Non-Disclosure Agreement

Last modified: 30 Jun 2024

Non-Disclosure Agreement – Clients

Introduction

Billions Global Ltd (“Billions”) hereby enters into this non-disclosure agreement (the “Agreement”) with each user of the Billions Platform (which includes each person or entity on whose behalf and authority the user is accessing and using the Billions Platform) (“you” and “your”, and you and Billions are also each referred to as a “Party”).

The “Billions Platform” is the registered domain name www.billions.ae, and any of its subdomains or associated applications, which may provide you with Confidential Information in respect of certain funds (each, a “Billions Fund”) managed by a licensed fund manager (each, a “Fund Manager”) that have the objective of investing, directly or indirectly (which, if indirectly, may be via a Shariah-compliant structure utilising a third-party entity (each, a “Shariah-Required Entity”) or a tax-efficient structure utilizing a third-party entity (each, a “Tax-Required Entity”) into third-party funds (each, an “Underlying Fund”). It is anticipated that you will receive certain Confidential Information for the purpose of evaluating an existing investment you have made to a Billions Fund or evaluating whether to invest in a Billions Fund (the “Authorized Use” and each subscription to a Billions Fund, a “Transaction”).

If you use the Billions Platform on behalf of another person or entity, you represent and warrant that you are authorized to enter into this Agreement on that person’s or entity’s behalf, that by using the Billions Platform you are accepting this Agreement on behalf of that person or entity, and that if you, or that person or entity, violates this Agreement, you and that person or entity agree to be liable to us.

Confidential Information

“Confidential Information” is any and all data and information, in whatever form and whether or not marked as confidential, that is included on, accessed via, or received by you due to your account on, the Billions Platform, or received by you, directly or indirectly, from Billions, its affiliates, a Fund Manager or any employee, agent or representative of Billions, its affiliates or a Fund Manager (collectively, the “Billions Group”), which includes (but is not limited to) all data, information and documents regarding the Billions Group, the Billions Funds, the Shariah-Required Entities, the Tax-Required Entities, the Underlying Funds and potential or Transactions; provided, that, such term shall not include data or information that:

is your own personal data that you have submitted to the Billions Platform;
is in or becomes part of the public domain other than through your breach of this Agreement or an obligation of confidence owed by you to a third party;
was known to you prior to your receipt of such information from or via the Billions Platform or the Billions Group;
you acquire from a third party that is entitled to disclose such information; or
is independently developed by you without using the information provided by or via the Billions Platform or the Billions Group.

Your Principal Obligations in respect of the Confidential Information

You accept, acknowledge and agree that you will:

protect and preserve the confidential nature and secrecy of the Confidential Information;
apply the same security measures and degree of care to the Confidential Information as you apply to your own confidential information (which you warrant are sufficiently adequate for you to agree to the obligations herein);
prevent the unauthorized use, dissemination, disclosure or publication of the Confidential Information;
not divulge the Confidential Information to any third party without the prior consent of Billions;
not use the Confidential Information for any reason other than the Authorized Use; in particular, you will not use any of the Confidential Information for the purposes of trading any security or debt instrument;
promptly delete or destroy any Confidential Information that you have downloaded, printed and/or otherwise received in respect of a Transaction if you do not ultimately become an investor in the relevant Billions Fund; provided that you and your Recipients (as hereinafter defined) may retain such copies of the Confidential Information as are: (i) required to be retained pursuant to any applicable law or bona fide document retention policy or other internal audit or compliance requirements, or (ii) created pursuant to automatic archiving and back-up procedures in the ordinary course of business; provided, further, that the covenants and restrictions set forth herein shall continue to apply to such retained material for so long as it is retained notwithstanding the termination or expiry of this Agreement; and
immediately notify Billions in the event of your breach of any of the foregoing obligations.

Exceptions

Notwithstanding the terms of Section 3, you may disclose Confidential Information:

to your “Recipients”, which are your employees, consultants, agents, representatives and advisers who need to receive the Confidential Information in relation to the Authorized Use; provided, that:
1. you must ensure that any Recipient that receives or has access to the Confidential Information will be under, and will comply with, a duty of confidentiality no less restrictive than the obligations imposed on you hereunder; and
2. you are responsible for any breach of the obligations hereunder by your Recipients.
solely to the extent required to do so by, or in accordance with, any law, regulation, court, regulatory agency or other authority that has jurisdiction over you; provided, that, to the extent legally permissible and reasonably practicable (and other than where such disclosure is part of a routine audit or information request), you will:
1. to the extent legally permissible to do so, notify Billions as soon as possible upon becoming aware of such requirement to disclose the Confidential Information;
2. cooperate with Billions to avoid or limit such disclosure (whether or not through obtaining, or assisting Billions to obtain, a protective order preventing or limiting such disclosure) and to gain assurances as to confidentiality from the body to whom the information is to be disclosed; and
3. furnish only that portion of the Confidential Information which, based on the advice of outside counsel, you are legally required to disclose.

