Non Disclosure Agreement
Non Disclosure Agreement
Non Disclosure Agreement
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (the “Agreement”) is entered into as of the date of the
last signature affixed hereto (the “Effective Date”) by and between:
AND
WHEREAS:
A. PETRONAS is the national oil and gas corporation of Malaysia whose activities include
but is not limited to the exploitation of oil and gas, marketing of petroleum and
petroleum products, and investment holding.
B. The Parties are desirous to enter into exploratory discussions for the purpose of
developing business collaborations surrounding Supply and Trading of Oil and Biofuel
Products and Retail Brand Licensing and Solutions (“the Purpose”).
C. The Parties agree that Confidential Information shall be kept strictly confidential and
that any disclosure of Confidential Information by the Disclosing Party to the Receiving
Party shall be governed by the terms and conditions as herein contained in this
Agreement.
1.1 Definitions
Unless the context otherwise requires, for the purposes of this Agreement, the following
terms and expressions shall have the meanings set forth below:
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“Agreement” shall mean this Non-Disclosure Agreement and the terms and conditions
contained herein;
"Affiliate" with respect to any Party means any company or other legal entity that directly
or indirectly through one or more intermediaries, controls or is controlled by, or is under
common control of the Party. For the purposes of this Agreement, “control” means the
ownership directly or indirectly of more than fifty percent (50%) of the voting rights in a
company or other legal entity;
"Related Persons" means, in respect of a Party, its Affiliate and and each of their
respective directors, employees, advisers, agents, legal counsels, auditors, and
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consultants retained by such party in relation to the Proposed Transaction at any time
during the period in which the provisions of this Agreement apply.
1.2 Interpretations
1.2.1 any reference to a “Clause” is a reference to a clause of this Agreement and, unless
otherwise indicated, includes all the sub-clauses of the clause;
1.2.2 words importing the singular include the plural and vice versa, words importing
gender or the neuter include both genders and the neuter;
1.2.3 the headings in this Agreement are for convenience only and shall not affect its
interpretation;
1.2.4 the words "includes" and "including" shall be construed without limitation;
1.2.5 the word "person" includes an individual, partnership, body corporate, state or
agency of a state, any unincorporated association (whether or not having a
separate legal entity); and
2. EFFECTIVE DATE
This Agreement shall be deemed to have come into force on the Effective Date.
3. DUTY OF CONFIDENTIALITY
3.1.1 take all steps and precautions necessary to preserve the secrecy and
confidentiality of the Confidential Information including preventing access and/or
use of the Confidential Information by person(s) not authorised by this
Agreement;
3.1.2 use the Confidential Information only in connection with the evaluation of or
negotiations relating to the Proposed Transaction and shall not make any use,
sale, exchange or publication of the Confidential Information or otherwise
disclose the Confidential Information to anyone in any manner whatsoever unless
a prior written approval had first been obtained from and granted by the Disclosing
Party;
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3.1.3 not circulate, use, sell, deal, develop, exploit or otherwise appropriate any parts,
products, services, documents or information of the disclosed Confidential
Information in any way whatsoever including and without limitation through
adaptation, redesign or modification of the Confidential Information through or any
type of media except to the extent authorized in writing by the Disclosing Party.
3.1.4 subject to Clause 3.2, not disclose, without the prior written consent of the
Disclosing Party (which consent shall not be unreasonably withheld) the
Confidential Information to anyone other than:
a) such Related Persons and Affiliates of the Receiving Party as are strictly
necessary for the Proposed Transaction; or
b) persons whom the Disclosing Party has agreed in writing may receive it; and
c) disclose it to such persons only in confidence and only to the extent necessary
for the Proposed Transaction; and
3.1.5 ensure that each person to whom Confidential Information is disclosed is fully
aware of the Receiving Party's obligations under this Agreement and procure that
each such person complies with such obligations as though such person were a
party to this Agreement.
3.1.6 The Receiving Party shall ensure that all other Related Persons of the Receiving
Party, save for its respective directors and employees, enter into a separate written
non-disclosure agreement with the Receiving Party on terms which are no less
stringent than this Agreement prior to the disclosure and receipt of any Confidential
Information.
