CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In consideration of the Disclosing Party agreeing to make available to the Receiving Party certain information relating to the Property the subject of the Proposed Transaction and other confidential information, the Receiving Party undertakes by clicking the “I Accept” button on this website to comply with and be bound by the terms set out in this Confidentiality and Non-Disclosure Agreement and the Data Room Rules.
BETWEEN:
1. The Party detailed in the First Schedule (the Disclosing Party);
1. The Party having confirmed acceptance of the terms of this Confidentiality and Non-Disclosure Agreement and the Data Room Rules (the Receiving Party)
(each a Party and together the Parties)
WHEREAS:-
1. The Receiving Party is one of a number of parties who is or may be participating in a bidding process for the purchase of the Property (Block P2, Eastpoint Business Park, Alfie Byrne Road, Dublin 3, Ireland).
2. As a result of the Receiving Party participating in the bidding process in respect of the Property the Parties may enter into discussions/negotiations concerning the possible acquisition by the Receiving Party of the Property (the Proposed Transaction).
3. The Disclosing Party wishes to ensure that any Confidential Information (as hereinafter defined) revealed to the Receiving Party in the course of the bidding process and any associated negotiations remains confidential and is not used by the Receiving Party for any purpose other than for the Proposed Transaction.
4. In consideration of the Disclosing Party agreeing to make Confidential Information available to the Receiving Party for the purposes of the Proposed Transaction, the Receiving Party undertakes to comply with the terms set out in this Agreement and the Data Room Rules.
NOW IT IS HEREBY AGREED as follows:
1. Definitions
1.1. In this Agreement:
Affiliate means another Person which is controlled by a party hereto, which controls a party hereto or which is under common control with a party hereto 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;
Copies means copies of Confidential Information including any document, electronic file, note, extract, analysis, study, plan, compilation or any other way of representing or recording and recalling information which contains and/or reflects and/or is derived or generated from Confidential Information;
Confidential Information means any information or data relating to the Property and the Proposed Transaction including the technology, know how, trade secrets, trade, proprietary and/or other confidential information of a Party or any of its Affiliates, including, without limitation, any and all finance and facility documents, security documents, title documents, reports, valuations, statements of affairs, database data, security reviews, surveys, planning materials, books, records, accounts, memoranda, agreements, documents, correspondence and information in relation to any tenants of the Property and other data and any and all discoveries, ideas, concepts, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans and strategies, customer names and other business, technical, financial, operational, administrative, marketing, commercial or other information (including, without limitation, agreements, procedures, methods, strategy or processes) or personal data relating to or concerning the Property and/or a party to this Agreement (or an Affiliate), including any information made available in the course of any negotiations, meetings, discussions or otherwise and any notes, analyses, reports, memoranda or other work product prepared by the Receiving Party containing, reflecting or derived from the Confidential Information and/or, in any case whether disclosed in written, oral, electronic or other tangible or intangible forms, and however recorded, preserved or disclosed, and whether disclosed directly by one party to this Agreement to another party to this Agreement or by a third party on behalf of a party to this Agreement and whether disclosed before or after the date of this Agreement and may include information received from third parties acting in cooperation with or for the Disclosing Party;
Control means the power of a person, to secure directly or indirectly including through one or more intermediaries:
(a) by means of the holding of shares or the possession of voting power directly or indirectly in or in relation to that or any other Person; or
(b) by virtue of any powers conferred by the constitutional documentation or other document regulating that or any other Person,
that the affairs of another Person are conducted in accordance with the wishes of the first mentioned Person and the expressions controlled and under common control which shall be construed
accordingly;
Data Protection Laws means the applicable privacy and data protection laws including, without limitation, the General Data Protection Regulation ((EU) 2016/679) ("GDPR"), the Data Protection Acts, 1988-2018 and the EU ePrivacy Directive 2002/58/EC as amended by Directive 2009/136/EC, S.I. No. 336/2011 - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, and any implementing, derivative or related legislation, rule, regulation and binding regulatory guidance, in each case as amended, extended and re-enacted from time to time;
Data Protection Incident means a breach of security, including any suspected breach of security, leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
Data Room Rules means the rules issued by the Disclosing Party from time to time and at any time whether before or after the date of this Agreement relating to the use of the Website and any Confidential Information made available thereon the current copy of which are annexed at Schedule 2;
Person includes any individual, company, body corporate, partnership or other entity;
Personal Data has the meaning given to that term by the Data Protection Laws;
Potential Recipient has the meaning set out in clause 3.5 below; and
Purpose means the use of the Confidential Information in diligencing the Property and in any discussions and negotiations between or within the Parties concerning or in connection with the Proposed Transaction or any part thereof.
