AND NON-COMPETITION AGREEMENT
(NCNDA)
This Non-Circumvention, Non-Disclosure and Non-Competition Agreement (the "Agreement") is entered into as of the date last signed below (the "Effective Date") between:
Party A: _____________________________________________ ("Party A"); and
Party B: _____________________________________________ ("Party B").
Party A and Party B are referred to individually as a "Party" and collectively as the "Parties." This Agreement may also be entered into by additional parties, each of whom shall sign a counterpart and be bound by its terms.
RECITALS
The Parties desire to explore and, where appropriate, pursue one or more commercial transactions, business opportunities, or trade facilitation arrangements (collectively, the "Business Opportunity"). In connection with exploring the Business Opportunity, each Party may disclose or receive confidential information and may introduce or be introduced to third-party contacts, buyers, sellers, investors, or other commercial partners ("Introduced Parties"). The Parties wish to ensure that such introductions, contacts, and information are protected from misuse and that neither Party circumvents the other in connection with any transaction arising from the Business Opportunity.
1. Non-Circumvention
Each Party covenants to the other that it shall not, directly or indirectly, contact, negotiate with, engage, or enter into any commercial arrangement with any Introduced Party that was introduced by the other Party, without the express prior written consent of the introducing Party.
The non-circumvention obligation in clause 1.1 shall apply: (a) during the term of this Agreement; and (b) for a period of twenty-four (24) months following the date of each introduction (the "Protection Period"), regardless of whether this Agreement has been terminated.
The non-circumvention obligation covers all transactions with an Introduced Party that relate to the Business Opportunity or to any substantially similar commercial activity, whether or not such transactions arise directly from the introduction.
Circumvention shall include, without limitation: (a) engaging with an Introduced Party through an affiliate, subsidiary, nominee, or related entity; (b) restructuring a transaction to exclude the introducing Party; (c) introducing the Introduced Party to a third party who then engages with the Introduced Party on the circumventing Party's behalf; and (d) using information about the Introduced Party obtained through the introduction to contact the Introduced Party through a different channel.
In the event of circumvention, the circumventing Party shall pay to the introducing Party, as liquidated damages and not as a penalty, an amount equal to the full commission, fee, or financial benefit that the introducing Party would have received had the transaction been concluded with its knowledge and participation, plus interest at _____ per cent per annum from the date of the circumventing transaction.
2. Non-Disclosure
Each Party (the "Receiving Party") shall keep strictly confidential all information disclosed by the other Party (the "Disclosing Party") in connection with the Business Opportunity, whether disclosed orally, in writing, electronically, or by any other means, and whether or not marked as confidential ("Confidential Information").
Confidential Information includes, without limitation: the identity and contact details of Introduced Parties; the commercial terms, pricing, and structure of any proposed or concluded transaction; trade secrets, know-how, methodologies, and proprietary processes; financial information and projections; client lists and supplier lists; and any other information that a reasonable person would regard as confidential given the circumstances of its disclosure.
The Receiving Party shall: (a) use the Confidential Information solely for the purpose of evaluating or advancing the Business Opportunity; (b) disclose the Confidential Information only to its employees, officers, directors, or professional advisers who have a strict need to know and who are bound by equivalent confidentiality obligations; and (c) apply to the Confidential Information no less security than it applies to its own most sensitive confidential information.
The non-disclosure obligation shall not apply to information that: (a) is or becomes publicly available other than through a breach of this Agreement; (b) was already known to the Receiving Party before the disclosure, as evidenced by written records; (c) is independently developed by the Receiving Party without reference to the Confidential Information; or (d) is required to be disclosed by applicable law, court order, or regulatory authority, provided that the Receiving Party gives the Disclosing Party the maximum practicable prior written notice and cooperates with any effort to obtain a protective order.
The non-disclosure obligation shall survive the termination or expiry of this Agreement for a period of five (5) years from the date of disclosure of the relevant Confidential Information.
3. Non-Competition
Each Party agrees that, during the term of this Agreement and for a period of _____ months following its termination, it shall not, without the prior written consent of the other Party, directly or indirectly engage in, own, manage, operate, control, or participate in any business that competes with the other Party's activities in connection with the Business Opportunity within the following territory: _____________________________________________.
The non-competition obligation shall not prevent either Party from: (a) continuing to operate its existing business activities as at the Effective Date; or (b) investing as a passive minority shareholder (holding less than five per cent of the share capital) in a publicly listed company that may compete with the other Party.
The Parties acknowledge that the non-competition obligation is reasonable in scope, duration, and geography, having regard to the legitimate business interests being protected. If any court or tribunal finds this obligation to be unenforceable as drafted, it shall be modified to the minimum extent necessary to make it enforceable.
4. Ownership of Introductions
All Introduced Parties and all business opportunities arising from introductions made under this Agreement remain the property of the introducing Party throughout the Protection Period. The receiving Party acquires no ownership right or licence to engage with any Introduced Party other than in accordance with and subject to this Agreement.
Each Party shall maintain a written record of all introductions made under this Agreement, including the date of introduction, the identity of the Introduced Party, and a brief description of the business opportunity presented. Such records shall be available to the other Party on request in the event of a dispute.
5. Remedies
Each Party acknowledges that a breach of this Agreement would cause irreparable harm for which monetary damages would be an inadequate remedy. Accordingly, in addition to any other remedy available at law or in equity, the non-breaching Party shall be entitled to seek injunctive relief, specific performance, or any other equitable remedy without the requirement to post a bond or other security.
The rights and remedies set out in this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity.
6. Representations
Each Party represents and warrants that: (a) it has full authority to enter into this Agreement; (b) entering into this Agreement does not violate any obligation by which it is currently bound; and (c) the information and introductions it provides under this Agreement are made in good faith and to the best of its knowledge.
7. Term
This Agreement shall commence on the Effective Date and remain in force for a period of two (2) years, unless earlier terminated by mutual written agreement. The non-circumvention, non-disclosure, and non-competition obligations shall survive termination to the extent specified in the relevant clauses above.
8. Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of _____________________________________________.
Any dispute arising out of or in connection with this Agreement shall be resolved by arbitration under the rules of _____________________________________________, seated in _____________________________________________, with English as the language of proceedings.
Each Party irrevocably submits to the jurisdiction of the courts of _____________________________________________ for the purpose of seeking urgent interim or injunctive relief pending arbitration.
9. General
This Agreement constitutes the entire agreement between the Parties on the subject of non-circumvention, non-disclosure, and non-competition, and supersedes all prior understandings on the same subject.
No amendment shall be effective unless in writing and signed by both Parties.
If any provision is held unenforceable, the remaining provisions shall continue in full force.
This Agreement may be executed in counterparts. Electronic signatures are valid and binding.
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
EXECUTION
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date last signed below.
Signed by Party A:
Authorised Signatory: _____________________________________________
Full Name: _____________________________________________
Title: _____________________________________________
Entity Name: _____________________________________________
Date: _____________________________________________
Signed by Party B:
Authorised Signatory: _____________________________________________
Full Name: _____________________________________________
Title: _____________________________________________
Entity Name: _____________________________________________
Date: _____________________________________________
Doc 09 — NCNDA (Non-Circumvention, Non-Disclosure and Non-Competition Agreement) — Neutral Template