Please read and accept the confidentiality terms below to access the IN BASIN SAND data room.
Lea y acepte los terminos de confidencialidad para acceder al data room de IN BASIN SAND.
SAND MINING PROJECT, REPUBLIC OF ARGENTINA
Reproduced verbatim from the agreement prepared by Sentinel Legal. Investor details are completed at signature. Executed electronically via DocuSign.
This Non-Disclosure Agreement (hereinafter the "Agreement") is entered into by and between:
[COMPANY / ENTITY NAME 1], a [legal form] corporation incorporated under the laws of [country], with its registered office located at [complete address], "Investor" or the "Receiving Party",
AND
JOLOT S.A.S, a Sociedad por Acciones Simplificada incorporated under the laws of the Argentine Republic, registered at Caracas 293, 7th Floor, Apartment 24, Ciudad Autonoma de Buenos Aires, Argentina. Represented by its administrator, Mr. Sergio Daniel Kalierof, born on 3 February 1957, CUIT 20-12980111-6, domiciled at Los Platanos Sur 660, Desamparados, San Juan, Argentina. The "Disclosing Party".
Under the legal advisory of Sentinel Legal, a Swiss and French law firm, represented by its founders, Mr. Matthias Traussnig, member of the Geneva Bar, having its registered office at Quai Gustave-Ador 14, 1207 Geneva, Switzerland and Mr Aurelien Rocher, member of the Lyon Bar, having its registered office at 95 Rue Moliere, 69003 Lyon, acting as external legal counsel to the Disclosing Party. Sentinel Legal is not a party to this Agreement and assumes no obligations or liability hereunder.
The Receiving Party and The Disclosing Party are hereinafter referred to individually as a "Party" and collectively as the "Parties." The Agreement is effective as of its signing by the Receiving Party (the "Effective Date").
The Disclosing Party agrees to share information regarding its activities with the Receiving Party for the purpose of discussing a potential prospective investment in an in-basin sand project.
The Parties intend to explore and evaluate a financial investment opportunity related to a Sand Mining Project in the Republic of Argentina, specifically concerning the extraction, processing, and commercialization of industrial and/or construction sand within and/or from the Argentine territory (hereinafter the "Project" or the "Purpose").
In connection with this Purpose, the Disclosing Party may disclose to the Receiving Party certain Confidential Information (as defined below), which the Disclosing Party requires the Receiving Party to treat as confidential.
a. "Affiliate" means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by, or under common Control with such Person, where "Control" and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
b. "Confidential Information" means all confidential, non-public and proprietary information or materials of Disclosing Party or its Representatives, whether written, oral or visual, disclosed by or on behalf of the Disclosing Party or its Representatives to the Receiving Party or Receiving Party's Representatives. Whether or not marked or identified as such, Confidential Information shall not include, or shall cease to include, as applicable, information or materials that (i) were generally known to the public on the Effective Date; (ii) become generally known to the public after the Effective Date, other than as a result of any act or omission of the Receiving Party; (iii) were rightfully known to the Receiving Party, as established by documentary evidence, prior to its receipt thereof from the Disclosing Party; (iv) the Receiving Party lawfully received from a third party without that third party's breach of agreement or obligation of trust; or (v) are independently developed by the Receiving Party, without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information, as shown by documents and other competent evidence in the Receiving Party's possession.
c. "Person" means any individual, corporation, limited or general partnership, limited liability company, limited liability partnership, trust, association, joint venture, governmental entity, or other entity.
d. "Representatives" means, as to any Person, such Person's Affiliates, and its and their respective directors, officers, employees, managing members, general partners, agents, contractors and consultants (including attorneys, financial advisors, and accountants).
The Receiving Party shall use the same degree of care with the Confidential Information that it uses to protect the confidentiality of its own confidential information of a similar nature but in no event less than reasonable care, and shall not:
(i) use any Confidential Information of the Disclosing Party for any purpose other than the Purpose and as allowed for by this Agreement,
(ii) reverse engineer or otherwise perform any analytical experiments on any Confidential Information of the Disclosing Party, or
(iii) disclose any Confidential Information of the Disclosing Party to any Person, except to any of the Receiving Party's Representatives (or the Receiving Party's key business partners upon express prior written confirmation from the Disclosing Party) that (a) have signed an agreement containing disclosure and use provisions that are no less restrictive than those set forth herein and (b) have a "need to know" in order to carry out the Purpose set forth above.