Duration

This Agreement terminates on the closure of your account on the Billions Platform; however:

subject to Section 5(b), your obligations hereunder in respect of the Confidential Information survive any such termination of this Agreement and are binding on your successors and assigns; and
if you enter into a Transaction, any contractual agreement that you execute pertaining to such Transaction that has confidentiality obligations and undertakings in respect of any Confidential Information that you have received or will receive in respect of such Transaction (the “Transaction Information”) will supersede your obligations hereunder solely in respect to such Transaction Information. For the avoidance of doubt, in any such instance, this Agreement will remain in full force and effect in respect of all other Confidential Information that is not Transaction Information.

Representations

You accept, acknowledge and agree that:

you are responsible for making your own decisions in relation to the Confidential Information. In particular, you are responsible for the evaluation of a Transaction and any Confidential Information pertaining to a Transaction;
you should not treat the contents of the Confidential Information or any prior, or subsequent, communications from a member of the Billions Group as legal, tax, investment, Shariah-compliance or other advice. You will consult your own legal, accounting, tax and other advisors in order to make an independent determination of the suitability and consequences of subscribing for an interest in a Billions Fund;
no member of the Billions Group is making any claim or giving any advice through the provision or availability of the Confidential Information to you as to whether any potential Transaction is suitable to you or will be profitable;
any Confidential Information provided to you in respect of a Billions Fund, an Underlying Fund or a potential Transaction is not, and should not be construed as, a recommendation or endorsement by Billions of such fund or Transaction;
if considering a potential Transaction, you will rely solely on the terms of, and information contained in, the relevant Billions Fund’s private placement memorandum, supplement and subscription agreement (collectively, the “Offering Documents”);
the Offering Documents, which describe the significant risks and other important information, such as legal, regulatory and tax disclosure, related to an investment in a Billions Fund, qualify in its entirety the information contained on the Billions Platform and must be read carefully and in full prior to subscribing for an interest in a Billions Fund;
the furnishing to you of, and your acceptance of, Confidential Information will not constitute an offer of any nature whatsoever by Billions or any other person or entity in respect of a Transaction, nor form the basis of any representation in relation to any contract. An offer or solicitation will be made only in accordance with applicable securities laws and in accordance with the terms and conditions set forth in the Offering Documents;
the Confidential Information is provided “as is” and “as available”, and therefore may not address specific requests or questions that you may have;
Billions makes no representation, warranty or undertaking, express or implied, as to the accuracy, reliability, completeness or reasonableness of any Confidential Information provided or made available to you;
unless otherwise indicated, any Confidential Information made available to you is as of the date indicated therein and may not be updated or otherwise revised to reflect information that subsequently becomes available, or circumstances existing or changes occurring after such date, even in the event that any or all of the underlying assumptions used in any such Confidential Information are shown to be in error;
nothing herein shall obligate Billions or you to proceed with any Transaction, and each Party reserves the right, in its sole discretion, to terminate discussions concerning any Transaction;
past performance is not a guarantee of future results. Projections or forward-looking statements contained in the Confidential Information are only estimates of future results or events that are based on assumptions made at the time such projections or statements were developed or made. There can be no assurance that the results set forth in the projections or the events predicted will be attained, and actual results may be significantly different from the projections;
the Confidential Information is not intended for distribution to or use by any person in any jurisdiction or country where such distribution or use would be contrary to law or regulation;
Billions retains all rights, title and interest in and to the Confidential Information. The Confidential is and shall remain the sole property of Billions that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed under this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information;
you will not reproduce, alter, modify or decompile the Confidential Information in any form except as required in respect of the Authorized Use;
you will not attempt to download, scan, copy, print or otherwise capture any of the Confidential Information contained on the Billions Platform, except that you may print or download Confidential Information for which the capability is expressly permitted on the Billions Platform;
you will not attempt to circumvent any of the security features of the Billions Platform, and will not enable or allow others to access the Billions Platform using your authorization to access the Billions Platform; and
you hereby waive any and all defenses that you may have based on the electronic form of this Agreement and the lack of signing or other formal execution of this Agreement by you and Billions.

