CLICK-THROUGH NON-DISCLOSURE AGREEMENT

This click-through non-disclosure agreement (this “Agreement”) is made effective as of today, and between Leopardstown Park Hospital Trust (the “Disclosing Party”), and you, the individual accessing Confidential Information and any single legal entity on behalf of which you are acting (the “Receiving Party”).

WHEREAS:

(A)            The Receiving Party has expressed an interest in reviewing certain Confidential Information (as defined below) held by the Disclosing Party with a view to making an offer to acquire lands adjacent to  Leopardstown Park Hospital (the “Property”) currently being marketed for sale by the Disclosing Party (the “Transaction”).

(B)             In consideration of the Disclosing Party agreeing to make available to the Receiving Party certain information relating to the Property the subject of the Transaction and other confidential information, the Receiving Party undertakes to comply with the terms set out in this Agreement.

NOW IT IS HEREBY AGREED as follows:

1.                Definitions

In this Agreement the following words shall have the following meanings:

“Announcement” means any announcement, circular, communication or disclosure of any potential involvement by the Receiving Party in the Transaction or the fact that discussions between you and us have taken place or are ongoing;

“Authorised Persons” (each an “Authorised Person”) means any of the following persons:

(a)         any director, officer or employee of the Receiving Party or of any member of its Group;

(b)          any firm, individual or company engaged in the provision of professional advice to Receiving Party or of any member of its Group in connection with the Transaction; and

(c)          any bank, financial institution or investor from which the Receiving Party’s Group intends to obtain loan or equity financing for the Transaction;

“Affiliate” means another Person which is controlled by a Party, which controls a Party or which is under common control with a Party;

“Companies Act” means the Companies Act 2014;

“Confidential Information” means any information or data relating to the Property, the Transaction or the business or trade of the Disclosing Party or any member of its Group or any Person with any estate, right or interest in the Property including:

(a)             the contents of all title documents, finance and facility documents, security documents, reports, valuations, statements of affairs, database data, security reviews, surveys, planning materials, books, records, accounts, memoranda, agreements, documents, correspondence 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, all technology, know how, trade secrets, trade, proprietary and/or other confidential information and all other technical, financial or commercial information or personal data in each case in whatever form supplied or received (whether in oral, written, magnetic, electronic, digital or any other form) and whether directly or indirectly disclosed or made available in connection with the Transaction and whether disclosed before or after the date of this Agreement;

(b)             the part of copies, notes, analyses, compilations, studies, memoranda and other documents (whether hard copy or electronic) containing or reflecting such information; and

(c)              the fact that the Transaction is contemplated, any terms or facts relating to the Transaction and the terms of any Transaction documentation, including this Agreement;

“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 Law” means all applicable privacy and data protection law, including the General Data Protection Regulation (Regulation (EU) 2016/679) and the Data Protection Act 2018;

“Group” means a “group of companies” as defined in section 8(3) of the Companies Act;

“Group Company”means any company, which is a member of the Group;

“Party” means each of the Disclosing Party and the Receiving Party (collectively the “Parties”);

“Permitted Purpose” means the use of the Confidential Information by the Receiving Party, which is solely for the investigation of title to, and the assessment and evaluation of, the Property in the context of the Transaction and for no other purpose;

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

"Potential Receiving Party" means:

(a)                 the Receiving Party;

(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 Transaction;

(e)                  any actual or prospective co-investor with any of the Persons identified in sub-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; and

2. Provision of Information

2.1             The Disclosing Party intends to disclose Confidential Information to the Receiving Party for the Permitted Purpose.

2.2             The Receiving Party acknowledges and agrees that neither the Disclosing Party nor any of their representatives, directors, officers, employees, agents or advisors makes any representation or warranty, express or implied, as to, or assumes any responsibility for, the accuracy, reliability or completeness of any Confidential Information and neither the Disclosing Party nor any of their representatives, directors, officers, employees, agents or advisors accepts any liability to the Receiving Party in respect thereof. Furthermore the Receiving Party acknowledges that all information, including without limitation all Confidential Information, provided to any Potential Receiving Party by or on behalf of the Disclosing Party  and/or their representatives, directors, officers, employees, agents or advisors 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 Receiving Party 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 those which 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 e-mail communication) is restricted to those directors, officers, employees, agents, partners and advisers of any Potential Receiving Party having the need to know the same for the Permitted Purpose and shall ensure that each such Person is made aware of the confidential nature of the Confidential Information, is bound by confidentiality obligations similar to those contained in this Agreement and complies with such obligations as if they were a Party. The Receiving Party shall be responsible for any breach of such obligations committed by any such Person, as though it was a breach by the Receiving Party of this Agreement.

