NON-CIRCUMVENTION & NON-DISCLOSURE AGREEMENT
(OPEN NC / NDA)
Broker–Client · Sale, Purchase, Chartering and Employment of Vessels
This Agreement is made on the ________ day of ________________ 20____ (the “Effective Date”).
BETWEEN
AMETHEUS HOLDINGS PVT LTD, a company incorporated under the laws of India, having its registered office at WeWork, Vaswani Chambers, 1st Floor, 264–265, Dr. Annie Besant Road, Worli, Mumbai – 400025, India (hereinafter referred to as the “Broker” or “Ametheus”),
AND
__________________________________________,
having its registered / principal office at ________________________________________________
(hereinafter referred to as the “Client”).
The Broker and the Client are each a “Party” and together the “Parties”.
1. PURPOSE AND NATURE OF THIS AGREEMENT
The Client wishes to instruct, or to receive introductions and market information from, Ametheus in connection with the potential sale, purchase, chartering, employment, or other commercial fixture of ocean-going vessels (each a “Transaction”), including without limitation any vessel(s) identified in Schedule A or otherwise introduced in writing after the Effective Date.
This is an open standing NC/NDA. It protects confidential information, live introductions and brokerage actually earned. It does not confer on either Party a standing monopoly over any vessel, owner, disponent owner, charterer or operating team once a proposed Transaction has failed to mature or a concluded employment has come to an end. The Parties cooperate on a non-exclusive basis, save only for the protection of a live introduction as set out in Clauses 3 and 4.
2. DEFINITIONS
“Confidential Information” means all information exchanged between the Parties, whether oral, written or electronic, including without limitation vessel identity and position, trading status and employment, pricing, charter terms and commercial structure, and the identities of principals, counterparties and financiers.
“Introduced Party” means any buyer, seller, owner, disponent owner, charterer, operator, manager, financier, affiliate or special purpose vehicle (SPV) whose identity is first disclosed to the Client by Ametheus in connection with a Transaction, whether named in Schedule A or introduced subsequently in writing (including by email or fixture recap).
“Introduction” means the first written communication by which Ametheus identifies an Introduced Party and/or a specific vessel to the Client for a contemplated Transaction.
3. NON-CIRCUMVENTION
The Client agrees that it shall not directly or indirectly circumvent Ametheus in respect of any live Introduction.
Accordingly, for so long as the restriction in this Clause 3 remains in force in respect of a particular Introduction, the Client shall not, without Ametheus’s prior written consent, directly or indirectly contact, negotiate with, contract with, or conclude any Transaction with the relevant Introduced Party in respect of the vessel (or employment) that was the subject of that Introduction, whether for its own account or for any affiliate, nominee or related vehicle.
This non-circumvention obligation shall remain valid for twenty-four (24) months from the date of the relevant Introduction, subject always to Clause 4 (Lapse of Introduction and Subsequent Independent Approaches).
In the event of breach, Ametheus shall be entitled to claim the full brokerage commission that would have been earned on the circumvented Transaction, without prejudice to any other rights or remedies available at law or in equity.
Nothing in this Clause 3 prevents the Client from dealing freely with any person who is not an Introduced Party, or from using other brokers on other business.
4. LAPSE OF INTRODUCTION AND SUBSEQUENT INDEPENDENT APPROACHES
The Parties acknowledge that ocean-going vessels are limited, unique and freely circulating assets. An Introduction protects a live Transaction; it does not confer a standing monopoly over a vessel or its owner, disponent owner or operating team once that Transaction has failed to mature or has come to an end.
(a) Failure to mature. If a proposed Transaction in respect of a vessel (and/or its owner, disponent owner, operator, manager or related team) introduced by Ametheus does not conclude — that is, no binding charter party, memorandum of agreement, employment fixture or other definitive contract is signed — the non-circumvention restriction in Clause 3 shall automatically lapse in respect of that vessel and its related team upon such failure. Thereafter the Client shall be free to deal with that vessel and its relevant team.
(b) Short or completed employment. If a Transaction introduced by Ametheus does conclude but is for a limited period (including without limitation an employment of approximately three (3) months, or any other fixed term) and that employment thereafter expires, is terminated or otherwise comes to an end, the non-circumvention restriction shall lapse in respect of that vessel and its related team as from the date of such expiry or termination. Future employment, sale or other Transactions in respect of the same vessel shall not be treated as circumvention.
(c) Independent subsequent approach. If, after the events in (a) or (b), or at any time after the original introduced Transaction has failed or ended, any third-party broker, owner, disponent owner or principal independently approaches the Client and offers the same vessel, the Client shall hold the right to negotiate and conclude a Transaction with that vessel and its relevant owner, disponent owner, operator or team. Such dealing shall not constitute circumvention of Ametheus, and no commission shall be due to Ametheus on that subsequent Transaction unless the Parties have agreed otherwise in writing for that specific Transaction.
(d) Earned commission preserved. Nothing in this Clause 4 shall deprive Ametheus of brokerage actually earned on a Transaction that was validly concluded through its Introduction while the restriction in Clause 3 remained in force.
