CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

THIS AGREEMENT is made on the date the Accepting Party confirms the acceptance of the terms of this Agreement by clicking “I have read and agree to the CBRE Confidentiality Agreement” on the registration page of www.18newmarketsquare.com

BETWEEN:

(1)        CBRE U.C. (company number 316570) having its registered office at Connaught House, 1 Burlington Road, Dublin 4 as “Agent” of the Owner; and

(2)        The PARTY who, for himself and for and on behalf of the Recipient, confirms the acceptance of the terms of this Agreement by clicking “ACCEPTED” at this end of this Agreement (the “Accepting Party”). 

RECITALS

A. The Agent on behalf of the Owner may make available Confidential Information to the Receiving Parties for the Permitted Uses. 

B. The parties have agreed that the provision of all Confidential Information by the Agent to the Receiving Parties is subject to the terms of this Agreement.

In consideration of the Agent making available certain Confidential Information to

the Receiving Parties on the basis set out in this Agreement IT IS agreed as follows:-

1. In this Agreement (including the Recitals), the following terms shall bear the following meanings except where the context otherwise requires:

1.1         “Affiliate” means, in relation to a Person, a person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with such Person and includes any Group Company of such Person.

1.2         “Confidential Information” includes all business, technical, financial, operational, administrative, marketing, economic, title, planning, tenancy, legal and any other documents or information supplied (in each case whether in writing, electronically or orally) by or on behalf of the Owner to the Recipient or which otherwise becomes known to the Receiving Parties in connection with

(i)           the Owner’s Property; and

(ii)          the Owner or any Group Company of the Owner;

including, without limitation, the existence of the potential sale of the Owner’s Property, the existence and contents of this Agreement, and including any notes, analyses, reports or memoranda prepared in connection with the Owner’s Property or any due diligence connected with the Owner’s Property, provided always that Confidential Information shall not include information:-

            (a)       which was in the public domain at the time of disclosure; or

(b)        which, though originally Confidential Information, subsequently becomes publicly available (otherwise than as a result of a breach of this Agreement); or

(c)        that is lawfully acquired in good faith from a third party by the Receiving Parties or that is already in the possession of the Receiving Partiesand not in breach of any confidentiality undertaking; 

(d)        that is identified in writing at the time of delivery as non-confidential by the Owner or their advisers or is disclosed with the prior written consent of the Owner; or

(e)        that is independently developed by the Receiving Parties without       breaching the Recipient’s obligations under this Agreement

1.3         “Data Protection Laws” means all laws relating to data protection and privacy which are from time to time applicable to the Seller (or any part of their business), including: (i) the Data Protection Acts 1988, 2003 and 2018 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (ii) the GDPR and all related national laws, regulations and secondary legislation; and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC, in each case as amended, replaced or updated from time to time and together with any subordinate or related legislation made under any of the foregoing.

1.4         “Data Room” means the electronic or virtual data room for the Project hosted or to be hosted by or for Maples and Calder (Ireland) LLP and/or the Agent and to which the Receiving Parties has been or will be granted access.

1.5         “Group Company” means any company which is a subsidiary of a specified company or a subsidiary of any body corporate that is a holding company of the specified company or any holding company of the specified company and the terms “holding company” and “subsidiary” shall have the same meaning as provided for in Section 7 and Section 8 of the Companies Act, 2014.

1.6         “Owner” means the Owner of the Owner’s Property.

1.7         “Owner’s Property” means the property owned by the Owner, details of which will be disclosed to the Receiving Parties after (and subject to) execution of this Agreement.

1.8         “Person” includes any person, firm, body corporate, or governmental or regulatory department or agency.

1.9         “Permitted Uses” means due diligence in relation to a potential sale of the Owner’s Property by the Owner to the Recipient.

1.10       “Receiving Parties” means the Accepting Party and the Recipient.

1.11       “Recipient” means the individual, company, organisation or other such entity represented by the Accepting Party and on whose behalf the Accepting Party is authorised to act, whether as director, officer, employee, agent, representative or advisor, in connection with the potential sale of the Owner’s Property to the Recipient (including, for the avoidance of doubt, in connection with the terms of this Agreement) (as notified in writing to the Owner).

1.12       “Representatives” includes the respective directors, officers, employees, agents, representatives and professional advisers of the Recipient or any Affiliate of the Recipient.

2. In consideration of the Owner and/or the Agent agreeing to make available certain Confidential Information to the Receiving Parties, the Receiving Parties agree to hold all Confidential Information in strict confidence and not to disclose any Confidential Information to any other person. The Receiving Parties shall ensure that the Confidential Information is only used for the sole purpose of the Permitted Uses, and not for any other purpose whatsoever and shall maintain such reasonable security measures to prevent theft or loss of, damage to or unauthorised or inadvertent disclosure or use of any of the Confidential Information.

