STRICTLY PRIVATE AND CONFIDENTIAL

Confidentiality Agreement - Strictly private and confidential

We, JS (City) Limited trading as Colliers (“Colliers”), are writing to you (the “Recipient”) in relation to our recent discussions concerning the Purpose.

In connection with the Purpose, we wish to disclose certain Confidential Information to you and, in consideration for doing so, each party hereby agrees to the terms contained in this letter.

1. Definitions

In this letter:

1.1               “Agreement”, means this Non-Disclosure Agreement.

1.2               “Confidential Information” means any information relating to the Purpose, Colliers and / or the Relevant Information, which is made available in any form (including writing, visual, electronic or oral) to the Recipient or any of its Representatives by or on behalf of the Disclosing Parties or their respective Representatives in connection with the Purpose, and includes (without limitation) any copies of such information and any information, analyses, compilations, notes, studies, memoranda or other documents derived from, containing or reflecting such information but excludes information which:

(i)           is publicly available at the time of its disclosure under this letter;

(ii)         becomes publicly available following disclosure under this letter (other than as a result of disclosure by the Recipient or any of its Representatives contrary to the terms of this letter); or

(iii)        was lawfully in the possession of the Recipient or any of its Representatives prior to or following disclosure under this letter (as can be demonstrated by written records or other reasonable evidence) free of any restriction as to its use or disclosure owed to Colliers or its Representatives prior to it being so disclosed;

1.3               “Data Protection Laws” means the EU Data Protection Directive 95/46/EC and the EU Privacy & Electronic Communications Directive 2002/58/EC, any amendments and replacement legislation including the EU General Data Protection Regulation (EU) 2016/679 (GDPR), European Commission decisions, binding EU and national guidance and all national implementing legislation;

1.4               “Data Room Rules” means any rules issued by or on behalf of the Colliers from time to time and at any time whether before or after the date of this Agreement governing access to and management of any data room in respect of the Purpose, to which the Recipient is subject.

1.5               “Disclosing Parties” means Colliers, Amnesty International (Ireland) Foundation, Amnesty International Irish Section CLG and references to acts of the Disclosing Parties includes acts of the Disclosing Parties’ Representatives and Groups.

1.6               “Group” means any direct or indirect parent or subsidiary undertakings or any other subsidiary undertakings of such parent undertaking, with parent undertaking and subsidiary undertaking each having the meaning set out in the Companies Act 2014, but in addition as if that section provided that an undertaking is deemed to be a member of another undertaking where its rights in relation to that other undertaking are held by way of security by another person but treated for the purposes of that section as held by it;

1.7               “Purpose” means the provision by the Disclosing Parties of the Relevant Information to the Recipient as part of its discussions with the Disclosing Parties concerning the sale of the property 48 Fleet Street, Temple Bar, Dublin 2 to the Recipient;

1.8               “Relevant Information” means: (a) the existence and the terms of this letter; (b) the fact that Confidential Information has been provided to the Recipient or its Representatives; and/or (c) the existence, content or status of any documents, discussions, negotiations or agreements connected with the Purpose; and

1.9               “Representatives” means each member of the relevant party’s Group and all partners, directors, officers, and employees, agents or representatives, professional advisers or contractors of that party or a member of its Group.

2. Confidential Information

2.1               The Recipient undertakes that it will (save as otherwise consented to in writing by Colliers):

(i)           keep the Confidential Information secret and confidential and not disclose it to any person other than its Representatives who reasonably require it for the purpose of considering, evaluating, negotiating, advising on or furthering matters connected to the Purpose, on the condition that the Representatives are informed of the confidential nature of the Confidential Information prior to it being disclosed to them;

(ii)          only use the Confidential Information for the sole purpose of considering, evaluating, negotiating, advising on or furthering matters connected to the Purpose in accordance with this letter and will not use it for any other purpose;

(iii)        use reasonable endeavours to keep the Confidential Information secure and in such a way so as to prevent unauthorised access by any third party (and, in any event, shall apply such standards and measures to keep the Confidential Information secure as it would apply to its own confidential information);

(iv)        keep all Confidential Information secure and at all times in accordance with the relevant Data Protection Laws and legislation;

(v)          not make any copies of the Confidential Information or reproduce it in any form except for the purpose of supplying the same to those to whom disclosure is permitted in accordance with this letter; and

(vi)        promptly inform Colliers if it becomes aware that the Confidential Information has been disclosed contrary to the terms of this letter or accessed by an unauthorised party.

2.2               The provisions of paragraph 2.1 do not restrict any disclosure by the Recipient or any of its Representatives of the Confidential Information to the extent that it is required by law or regulation or by any court of competent jurisdiction or any governmental, official or regulatory body (including the listing rules of any relevant stock exchange) provided that, so far as it is lawful and practical to do so prior to such disclosure, the Recipient will promptly notify and consult with Colliers regarding the nature, timing and content of the proposed disclosure.

2.3               The Confidential Information shall remain the Disclosing Parties’ property (as applicable) and its disclosure shall not confer on the Recipient or any of its Representatives any rights (including any intellectual property rights) over the Confidential Information whatsoever beyond those contained in this letter.

3. Compliance by Representatives

The Recipient undertakes to procure that each of its Representatives (other than those already bound by a professional duty of confidentiality) will observe the obligations and undertakings contained in this letter regarding the Confidential Information as if each of such Representatives were a party to this letter, and the Recipient agrees to be liable for any breach of such obligations and undertakings by any of its Representatives.

