Confidentiality and Non-Disclosure Agreement 

Conditions of Access

 

By accessing the following data site (the “Data Room”) for the sale of thepremises known as the National Museum of Ireland – Collection Resource Centre,  Balheary Road, Swords, Co. Dublin (“the Property”) you acknowledge and agree tothe terms that appear below, and these terms govern your use of the Data Roomon each and every occasion that the Data Room is accessed by you. 

By clicking on the “Accept” button below, you acknowledge that you are a“Receiving Party” and acknowledge that you have read, understood, and agreeto be bound by the above terms, both in your individual capacity and to theextent 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 the Property (the “Proposed Transaction”). 

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 to the  Disclosing Party to comply with the terms set out in this Agreement. 

 

 

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; 

 

“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, statement 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 technical, financial or commercial information  or personal data relating to or concerning the Property and/or a Party to this  Agreement (or an Affiliate) 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 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 governing access  to and management of any data room in respect of the Proposed Transaction, to which  the Receiving Party is subject. 

 

“Disclosing Party” means Gerard Gannon; 

 

“Party/Parties” means either individually or together the Receiving Party and the  Disclosing Party. 

 

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

 

“Potential Recipient” has the meaning set out in clause 3.4 below; 

 

“Property” means National Museum of Ireland – Collection Resource Centre, Balheary Road,  Swords, Co. Dublin; 

 

“Purpose” means the use of the Confidential Information in diligencing the Property  and in any discussions and negotiations between or within the parties hereto  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.

 

 

2. Provision of Information 

The Receiving Party acknowledges and agrees that neither the Disclosing Party nor  any of its representatives, employees or agents makes any representation or warranty,  express or implied, as to, or assume any responsibility for, the accuracy, reliability or  completeness of any Confidential Information. Furthermore the Receiving Party  acknowledges that all information, including without limitation all Confidential  Information, provided to any Potential Recipient by or on behalf of the Disclosing Party  and/or its representatives 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 any Potential Recipient in respect of any Confidential  Information. 

 

 

3. Protection of Confidential Information 

3.1 The Receiving Party shall keep and maintain all Confidential Information received  in whatever form or manner from the Disclosing Party in strict confidence and shall  exercise in relation thereto no lesser security measures and degree of care than thosewhich the Receiving Party maintains in order to provide adequate protection of its own  confidential information against unauthorised disclosure, copying or use. 

 

3.2 The Receiving Party shall ensure that disclosure of the Confidential Information by  any means (including without limitation by means of email communication) is restricted  to those directors, officers, employees 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 shall be brought against the Receiving Party only 

 

3.3 Copies or reproductions of any Confidential Information shall not be made by the  Receiving Party 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.

 

3.4 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 or 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, 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 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 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 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 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 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; or 

(d) 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 to be disclosed (in which case the Receiving Party will give the  Disclosing Party as much prior written notice thereof as reasonably practicable and  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 affiliated  companies. 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) to guarantee the observance and proper performance by its Affiliates of the terms  and conditions of this Agreement.

 

 

7. 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 the Potential  Recipient. 

 

 

8. Data Protection 

8.1 The Parties agree that to the extent that Confidential Information provided to the  Receiving Party comprises any Personal Data (as defined under the Irish Data  Protection Acts 1988 and 2003 (as amended, modified or consolidated or, on and with  effect from its effective date, the General Data Protection Regulation (EU) 2016/679  of the European Parliament and the Council of 27 April 2016 (the “GDPR”) as may be  amended, re-enacted or re-instated from time to time and any implementing legislation  (together, the “Data Protection Laws”)) 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 8. 

 

8.2 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 8. 

 

8.3 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. 

 

8.4 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. 

 

8.5 The Receiving Party warrants and undertakes that it shall:

 

(a) at its own cost 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 this Clause 8, 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. 

action and in accordance with the Disclosing Party’s instructions from time to  time; 

(b) subject to this Clause 8, 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;

 

8.6 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 orother 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 8. 

 

8.7 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. 

8.8 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. 

 

8.9 Without prejudice to the other provisions of this Clause 8, 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). 

 

8.10 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 to order comply with the Data Protection Laws. 

 

8.11 Without prejudice to Clause 8.5(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. 

 

8.12 The Receiving Party acknowledges and agrees that insofar as it processes  Personal Data, comprised in the Confidential Information provided to the Receiving  Party, it does so as a data controller in its own right and not as a data processor for  the Disclosing Party. However, without prejudice to the foregoing 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 8 and Clause  3.2: 

(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 8.5(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; 

(d) make available to the Disclosing Party all information necessary to demonstrate its  compliance with its obligations under this Clause 8 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.

 

For the purposes of Clause 8, the relevant contact details of the Disclosing Party are  as follows: 

Aideen Dennehy, Smith Foy & Partners LLP  

Email: aideen.dennehy@smithfoy.ie 

Telephone: 01 676 0531

 

 

9. 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 under any trademark, patent,  copyright or any other intellectual property right is granted or implied by the disclosure  of Confidential Information to the Disclosing Party. 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 orany other intellectual property or other rights of third parties.

 

 

10. No Commitment 

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. 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 or any  evaluation being undertaken by any Party, without the prior written consent of the other  Parties, except as may be required by law.

 

 

11. Terms and Termination 

11.1 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 months from the date of termination or expiration of this Agreement  howsoever arising. 

 

11.2 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 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  any advisor of any Potential Recipient 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.

 

 

12. 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.

 

 

13. Notices 

Any notice or other communication given or made under this Agreement shall be in  writing and shall be delivered to the relevant Party or Parties or sent by pre-paid  registered post to the address of that Party specified in this Agreement or such other  address 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 48 hours after posting or if by delivery when  left at the relevant address. 

 

 

14. No assignment 

This Agreement is personal to the Parties and shall not be assigned or otherwise  transferred in whole or in part by either Party without the prior written consent of the  other Party or Parties. 

 

 

15. Data Room Rules
 

By clicking on the “Accept” button below the Parties agree to be bound by the terms  of the Data Room Rules. 

 

 

16. Entire Agreement 

This Agreement 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. 

 

 

17. 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. 

 

 

18. Governing Law and Jurisdiction 

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. 

 

You acknowledge that this Agreement shall be binding on you whether or notit is executed by the Disclosing Party.