NON DISCLOSURE AGREEMENT
BETWEEN
AH SAPPHIRE PROPERTY LIMITED, having its registered office at Apartment 13, Block A, Hanover Dock, Hanover Quay, Dublin 2 (hereinafter referred as the “Vendor” to include its agents, successors and assigns);
AND
The Receiving Party on entry to the Data Room (to include its/their heirs, successors, affiliates, agents and assigns).
WHEREAS
- The Vendor is placing the property known as Sartini Court, Upper Dominic Street, Dublin 1 (the “Property”) on the open market for sale subject to contract/contract denied;
- The Vendor has engaged Colliers and its agents to provide and deliver all information relating to the proposed sale of the Property to the Receiving Party;
- The Vendor agrees to disclose certain information relating to the sale of the property and their business operations to the other for the purpose of evaluating title to the property, the commercial benefits of the proposed sale and solely for the purpose of bidding on the Property;
- Now this agreement sets out the terms and conditions upon which the Information shall be kept confidential by each of the parties granted access to the Data Room as hereinafter defined. It is hereby acknowledged by the parties that by entering the Data Room you hereby accept the terms and conditions of this agreement.
Definitions
1.1 In this Agreement the following expressions shall have the following meaning:-
(a) "Affiliate" means any person which is controlled by a party, which controls a party or which is under common control with a party and in the case of an Irish company, an Affiliate means a company which is in a group with a party pursuant to Section 8 of the Companies Act, 2014 and in the case of a company not being subject to the Companies Act 2014, an Affiliate means a company which but for that fact, would be in a group of companies pursuant to Section 8 of the Companies Act 2014 with a party;
(b) "Data Protection Laws" means the Data Protection Acts, 1988 to 2018 as amended, modified or consolidated or, on and with effect from its effective date, by the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council of 27;
(c) “Data room” means the information and documents set out in any data room or shared storage space or by any communication means (electronically or otherwise) made available by or on behalf of the Vendor or either of the parties relating to the Sale.
(d) "Personal Data" shall have the same meaning given to that term in the Data Protection Laws.
2 Terms and Conditions
2.1 In connection with a confidential matter relating to the proposed sale of Sartini Court, Upper Dominic Street, Dublin 2 the details of which will be provided to you by Colliers, Ah Sapphire Property Company Limited and any of their Affiliates (the "Vendor") by way of telephone call, written instruction including e-mail, this data-site or otherwise (the "Sale"), you understand that you will receive certain Information (as defined below) relating to the Sale.
2.2 In consideration of the Vendor providing to you, your company, your acquisition vehicle, their respective Affiliates or any advisers certain information and data relating in any manner whatsoever to the Sale, including without limitation any responses to queries raised in relation to the Sale and any commercial information or intellectual property imparted (collectively, the "Information"), in any case whether disclosed in written, oral or other tangible or intangible forms and whether disclosed directly and whether disclosed before or after the acceptance of this Agreement, you hereby agree with and undertake to the Vendor as follows:-
(a) to keep all the Information of any type, form, nature or description relevant to the Sale confidential and not to disclose it to third parties, except as expressly permitted by this Agreement.
