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BLOCKS 1, 2, 3 AND 4 (CITI BUILDING), NORTH WALL QUAY, DUBLIN 1
DATA ROOM RULES
Where your invitation to the Data Room has been made to you as a representative of the Receiving Party then by clicking on the "Accept" button and in consideration of you receiving access to the Data Room (the sufficiency and adequacy of such consideration being acknowledged) you confirm that the Receiving Party has read, understood and agreed to be bound by and to comply with the terms of this Agreement and that you are duly authorised to bind the Receiving Party.
Where your invitation to the Data Room has been made to you expressly at the request of a Receiving Party as its agent or advisor then by clicking on the "Accept" button and in consideration of you receiving access to the Data Room (the sufficiency and adequacy of such consideration being acknowledged), you confirm that you have read and are aware of the obligations on the part of the Receiving Party in this Agreement and that you agree to comply with the Data Room Rules.
By accessing the Data Room, you acknowledge and agree to comply with the Data Room Rules on each and every occasion that you access the Data Room.
The Agreement shall come into effect on the date on which the "Accept" button is first clicked by a representative for and on behalf of the Receiving Party.
In this Agreement unless the context otherwise requires:
1.1 "Agents" means the directors, officers, employees, agents, auditors and professional advisors of each Party.
1.2 "Agreement" means this non-disclosure agreement.
1.3 "Confidential Information" means any and all information or data relating to the Proposed Transaction and regarding the business and / or activities of the Disclosing Party and its respective group companies and affiliates as may from time to time be disclosed by or on behalf of the Disclosing Party to the Receiving Party or to which the Receiving Party may be provided access by the Disclosing Party on or after the date of this Agreement (including by way of providing access to a marketing website or data room, whether on-line or otherwise) and in whatever form, whether in writing or orally irrespective of the form of communication, whether marked confidential or not, including without limitation, presentations, letters, e-mails, facsimiles, reports, surveys, minutes, circulars, memoranda, meeting notes, case materials, agreements, contracts, security documents, offer letters and other instruments / documents or any other information or data, and any and all copies, analyses, compilations, methodologies, notes, studies, memoranda or other documents derived from, containing or reflecting such information prepared by the Receiving Party and / or its Agents. Confidential Information may include information eceived from third parties acting in co-operation with, or for, the Disclosing Party.
1.4 "Data Room" means this marketing website www.1northwallquay.com (and any replacement thereof) and this data site for the Proposed Transaction which is accessible by clicking on the "Accept" button.
1.5 "Data Room Rules" means the rules issued by the Disclosing Party governing access to and management of the Data Room and specified in the Schedule to this Agreement as may be altered by the Disclosing Party at any time and from time to time.
1.6 "Disclosing Party" means Citibank N.A. (CRO ref 903951) having its registered office at 1 North Wall Quay, Dublin 1, D01T8Y1
1.7 "DPA" means the Irish Data Protection Acts 1988 and 2003 as amended, modified or consolidated.
1.8 "Party" means either of the Disclosing Party or the Receiving Party and together the "Parties" and each of them as appropriate and references to acts of the Disclosing Party includes acts of the Disclosing Party's Agents.
1.9 "Personal Data" shall have the meaning given to that term in the DPA.
1.10 "Proposed Transaction" means the sale of Blocks 1, 2, 3 and 4, North Wall Quay, Dublin 1.
1.11 "Receiving Party" means the entity which has sought access to the Data Room for its representatives and its agents and advisors.
1.12 "Recipient" means any person accessing the Data Room as a representative of or as agent or advisor to a Receiving Party.
2 PROVISION OF INFORMATION
2.1 The Receiving Party acknowledges that neither the Disclosing Party, its group companies or its affiliates, nor their respective Agents, makes any representation, warranty, assurance, guarantee or other inducement of any kind to the Receiving Party or to any other person with respect to the Confidential Information or with respect to the accuracy or completeness of the Confidential Information or with respect to the non-infringement of trade marks, patents, copyrights or any other intellectual property or other third party rights nor shall they have any liability to the Receiving Party in respect of the Confidential Information (unless otherwise agreed in writing after the date of this Agreement).