The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. The Receiving Party will notify the Disclosing Party as promptly as practicable, and in any event within 72 (seventy-two) hours of becoming aware of such breach or suspected breach.
Except for such disclosure as is necessary, in the opinion of the Receiving Party's counsel, to not be in violation of any applicable law, regulation, order, or other similar requirement of any governmental, regulatory, or supervisory authority or any applicable rules and regulations of any national securities exchange (collectively, "Law"), the Receiving Party shall not, and shall not permit any of its Representatives to, without the prior written consent of the Disclosing Party, disclose to any Person:
(i) the fact that the Confidential Information has been made available to the Receiving Party or its Representatives or that the Receiving Party or its Representatives has received or inspected any portion of the Confidential Information;
(ii) the existence or contents of this Agreement;
(iii) the fact that investigations, discussions, or negotiations are taking or have taken place concerning the Purpose, including the status thereof; or
(iv) any terms, conditions, or other matters relating to the Purpose.
Receiving Party and their Representatives shall not use Confidential Information for personal financial gain, such as for purposes of stock or crypto trading, or for any other purpose other than for the Purpose.
If the Receiving Party is requested or compelled, in the opinion of Receiving Party's counsel, by Law to disclose any of the Disclosing Party's Confidential Information ("Compelled Disclosure"), the Receiving Party's disclosure of such Confidential Information shall not constitute a breach of this Agreement provided that the Receiving Party provides the Disclosing Party with reasonably prompt written notice, unless notice is prohibited by Law, of any such request or requirement so that the Disclosing Party may seek, at its sole cost and expense, an appropriate remedy and/or waive compliance with this provision. In the case of Compelled Disclosure, the Receiving Party shall:
(i) Systematically challenge under all applicable legal avenues any Compelled Disclosure request before disclosing any Condidential Information;
(ii) disclose only that portion of the Confidential Information that is necessary to comply with applicable Law;
(iii) assert the confidential nature of Confidential Information against the third party seeking disclosure;
(iv) provide the Disclosing Party with reasonable assistance, at the Disclosing Party's sole cost and expense, in (a) protecting against any such Compelled Disclosure and/or (b) obtaining a protective order that narrows the scope of such Compelled Disclosure and/or use of Confidential Information and that assumes that any portion of Confidential Information disclosed will be afforded confidential treatment.
The Disclosing Party warrants that it has the right to disclose Confidential Information. EXCEPT AS STATED HEREIN, THE DISCLOSING PARTY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION, AND CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS.
The Disclosing Party retains its entire right, title, and interest, including all intellectual property rights, in and to all of its Confidential Information. No license or other rights to Disclosing Party's Confidential Information, or to any invention or any patent, copy right, trademark, trade secret or other intellectual property right is granted or conveyed hereby or by any disclosure of Confidential Information made hereunder.
Upon expiration or termination of this Agreement or otherwise upon the Disclosing Party's written request, any information, materials, or documents which have been furnished by the Disclosing Party to the Receiving Party in connection with the Purpose ("Agreement Confidential Materials") will be promptly returned or destroyed by the Receiving Party and its Representatives as per the request of the Disclosing Party, including all copies, whether in written, electronic or other form or media, of such information, materials, or documentation.
Notwithstanding the foregoing, the Receiving Party may retain such copies as are reasonably necessary to comply with any laws or regulations applicable to Receiving Party. The Receiving Party shall continue to be bound by the terms and conditions of this Agreement with respect to any Confidential Information retained by the Receiving Party pursuant to this Section.
This Agreement shall govern disclosures of Confidential Information between the Parties for two (2) years from the Effective Date. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party.
