CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

Terms and Conditions

1.1 In this Agreement the following expressions shall have the following meaning:-

  1. “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;
  2. “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;
  3. “Personal Data” shall have the same meaning given to that term in the Data Protection Laws.

1.2 In connection with a confidential matter relating to Project Twilight (comprising the proposed sale of Twilight Ireland PRS Properties Eclipse Designated Activity Company and the development known as One Three North, Marrsfield Avenue, Clongriffin, Dublin 13) the details of which will be provided to you by [Knight Frank][1] and/or any of their Affiliates (the “Vendor“) by way of telephone call, written instruction including e-mail, this data-site or otherwise (the “Project“), you understand that you will receive certain Information (as defined below) relating to the Project.

1.3 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 Project and for other good and valuable consideration, including without limitation any responses to queries raised in relation to the Project and any commercial information 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:-

  1. 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 in order to provide adequate protection of our confidential information against unauthorised disclosure, copying or use;
  2. 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;
  3. 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 Project and to ensure that each such person is bound by confidentiality obligations similar to those contained in this Agreement;
  4. not to use any of the Information or the Secondary Information for any purpose other than for the purposes of the Project;
  5. not to make copies or reproductions of any Information or Secondary Information except to the extent reasonably necessary for the purposes of the Project;
  6. if negotiations or discussions with regard to the Project 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;
  7. 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 Project, 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;
  8. 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:-
    1. 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;
    2. 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;
    3. 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 Project and in accordance with the Vendor’s instructions from time to time;
    4. 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;
    5. 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;
    6. 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
    7. you shall enter into such other written agreement in respect of the processing or transfer of Personal Data as a Vendor may require.

1.4 In respect of the Project 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.

1.5 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 Project is completed.

1.6 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.

1.7 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.

1.8 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.

1.9 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.

1.10 By entering the data-room you are accepting the terms of this Agreement.

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