2.2 Nothing in this Agreement may be construed as compelling either Party to disclose any Confidential Information to the other or to enter into any further contractual relationships. The Receiving Party acknowledges that the provision of Confidential Information will not constitute an offer by the Disclosing Party, nor will the Confidential Information or the disclosure thereof form the basis of any contract, nor a representation, which may be relied upon by the Receiving Party save as expressly agreed in writing between the Parties.
2.3 The Receiving Party acknowledges that the Disclosing Party shall have no obligation to update or correct any inaccuracy in the Confidential Information.
3 DUTY TO MAINTAIN CONFIDENTIALITY
3.1 The Receiving Party agrees that it will maintain all Confidential Information, in the strictest confidence, that the Confidential Information will be used by the Receiving Party exclusively for the purposes of the Proposed Transaction (including to assess whether and on what terms it wishes to participate in such transaction) and will not be disclosed to any third parties provided however that such parts (and only such parts) of the Confidential Information may be disclosed to its Agents who need to have such information for such purposes (it being hereby further agreed that the Receiving Party will inform such Agents of the confidential nature of such information and that the Receiving Party will procure that each of its Agents to whom disclosure is made complies with the terms of this Agreement). In any event, the Receiving Party shall be responsible for any breach of this Agreement by any of its Agents.
3.2 Subject to clause 3.1, clause 4 and clause 5, the Receiving Party will not without the Disclosing Party's prior written consent process any Personal Data contained in the Confidential Information for its own purposes or pass files containing Personal Data to any third party for further processing by that third party or its agents. The Receiving Party shall take all reasonable measures to protect the secrecy of the Confidential Information, and to avoid its disclosure and unauthorised use. Without limiting the foregoing, the Receiving Party shall apply measures which are at least as stringent as it applies to protect its own confidential information and shall require its Agents who have access to the Confidential Information to protect the secrecy of the Confidential Information in the same manner which shall include maintaining the Confidential Information safe in a secure place at all times and properly protected against theft, damage, loss and unauthorised access (including, but not limited to, by electronic means).
3.3 The Receiving Party shall not make any copies of Confidential Information, except as may be necessary to carry out the Proposed Transaction (including to assess whether and on what terms it wishes to participate in such transaction). If the Receiving Party does make copies, it must include on the copies all of the confidential and intellectual property notices (if applicable) of the Disclosing Party (and / or their respective group companies / affiliates) exactly as in the original and all copies or reproductions thereof shall be deemed to be the property of the Disclosing Party.
3.4 The Receiving Party shall not without the prior written consent of the Disclosing Party, disclose to any person or body either the fact that discussions or other work relating to the Proposed Transaction are taking place or any of the terms, conditions or other matters relative to the Proposed Transaction, including the status thereof and the existence and terms of this Agreement.
3.5 The Receiving Party acknowledges that some or all of the Confidential Information disclosed from time to time may be unpublished, price sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including security law relating to insider dealing and market abuse and that the Receiving Party is aware of and warrants and undertakes and will comply at all times with all its obligations relating to such information under the law and regulations applicable to it and will not use at any time any Confidential Information for an unlawful purpose.
4 DATA PROTECTION
4.1 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 below.
4.2 The Receiving Party confirms that it has appropriate technical and organisational measures to protect against unauthorised access to, or accidental or unauthorised destruction, loss, alteration or disclosure of any Personal Data contained in the Confidential Information.
4.3 The Personal Data shall remain at all times the property of and in the ownership of the Disclosing Party and the Receiving Party shall have no rights whatsoever in respect thereof.
4.4 The Receiving Party warrants and undertakes that it shall:
4.4.1 comply with the DPA and all other 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;
4.4.2 report any incident which gives rise to a risk of unauthorised disclosure, loss, destruction or alteration of the Personal Data to the Disclosing Party immediately upon becoming aware of such an incident and advise the Disclosing Party of the steps that it intends to take to remedy that incident and shall keep the Disclosing Party informed as to the progress and completion of those steps;
4.4.3 not copy, reproduce or reduce to writing any part of the Personal Data except as may be reasonably necessary for the purposes set out in this Agreement and that any such copies or reductions to writing shall be the property of the Disclosing Party;
4.4.4 ensure that only such of its employees, contractors and agents or its Permitted Recipients who may be strictly necessary to assist the Receiving Party in connection with the Proposed Transaction shall have access to the Personal Data;
4.4.5 not disclose the Personal Data to a third party in any circumstances other than at the specific request of the Disclosing Party or as otherwise specified in this Agreement;
4.4.6 notify the Disclosing Party immediately upon receiving any notice or communication from any supervisory or government body which relates directly or indirectly to the processing of the Personal Data; and
4.4.7 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.