1.2. Headings are inserted for convenience only and do not affect the construction of this Agreement.
1.3 References to the Disclosing Party include advisors, agents, consultants, employees, officers, representatives and servants of the Disclosing Party.
2. Provision of Information
The Receiving Party (for itself and each Potential Recipient) acknowledges and agrees that the Disclosing Party does not make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any Confidential Information and the Disclosing Party does not accept any liability to the Receiving Party or any Potential Recipient in respect thereof. Furthermore the Receiving Party (for itself and each Potential Recipient) acknowledges that all information, including without limitation all Confidential Information, provided to any Potential Recipient by or on behalf of the Disclosing Party is provided on a non-reliance basis and it shall not be under any obligation to update or correct any inaccuracy in any Confidential Information or be otherwise liable to the any Potential Recipient in respect of any Confidential Information.
3. Protection of Confidential Information
3.1. In return for the Disclosing Party making Confidential Information available to the Receiving Party, the Receiving Party shall:
(a) keep the Confidential Information secret and confidential;
(b) mark all documentation containing the Confidential Information as being subject to the terms of the Agreement; and
(c) keep all materials obtained from the Disclosing Party separate from all documents and other records of the Receiving Party.
3.2. Confidential Information will be used by the Receiving Party and each Potential Recipient exclusively for the purposes of the Proposed Transaction and the Confidential Information will not be disclosed to any third party other than as permitted under Clause 3.3 and the Receiving Party shall exercise in relation thereto no lesser security measures and degree of care than those which the Receiving Party maintains in order to provide adequate protection of its own confidential information against unauthorised disclosure, copying or use.
3.3. The Receiving Party shall ensure that disclosure of the Confidential Information by any means (including without limitation by means of e-mail communication) is restricted to those directors, officers, employees, agents and advisers of any Potential Recipient having the need to know the same for the Purpose and shall ensure that each such Person is made aware of the confidential nature of the Confidential Information and is bound by confidentiality obligations similar to those contained in this Agreement. The Receiving Party shall be responsible for all breaches of this Agreement committed by any such Persons as though they were a party hereto and any action to enforce any such breach may be brought against the Receiving Party only.
3.4. Copies or reproductions of any Confidential Information shall not be made by the Receiving Party or any Potential Recipient except to the extent reasonably necessary for the Purpose. Confidential Information and all Copies or reproductions thereof shall be deemed to be the property of the Disclosing Party.
3.5. In this agreement "Potential Recipient" means
(a) the Receiving Party; and
(b) any Affiliate of the Receiving Party;
(c) any trust, fund, partnership or other entity managed or advised by the Receiving Party or any of its Affiliates;
(d) any trust, fund, partnership or other entity established for the purpose of the Purpose;
(e) any actual or prospective co-investor with any of the persons identified in paragraphs (a) to (d) above, any Affiliate of such co investor or any manager or advisor to such co-investor; and
(f) any actual or prospective financier to any of the persons identified in paragraphs (a) to (e) above.
4. Limitations, Remedies & Exclusion of Warranties
4.1. Subject to the exceptions contained in clause 5 of this Agreement and to the provisions of clause 6, the Receiving Party shall not:
(a) divulge or permit to be divulged, directly or indirectly, the Confidential Information of the Disclosing Party, in whole or in part, and by any means, to any third party other than to any of the directors, officers, employees and advisers of the Potential Recipient;
(b) use or permit the use of the Confidential Information of the Disclosing Party for any purpose other than the Purpose; or
(c) make or permit to be made any commercial use of the Confidential Information of the Disclosing Party or any part thereof for any purpose other than the Purpose without the prior written consent of the Disclosing Party.