(b) to keep and maintain all Information received in whatever form or in strict confidence and to exercise in relation thereto no lesser security measures and degree of care than those which we maintain to provide adequate protection of our confidential information against unauthorised disclosure, copying or use;
(c) to keep and maintain any notes, studies, analyses, records, memoranda, reports and valuations prepared by us or our agents containing, reflecting or generated from the Information (the "Secondary Information") in strict confidence and to exercise in relation thereto no lesser security measures and degree of care than those which we maintain in order to provide adequate protection of our confidential information against unauthorised disclosure, copying or use;
(d) to ensure that disclosure of the Information or the Secondary Information by any means (including without limitation by means of e-mail communication) is restricted to those directors, officers, employees and advisers of your firm having the need to know the same for the purposes of the Sale and to ensure that each such person is bound by confidentiality obligations similar to those contained in this Agreement;
(e) not to use any of the Information or the Secondary Information for any purpose other than for the purposes of the Sale;
(f) not to make copies or reproductions of any Information or Secondary Information except for the purpose of the Sale;
(g) if negotiations or discussions with regard to the Sale are terminated or discontinued for any reason, to immediately return all Information (and all copies or reproductions thereof made by you or on your behalf) and to destroy all Secondary Information (and you will, if so requested, confirm such destruction in writing by a certificate signed on your behalf) and all copies or reproductions thereof which have been made by you or on your behalf, provided that one copy of the Secondary Information may be kept by us for evidentiary and/or record-keeping purposes;
(h) not to make, or permit or procure to be made or solicit or assist any other person to make, either directly or indirectly, any announcement, advertisement or disclosure relating in any manner whatsoever to the Sale, without the prior written consent but, notwithstanding the provisions of this Agreement, you shall be entitled without consent to make any disclosures or announcements which you are or may become obliged to make in compliance with legal or other regulatory obligations binding on us;
(i) to the extent that the Information and/or the Secondary Information comprises any Personal Data, without prejudice to any other term or condition of this Agreement you hereby warrant and undertake with the Vendor as follows:-
(i) you shall implement and enforce appropriate technical and organisational measures required to protect against unauthorised access to, or accidental or unauthorised destruction, loss, alteration or disclosure of any Personal Data;
(ii) the Personal Data shall remain at all times the property of and in the ownership of the Vendor (as applicable) and you shall have no rights whatsoever in respect thereof;
(iii) you shall comply with the Data Protection Laws and all other applicable data protection laws and guidance including (without limitation) applicable laws relating to accessing, use and onward disclosure, distribution, exporting, archiving, maintenance and storage of Personal Data and with the terms of this Agreement and process the Personal Data only to the extent strictly necessary in connection with the Sale and in accordance with the Vendor’s instructions from time to time;
(iv) you shall not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised to do so in writing by the Vendor;
(v) you shall implement and maintain such technical and organisational security measures as may be required to comply with the applicable Vendor’s data security obligations in the Data Protection Laws;
(vi) other than transfers of Personal Data to the Vendor or to other third parties specified by the Vendor, shall not under any circumstances transfer the Personal Data outside the European Economic Area unless authorised in writing to do so by the Vendor; and
(vii) you shall enter into such other written agreement in respect of the processing or transfer of Personal Data as a Vendor may require.
2.3 In respect of the Sale you covenant with the Vendor (and shall procure that your company or advisers or acquisition vehicles or any Affiliate), shall not make any statement (whether of fact, belief or opinion,) which directly or indirectly disparages or is determined to damage the reputation of the Vendor.
2.4 Unless otherwise agreed in writing, the obligations set forth in this Agreement shall survive the termination or expiration of this Agreement howsoever arising, and whether or not the Sale is completed.
2.5 You also acknowledge and agree that damages may not be an adequate remedy for any breach of any term of this Agreement and that the Vendor shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach hereof.
2.6 You further agree and acknowledge that the Vendor shall be entitled at any time to assign or transfer all or any of its rights and/or obligations under this Agreement to any third party without your consent or the consent of any third party.
2.7 This Agreement and any dispute, controversy, proceeding or claim whatsoever arising out of or any way relating to it or its formation shall be governed by and construed in accordance with Irish law and we irrevocably submit to the exclusive jurisdiction of the courts of Ireland.
2.8 By entering this data-room you are accepting all of the above terms. Nothing in this data-room constitutes an offer to enter into any agreement or any form of invitation to treat whatsoever. Neither the Vendor nor any of the parties who have made the data-room available nor any of their respective directors, officers, employees, shareholders, Affiliates, partners, agents or advisers or any party having produced a report, valuation or other advices which have been made available as part of the data-room will have any liability with respect to any use or reliance upon any of the information in the data-room and none of them have any obligation to provide any additional information or to update or correct any inaccuracies which may become apparent in any of the information contained in the data-room.
2.9 By entering the data-room you are accepting the terms of this Agreement.