Returning Confidential Information

Following receipt of a request from Billions, you will, as soon as reasonably practicable:

return to Billions or destroy (at your option) all documents and materials, or such parts thereof, that are in your (or your Recipients’) possession or control that contain or reflect the Confidential Information; provided, that, such information is in a form that is capable of delivery or destruction; and
to the extent reasonably practicable, permanently erase the Confidential Information from any digital system to which it was transferred by you or your Recipients.

Notwithstanding the foregoing, you may retain any copies of Confidential Information if required (but solely for so long as is required) by any law, regulation, court, regulatory agency, authority, or its internal compliance procedures and any electronic files containing the Confidential Information created pursuant to automatic archiving and back-up procedures. You acknowledge that neither the destruction, return nor deletion of the Confidential Information will release you from your obligations hereunder.

Governing Law and Place of Jurisdiction

This Agreement, and any claim related directly or indirectly to this Agreement, shall be governed by and construed in accordance with the laws of the United Arab Emirates, without regard to the conflict of law provisions thereof.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be referred to and finally resolved by arbitration in accordance with the provisions set forth under the London Court of International Arbitration (“LCIA”) Arbitration Rules 2020 (the “Rules”), which are deemed to be incorporated by reference into this clause. The seat of the arbitration will be the Dubai International Financial Centre and the language of the arbitration will be the English language. The number of arbitrators will be three (3). Each Party shall nominate an arbitrator in writing. This nomination shall be treated as an agreement to nominate an arbitrator for all purposes in accordance with Article 7.1 of the Rules. The Parties' nominees and the third presiding arbitrator shall be appointed by the LCIA in accordance with the applicable provisions of the Rules.
Any arbitration award rendered pursuant to the terms herein shall be final, binding on the signatories and not subject to any appeal. Judgement for any award rendered pursuant to this clause may be entered in any court having jurisdiction or an application may be made to such court for a judicial recognition of the award or an order of enforcement thereof, as the case may be. Nothing in this clause shall preclude either you or Billions from seeking provisional measures to secure its rights from any court having jurisdiction or where any assets of the other Party may be found.

Notices

Any notice or other communication given under this Agreement must be in writing, in English and delivered to:

in respect of you contacting Billions: legal@billions.ae, or such other e-mail address as Billions may subsequently notify you to use; and
in respect of Billions contacting you: the contact e-mail address that is listed in your account on the Billions Platform at the time of such contact.

Miscellaneous

This Agreement, in addition to the Terms of Use, constitute the entire agreement between you and Billions relating to your use of the Billions Platform and your receipt of Confidential Information. Neither you nor Billions has entered into this Agreement in reliance upon any representation, warranty or undertaking of either Party that is not expressly set out in this Agreement or the Terms of Use. This Agreement and the Terms of Use supersede and replace any and all previous oral or written discussions or agreements between you and Billions regarding the Billions Platform and the Confidential Information.
This Agreement may only be modified or amended at the mutual written agreement of the Parties.
If any provision of this Agreement is held by an arbitrator, a court of competent jurisdiction or authority by judgment or order to be void, unenforceable, invalid or against any applicable policy, law or regulation, the remaining provisions in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Neither a failure nor a delay by you or Billions in exercising any of such Party’s rights under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any further exercise of such rights.
The rights and remedies provided by this Agreement are cumulative and are not exclusive of any rights or remedies provided by law. Each Party acknowledges that remedies at law may be inadequate to protect the other Party against any breach by them or by their Recipients of this Agreement. Without prejudice to any other rights and remedies otherwise available, each Party agrees not to oppose the seeking of injunctive relief in favour of the other Party on the grounds of failure to prove actual damage.
You may not delegate or assign this Agreement, or any of your rights and obligations under these this Agreement, to any other person or entity at any time for any reason whatsoever. Billions shall have the right, in its sole discretion, to delegate or assign all or any part of this Agreement, or any of its rights and obligations under this Agreement, to any other person or entity at any time without any requirement to notify you of any such delegation or assignment.
Each Billions Fund, Shariah-Required Entity, Tax-Required Entity, Underlying Fund, and Fund Manager are specifically included herein as an intended third party beneficiary of this Agreement with authority to enforce any portion relevant to it; however, no other person or entity has any rights in relation to this Agreement or may enforce, or seek to enforce, against Billions any rights or obligations set out in this Agreement.
The headings and captions in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
Words used in this Agreement in the singular shall, where the context so permits, be deemed to include the plural and vice versa, which includes any definitions of terms included herein.
This Agreement has been prepared and agreed in the English language. Both you and Billions agree that, to the maximum extent permitted by applicable law, the English version shall be the only version valid for the purpose of the interpretation and construction, notwithstanding the preparation of any translation into another language, whether official or otherwise, or whether prepared in relation to any proceedings which may be brought in a non-English language jurisdiction.