4.2. The Receiving Party (for itself and each Potential Recipient) agrees that if it becomes aware of any breach of the terms hereof it shall promptly notify the Disclosing Party of the same and shall give (or procure that there is given) to the Disclosing Party all reasonable assistance in connection with any proceedings which the Disclosing Party may institute in respect of any such breach against any of the Persons referred to in clause 3 and will use its all reasonable endeavours to prevent the occurrence of any further breach of the terms hereof.
4.3. Without prejudice to any other rights and remedies that the Disclosing Party may have, the Receiving Party (for itself and each Potential Recipient) acknowledges that, in certain circumstances, damages would not be an adequate remedy for the breach of this Agreement and the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief, or any combination thereof, for any threatened or actual breach of this Agreement (and/or to procure that the Receiving Party seeks such reliefs from any Potential Recipient or other third party to whom the Confidential Information has been disclosed) and that no proof of special damages shall be necessary for the enforcement of this Agreement.
4.4. None of the Receiving Party and/or any Potential Recipient will, without the express written consent of the Disclosing Party, contact or communicate (directly or indirectly) with an individual or company whose information comprises part of the Confidential Information pursuant to this Agreement or otherwise discuss with or make known to such company, individual or other party that the Receiving Party and/or any Potential Recipient is reviewing the Confidential Information provided, however, that the Receiving Party shall not be prohibited from communicating (directly or indirectly) with any party referred to in this clause where such communication is not in connection with, (whether directly or indirectly) the Proposed Transaction or the Purpose, provided always that the Receiving Party does not
(a) use or reveal Confidential Information to any such party;
(b) disclose the fact that it received the Confidential Information to any such party; or
(c) disclose any terms or conditions with respect to a Proposed Transaction or the existence of a Proposed Transaction to any such party.
5. Exceptions
5.1. The foregoing obligations shall not apply to any Confidential Information which:
(a) is in the public domain at the time of disclosure or later becomes in the public domain through no fault of the Receiving Party;
(b) can be reasonably shown to have been lawfully known to the Receiving Party prior to disclosure by the Disclosing Party;
(c) is disclosed to the Receiving Party by a third party who did not obtain such Confidential Information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligations in favour of the Disclosing Party or from any third party who was subject to any such obligation and who was entitled to disclose such information as a matter of right, without any restriction on disclosure and/or use in favour of the Disclosing Party.
5.2 It shall not be a breach of this Agreement to disclose the Confidential Information to the extent that this is required by applicable law or by an order or direction of a court of competent jurisdiction or of any stock exchange, governmental department or agency or other regulatory body (in which case the Receiving Party will give the Disclosing Party as much prior written notice thereof as reasonably practicable prior to making such disclosure and (unless prohibited by law) the Receiving Party shall supply to the Disclosing Party copies of all communications between it and any third party to which such disclosure is to be made and the Receiving Party shall have due regard to any representations made by the Disclosing Party on the form and/or content of any proposed disclosure. Disclosure will be made only to the extent required, and subject to the Person(s), bodies or entities to whom the information is so disclosed being bound by obligations of confidentiality to the extent reasonably possible).
6. Affiliates
6.1. The Parties recognise that the Receiving Party may be part of an organisation of multiple legal entities in several jurisdictions and that it may be necessary or appropriate for each Party to provide Confidential Information to its Affiliates. For this purpose, the Disclosing Party agrees that:
(a) the Receiving Party may disclose Confidential Information received by it to an Affiliate but only to the extent that such Affiliate has a need to know such Confidential Information for the Purpose;
(b) disclosure by or to an Affiliate of a party hereto shall be deemed to be a disclosure by or to that party, as applicable; and
(c) the Receiving Party shall guarantee the observance and proper performance by its Affiliates of the terms and conditions of this Agreement.
7. Data Protection
7.1. The Parties agree that to the extent that the Confidential Information provided to the Receiving Party comprises any Personal Data any such Personal Data which the Disclosing Party supplies or discloses to the Receiving Party pursuant to this Agreement and / or otherwise as part of the Proposed Transaction, shall be treated as set out in this Clause 7.
7.2. The Parties acknowledge that the Receiving Party may transfer Personal Data to its Affiliates. In such a case, the Receiving Party shall be directly liable for the observance and proper performance (and any omissions in that regard) by those of its Affiliates who have received Personal Data of the terms and conditions of this Agreement and in particular this Clause 7.