4.5 Upon expiry or termination of this Agreement or earlier on receipt of a written request from the Disclosing Party, the Receiving Party shall promptly return or destroy (to the extent technically possible) 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 by the Disclosing Party, certify to the Disclosing Party that it has complied with this clause 4.5.
5.1 The obligations to maintain information confidential in clause 3 shall not apply where the Receiving Party can demonstrate that the Confidential Information:
5.1.1 is in the public domain otherwise than as a result of a breach of this Agreement; or
5.1.2 was known by the Receiving Party prior to the disclosure thereof by the Disclosing Party or is subsequently obtained by the Receiving Party or its Agents and received from a source (other than directly or indirectly from the Disclosing Party) permitted to disclose the same free from confidentiality restrictions, or is otherwise lawfully in the possession of the Receiving Party otherwise than as a result of a breach of this Agreement, as evidenced by the written records of the Receiving Party and / or its Agents; or
5.1.3 is approved for disclosure pursuant to the prior written consent of the Disclosing Party; or
5.1.4 is required to be disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or requested by a competent regulatory body, or authority provided that the Receiving Party, to the extent legally possible, gives written notice to the Disclosing Party once it becomes aware that it may become so compelled, and makes all reasonable efforts to protect the Confidential Information in connection with the disclosure and such disclosure shall be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation. The Receiving Party shall take such steps as the Disclosing Party may reasonably require to prevent such disclosure and will to the extent legally possible, keep the Disclosing Party promptly and fully informed of all developments relating to any such potential disclosure.
5.2 For the avoidance of doubt, Confidential Information shall not be deemed to be in the public domain merely because it is known to a limited number of third parties having experience in the relevant field. In addition, any combination of elements of the Confidential Information shall not be deemed to be within the foregoing exceptions merely because individual elements of the Confidential Information are in the public domain but only if the combination is in the public domain. Further, if a portion (but not all) of the Confidential Information falls within any one of the above exceptions, the remainder of the Confidential Information shall continue to be subject to the restrictions of this Agreement.
6 NO RIGHT OR TITLE
The Receiving Party acknowledges that the Confidential Information and whatever patent, copyright or other intellectual property rights of whatever nature attaching thereto are and remain the property of the Disclosing Party and neither it nor its agents shall acquire by implication or otherwise any right in or title to or licence in respect of any Confidential Information by virtue of any disclosure made pursuant to this Agreement.
7 REDELIVERY / DESTRUCTION OF CONFIDENTIAL INFORMATION
7.1 The Receiving Party acknowledges and agrees that it will promptly (and at least within fourteen (14) days of request) return to the Disclosing Party or destroy (to the extent technically practicable) all of the Confidential Information on receipt of a written request from the Disclosing Party, save that the Receiving Party may retain such copies (including any automatically generated back-up electronic copies) of the Confidential Information solely for the purposes of and, for so long as required by, any law, court, banking, taxation or other regulatory agency or authority. Any copies or portion of any written Confidential Information not so returned or destroyed will be held by the Receiving Party subject to the terms of this Agreement.
7.2 The destruction of Confidential Information and copies, extracts or other reproductions thereof and documents, memoranda, notes, and other writings to the extent that they contain Confidential Information shall, upon the Disclosing Party's written request, be confirmed in writing to the Disclosing Party by an authorised officer of the Receiving Party supervising such destruction.
The provisions of this Agreement impose immediately binding legal obligations on the Parties. This Agreement and the confidentiality, non-disclosure and non-use restrictions provided herein shall remain in effect for a period of two years from the date of this Agreement notwithstanding any decision by either or both of the Parties not to proceed with any possible transaction between the Parties and notwithstanding any return or destruction of the Confidential Information.