3.1.7 ensure that all such Confidential Information is held in confidence (whether
communicated orally, in writing, electronic form or otherwise) and minimise the risk
of accidental or unauthorised disclosure, access to or use of such Confidential
Information; and
3.1.8 must promptly notify the Disclosing Party if it suspects, or becomes aware of, any
unauthorised Processing or disclosure of the Confidential Information.
3.2 Save for circumstances provided under Clause 3.3 of this Agreement, the Receiving Party
agrees with and undertakes to the Disclosing Party that it shall be responsible for the acts and
omissions of such persons to whom it has disclosed Confidential Information and any breach by
any such persons shall be treated as a breach by the Receiving Party and the Receiving Party
shall be fully liable for each of such breach as if it is the breach of the Receiving Party.
3.3 The Receiving Party and its Related Persons may disclose Confidential Information to the
extent required:
3.3.1 by any order of any court of competent jurisdiction or any competent judicial,
governmental, regulatory or supervisory body;
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3.3.2 by the rules of any listing authority, stock exchange or any regulatory or
supervisory body with which the Receiving Party or its Related Persons is or are
bound to comply; or
3.3.3 by the laws or regulations of any country with jurisdiction over the affairs of the
Receiving Party or its Related Persons,
in which case before it discloses any Confidential Information the Receiving Party shall (to
the extent permitted by laws or regulations) inform the Disclosing Party or procure that the
Disclosing Party is informed of the full circumstances and the information required to be
disclosed and consult with the Disclosing Party as to possible steps to avoid or limit
disclosure and take such steps as the Disclosing Party may reasonably require.
3.4 The Receiving Party shall immediately inform the Disclosing Party of the full circumstances
of any disclosure upon becoming aware that Confidential Information has been disclosed
in breach of the terms of this Agreement.
3.5 Notwithstanding anything to the contrary contained elsewhere in this Agreement, nothing
in this Agreement shall be construed as creating any obligation on the part of any Party to
disclose any Confidential Information whatsoever.
3.6 The following information shall not be deemed Confidential Information, and the Receiving
Party shall have no obligation under this Agreement with respect to any such information
from the Disclosing Party which:
a) prior to this Agreement, is in the lawful possession of, or already made known to the
Receiving Party through no fault of its own (as proven by written records); or
b) becomes publicly known through publication, inspection of any product or otherwise
through no fault of the Receiving Party; or
c) approved for release by written authorization of the Disclosing Party; or
d) is developed independently by the Receiving Party or another member of the
Receiving Party's Affiliates without reference to the Confidential Information, and the
Receiving Party can provide written evidence of such independent development; or
e) is received by the Receiving Party or another member of the Receiving Party's
Affiliates from a third party without similar confidentiality restrictions and without
breach of this Agreement.
4. FURTHER UNDERTAKING
4.1 Unless earlier terminated by the mutual agreement of the Parties, this Agreement shall
terminate two (2) years after the Effective Date. Notwithstanding the foregoing, the
confidentiality obligations set forth herein shall survive the termination of this Agreement
and shall remain binding for five (5) years or until the Confidential Information becomes
part of the public domain, whichever occurs first (unless the Parties agree otherwise in
writing) or until the Parties enter into a specific and definitive binding agreement which
confidentiality provisions in the agreement shall supersede the confidentiality obligations
contained herein.
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4.2 Without limiting the generality of any of the provisions of this Agreement, the Parties
specifically agree that any reports, press releases or other publications containing
Confidential Information which are not made or authorised by the Disclosing Party and
which appear in any publication prior to the Receiving Party’s official disclosure of such
Confidential Information, shall not release the Receiving Party from its obligations
hereunder with respect to such Confidential Information. Each Party agrees that it shall
not publish any review, notice or other report containing any of the other party's
Confidential Information prior to obtaining written permission from the Disclosing Party to
disclose such Confidential Information hereunder but only to the extent that it is actually
disclosed by the Disclosing Party to the Receiving Party. Without prior written consent,
any review, notice or other report published by either party shall be limited to information
which is not Confidential Information.