Each Party's rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of one (1) year from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Receiving Party (the "Survival Period"), provided that for any and all trade secrets of the Disclosing Party, the Survival Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable law.
This Agreement does not create any agency, partnership or business relationship between the Parties. Nothing in this Agreement shall obligate either Party to enter any business or contractual relationship, transaction or other agreement in connection with the Purpose or otherwise, except for the matters specifically agreed to herein.
Either Party may at any time, in its sole discretion, with or without cause, terminate discussions and negotiations with the other Party in connection with the Purpose or otherwise.
During the term of this Agreement and for a period of twelve (12) months following its expiration or termination, the Receiving Party shall not, and shall cause its Representatives not to, directly or indirectly: (a) solicit, recruit, or hire any director, officer, employee, or key consultant of the Disclosing Party; or (b) solicit, contact, or enter into any business relationship with any customer, supplier, operator, or commercial partner of the Disclosing Party that was identified through the Confidential Information, for the purpose of competing with or circumventing the Project.
Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice") in writing and addressed to the other Party at its applicable address set out below (or to any other address that the Receiving Party may designate from time to time in accordance with this Section).
Each Party shall deliver all Notices by: (i) personal delivery, (ii) nationally recognized overnight courier or its international equivalent (with all fees prepaid), (iii) certified or registered mail or its international equivalent (return receipt requested, postage pre-paid), or (iv) email. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving Party and (b) if the Party giving the Notice has complied with the requirements of this Section.
If to JOLOT S.A.S: Caracas 293, 7th Floor, Apartment 24, Ciudad Autonoma de Buenos Aires, Argentina. Email: sergio@jolot.net
If to [Investor]: [Address]. [Email].
This Agreement shall be governed by and construed exclusively in accordance with the substantive laws of Switzerland, excluding any conflict of law rules that might refer to another jurisdiction's law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
The Parties acknowledge that Swiss law, in particular the provisions of the Code of Obligations (CO) relating to contractual obligations and the protection of business secrets, as well as the Federal Act on Data Protection (FADP), apply to all matters governed by this Agreement.
Any dispute, controversy, or claim arising out of or in connection with this Agreement, including its validity, invalidity, breach, or termination (hereinafter the "Dispute"), shall be finally settled by arbitration, to the exclusion of ordinary state courts, subject to the following provisions.
1. Arbitration Institution and Rules. The arbitration shall be administered by the Arbitration and Mediation Center of the Geneva Chamber of Commerce and Industry (hereinafter "Swiss Chambers' Arbitration Institution" or "SCAI"), in accordance with the Swiss Rules of International Arbitration in force on the date on which the Notice of Arbitration is submitted (the "Rules"), which Rules are deemed to be incorporated by reference into this Article.
2. Seat of Arbitration. The seat of the arbitration shall be Geneva, Switzerland. This designation of the seat shall not prevent the arbitral tribunal from holding hearings or meetings at any other location it deems appropriate.
3. Language of Proceedings. The arbitration proceedings shall be conducted in the French or English language. The arbitral tribunal may authorize the use of other languages, such as Spanish, in documents and during hearings if circumstances justify it.
4. Arbitral Tribunal. The arbitral tribunal shall consist of a sole (1) arbitrator if the Parties so agree within thirty (30) days following the notification of the request for arbitration, or three (3) arbitrators failing such agreement. Each Party shall appoint one (1) arbitrator, and the two arbitrators so appointed shall choose the presiding arbitrator in accordance with the Rules.
5. Governing Law on the Merits. The arbitral tribunal shall decide the Dispute on the merits in accordance with the substantive laws of Switzerland, pursuant to Article 12 of this Agreement.
6. Interim Measures. Notwithstanding the arbitration clause, each Party retains the right to seek interim and conservatory measures before any competent state court, specifically before the Court of First Instance of the Canton of Geneva, including an injunction or summary order in the event of an imminent threat of a breach of confidentiality. Such a request shall not be deemed incompatible with this arbitration clause or constitute a waiver of the right to arbitration.