9 NOTICE OF BREACH
If the Receiving Party becomes aware that it or its Agent has disclosed any Confidential Information, in breach of this Agreement, the Receiving Party shall, to the extent permitted by law and regulation, promptly notify the Disclosing Party of the disclosure and shall give all commercially reasonable assistance in connection with any proceedings which the Disclosing Party may institute in respect of any such breach against any of the persons the subject of this Agreement.
The Receiving Party acknowledges and agrees that, in the event of a breach by it of this Agreement, damages may not be a sufficient remedy for the Disclosing Party. Accordingly, in addition to other remedies, the Disclosing Party shall have the right to seek injunctive relief and specific performance of the Receiving Party's obligations. Any such remedy shall not be deemed to be exclusive or all-inclusive and shall be in addition to any and all other remedies which may be available to the Parties at law or in equity.
The Receiving Party will not make, or permit or procure to be made or solicit or assist any other person to make, any announcement or disclosure of the Proposed Transaction without the prior written consent of the Disclosing Party (which may be given, if at all, on such terms as the Disclosing Party considers appropriate). If the Receiving Party should agree to proceed with the Proposed Transaction, no announcement of the transaction will be made except by prior agreement with the Disclosing Party, provided that nothing in this paragraph shall prohibit any announcement required by law or the rules of any regulatory organisation to which the Receiving Party is subject or submits, in which case the Receiving Party shall comply with the provisions of clause 5.1.4.
The Receiving Party will not contact any employees, directors or officers of the Disclosing Party in respect of the Proposed Transaction without obtaining prior written consent of the Disclosing Party to do so.
The Receiving Party confirms that where it is acting in this matter as agent or broker for any other person, the identity of its principal has been made known to the Disclosing Party. The Receiving Party also confirms that it will be responsible for any costs incurred by it or its Agents in pursuing this matter.
Any notice or other communication given or made under this Agreement shall be in writing and may be given by email and sent to:
(a) In the case of the Disclosing Party – Citibank N.A. 1 North Wall Quay, Dublin 1, D01T8Y1; and
(b) In the case of the Receiving Party – such email address as the Receiving Party may nominate to the Disclosing Party for this purpose or, in default, to the email address of any person accessing the Data Site as a representative of the Receiving Party.
Unless the contrary is proved, each such notice or communication will be deemed to have been given or made and delivered at the time of its transmission.
The Receiving Party understands and agrees that the procedure for the evaluation of Confidential Information and any negotiations in relation to the Proposed Transaction may be changed or terminated at any time and without notice by the Disclosing Party, and the Receiving Party agrees that the Disclosing Party will be under no obligation to recommend any offer or proposal (whether or not any such offer or proposal is the most favourable offer or proposal received) which may be made by the Receiving Party or on its behalf in the course of any negotiations.
16 DATA ROOM RULES
It will be a condition of gaining access to the Data Room that the Receiving Party and its Agents accept and comply with the Data Room Rules. The Receiving Party undertakes to comply with such Data Room Rules including without limitation any restrictions on copying and/or printing.
17 NO WAIVER OF RIGHTS
It is further understood and agreed that no failure or delay by the Disclosing Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
18 NO 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 and neither Party shall be committed to the other Party in any way (save as set out in this Agreement) or obliged to enter into any transaction unless and until a further formal agreement is duly executed and delivered and neither Party is obligated in any way to enter into such agreement. 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.
To the extent that this Agreement is entered into by a representative of the Receiving Party, that representative confirms in entering into this Agreement that it has full authority to bind the Receiving Party to this Agreement.
This Agreement may not be supplemented, amended, varied and modified in any manner except in writing and signed by a duly authorised officer or representative of each of the Parties hereto.
21 ENTIRE AGREEMENT
This Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings.
22 JOINT AND SEVERAL
If the Receiving Party comprises more than one person, the commitments herein are made on behalf of all such persons and the liability arising in this Agreement is joint and several amongst these persons.
23 NO ASSIGNMENT
Neither Party may assign or transfer this Agreement in whole or in part without the prior written consent of the other Party. Any purported assignment in violation of the foregoing shall be null and void. Any assignment will not relieve the assigning Party of its obligations of confidentiality under this Agreement.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
25 GOVERNING LAW AND JURISDICTION
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in all respects in accordance with the laws of Ireland and the Parties hereby agree to submit to the exclusive jurisdiction of the courts of Ireland.