4. No contact / non-solicitation

4.1               The Recipient shall not, and shall procure that its Representatives shall not, seek access the Disclosing Parties’ employees, management, customers, clients or suppliers other than with the prior written consent of Colliers but nothing in this clause shall prevent the Recipient or any of its Representatives from making contact with such persons in the ordinary course of its existing business in circumstances where such contact is not made on the basis of the Confidential Information and neither the Recipient nor its Representatives refers to the Purpose in such communication (in each case as can be demonstrated from the Recipient’s or relevant Representative’s written records).

4.2               The Recipient shall not, and shall procure that none of the members of its Group or its Representatives who have received the Confidential Information, shall, directly or indirectly (including through an employment agency), solicit or actively seek to entice away or employ any person who during such period is employed by the Disclosing Parties in either an executive or senior managerial capacity or who participates in discussions and/or negotiations regarding the Purpose, except that nothing herein shall preclude the Recipient from employing any person who responds to a general, public advertisement.

5. No representation

5.1               Neither Colliers nor any of its Representatives:

(i)          accepts responsibility for or makes any representation, express or implied, or gives any warranty or assumes or acknowledges any liability or duty of care with respect to any use or reliance on the Confidential Information, the accuracy or completeness of the Confidential Information or any oral communication in connection with the Confidential Information; nor

(ii)        will be obliged to update any such information or to correct inaccuracies in such information after it has been made available. 

6. Not an offer/part of contract

6.1               The Recipient confirms that it is interested in the Purpose as principal and not as agent or broker for any other person.

6.2               Each party acknowledges that the other may in its sole and absolute discretion terminate discussions and negotiations in relation to the Purpose at any time.

7. Data Room Rules

It will be a condition of gaining access to the electronic data room for the Purpose that the Recipient and its Representatives accept and comply with the Data Room Rules. The Recipient undertakes to comply with such Data Room Rules including without limitation any restrictions on copying and/or printing.

8. Data protection

8.1               To the extent that the performance by the Recipient of its obligations under this Agreement involves the processing of personal data (as defined under Data Protection Laws) (the Transferring Personal Data) the Parties agree that:

(i)          each of the Disclosing Party and the Recipient shall process the Transferring Personal Data independently of each other, and in a separate capacity as a data controller (as defined in the GDPR);

(ii)        the Parties are not joint controllers, and each Party alone determines the purposes and means of such data processing; and

(iii)       each Party will comply with the obligations imposed on a controller under Data Protection Laws.

8.2               The provisions of this clause 8 shall survive the term of this Agreement until the Recipient has returned or destroyed all of the Transferring Personal Data in accordance with clause 9.

9. Return of Confidential Information

9.1               If Colliers so requests in writing at any time, the Recipient will forthwith (and in any event within 10 business days) return to Colliers or destroy or permanently erase (so far as practicable) all Confidential Information together with all copies, analyses, compilations, notes, studies, memoranda or other documents derived from, containing or reflecting any of the Confidential Information made by the Recipient or its Representatives.

9.2               The provisions of paragraph 9.1 of this letter shall not apply if, and to the extent that, the Recipient or any of its Representatives is required to retain any of the Confidential Information by any applicable law, regulation, competent judicial, governmental, regulatory body, or, pursuant to any internal compliance procedures in place prior to the date of this letter.

10. Duration

Except as may be set out in the terms of any definitive agreements entered into in connection with the Purpose, the obligations set out in this letter will continue in full force and effect for a period of five years following the date of this letter notwithstanding the return or destruction of Confidential Information and any copies thereof.

11. Waiver

No failure or delay by any party in exercising any of its rights under this letter shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other further exercise of such rights.

12. Indemnity

12.1            The Recipient agrees to indemnify the Disclosing Parties and hold the Disclosing Parties harmless from and against any action, claim 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 Recipient or by its representatives in breach of its obligations under this agreement of any of the Confidential Information.

12.2            The Recipient agrees to indemnify the Disclosing Parties and hold the Disclosing Parties harmless from and against any payments, costs, losses, obligations, liabilities, claims, damages and expenses of the Disclosing Parties as a result of or arising from any breach by the Recipient of its obligations under this agreement or the unauthorised disclosure by its Representatives of Confidential Information.

13. Remedies

13.1            Without prejudice to any other rights or remedies which either party may have, each party acknowledges and agrees that damages may not be an adequate remedy for any breach by either party of the provisions of this letter and each party may be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the other party or any other relevant person and no proof of special damages shall be necessary for the enforcement by either party of the rights under this letter.

13.2            The rights, powers and remedies provided by this letter are cumulative and do not exclude any rights, powers or remedies provided by law or by any other instrument.

14. Variation

No variation of this letter shall be effective unless in writing and signed by or on behalf of each of the parties.

15. Assignment

Neither party may assign its rights under this letter in whole or in part to any third party without the prior written consent of the other party.

16. Severability

If any provision in this letter shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law or otherwise, such provision (or part) shall to that extent be deemed not to form part of this letter but the legality, validity and enforceability of the remainder of this letter shall not be affected. 

17. Notices

Any notice, claim or demand in connection with this letter shall be given in writing to the relevant party at the address stated in this letter (or such other address as it shall previously have notified to the other party). Any notice sent by hand shall be deemed received when delivered and any notice sent by first class post within the Ireland shall be deemed received 48 hours after posting.

18. Entire Agreement

This letter constitutes the entire agreement between the parties hereto with respect to the subject matter hereof.

19. Counterparts

This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. By clicking accept. the Agreement shall take effect as delivery of an executed counterpart of this Agreement.

20. Governing Law

This letter and any non-contractual rights or obligations arising out of or relating to it shall be governed by and this letter shall be construed in all respects in accordance with Irish law and the parties irrevocably submit to the exclusive jurisdiction of the Irish Courts.

Please indicate the Recipient’s acceptance of the above terms by clicking accept below.