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 Permitted Purpose. Confidential Information and all copies or reproductions thereof shall be deemed to be the property of the Disclosing Party.

3.4             Subject to the exceptions contained in clause 4 of this Agreement and to the provisions of clause 5, the Receiving Party shall not:

(a)                 divulge or permit to be divulged, directly or indirectly, the Confidential Information, 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 Receiving Party;

(b)                 use or permit the use of the Confidential Information for any purpose other than the Permitted Purpose; or

(c)                  make or permit to be made any commercial use of the Confidential Information or any part thereof for any purpose other than the Permitted Purpose without the prior written consent of the Disclosing Party.

3.5             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 clauses 3.2 and 3.4 (including, without limitation, any Potential Receiving Party) and will use all reasonable endeavours to prevent the occurrence of any further breach of the terms hereof.

3.6             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, or any combination thereof, for any threatened or actual breach of this Agreement (and/or to procure that the Receiving Party seeks such reliefs from any Potential Receiving Party 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.

3.7             None of the Receiving Party and/or a Potential Receiving Party 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 Transaction or the Permitted 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 Transaction or the existence of a  Transaction to any such party.

4        Exceptions

4.1   The foregoing obligations shall not apply to any Confidential Information which:

(a)                 is in the public domain at the time of disclosure or later comes into the public domain through no fault of the Receiving Party;

(b)                 can be reasonably shown to have been lawfully known to the Receiving Party prior to disclosure by the Disclosing Party; or

(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.

4.2   It shall not be a breach of this Agreement to disclose the Confidential Information to the extent that this 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 (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).

5        Affiliates

5.1   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 the Receiving Party to provide Confidential Information to its Affiliates. For this purpose, the Disclosing Party agree 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 Permitted Purpose or the Transaction;

(b) disclosure by or to an Affiliate of a Party shall be deemed to be a disclosure by or to that Party, as applicable; and

(c)  the Receiving Party shall guarantee the observance and proper performance by its Affiliates of the terms and conditions of this Agreement.

6        Data Protection

6.1   For the purposes of this Agreement, the Receiving Party acknowledge and agree that they act as a separate and independent controller (as such term is defined in Data Protection Law) in relation to the processing of any personal data that is contained in the Confidential Information (the “Personal Data”).

The Receiving Party agree they shall:

(a)              comply with their obligations under Data Protection Law in relation their processing of the Personal Data;

(b)              promptly provide the Disclosing Party with such reasonable cooperation, information and assistance as required from time to time to enable them to comply with their obligations under Data Protection Law; and

(c)              not knowingly process the Personal Data in such a way as to cause the Disclosing Party to breach any of their obligations under Data Protection Law.

7        No License or Warranties

All 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 or any other rights under any trade mark, patent, copyright or any other intellectual property right are granted or implied by the disclosure of Confidential Information to the Receiving Party. The Receiving Party shall not use, reproduce, modify, adapt or make use of Confidential Information or any trade mark, patent, copyright or any other intellectual property right of the Disclosing Party save as expressly permitted under this Agreement. 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 or any other intellectual property or other rights of third parties.

8        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 Disclosing Party reserve the right to negotiate with one or more parties at any time and to enter into a definitive agreement with respect of the Transaction without notice to the Receiving Party or any other Person. The Disclosing Party also reserve the right, at any time, without prior notice and without providing any reason therefore: (a) to decide not to pursue the Transaction, and to terminate the related process in its entirety, (b) to terminate further participation in the investigation of the Transaction by the Receiving Party or any other Person, and (c) to modify data, documentation and other procedures or rules relating to the Transaction.

9        No Announcement

No Announcement may be made by or on your behalf or by or on behalf of a Group Company without our prior written approval (such approval not to be unreasonably withheld or delayed) unless such Announcement is required by law or by the Charities Regulator or any governmental, regulatory or supervisory body or court of competent jurisdiction to which you are subject, whether or not any of the same has the force of law or by the law of any relevant jurisdiction.