GOVERNING ACCESS TO AND MANAGEMENT OF THE DATA ROOM
These rules and procedures regulate the use of the Data Room made available to the Receiving Party and its Recipients in connection with the Proposed Transaction.
Capitalised terms used in these Rules shall have the same meaning as defined in clause 1 of the Agreement.
1.1 The materials for the conduct of due diligence in respect of the Proposed Transaction are available in the Data Room.
1.2 In offering the Data Room the Disclosing Party is making available a facility which allows the Receiving Party and its Recipients to access, via the Internet, Confidential Information relating to the Proposed Transaction. In consideration of the use of this Data Room the Receiving Party and its Recipients 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 Data Room is accessed by the Receiving Party and its Recipients.
1.3 The Receiving Party and its Recipients shall only be granted access to the Data Room 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 Data Room, Recipients shall accept the terms and conditions of the Data Room.
1.4 All Recipients are reminded that the Confidential Information is being provided subject to and is to be used strictly in accordance with the terms of the Agreement. Where Recipients have not entered into the Agreement, the Recipients, by agreeing to the terms and conditions of access to the Data Room as set out in these Rules, confirm that he/she/it has read or is aware of the Agreement validly accepted on behalf of the Receiving Party with which the Recipient is associated, and that the Recipient is fully aware of the obligations in the Agreement.
1.5 Recipients shall ensure that their employees and any consultants and each other person who reports to them are aware of the terms of the Agreement.
1.6 Recipients agree and acknowledge that these Rules apply to each and every occasion that the Data Room is accessed by a Recipient, and shall be deemed to have represented to the Disclosing Party that the Recipient is fully aware of these Rules and gives the undertakings set out herein.
1.7 The Disclosing Party and their 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 Recipients to the Data Room at any time and from time to time without notice.
2 USING THE DATA ROOM
While using the Data Room, Recipients must:
2.1 Take all reasonable steps to ensure that none of the Confidential Information is visible to, or capable of being, overlooked by other unauthorised persons;
2.2 Not leave their computer or other communications device through which they access the service unattended whilst connected to the Data Room;
2.3 Ensure that they close the browser when they have finished using the Data Room;
2.4 Not share his or her username and/or password with others;
2.5 Not attempt to disable any protection software associated with the Data Room;
2.6 Not deface, mark, alter, modify, vary (including varying the sequence of), damage or destroy in any way any Confidential Information contained on the Data Room; and
2.7 Not do anything which may compromise or interfere in any way with the stability or security of the Data Room or any of its features.
3 UPDATING THE DATA ROOM
3.1 Further documents may be added to the Data Room and existing documents on the Data Room may be updated at any time. It is the responsibility of each Recipient to check regularly whether any information has been added to, amended or removed from the Data Room.
3.2 Recipients may be notified by e-mail of any new or updated documents that are uploaded onto the Data Room into all workspaces and folders to which they have access rights.
4 CONDITIONS OF ACCESS
4.1 Recipients agree and acknowledge that they are being granted access to the Confidential Information contained on the Data Room solely in order to review the Confidential Information. Recipients understand that their access to the Data Room is subject to the following additional conditions:
4.2 All of the Confidential Information contained on the Data Room is considered confidential and is subject to the Agreement. Recipients will maintain the Confidential Information in confidence and will not disclose any of the Confidential Information to others except as expressly permitted by the Agreement.
4.3 Recipients will not attempt to download, scan, copy, print or otherwise capture any of the Confidential Information contained on the Data Room, except that Recipients may print Confidential Information for which the print capability has been enabled as indicated by the Data Room index. Recipients will not attempt to circumvent any of the security features of the Data Room, and will not enable or allow others to access the Data Room using the Recipients' authorisation to the Data Room.
4.4 Recipients acknowledge that the Confidential Information on this Data Room has been prepared to assist the Receiving Party in making their own evaluation of the Potential Transaction. The Disclosing Party and their respective shareholders, officers, employees and advisers do not warrant or represent the Confidential Information as being all-inclusive or to contain all information that may be desirable or necessary in order to properly evaluate a potential transaction involving the Proposed Transaction.
By checking on the "Accept" button, Recipients acknowledge that they have read, understand, and agree to the terms and conditions set out in these Rules.
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