ROCKFIELD CENTRAL, DUNDRUM, DUBLIN 16

NON-DISCLOSURE AGREEMENT

By accessing the marketing website and/or the data site for the sale of Rockfield Central (which website and data site individually and collectively comprise the “Data Room” for the purpose of this agreement) you acknowledge and agree to the terms that appear below, and these terms govern your use of the Data Room on each and every occasion that the Data Room is accessed by you.

By accessing the Data Room / clicking on the ‘Accept’ button below, you acknowledge that you are a “Receiving Party” and acknowledge that you have read, understood, and agree to be bound by the above terms, both in your individual capacity and to the extent possible for and on behalf of the Receiving Party. We understand that the Receiving Party is interested in entering into discussions with the Disclosing Party concerning the sale of Rockfield Central, Dundrum, Dublin 16 (the “Proposed Transaction”).

For that purpose the Disclosing Party is prepared to make available to the Receiving Party certain information relating to the assets the subject of the Proposed Transaction and other confidential information:

1. Definitions

In this Agreement unless the context otherwise requires:

1.1           “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;

1.2           “Agents” means the directors, officers, employees, consultants, agents, financier, investors, auditors and professional advisors of each Party. For the avoidance of doubt, nothing in this Agreement is binding upon any person or entity that does not receive Confidential Information.

1.3           “Agreement” means this agreement.

1.4           “Confidential Information” means, minutes, circulars, memoranda, meeting notes, case materials, agreements, contracts, security documents, offer letters and other instruments / documents or 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 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 received from third parties acting in co-operation 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 controls, controlled and under common control which shall be construed accordingly;

1.5           “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 governing access to and management of the Data Room in respect of the Proposed Transaction, to which the Receiving Party is subject.

1.6           “Disclosing Party” means Mac-Rockfield Limited.

1.7           “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.

1.8           “Person” includes any individual, company, body corporate, partnership or other entity.

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, reliability 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.

2.4           The Receiving Party acknowledges that they have provided the Disclosing Party with accurate and complete registration information and that it is their responsibility to update the Disclosing Party of any changes to that information (including their email address).

2.5           The Receiving Party acknowledges that access to the Data Room may be terminated at any time without notice.

3. Use

3.1           Whilst using the Data Room, Parties must:

(a)            take all reasonable steps to ensure that none of the Confidential Information is visible to, or capable of being viewed by, other persons;

(b)            not leave their computer or other communications device through which they access the Data Room unattended whilst connected to the Data Room;

(c)            ensure that they close their browser and log out when they have finished using the Data Room;

(d)            not deface, mark, alter, modify, vary (including varying the sequence of) damage or destroy in any way any Confidential Information contained in the Data Room;

(e)            not attempt to download, scan, copy, print or otherwise capture any of the Confidential Information contained in the Data Room, except that Confidential Information for which the print capability has been enabled as indicated by the Data Room index may be printed and any information for which the download capability has been enabled (if any) may be downloaded;

(f)             not attempt to disable the protection software associated with the Data Room; and

(g)            not share their Data Room password with anyone else.

4. Duty to maintain confidentiality

4.1           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 the Receiving Party shall not make or permit to be made any commercial use of the Confidential Information for any other purpose. The Receiving Party will not permit the Confidential Information to 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.

4.2           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 safely 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).

4.3           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.

4.4           The Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose to any person or body, except for its Agents or Affiliates, either the fact that discussions or other work relating to the Proposed Transaction are taking place, including that the Receiving Party is reviewing the Confidential Information, 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.

4.5           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 application 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.

5. Exceptions

5.1           The obligations in Clause 4 shall not apply to any Confidential Information where the Receiving Party can demonstrate that the Confidential Information:

(a)            is in the public domain otherwise than as a result of a breach of this Agreement;

(b)            was known by the Receiving Party prior to the disclosure thereof by the Disclosing Party or was obtained 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;

(c)            is approved for disclosure pursuant to the prior written consent of the Disclosing Party; or

(d)            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. Data protection

6.1           For the purposes of this Agreement, “Data Protection Law” shall mean the Data Protection Acts 1988 to 2018 (Ireland) and the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 as may be amended, re-enacted or re-instated from time to time and any implementing legislation.

6.2           To the extent that the Confidential Information comprises any Personal Data (as defined in Data Protection Law) the Parties acknowledge and agree that each will act as an independent controller (as defined in Data Protection Law) in respect of the Personal Data.

6.3           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.

6.4           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. The Receiving Party shall process the Personal Data only for the purpose of the Proposed Transaction.