(e) Confidentiality unaffected. The confidentiality obligations in this Agreement continue in accordance with their own term and are not displaced by the lapse of non-circumvention under this Clause 4.
5. CONFIDENTIALITY
Each Party shall treat the other Party’s Confidential Information as strictly confidential and shall use it solely for the purpose of evaluating and, if agreed, concluding a Transaction.
Confidential Information shall not be disclosed to any third party except:
- to principals, professional advisers and financiers directly involved in the relevant Transaction, and only under equivalent confidentiality obligations;
- where the information is or becomes public other than through a breach of this Agreement;
- where the receiving Party already possessed the information lawfully, or independently develops it without use of the disclosing Party’s information; or
- where disclosure is required by law, regulation, court order or a competent authority, in which case the receiving Party shall, to the extent legally permitted, give the disclosing Party prompt notice so that protective measures may be sought.
This Clause 5 shall survive for three (3) years from the date of termination or expiry of this Agreement.
6. BROKERAGE
Brokerage commission payable to Ametheus, if any, shall be agreed in writing on a case-by-case basis for each Transaction (including by fixture recap, commission clause, or separate email confirmation) before or at the time the Transaction is concluded.
Once a Transaction has been concluded with an Introduced Party through Ametheus’s Introduction, neither Party shall unilaterally alter, reduce or renegotiate the agreed brokerage.
Unless otherwise agreed in writing for a specific Transaction, brokerage earned by Ametheus is payable in accordance with the commission clause of the relevant charter party, memorandum of agreement or other definitive contract, or, if none is stated, within fourteen (14) days of the Broker’s invoice following fixture or closing.
Each Party confirms it has authority to agree brokerage arrangements on its own behalf. Nothing in this Agreement obliges either Party to conclude any Transaction.
7. NON-EXCLUSIVITY
This Agreement is non-exclusive. The Client may instruct other brokers, and Ametheus may act for other clients, on other vessels and other business. Exclusivity, if required for a particular vessel or mandate, must be agreed separately in writing and will not be implied from this NC/NDA.
8. TERM
This Agreement comes into force on the Effective Date and remains valid for twenty-four (24) months, unless extended in writing or terminated earlier by either Party on fourteen (14) days’ written notice.
Termination of this Agreement shall not affect rights and obligations relating to Introductions made prior to termination, provided always that such surviving obligations remain subject to Clause 4. Clauses 3 (to the extent then still in force), 4, 5, 6, 10 and 11 survive termination.
9. NO PARTNERSHIP; STATUS OF AMETHEUS
Nothing in this Agreement creates a partnership, joint venture, agency of general application, or employment. Ametheus acts as an independent shipbroker. Unless a written exclusive mandate is agreed, Ametheus does not undertake to bind the Client and the Client does not undertake to accept any particular fixture.
10. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of India. Any dispute arising from or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts at Delhi or Mumbai, Maharashtra, India.
11. GENERAL
- Neither Party may assign its rights under this Agreement without the other Party’s prior written consent, except that Ametheus may assign to an affiliate that continues the broking business.
- Electronic signatures, scanned signatures and PDF or electronic counterparts shall be deemed valid and binding. This Agreement may be executed in counterparts, each of which is an original and all of which together constitute one instrument.
- This Agreement, together with any completed Schedule A and any written commission confirmation for a specific Transaction, constitutes the entire understanding between the Parties in respect of its subject matter and supersedes all prior oral or written understandings on that subject matter.
- Amendments are valid only if made in writing and signed (including electronically) by both Parties.
- If any provision is held invalid or unenforceable, the remaining provisions continue in full force.
- Notices may be given by email to the addresses used by the Parties in ordinary correspondence concerning the Transactions, and are deemed received on the next business day in Mumbai after sending, unless a delivery-failure notice is received.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the Effective Date.
Signed for and on behalf of the Broker
AMETHEUS HOLDINGS PVT LTD
Signature: ________________________________
Name:
Designation:
Date: ________________________________
Signed for and on behalf of the Client
Company: ________________________________
Signature: ________________________________
Name: ________________________________
Designation: ________________________________
Date: ________________________________
SCHEDULE A
INTRODUCTIONS / VESSELS UNDER DISCUSSION
This Schedule may be completed at signing or updated later by dated email or addendum. An Introduction is effective when first made in writing, whether or not this Schedule is updated.
A1. Client full legal name: ______________________________________________
A2. Client registered / principal address:
________________________________________________________________
________________________________________________________________
A3. Nature of Client (tick / complete as applicable):
Owner / Disponent Owner / Charterer / Buyer / Seller / Operator / Other: ________
A4. Vessel(s) presently under discussion (if known):
Name / IMO / Type / Approx. DWT: _________________________________________
________________________________________________________________
A5. Contemplated Transaction (if known):
Sale / Purchase / Time charter / Voyage charter / Bareboat / Employment / Other
Particulars: ______________________________________________________________
A6. Introduced Party(ies) (if already identified):
________________________________________________________________
________________________________________________________________
If A4–A6 are left blank at signing, subsequent written introductions by Ametheus (email, recap or addendum) form part of this Schedule.
Initialled for the Broker: _____________________ Date: ______________
Initialled for the Client: _____________________ Date: ______________