7.3. The Receiving Party confirms that it has 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 contained in the Confidential Information.
7.4. The Personal Data shall remain at all times the property of and in the ownership of the Disclosing Party (as applicable) and the Receiving Party shall have no rights whatsoever in respect thereof.
7.5. The Receiving Party warrants and undertakes that it shall:
(a) 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 Proposed Transaction and in accordance with the Disclosing Party’s instructions from time to time;
(b) subject to Clause 7.12, 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 Disclosing Party;
(c) implement and maintain such technical and organisational security measures as may be required to comply with the applicable Disclosing Party’s data security obligations in the Data Protection Laws;
(d) other than transfers of Personal Data to the Disclosing Party or to other third parties specified by the Disclosing Party, shall not under any circumstances transfer the Personal Data outside the European Economic Area unless authorised in writing to do so by the Disclosing Party; and
(e) enter into such other written agreement in respect of the processing or transfer of Personal Data as a Disclosing Party may require.
7.6. Upon expiry or termination of this Agreement, or upon the earlier written request of a Disclosing Party, the Receiving Party shall promptly either return or destroy all Personal Data disclosed to it by the Disclosing Party including any copies, notes or other materials containing such Personal Data and the Receiving Party shall if so requested in writing by the Disclosing Party, certify to the Disclosing Party that it has complied with this Clause 7.
7.7. The Receiving Party shall notify the Disclosing Party as soon as reasonably practicable and in any event within twenty-four (24) hours of:
(a) any legally binding request for disclosure of Personal Data by a law enforcement regulatory body or other competent authority unless prohibited by law from doing so;
(b) receiving any correspondence, notice or other communication whether orally or in writing from the relevant data protection regulator or any other regulator or person, relating to the Personal Data.
7.8. Where the Receiving Party receives a legally binding request for access to personal data by a law enforcement agency regulatory body on other competent authority, the Receiving Party will inform the Disclosing Party except where such disclosure is itself legally prohibited. The Receiving Party will reject any such request which is non-legally binding.
7.9. Without prejudice to the other provisions of this Clause 7, if the Receiving Party or any of the Receiving Party’s employees or contractors becomes aware of any Data Protection Incident, or has commenced an investigation to assess whether there has been Data Protection Incident (an Investigation), then the Receiving Party shall promptly (but in any event within twenty-four (24) hours of, the earlier of (i): discovery of a Data Protection Incident; or (ii) commencement of an Investigation) notify the Disclosing Party by both telephone and by email. The Receiving Party shall, at no additional cost to the Disclosing Party, provide the Disclosing Party with all resources, assistance and cooperation as are required by the Disclosing Party in order for it to comply with its own contractual or legal obligations in respect of the data subjects (as defined in the Data Protection Laws).
7.10. For the purposes of Clause 7, the relevant contact details of the Disclosing Party are as follows:
(a) Email: Siobhán Fox <Siobhan.Fox@maples.com>
7.11. The Receiving Party shall execute all such additional documents, give such assistance and do such acts and things as may in the opinion of any Disclosing Party be necessary or desirable in order comply with the Data Protection Laws.
7.12. Without prejudice to Clause 7.5(b), the Receiving Party shall not permit a third party to process Personal Data on its behalf unless the Receiving Party and the third party first enter into a written agreement which imposes the same obligations on the third party as are imposed on the Receiving Party under this Agreement and which also imposes the obligations that are required under Data Protection Laws.
7.13. To the extent that the Receiving Party acts as a data processor on behalf of the Disclosing Party, the Receiving Party shall in addition to the obligations set out in this Clause 7 and Clause 3.3:
(a) inform the Disclosing Party if it is required to process the Personal Data by EU or member state law to which it is subject, prior to such processing, other than where that law prohibits the Disclosing Party from being informed on important grounds of public interest;
(b) not appoint any sub-processors except pursuant to Clause 7.5(b);
(c) taking into account the nature of the processing by the Receiving Party and the nature of the information available to it, assist the Disclosing Party in respect of data subject rights requests under Chapter III of the GDPR and assist the Disclosing Party in complying with its mandatory obligations under Articles 32 to 36 of the GDPR; and
(d) make available to the Disclosing Party all information necessary to demonstrate its compliance with its obligations under this Clause 7 and Clause 3.2, and shall allow for and contribute to audits, including inspections, conducted by the Disclosing Party and/or its auditors, having regard to the Receiving Party’s obligations of confidentiality to third parties other than the Disclosing Party.