5.1 Unless otherwise agreed by the Parties, upon the expiry/termination of this Agreement or
where the Disclosing Party so requests in writing, the Receiving Party shall:
5.1.1 return to the Disclosing Party all original and copy documents containing
Confidential Information;
5.1.2 destroy all original and copy documents containing analyses, studies,
compilations and other materials derived from the Confidential Information;
5.1.3 permanently remove all Confidential Information from any computer, disk or other
device containing Confidential Information; and
5.1.4 provide a certificate signed by the authorised representative of the Receiving Party
confirming compliance with the obligations contained in this Clause 5.1.
5.2 Notwithstanding Clause 5.1, any Confidential Information retained in the Receiving Party's
or its Related Persons’ computer back-up systems shall be destroyed in accordance with
the relevant person's regular ongoing retention process and the Receiving Party and its
Related Persons may retain for corporate secretarial, good governance purposes or where
required to do so by the rules of any regulatory or supervisory body with which such person
is required to comply (and then only for so long as necessary to satisfy such purposes)
one copy of the Confidential Information, which shall remain confidential and subject to
this Agreement.
6. ANNOUNCEMENTS
6.1 Neither Party will make any public announcement or issue any circular relating to this
Agreement without the prior written approval of the other Party.
6.2 The Receiving Party shall not, without the Disclosing Party’s prior written consent, reveal
to any person other than as permitted under this Agreement or otherwise announce that
any Proposed Transaction is (or was) under consideration, that negotiations or
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discussions are (or were) taking place between the Receiving Party and the Disclosing
Party, the status or progress of such negotiations (including termination of negotiations)
or that Confidential Information has been provided.
6.3 The restrictions in Clauses 6.1 and 6.2 above shall not apply if, and to the extent that, an
announcement is required by any applicable law, rule or regulation by any competent
judicial, governmental, supervisory or regulatory body (including without limitation, any
securities exchange), provided that the Receiving Party will, to the extent reasonably
practicable and permitted by such law, rule, regulation or judicial, governmental,
supervisory or regulatory body, first consult and co-operate with the Disclosing Party on
the proposed form, timing, nature and purpose of the announcement.
7. INDEMNITY
The Receiving Party agrees to indemnify and keep indemnified the Disclosing Party and
each of its Related Persons against any and all costs, claims, demands, losses or liabilities
whatsoever arising directly out of any breach by the Receiving Party or its Related Persons
of any of its obligations under this Agreement.
8. NO REPRESENTATIONS OR WARRANTIES
8.2 The disclosure by the Disclosing Party of the Confidential Information to the Receiving
Party is non-exclusive. The Disclosing Party retains the exclusive right to sell, trade, use
or otherwise make available to third parties all or any portion of the Confidential
Information disclosed under this Agreement.
9. NO PARTNERSHIP
(a) constitute either Party a partner of the other nor shall the execution, completion
and implementation of this Agreement confer on any Party any power to bind or
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impose any obligations to any third parties on the other Party or to pledge the credit
of the other Party; and
(b) be construed as creating any obligation or an expectation on the part of either Party
to enter into a business relationship with the other Party, or an obligation to refrain
from entering into a business relationship with any third party.
10. NO WAIVER
No failure by a Party in exercising any right, power or privilege hereunder shall constitute
a waiver by the said Party of any such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise of any such right, power or privilege.
Without prejudice to any other rights or remedies that any Party may have, the Receiving
Party (for itself and on behalf of its Related Persons) acknowledges and agrees that
damages alone would not be an adequate remedy for any breach by the Receiving Party
or any of its Related Persons of the provisions of this Agreement, and that the Disclosing
Party shall be entitled to seek and obtain injunctive relief, specific performance and any
other equitable relief for any breach or threat of breach of this Agreement by the Receiving
Party, without prejudice to any other rights it may have. The Parties further acknowledge
that the Confidential Information is valuable and unique and that disclosure in breach of
this Agreement may result in irreparable injury to the Disclosing Party and/or the
Disclosing Party’s Affiliates.
12.1 The Parties recognise and agree that all Confidential Information shall at all times remain
the property of the Disclosing Party (or is licensed to the Disclosing Party) and that each
Party shall retain all intellectual property rights in their respective Confidential Information.
