A. The Parties will or already have had discussions and exchanged information, and intend to continue having discussions and exchanging information, in connection with Funding and capital raise for Projects / Deals. All such discussions referred to above hereafter will be called (the "Proposed Transaction").
B. Certain confidential and proprietary information relating to or in connection with the Proposed Transaction (the “Confidential Information") may be disclosed by the Disclosing Party (as hereafter defined) to the Receiving Party (as hereafter defined) for the purposes of enabling the Receiving Party to assess and/or evaluate aspects of the Proposed Transaction (the “Permitted Purpose").
C. The Parties acknowledge that it is reasonable in the circumstances that the Disclosing Party requires the Receiving Party to treat the Confidential Information passing between them as confidential and the Parties seek to achieve this by entering into this Agreement.
1.1. For the purposes of this Agreement, “Business Day” means a day other than a Saturday, Sunday or national public holiday in Nigeria, when Banks are open for business. “Confidential Information” means all confidential information relating to the Proposed Transaction in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that: (a) is or becomes public information other than as a direct or indirect result of any breach of this Agreement; or (b) is identified in writing at the time of delivery as non-confidential by a Party or its advisers; or (c) is known already before the date of disclosure or is lawfully obtained by the Receiving Party after that date, from a source which is, as far as the Receiving Party is aware, unconnected with the Disclosing Party and which, in either case, as far as the Receiving Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. “Disclosing Party” means a Party to this agreement when it discloses Confidential Information, directly or indirectly to a Party. “Receiving Party” means a Party to this Agreement when it receives Confidential Information, directly or indirectly from a Party.
2.1. In return for the Disclosing Party disclosing Confidential Information to the Receiving Party, the Receiving Party undertakes on behalf of themselves, their affiliates, employees and representatives:
2.1.1. to hold and maintain the Confidential Information in confidence; whether or not the said information is designated in writing as being proprietary prepared by Disclosing Party, their consultants or representatives containing or based in whole or in part of any confidential information obtained from the Disclosing Party or their representatives.
2.1.2. not to disclose, publish or communicate the Confidential Information to any third party, broadly interpreted to include without limitation any corporation, company, partnership and individual other than as permitted under this Agreement.
2.1.3. not to use or exploit the Confidential Information in any way except for the Permitted Purpose.
2.1.4. not to copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Permitted Purpose; and
2.1.5. to act in good faith at all times in performing their respective obligations under this Agreement, such efforts to be at least equal to a Party’s efforts employed to protect its own confidential, secret and proprietary data and information.
3.1. The Receiving Party may only disclose the Confidential Information to:
3.1.1. a Party to this Agreement.
3.1.2. to those of its affiliates, employees, officers or agents who need to know the same on the basis that such employees, officers and agents will keep the same confidential on substantially the same terms as this Agreement.
3.1.3. to professional advisers, consultants, and other transaction parties engaged to advise or act in connection with the Proposed Transaction, provided that they are subject to duties of confidentiality which are substantially the same as the terms set out in this agreement; or
3.1.4. to development partners, fund investors, affiliates and other stakeholders who need to know such information for their involvement in the Proposed Transaction, provided that: (i) the Proposed Transaction has received initial approval by the authorised persons and (ii) the Disclosing Party takes all reasonable steps to ensure that such parties comply with the confidentiality obligations contained in this Agreement as though they were a Party to this Agreement.
4.1. A Party may disclose Confidential Information to the minimum extent required where the Receiving Party is requested or required to disclose by an order of a court of competent jurisdiction, or any order, inquiry, investigation by any competent judicial, governmental or regulatory body provided the Receiving Party shall use their reasonable endeavours to the extent permitted by law or regulatory process to provide the Disclosing Party with prior written notice ahead of such disclosure.
4.2. Before a Party discloses any Confidential Information pursuant to Clause 4.1 above, it shall, to the extent practicable and permitted by law, use its reasonable endeavours to give the other Parties as much advance notice of this disclosure as possible, so far as notice of such disclosure is not prohibited.
5.1. If requested by the Disclosing Party, the Receiving Party will return to the Disclosing Party or destroy (to the extent technically practicable) all copies of the Confidential Information including any copies supplied to the Receiving Party by the Disclosing Party within fifteen (15) business days of receipt of a written request, and shall take all reasonably practicable steps to ensure that anyone to whom it has supplied any Confidential Information shall permanently erase or destroy (to the extent technically practicable) all Confidential Information held in intangible format, in each case save to the extent that the Receiving Party is required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with any commercially reasonable internal policy, or where the Confidential Information has been disclosed under Clause 4.1 above.