8. No License or Warranties
All Confidential Information including any intellectual property rights and other rights (howsoever described) in the Confidential Information are and shall remain the absolute property of the Disclosing Party and no license or any other rights under any trademark, patent, copyright or any other intellectual property right are granted or implied by the disclosure of Confidential Information to the Disclosing Party. The Receiving Party shall not use, reproduce, modify, adapt or make use of Confidential Information or any trademark, patent, copyright or any other intellectual property right of the Disclosing Party save as expressly permitted under this Agreement. None of the Confidential Information which may be disclosed or exchanged by the parties shall constitute any representation, warranty, assurance, guarantee or other inducement of any kind by either party to the other or to any other person(s) with respect thereto including, in particular, with respect to the non-infringement of trade marks, patents, copyrights or any other intellectual property or other rights of third parties.
9. No Commitment
9.1 The Parties further mutually acknowledge that, except for this Agreement, no Party shall be committed to another Party in any way, or obliged to enter into any transaction, unless and until a further formal agreement is duly executed and delivered and that no Party is obligated in any way to enter into any such agreement.
9.2 This Agreement and the supply of Confidential Information does not constitute an offer by the Disclosing Party to sell the Property to the Receiving Party or an invitation to purchase or tender for the Property and does not impose an obligation on either Party to continue discussions or negotiations in connection with the proposed purchase of the Property.
9.3 The Disclosing Party reserves the right to negotiate with one or more parties at any time and to enter into a definitive agreement with respect of the Proposed Transaction without notice to the Receiving Party or any other Person.
9.4 The Disclosing Party also reserves the right, at any time, without prior notice and without providing any reason therefore, (i) to decide not to pursue the Proposed Transaction, and to terminate the related process in its entirety, (ii) to terminate further participation in the investigation of the Proposed Transaction by the Receiving Party or any other Person, and (iii) to modify data, documentation and other procedures or rules relating to the Proposed Transaction, including the Data Room Rules.
9.5 The Parties agree not to make, issue, or release any public announcement, statement or acknowledgement of the existence of this Agreement, the discussions between the Parties, the Proposed Transaction or any evaluation being undertaken by any Party, without the prior written consent of the other Parties, except as may be required by law.
10. Terms and Termination
10.1. This Agreement shall govern all communications relating to Confidential Information between the Parties hereto within the scope of the Purpose until such time as this Agreement is either expressly superseded by a subsequent agreement between the Parties hereto or upon the 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 twenty four (24) months from the date of termination or expiration of this Agreement howsoever arising.
10.2. On termination or expiration of this Agreement, the Receiving Party shall on written request forthwith return (or procure the return) to the Disclosing Party, or as the Disclosing Party may direct, all Confidential Information (to include all Copies of Confidential Information) received by it or, at the option of the Disclosing Party destroy (or procure the destruction of) all such Copies or reproductions and confirm in writing to the Disclosing Party that the same have been destroyed save that this obligation shall not apply to any advisor of any Potential Recipient who is required by its professional conduct rules to maintain files or records for a period of time in respect of any Confidential Information provided to it provided always that such advisor shall remain bound by the terms of this Agreement for such period.
11. Waiver
The rights of the Disclosing Party under this Agreement will not be prejudiced or restricted by any indulgence or forbearance extended to the Receiving Party, and no waiver by either party in respect of any breach of the terms of this Agreement will operate as a waiver in respect of any subsequent breach.
12. Notices
Any notice or other communication given or made under this Agreement shall be in writing and may be delivered to the relevant party or sent by pre-paid registered post or fax to the address of that party specified in this Agreement or to that party's fax number thereat or such other address or number as may be notified hereunder by that party from time to time for this purpose and will be effective notwithstanding any change of address or fax number not so notified. Unless the contrary is proved, each such notice or communication will be deemed to have been given or made and delivered, if by post 48 hours after posting, if by delivery when left at the relevant address or, if by fax upon transmission, subject to the correct code or fax number being received on the transmission report.