10     No collusion

The Receiving Party agree not to, and must procure that no Group Company, Authorised Persons or Affiliates does, without the Disclosing Party’s prior written consent:

(a)         discuss with, or communicate to, any Person any aspect of the Transaction (including the conduct of and the terms, of the Transaction and any offer in relation to the Transaction) for the purposes of creating or joining a consortium or otherwise; or

(b)         act together with, or enter into any form of arrangement with, any Person for the purpose of acquiring some or all of the Property.

11     Duration of this Agreement

11.1      The Receiving Party's obligations under this Agreement shall terminate five (5) years from the date of this Agreement.

11.2      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 or in its possession or under its control and in addition, at the option of the Disclosing Party, shall either:

(a)      return (or procure that there shall be returned) all copies, reproductions or extracts thereof or any part thereof of any such Confidential Information (in whatever form or medium the same shall have been made and whether in the possession or under the control of the Receiving Party, Group Company or any Authorised Persons or Affiliates thereof or of any of its or their respective agents or advisers); or

(b)      (to the extent technically practicable) destroy (or procure the destruction of) all copies, reproductions or extracts thereof or any part thereof and confirm in writing to the Disclosing Party that the same have been (to the extent technically practicable) destroyed subject to 11.4 all notes, analyses, compilations, studies, memoranda and other documents containing or reflecting or generated from any Confidential Information prepared by you, a Group Company or any Authorised Persons or Affiliates and you must confirm to us that to the best of your knowledge, information and belief, having made all proper enquiries, this undertaking has been complied with.

11.3      Subject always to clause 11.2 in circumstances where automated computer back-up procedures create copies of Confidential Information, you or a Group Company or any Authorised Persons or Affiliates may retain such copies for the period normally reserved for archiving or backing up computer records. Those copies will be subject to the same duties of confidentiality contained in this Agreement in respect of original copies of Confidential Information.

11.4      Save that this obligation shall not apply to any advisor of any Potential Receiving Party who is required by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with its professional conduct rules to maintain files or records for a period of time or any Confidential Information provided to it. Notwithstanding the foregoing, the Receiving Party shall not be obligated to return (or procure to return) or destroy (or procure to destroy) Confidential Information to the extent otherwise requested or required pursuant to any law, rule, regulation or other legal process, archival policies and procedures in place for legal, compliance or regulatory purposes.

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     General

13.1      Any notice or other communication given or made under this Agreement shall be in writing and may be delivered to the relevant Party by hand or sent by pre-paid registered post to the address of that Party specified in this Agreement or to such other address as may be notified hereunder by that Party from time to time for this purposes 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 hand when left at the relevant address and if delivered by post 48 hours after posting.

13.2      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.

13.3      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 Permitted Purpose and/or the 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.

14     Accuracy of Confidential Information

14.1      The Receiving Party acknowledge and agree on behalf of their agents of each Group Company that, except as may be otherwise agreed in writing (including in any legally binding Transaction documentation), the Disclosing Party accept no responsibility for, nor make, any representation or warranty, express or implied, or accept any responsibility or liability with respect to the accuracy, reliability or completeness or otherwise of the Confidential Information, or of any other information provided (whether written or oral), and the Disclosing Party have no obligation to the Receiving Party or a Group Company to update or correct any inaccuracies in any Confidential Information which may be provided to you or anyone on your behalf.

14.2      Clause 14.1 does not exclude any liability for, or remedy in respect of, fraudulent misrepresentation.

15     Foreign Companies as Receiving Party

Where the Receiving Party is a foreign company, it hereby confirms that it has the requisite corporate capacity to enter into and execute this Agreement notwithstanding this Agreement is signed on behalf of the foreign company by an authorised signatory.

16     Legal privilege

Access to the Confidential Information is granted to the Receiving Party, members of your Group and Authorised Persons 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 acknowledge and agree that neither the Receiving Party, a Group Company or any Authorised Person may knowingly, at any time, waive, assign or compromise privilege or confidentiality in relation to the Confidential Information in any way.

17     Governing law and submission to jurisdiction

This Agreement is governed by and construed in accordance with the laws of Ireland. The Parties irrevocably agree that the courts of Ireland are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. If relevant, we may require you to nominate a process agent in the State for service of documents.

 

IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON LOCATED ON THIS PAGE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK THE "ACCEPT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CONFIDENTIAL INFORMATION.