12.2 The Receiving Party hereby acknowledges and agrees that neither it nor any of its Related
Persons shall not acquire, by implication or otherwise, any right, title, interest or license in
or to any Confidential Information supplied by or on behalf of or relating to Disclosing Party
or to any intellectual property rights, if any, embodied in such Confidential Information.
13.1 During the ordinary course of dealings between the Parties and in connection with
the performance of this Agreement, the Parties acknowledge that they need to
process Personal Data belonging to or supplied by each Party or from authorized
third parties or any other persons from time to time by electronic or paper-based
means.
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13.2 By entering into this Agreement, the Parties expressly and explicitly acknowledge
and consent to:
(a) the processing of such Personal Data by each Party for the purpose of performance
of this Agreement and for all other purposes that are necessary, incidental or related
to the performance of this Agreement;
(b) the processing of such Personal Data within and, where necessary, outside Malaysia;
(c) the transfer and disclosure of such Personal Data to third parties authorised by each
Party within and, where necessary, outside Malaysia, provided that these third parties
undertake to keep such Personal Data confidential, or to any persons, authorities or
regulators to whom the Parties are compelled, permitted or required under the law to
disclose to.
43.1 Each Party confirms on behalf of itself and its Related Persons that this Agreement
represents the entire understanding, and constitutes the whole agreement, in relation to
its subject matter and supersedes any previous agreement between the Parties with
respect thereto and, without prejudice to the generality of the foregoing, excludes any
warranty, condition or other undertaking implied at law or by custom, usage or course of
dealing.
14.2 Each Party confirms on behalf of itself and its Related Persons that:
14.2.1 in entering into this Agreement it has not relied on any representation, warranty,
assurance, covenant, indemnity, undertaking or commitment which is not
expressly set out or referred to in this Agreement; and
14.2.2 in any event, without prejudice to any liability for fraudulent misrepresentation or
fraudulent misstatement, the only rights or remedies in relation to any
representation, warranty, assurance, covenant, indemnity, undertaking or
commitment given or action taken in connection with this Agreement are under
this Agreement.
14.3 In the event that any part (including any sub-clause or part thereof) of this Agreement shall
be void or unenforceable by reason of any applicable law, it shall be deleted and the
remaining parts of this Agreement shall continue in full force and effect and if necessary,
both Parties shall use their best endeavours to agree on any amendments to the
Agreement necessary to give effect to the spirit of this Agreement.
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Each Party shall bear its own costs and expenses incurred in the preparation, execution
and implementation of this Agreement (including solicitors’ cost on a solicitor and client
basis). All stamp duty incurred herein shall be borne by PETRONAS.
16. NO VARIATION
Notwithstanding anything contained to the contrary in this Agreement, neither Party shall
be liable to the other Party under this Agreement for or in respect of any indirect, incidental
or consequential losses and/or damages which shall include but not be limited to loss of
profit or revenue arising or alleged to arise out of either Party’s failure to properly carry out
its obligations under this Agreement.
18. NOTICE
18.1 Any notice (including any approval, consent or other communication) in connection with
this Agreement shall be:
18.1.2 delivered by hand or sent by prepaid courier to the address of the addressee or
sent by electronic mail (e-mail) to the email address of the addressee in each case
which is specified in this Clause in relation to the party to whom the notice is
addressed, and marked for the attention of the person so specified, or to such
other address or facsimile number, and/or marked for the attention of such other
person as the relevant party may from time to time specify by notice given in
accordance with this clause. The relevant details of each Party at the date of this
Agreement are:
For PETRONAS
E-mail badrulhisham.mahmud@petronas.com
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Address :
E-mail :
Official designation :
18.2 In the absence of evidence of earlier receipt, any notice shall take effect from the time that
it is deemed to be received in accordance with Clause 17.3 below.
18.3.1 in the case of delivery by hand or by prepaid courier to the address of the
addressee, on the day on which it is received at that addressee's address; and
18.3.2 in the case of e-mail, on the same day of the electronic transmission date t.