13. No assignment
13.1 This Agreement is personal to the Receiving Party and shall not be assigned or otherwise transferred in whole or in part by either party without the prior written consent of the Disclosing Party.
13.2 The Disclosing Party shall be entitled to assign or otherwise transfer the benefit of this Agreement to any successor of its interest in the Property.
14. Data Room Rules
By their execution of this Agreement the Receiving Party (for itself and any Potential Recipient) agrees to be bound by the terms of the Data Room Rules.
15. Entire Agreement
This Agreement (to include the data Room Rules) constitutes the entire agreement between the parties relating to the matters discussed herein. In the event of any conflict between the terms of this Agreement and the terms of any other agreement entered into by the parties in relation to the Purpose and/or the Proposed Transaction, the terms of this Agreement shall prevail. Should any provision of this Agreement be determined to be void, invalid, or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof, which shall remain in full force and effect. All additions or modifications to this Agreement must be made in writing and must be signed by all parties hereto.
16. No Inducements
If the purchase of the Property proceeds and the Receiving Party is successful in the bidding process then the Receiving Party shall enter into a purchase agreement in which the Receiving Party shall acknowledge that the Receiving Party has not been induced to enter into the agreement by any representation other than as set out in the purchase agreement.
18. Counterparts
This Agreement may be executed in any number of counterparts, each of which is an original and all of which when taken together shall constitute one and the same agreement.
19. Governing Law
This Agreement and any dispute, controversy, proceeding or claim whatsoever arising out of or in any way relating to it or its formation, including the Data Room Rules shall be governed by and construed in accordance with Irish law and each party irrevocably submits to the exclusive jurisdiction of the courts of Ireland.
20. Indemnity
The Receiving Party agrees to indemnify the Disclosing Party and hold the Disclosing Party harmless from and against any action, claim, cost, demand, expense, liability, loss or proceedings (and any costs, expenses or other liabilities arising therefrom) brought by any third party as a result of or arising from the unauthorised disclosure by the Receiving Party or by its agents in breach of its obligations under this Agreement of any of the Confidential Information or other breach of the provisions of this Agreement.
21. No Agency or Partnership
It is understood that this Agreement constitutes a confidentiality and non-disclosure agreement only. It shall not be construed as giving effect to or otherwise implying a teaming, joint venture, partnership, agency or other such arrangement. Nothing in this Agreement shall grant to any of the Parties the right to make commitments of any kind on behalf of the other Party without the prior written consent of the other Party.
22. Costs
Unless otherwise specified all costs in connection with the negotiation, preparation, execution and performance of this Agreement (and any documents referred to in it) and the consideration or evaluation of the Confidential Information shall be borne by the Party that incurred those costs.
23. Foreign Companies as Receiving Party
Where the Receiving Party is a foreign company, it hereby confirms that it has the requisite corporate capacity to enter into and execute this Agreement notwithstanding this Agreement is signed or accepted on behalf of the foreign company by an authorised signatory or person.
SCHEDULE 1
THE DISCLOSING PARTY
Green Liffey Limited
SCHEDULE 2
STRICTLY PRIVATE & CONFIDENTIAL
DATA ROOM RULES
DATA ROOM
RULES AND PROCEDURES
GOVERNING ACCESS TO AND MANAGEMENT OF THE WEBSITE DATA ROOM
These rules and procedures (the Rules) regulate the use of the Website made available to the approved Participant and Viewers in connection with the proposed transaction under the name “Pearse Street” (the Transaction).
1 Definitions
In these Rules:
Disclosing Party means the party listed in the First Schedule to the Non-Disclosure Agreement;
Information means any information made available via the Website (which may include Confidential Information);
Non-Disclosure Agreement means the non-disclosure agreement entered into between the Disclosing Party and the Participant in connection with the Transaction;
Participant means the party identified as the Receiving Party in the Non-Disclosure Agreement and who has been granted access to the Website;
Transaction Agreement means the agreement (if any) entered by the Disclosing Party to give effect to the Transaction;
Viewers means the officers, employees, representatives, agents and advisers of the Participant including, unless the context admits otherwise, the Participant themselves, and Viewer means any one of them; and
Website means the website data room established for the purposes of the Transaction.