6.5           The Receiving Party warrants and undertakes that it shall:

(a)            comply with the DPA 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;

(b)            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;

(c)            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;

(d)            ensure that only such of its directors, employees, investors, contractors, Affiliates or its Agents who may be strictly necessary to assist the Receiving Party in connection with the Proposed Transaction shall have access to or process the Personal Data;

(e)            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;

(f)             notify the Disclosing Party immediately upon receiving any notice or communication from any supervisory, law enforcement, regulatory or government body which relates directly or indirectly to the processing of the Personal Data, except where such disclosure is itself prohibited. The Receiving Party will reject any such request which is non-legally binding;

(g)            implement appropriate technical and organisational measures to protect and secure Personal Data made available in connection with the Proposed Transaction against unauthorised access to, or accidental or unauthorised destruction, loss, alteration or disclosure of any Personal Data contained in the Confidential Information; and

(h)            shall not transfer the Personal Data outside the European Economic Area or any other country that is formally recognised by an adequacy decision of the European Commission unless authorised in writing to do so by the Disclosing Party.

6.6           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 reasonably 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 6.

7. 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.

8. Term and Termination

8.1           This Agreement shall govern all communications relating to Confidential Information between the Parties hereto in relation to the Proposed Transaction 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 two (2) years from the date of termination or expiration of this Agreement howsoever arising.

8.2           On termination or expiration of this Agreement, the Receiving Party shall promptly on written request forthwith return (or procure the return) to the Disclosing Party, or as the Disclosing Party may direct, all Confidential Information received by it and in addition, at the option of the Disclosing Party, shall either (a) return (or procure that there shall be returned) all copies or reproductions of any Confidential Information so received (in whatever form or medium the same shall have been made and whether in the possession or under the Control of the Receiving Party or any Affiliates thereof or of any of its or their respective Agents or advisers) or (b) 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 a Receiving Party’s Agent who is required by its professional conduct rules to maintain files or records for a period of time or any Confidential Information provided to it.

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 in writing 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 and will use reasonable endeavours to prevent the occurrence of any further breach of this Agreement.

10. Damages

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 for breach or threatened breach of this Agreement and that no proof of special damages shall be necessary for the enforcement of this Agreement.  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.

11. Indemnity

The Receiving Party hereby agrees and undertakes to fully indemnify and keep indemnified the Disclosing Party against all actions, proceedings, claims, losses, expenses, demands, costs, awards and damages arising directly or indirectly as a result of any breach of the Receiving Party's obligations under this Agreement or the terms of provisions of this Agreement by the Receiving Party and/or its Agents and/or Affiliates.

12. Announcements

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 Parties 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.

13. Employees

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.

14. Principal

The Receiving Party confirms that it is acting in this matter as principal, and not as agent or broker for any other person.  The Receiving Party also confirms that it will be responsible for any costs incurred by it or its Agents in pursuing this matter.

15. 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 to the address of that party specified in this Agreement 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 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 forty-eight (48) hours after posting, or if by delivery when left at the relevant address.

16. Procedure

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.

The Receiving Party is responsible for all use of the Data Room using their user account and for preventing unauthorised use of their user account.

17. 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.

18. Legal privilege

Access to the Confidential Information is granted to the Receiving Party without waiver by any Person of confidentiality and/or legal professional privilege and/or common interest privilege which attaches to any of the Confidential Information. The Receiving Party acknowledges and agrees that it shall not knowingly, at any time, waive, assign or compromise privilege or confidentiality in relation to the Confidential Information in any way.

19. 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.

20. 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.

21. Representations

Each of the Parties represents that it has full power and authority to enter into and deliver this Agreement in the manner in which it does so and to comply with the provisions of, and perform all its obligations and exercise all of its rights under this Agreement. To the extent that this Agreement is entered into by an authorised signatory, that party confirms by clicking on the “Accept” button below, that it has full authority to bind the relevant Party to this Agreement.

22. Variation

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.

23. Entire agreement

This Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof (with the exception of the Data Room Rules) and supersedes all prior agreements and understandings.

24. Counterparts

This Agreement may be executed by the Parties on separate counterparts and, if so executed, will be as if all counterparts were on a single copy of this Agreement and any Party may enter this Agreement by executing a counterpart. For the purposes of the Electronic Commerce Act 2000, the Parties consent to the use of electronic communications and electronic signatures, for all purposes under this Agreement.

25. 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.

26. 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.

27. Severability

Each of the provisions of this Agreement are severable and distinct from the others and, if any provision is, or, at any time becomes, to any extent or in any circumstances invalid, illegal or unenforceable for any reason, that provision shall to that extent be deemed not to form part of this Agreement but the validity, legality or enforceability of the remaining parts of this Agreement shall not be affected or impaired

28. 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.