3. Without limiting any other provision of this Agreement, the Receiving Parties agree and undertake that neither the Receiving Parties nor any of them nor any of the Representatives will contact or engage in any way with any tenant or occupier of the Owner’s Property or any agent or representative of any such tenant or occupier in relation to any transaction or potential transaction concerning the Owner’s Property or any lease or occupancy arrangement relevant to the Owner’s Property, in each case without the prior express written agreement of the Owner.

4. The Receiving Parties agree that they shall not (and the Recipient shall procure that none of its Affiliates or Representatives shall) make any copies of the Confidential Information or reproduce it in any form. The Receiving Parties shall inform the Owner immediately if they (or any Affiliate or Representative of the Recipient) become aware that Confidential Information has been disclosed to an unauthorised third party and shall take all reasonable steps to assist the Owner in preventing or taking other legal action in respect of such disclosure.

5. The Recipient may disclose Confidential Information to those of its Affiliates and Representatives who need access to the Confidential Information strictly for the Permitted Uses provided that each of its Affiliates and Representatives who receives such Confidential Information is made aware in advance of the Recipient’s obligations under this Agreement in respect of the Confidential Information and agrees to keep the potential sale of the Owner’s Property and such Confidential Information in strict confidence in accordance with the provisions of this Agreement. The Recipient shall procure that each Affiliate and Representative of the Recipient complies with the terms of this Agreement and the Recipient agrees that it bears responsibility for breaches of this Agreement by any such Affiliate or Representative.

6. The provisions of paragraphs 2 and 3 above shall not restrict the Receiving Parties from making or permitting any disclosure or announcement of Confidential Information  to the extent required by applicable law or the binding rules or regulations of any governmental or official supervisory or regulatory authority, provided always that (so far as it lawfully can prior to such disclosure) the Receiving Parties shall promptly notify the Owner of such requirement with a view to providing an opportunity for the Owner to contest such disclosure or otherwise to agree the challenge, limitation, timing and content of such disclosure and the Receiving Parties shall, to the extent lawful, keep the Owner fully and promptly informed of all matters and developments relating to such requested disclosure and shall consult and co-operate with the Owner in bringing any proceedings to challenge such disclosure and shall gain assurances as to confidentiality from the person(s) to whom any Confidential Information is disclosed.

7. The Receiving Parties acknowledge that all Confidential Information shall be owned solely by the Owner and that its disclosure shall not confer on any Person any rights (including any intellectual property rights) over the Confidential Information whatsoever beyond those contained in this Agreement.

8. The Receiving Parties acknowledge that the unauthorised disclosure or use of Confidential Information could cause irreparable harm and/or significant loss to the Owner, which may not be ascertainable or adequately remedied by damages.  Accordingly, the Receiving Parties agree that, should they be in actual or anticipatory breach of this Agreement, then notwithstanding any other rights or remedies available to the Owner, the Receiving Parties will not oppose any application by the Owner for an immediate injunction, specific performance or other equitable remedy in respect of any such unauthorised disclosure or use.

9. The Receiving Parties will upon the written request of the Owner at any time, either return to the Owner or destroy (at the Receiving Parties’ discretion) all Confidential Information in hard copy or soft copy form in the possession of the Receiving Parties (or any Affiliate or Representative of the Recipient) and shall erase or ensure the erasure of all Confidential Information in electronic form stored or held on any of its computers, electronic file storage systems or other electronic devices (other than copies of any computer records and/or files containing any Confidential Information which have been created pursuant to automatic archiving and back up procedures). The Recipient agrees that, if requested by the Owner, the Recipient will provide a certificate signed by a duly authorised senior officer of the Recipient to the effect that the Recipient has complied and procured compliance with its obligations under this paragraph.  This provision shall not apply to the extent that the Receiving Parties are required by any applicable law or regulation or the order of any court of competent jurisdiction or any competent governmental supervisory or regulatory authority to retain any such Confidential Information.

10. No failure or delay by the Owner in exercising any of its rights or remedies under or by virtue of this Agreement or at common law shall operate as a waiver of any such rights or remedies, nor shall any single or partial exercise preclude any other further exercise of such rights or remedies. The Receiving Parties’ obligations and acknowledgements under this Agreement may only be waived by the Owner expressly and in writing.

11. The Receiving Parties shall not assign, novate or otherwise transfer their rights or obligations under this Agreement in whole or in part to any third party but the Owner may freely assign or transfer the benefit of and/or all or any part of the rights and remedies of the Owner under this Agreement.

12. No variation of this Agreement shall be effective unless in writing and signed by or on behalf of the Owner (or the Agent on behalf of the Owner) and the Receiving Parties.

13. Neither the making available of Confidential Information nor the terms of this Agreement will constitute an offer by the Owner (or the Agent on behalf of the Owner) to the Receiving Parties, nor will such Confidential Information (save in the event of fraud) constitute any representation or warranty (express or implied) or form the basis of any contract.  It is expressly acknowledged by the Receiving Parties that all negotiations, correspondence and documents entered into, exchanged or provided in connection with the Owner’s Property are entered into, exchanged and/or provided strictly on a nonbinding and “subject to contract” basis unless otherwise expressly provided.