5.2. Nothing in Clause 5.1 shall require the Receiving Party to return or destroy any documents or materials containing or based on the Disclosing Party’s Confidential Information that the Receiving Party is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction.
6.1. Any Confidential Information which are disclosed by a Party, its affiliates or its Representatives shall remain proprietary information belonging to such Party. Each Party recognizes and acknowledges that this Agreement and subsequent communications, disclosures and transfers or Confidential Information may not be construed as conferring any right of any kind to the other Party on any disclosed Confidential Information, whether explicitly or implicitly.
7.1. The Parties hereby agree and acknowledge that each Party shall be solely responsible for conducting its own assessment of the Confidential Information and deciding whether or not to participate in the Proposed Transaction.
8.1. The Parties agree that monetary compensation as damages may not be a sufficient remedy for any breach of the terms of this Agreement, and that in addition to any other remedies (which may be monetary) available either in law or in equity, the remedies of specific performance and injunctive or other equitable relief may be available as a remedy for any breach of this Agreement. None of the Parties will be liable for consequential or indirect damages towards any of the other Parties.
9.1. Nothing in this Agreement constitutes a commitment by either Party to accept any proposal made by the other in connection with the Proposed Transaction. All discussions between the Parties with regard to participating in the Proposed Transaction remain subject to formal written agreement between the Parties in respect thereof.
10.1. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by the governing law.
10.2. No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under the Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy.
10.3. To be valid, waiver by any Party hereto of any such right, power or privilege must be in writing and notified to the other Parties as provided herein.
11.1. Neither Party may assign or delegate all or any part of its rights or obligations under this Agreement without the prior written consent of the other Party. Any attempted assignment or delegation without such consent, except as expressly set forth herein, will be void.
12.1. Each Party warrants that it has the right to make the disclosures to be made by it or on its behalf under this Agreement. All disclosures made hereunder are at the sole discretion of the Parties.
12.2. The Parties will act as, and always be, independent contractors, and nothing contained in this Agreement will be construed to create or imply a joint venture, partnership, principal, agent or employment relationship between or among the Parties.
12.3. The Parties do not make any covenants, warranties, or representations with respect to the accuracy or completeness of any Confidential Information disclosed hereunder, and they shall have no liability to each other arising out of the use of Confidential Information supplied under this Agreement except to the extent set forth in a definitive agreement duly executed by the Parties with respect to the Transaction.
13.1. For the purposes of giving any notice, serving of any process, and for any purposes arising from this Agreement, the Parties’ respective addresses shall be:
Address of Service for Nestar Corporate Services Limited. Office Address: No 2 Rev Dagogo jack Street, Port Harcourt. Rivers state. Nigeria Telephone: .......... Attention: ENGR. EBERECHUKWU OJI Email Address: ……………………..
13.2. Each of the Parties shall be entitled from time to time, by written notice to the other Parties, to vary its contact details.
13.3. Any notice given by a Party to the other which:
13.3.1. is delivered by hand during the normal business hours of the addressee at the addressee's office address for the time being shall be deemed, (unless the contrary is proved by the addressee), to have been received by the addressee at the time of delivery otherwise it shall be deemed to have been delivered on the next Business Day.
13.3.2. if transmitted by electronic mail, it shall be deemed, (unless the contrary is proved by the addressee), to have been delivered upon transmission.
14.1. Subject to the terms of any mandate agreement or definitive documents that may be executed between the Parties in the future, this Agreement shall be effective for a period of one (1) year from the date of this Agreement.
15.1. The construction, validity, and performance of this agreement shall be governed by the laws of the Federal Republic of Nigeria. In relation to any legal action or proceeding arising out of or in connection with this agreement each of the parties irrevocably submits to the exclusive jurisdiction of the Nigerian courts and waives any objections to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been bought in an inappropriate forum.
16.1. This Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes any arrangement, understanding or previous agreement between the Parties relating to the subject matter covered by this Agreement. No amendments to or waiver of rights under this Agreement shall be effective unless reduced to writing and signed by the Parties.
16.2. This Agreement may be executed by each Party in separate counterparts, each of which shall be an original but all of which shall together constitute one and the same agreement.
16.3. If for whatever reason, any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in whole or in part, under any enactment or rule or law, then this Agreement, including all of the remaining terms will remain in full force and effect as if such invalid or unenforceable term had never been included.
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