soon as reasonably practicable and in any event within 14 days, return to the Disclosing Party or destroy all Confidential Information it or its Representatives have received. The Receiving Party and its Representatives may nevertheless retain Confidential Information for dispute resolution, legal or regulatory purposes, or under a bona fide internal document retention policy, provided that this Agreement continues to apply to any such retained Confidential Information until it is destroyed or returned.
8. No representation or recommendation
Except as otherwise agreed in writing between the Parties: the Receiving Party will be responsible for making its own decision on the Confidential Information and acknowledges that no member of the Disclosing Party or its professional advisers makes any representation, warranty or undertaking, express or implied, as to the accuracy, reliability, completeness or reasonableness of any Confidential Information; the Disclosing Party is under no duty to provide additional information or to update or correct any aspect of the Confidential Information; and the Disclosing Party shall not be liable for any direct, indirect or consequential loss suffered as a result of relying on any statement contained in or omitted from the Confidential Information.
No communication (written or oral) shall be deemed an assurance or guarantee as to expected results or constitute investment, legal, tax or accounting advice or a recommendation. Neither entering into this Agreement nor carrying out any negotiations or due diligence obliges either Party to enter into the Project; contractual obligations in relation to the Project arise only on the execution of definitive legal documentation and are wholly separate from the obligations created by this Agreement.
9. Term
Save as expressly provided otherwise (and except for the provisions of clause 6.2, which shall continue), the obligations contained in this Agreement shall remain in effect for the period of 2 (two) years from the date hereof.
10. Inside information
The Parties acknowledge that the Confidential Information is given in confidence and that some or all of it is or may be price-sensitive information, and that its use may be regulated or prohibited by applicable legislation including, but not limited to, securities law relating to insider dealing and market abuse.
11. No warranty
All information provided in relation to the Project is provided “AS IS”, without any warranty express, implied or otherwise, including as to its accuracy, completeness, performance, non-infringement of third-party rights, merchantability or fitness for a particular purpose. Neither the Receiving Party nor its affiliates or advisors shall be liable for damages incurred from using any information made available regarding the Project.
12. No assignment
No Party shall transfer or assign its rights or obligations under this Agreement in whole or in part without the prior written consent of the other Parties.
13. Waiver and amendment
No failure or delay in exercising any right, power or privilege under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise preclude any other or further exercise. Any amendment or supplement to this Agreement may only be made in writing signed by the Parties.
14. Entire agreement
This Agreement contains the entire agreement among the Parties with respect to its subject matter and supersedes any and all earlier agreements, oral or written, in respect of that subject matter. In case of any discrepancy between this Agreement and any other arrangement between the Parties, this Agreement shall prevail.
15. No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another, or authorise any Party to make commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
16. Severability
The provisions of this Agreement shall be severable in the event that any of them are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. Where any provision is held invalid, illegal or unenforceable, the Parties shall promptly take all necessary steps to replace it with an enforceable provision having the same or similar effect.
17. Counterparts
This Agreement may be executed in any number of counterparts, each of which will be an original and all of which together will constitute one and the same instrument. It will become binding when one or more counterparts bear the signatures (or electronic acceptance) of duly authorised representatives of the Parties.
18. Governing law
This Agreement will be governed by and construed in accordance with the laws of England and Wales, exclusive of its choice-of-law principles. The courts located in London have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party consents to that jurisdiction and venue.
19. Notices
Any communication in connection with this Agreement shall be in writing and shall either be delivered by hand (including by courier) or sent by first-class pre-paid post to the addresses given at the beginning of this Agreement, or by email.
20. Acceptance
By ticking the box below, Party 1 agrees to be bound by this Agreement as at the date of acceptance, with Ross R. James accepting for and on behalf of Axiom Global Fuels Ltd (Party 2).
This electronic acceptance records your name, email, the agreement version, and the date and time of acceptance. A full signed counterpart may be requested by the team before data-room access is granted.