14. Any Confidential Information and any other documents and information at any time contained in the Data Room or otherwise provided or disclosed to the Receiving Parties is provided and disclosed strictly on a non-reliance basis.  Neither the Owner (nor the Agent on behalf of the Owner) nor any of their respective directors, officers, employees, agents, representatives or professional advisors make any representation or warranty, express or implied, on which the Receiving Parties may rely as to the accuracy or completeness of the Confidential Information or any such other documents or information.  The Receiving Parties irrevocably and unconditionally acknowledge that neither the Owner (nor the Agent on behalf of the Owner) nor any of their respective directors, officers, employees, agents, representatives or professional advisers shall have any liability whatsoever to the Receiving Parties, including without limitation in contract, tort or any other applicable law, arising out of, relating to or resulting from any use of the Confidential Information or any such other documents or information or any errors in or omissions from same. 

15. Having regard to Confidential Information from time to time in its possession relating to the Owner’s Property and/or otherwise concerning the business of the Owner, the Receiving Parties undertake not to (and the Recipient shall procure that none of the Affiliates or Representatives of the Recipient shall) (a) use or disclose any Confidential Information or any other material non-public information which is price-sensitive or market-sensitive or (b) deal, directly or indirectly, in any securities in such a way as to breach any applicable laws or regulations relating to insider dealing or market abuse.

16. The Receiving Parties undertake to fully indemnify and keep fully indemnified the Owner from and against all actions, proceedings, claims, losses, liabilities, expenses, demands, costs, awards and damages arising directly or indirectly as a result of any breach of the Receiving Parties’ obligations under this Agreement.

17. The Receiving Parties acknowledgethat the Confidential Information may contain personal data, and undertake to keep secure, prevent unauthorised disclosure and only use or deal with such personal data in accordance with the Data Protection Laws.

18. The Receiving Parties acknowledge that the Confidential Information may relate to the Owner and that this Agreement is made for the benefit of the Owner and such other Persons to whom the Confidential Information relates and each of whom may also enforce this Agreement.

19. By the execution of the Agreement by the Accepting Party, the Receiving Parties shall be bound by the terms of the Data Room rules notified to the Accepting Party.

20. If any term, provision or clause of this Agreement shall in whole or in part be held by a Court to be unlawful, void or unenforceable under any enactment or rule of law that term provision clause or part of same shall to the required extent be severed from and deemed not to form part of this Agreement and the validity and enforceability of the remainder of this Agreement shall not be prejudiced or affected.

21. Neither the termination of this Agreement nor the termination of the due diligence process in relation to the potential sale of the Owner’s Property for any reason shall prejudice or affect the obligations of the Receiving Parties to maintain and ensure the maintenance of the confidentiality of the Confidential Information under and in accordance with this Agreement for as long as such information remains confidential or proprietary.

22. If any ambiguity or question of intent or interpretation arises this Agreement shall be construed as if drafted jointly by the Owner and the Receiving Parties and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of this Agreement.

23. The Receiving Parties undertake that, if requested to do so, they shall promptly provide a properly executed or signed version of this Agreement in duplicate to the Owner and in that event this Agreement may be executed in any number of counterparts by the Owner and the Recipient.  All such counterparts shall together constitute one and the same Agreement.  For the avoidance of doubt this Agreement shall bind and be enforceable against the Receiving Parties immediately after the Accepting Party has clicked “ACCEPTED” for himself and for and on behalf of the Recipient and whether or not this Agreement or any counterparts of it are executed or signed by or on behalf of the Owner.

24. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including any non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland, and the parties irrevocably agree that the courts of Dublin, Ireland shall have exclusive jurisdiction over any such disputes or claims.

25. This Agreement shall govern all communications relating to Confidential Information between the Owner and the Receiving Parties within the scope of the Permitted Uses until such time as this Agreement is either expressly superseded by a subsequent agreement between the Owner and the Receiving Parties or upon the Owner or Receiving Parties giving to each other not less than seven (7) days prior notice in writing of termination, whichever is earlier provided always that the obligations set forth in this Agreement shall survive the termination for a period of eighteen (18) months from the date of termination of this Agreement howsoever arising.

26. The Accepting Party warrants and confirms that he has the irrevocable authority of the Recipient to enter into this Agreement for and on behalf of the Recipient and to bind the Recipient to the terms and conditions of this Agreement.

The Accepting Party confirms that he/she has read the entire of this Agreement and acknowledges the terms and conditions contained therein.  By clicking “I have read and agree to the CBRE Confidentiality Agreement” the Accepting Party, for and on behalf of and with the authority of the Recipient, irrevocably agrees that the Recipient is bound by this Agreement.