18.3.4 For the purposes of this Clause, "business day" shall mean a day not being a
Saturday, Sunday or gazetted public holiday on which trading banks are generally
open for business in the place where the notice is received.
18.3.5 Each Party undertakes to notify the other Party by notice served in accordance
with this Clause if the address specified herein is no longer an appropriate
address for the service of notices and/or formal correspondence.
Any communication to be made between any Parties under or in connection with this
Agreement may be made by electronic mail or other electronic means, to the extent that
the Parties agree that, unless and until notified to the contrary, this is to be an accepted
form of communication and if the Parties:
(i) notify each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means;
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(ii) notify each other of any change to their address or any other such information
supplied by giving them not less than five (5) Business Days' notice.
(iii) any electronic communication made between the Parties will be effective only
when actually received in readable form.
19. ASSIGNMENT
This Agreement shall not be assignable by either Party, and neither Party may delegate
without the other Party's prior written consent, which consent shall not be unreasonably
withheld.
20. NO LICENSE
20.1 No license, whether express or implied, in the Confidential Information is granted by either
Party to the other to use the Confidential Information other than in the manner and to the
extent authorised by this Agreement.
20.2 The Receiving Party understands and agrees that it is not allowed to sell, develop or
otherwise exploit any parts, products, services, documents or information which are
embodied in whole or in part any Confidential Information, except as contemplated by this
Agreement.
21.1 This Agreement does not create any right enforceable by any person not a Party to it.
22.1 This Agreement shall be governed by and construed in accordance with the laws of
Malaysia.
22.2 Any dispute, controversy or claim arising out of or in connection with this Agreement or
the breach, termination, or invalidity thereof shall be settled by arbitration in accordance
with Asian International Arbitration Centre for Arbitration (hereinafter referred to as
“AIAC”) Arbitration Rules.
22.3 Such arbitration shall be in accordance with the Asian International Arbitration Centre
(“AIAC”) Rules. The number of arbitrators shall be one, who shall be jointly appointed by
the disputing Parties. In the event of any failure by the disputing Parties to agree on the
appointment of the arbitrator, the appointing authority shall be the Director of the AIAC.
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22.4 The seat of arbitration shall be in Kuala Lumpur, Malaysia, at the AIAC. The Parties shall
have the right to present documentary evidence and witnesses and to cross examine
witnesses. The language of the arbitration shall be English.
22.5 In arriving at the decision, the tribunal shall consider the pertinent facts and circumstances
and be guided by the terms of this Agreement, and, if a solution is not found in the terms
of this Agreement, the tribunal shall apply the provisions of the law governing this
Agreement.
22.6 The decision of the tribunal shall be final and binding upon Parties, and may if necessary,
be enforced by any court or other authority. Save as aforesaid, all rights of appeal and of
application to any court of law whatsoever are hereby excluded in relation to any
arbitration hereunder and any award made therein except as provided under Clause 11 of
this Agreement.
23. NON-EXCLUSIVITY
During the term of this Agreement, the Parties shall have discussions regarding the
Proposed Transaction in good faith and on a non-exclusivity basis.
24. COUNTERPARTS
This Agreement may be executed in counterparts all of which shall constitute one
agreement binding on both Parties and shall have the same force and effect as an
original instrument notwithstanding that both Parties may not be signatories to the
same original or the same counterpart. Delivery of a counterpart of this agreement by
e-mail attachment or telecopy shall be an effective mode of delivery.
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IN WITNESS WHEREOF the Parties have hereunto set their hand the day and year first above-
written
Signed by
For and on behalf of
PETRONAS
(Company No. 20076-K)
………………………………………………
Name : Badrul Hisham Mahmud
Designation : General Manager
Retail Brand Licensing & Solutions
Downstream Refining, Marketing &
Trading
Date :
In the presence of
………………………………………………
Name : Abdul Rahim Mohd Noor
Designation : Manager
Retail Brand Licensing & Solutions
Downstream Refining, Marketing &
Trading
Signed by
For and on behalf of
(company name) _________________
(Company No. __________________)
………………………………………………
Name :
Designation :
Date :
In the presence of
………………………………………………
Name :
Designation :
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