2 General
2.1 The materials for the conduct of due diligence in respect of the Transaction are available on the Website.
2.2 In offering the Website the Disclosing Party is making available a facility which allows the Viewers to access, via the Internet, Information relating to the Transaction. In consideration of the use of this Website the Participant and the Viewers agree to be bound by these Rules and to adhere to all procedures set out in these Rules. These Rules apply to each and every occasion on which the Website is accessed by a Viewer.
2.3 The Participant and Viewers shall only be granted access to the Website with the prior consent of the Disclosing Party and such consent may be withdrawn at any time without prior notice. Prior to gaining admission to the Website, Viewers shall accept the terms and conditions of the Website.
2.4 All Viewers are reminded that the Information is being provided subject to and is to be used strictly in accordance with the terms of the Non-Disclosure Agreement agreed to by way of acceptance via data registration by each Participant. Where Viewers have not signed the Non-Disclosure Agreement, the Viewers, by agreeing to the terms and conditions of access to the Website as set out in these Rules, confirm that he/she/it has read or is aware of the Non-Disclosure Agreement validly countersigned or accepted by an authorised person on behalf of the Participant with which the Viewer is associated, and that the Viewer is fully aware of the obligations in the Non-Disclosure Agreement and agrees to be bound by its provisions as if he/she/it had signed the Non-Disclosure Agreement.
2.5 Viewers shall ensure that their employees and any consultants and each other person who reports to them:
(a) are aware of their obligations in the Non-Disclosure Agreement; and
(b) shall comply with the terms of the Non-Disclosure Agreement.
2.6 Viewers agree and acknowledge that these Rules apply to each and every occasion that the Website is accessed by a Viewer, and shall be deemed to have represented to the Disclosing Party that the Viewer is fully aware of these Rules and gives the undertakings set out herein.
2.7 Nothing on the Website or contained in these Rules constitutes an offer by the Disclosing Party or any other party to sell any loan, property, asset, business or shares or to enter into any agreement or any form of invitation to treat in any way whatsoever.
2.8 A Participant is responsible for use of Website by any person using a password. Each Participant must ensure the confidentiality of its password and prevent any unauthorised person accessing the Website through the use of a password.
2.9 Each Participant must comply with all applicable laws and regulatory requirements relating to its use of the Website. Each Participant must also comply with all reasonable instructions given to it by the Disclosing Party relating to the Website.
2.10 No representation or warranty, express or implied, is or will be given, and no responsibility or liability is or will be accepted by the Disclosing Party nor any of their respective shareholders, officers, employees or advisers as to the accuracy, reliability or completeness of any Information on the Website. In preparing the Website the Disclosing Party has relied upon and assumed, without independent verification, the accuracy and completeness of all information available from public sources or which was provided to the Disclosing Party by or on behalf of any third party or which was otherwise reviewed by the Disclosing Party and no representation, warranty, undertaking or assurance of any kind, express or implied is or will or has been authorised to be made to the accuracy, reliability or completeness of the Website or as to the reasonableness of any assumption contained in the Information or on which the Information is based. Neither the Disclosing Party nor any of their respective shareholders, officers, employees or advisers will be liable to any party to whom such Information may be disclosed, for any loss or damage howsoever caused arising directly or indirectly out of the inaccuracy, unreliability or incompleteness of any of the Information, for any reliance on any statement or assumption made or contained in the Information or for any damage as a result of loss or interruption to a Viewer's access to the Website.
2.11 The Disclosing Party shall not be liable for any direct, indirect or consequential loss or damage suffered by any person as a result of relying on any statement in or omission from the Website or any other information or communications made in connection with the matters set out herein. The Disclosing Party accept no liability for the actions of any third party referred to in the Website or in particular the actions of any bidder. If successful the Participant will be required to acknowledge in the Transaction Agreement that it has not relied on or been induced to enter into such Transaction Agreement by any representation or warranties save as expressly set out in the Transaction Agreement.
2.12 The Disclosing Party does not guarantee that access to the Website will be available at any or all times or that the Website will meet any minimum performance or security standards and the Disclosing Party shall not be liable or responsible for any loss or damage of any nature whatsoever (whether foreseeable or not) as a direct or indirect consequence thereof. Whilst every effort is made to keep viruses and similar malicious software or code out of the Website, the Disclosing Party does not accept any liability or responsibility for any damage done by such elements or any loss, disruption or damage to Viewers’ computer systems that may occur while accessing any Information.