7. Confidentiality of Arbitration. The arbitration proceedings, hearings, briefs, exhibits, decisions, and the arbitral award shall be strictly confidential. The Parties undertake not to disclose this information to third parties, except: (i) to the extent necessary to enforce the award, (ii) in the event of a legal or regulatory obligation to disclose, or (iii) with the prior written consent of the other Party.
8. Final and Binding Nature. The arbitral award shall be final and binding upon the Parties. The Parties waive any right of appeal to the extent permitted by Swiss law. The award may be recognized and enforced in accordance with the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or any other applicable treaty or convention.
To the extent that the Confidential Information includes materials covered by attorney-client privilege or other legal privileges, no Party shall be deemed to have waived, and shall not be considered to have waived or diminished, its protections under professional secrecy, attorney-client confidentiality, or similar protections as a result of disclosing such Confidential Information to the other Party or its Representatives.
The Parties acknowledge that any unauthorized use of Confidential Information by the Receiving Party could cause irreparable harm to the Disclosing Party for which legal remedies would be inadequate. Accordingly, in addition to any other rights it may have, the Disclosing Party may seek interim or conservatory measures, including an injunction or an order for super-provisional measures (ex parte interim injunctions) before any competent jurisdiction, without prejudice to the arbitration clause provided for in Article 13.
In accordance with Article 160 et seq. of the Swiss Code of Obligations, and without prejudice to the Disclosing Party's right to claim further damages in excess thereof (Art. 161 para. 2 CO), the Parties agree as follows:
In the event of any breach of the confidentiality or non-use obligations set out in this Agreement, including but not limited to Articles 3, 4, 5, 6, 8 or 10 of this Agreement by the Receiving Party or any of its Representatives, the Receiving Party shall pay to the Disclosing Party a contractual penalty (clause penale) of CHF 300,000 (three hundred thousand Swiss francs) per breach (the "Penalty"). Each distinct unauthorized disclosure, use, or act shall constitute a separate breach for the purposes of this clause.
The Penalty reflects the Parties' reasonable pre-estimate of the minimum harm likely to result from a breach, taking into account the strategic value of the Project's geological data, resource estimates, financial projections, commercial relationships, the aggregate value of the capital raises contemplated, and the competitive sensitivity of the Disclosing Party's position in the Vaca Muerta frac sand market.
The Penalty shall be payable within 30 (thirty) calendar days of written demand by the Disclosing Party and shall not relieve the Receiving Party of its confidentiality obligations under this Agreement. Payment of the Penalty shall be without prejudice to the Disclosing Party's right to seek injunctive relief, specific performance, or any other remedy available under this Agreement or applicable law.
The Parties expressly waive the right to request a reduction of the Penalty by a court or arbitral tribunal pursuant to Article 163 para. 3 CO, to the fullest extent permitted by law.
This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. It constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, discussions, and negotiations, whether written or oral.
The failure of either Party to exercise any right conferred by this Agreement shall not be construed as a waiver of that right or any other right provided herein. This Agreement may not be amended, and no obligation may be waived, except in a writing signed by both Parties.
If any provision of this Agreement is held to be invalid, unenforceable, or illegal by a competent court or arbitral tribunal, such provision shall be construed to the maximum extent possible to achieve its objectives, and in any event, the remaining provisions shall remain fully valid and enforceable.
This Agreement is signed electronically through Docusign and is binding upon all Parties to the same extent as a wet-ink signed original of the Agreement.
The Parties undertake to process all personal data exchanged within the framework of this Agreement in accordance with the Swiss Federal Act on Data Protection (FADP) of September 25, 2020, and, where applicable, the General Data Protection Regulation (GDPR) of the European Union. Each Party shall be responsible for the processing of personal data carried out on its behalf and undertakes to implement appropriate technical and organizational measures to protect such data.
Parties have electronically signed this Non-Disclosure Agreement via DocuSign on the date indicated at signature.
This NDA is prepared and administered by Sentinel Legal (Geneva, Switzerland / Lyon, France) on behalf of JOLOT S.A.S. Execution is by electronic signature through DocuSign.
Your NDA has been submitted to Sentinel Legal. A copy will be sent to your email.
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