2.13 The Disclosing Party and its advisers hereby expressly reserve the right to (at their absolute discretion) alter these Rules or to suspend or terminate the right of access of any Viewers to the Website at any time and from time to time without notice.
2.14 The Participant must obtain (and will be deemed to have obtained) its own independent legal, taxation, financial, commercial, regulatory, technical and other advice in relation to the Information or otherwise made available to the Participant before or during the Transaction. Nothing in the Website should be construed as legal, taxation, financial, commercial, regulatory, technical or other advice by the Disclosing Party for the Participant all of which the Participant acknowledges that it should seek from its own advisors.
3 Using the Website
While using the Website, Viewers must:
3.1 Take all reasonable steps to ensure that none of the Information is visible to, or capable of being, overlooked by other unauthorised persons;
3.2 Not leave their computer or other communications device through which they access the service unattended whilst connected to the Website;
3.3 Ensure that they close the browser when they have finished using the Website;
3.4 Not share his or her username and/or password with others;
3.5 Not attempt to disable or circumvent any protection software or features associated with the Website or do anything which may compromise the stability or security of the Website;
3.6 Not deface, mark, alter, modify, vary (including varying the sequence of), damage or destroy in any way any Information contained on the Website; and
3.7 Not do anything which may compromise or interfere in any way with the stability or security of the Website or any of its features.
4 Updating the Website
4.1 Further documents may be added to the Website and existing documents on the Website may be updated, replaced or removed at any time, but the Disclosing Party undertakes no obligation to (i) add, update, replace or remove Information, (ii) provide Viewers with access to any of such added, updated, replaced or removed Information or (iii) inform Viewers of any matters of which any of the Disclosing Party become aware that may affect the Information (including, but not limited to, circumstances, developments or events occurring after the date hereof or any error or omission herein that may become apparent after the Information has been uploaded to the Website). It is the responsibility of each Viewer to check regularly whether any information has been added to, updated, replaced or removed from the Website.
4.2 Viewers may be notified by e-mail of any new, updated, replaced or removed documents that are uploaded onto the Website into all workspaces and folders to which they have access rights. The Disclosing Party reserve the right not to notify Viewers when additional Information is published on the Website.
5 Conditions of Access
Viewers agree and acknowledge that they are being granted access to the Information contained on the Website solely in order to review the Information. Viewers understand that their access to the Website is subject to the following additional conditions:
5.1 All of the Information contained on the Website is considered confidential and is subject to the Non-Disclosure Agreement. Viewers will maintain the Information in confidence and will not disclose any of the Information to others except as expressly permitted by the Non-Disclosure Agreement.
5.2 Viewers will not attempt to download, scan, copy, print or otherwise capture any of the Information contained on the Website, except that Viewers may print Information for which the print capability has been enabled as indicated by the Website index. Viewers will not attempt to circumvent any of the security features of the Website, and will not enable or allow others to access the Website using the Viewers' authorisation to the Website.
5.3 Viewers acknowledge that the Information on the Website has been prepared to assist the Participant in making their own evaluation of a potential transaction involving the Disclosing Party. The Disclosing Party and their respective shareholders, representatives, directors, officers, employees, agents or advisors do not warrant or represent the Information as being all-inclusive or to contain all information that may be desirable or necessary in order to properly evaluate the Transaction.
5.4 Viewers acknowledge that any statements, estimates, targets and projections comprised in the Information or the Website are not guarantees, promises, or representations or warranties of future performance and involve risks and uncertainties (many of which are beyond the Disclosing Party’ control), and that such statements, estimates, targets and projections are based on significant assumptions and subjective judgments concerning anticipated results. These assumptions and judgments may or may not prove to be correct and there can be no assurance that any projected results are attainable or will be realized. There will usually be differences between estimated and actual results, because events and circumstances frequently do not occur as expected, and those differences may be material.
6. Acceptance
By checking on the "I accept' button on the relevant access page of the Website, Viewers acknowledge that they have read, understand, and agree to the terms and conditions set out in these Rules and the associated Non-Disclosure Agreement.
