Mutual Non-Disclosure Agreement
This Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of December 5,
2023 (the “Effective Date”), by _______________________ (“____”) having offices at
______________________________, and Ballard Brands, LLC having offices at 4480 Highway 22,
Suite 2, Mandeville, LA 70471 (“Company”). Hereinafter, _________ and Company may be
collectively referred to as the “Parties” or individually referred to as a “Party.”
WHEREAS, the Parties desire to provide certain information on a confidential basis for the
purpose of evaluating and pursuing business opportunities of mutual interest, which may require the
Parties to share and disclose certain information about each other, their professionals, prior
experience and/or clients (the “Purpose”), and which may result in a future strategic teaming
relationship; and
WHEREAS, each Party is willing to receive such information of the other, provide the
proper safeguards to protect it, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of these premises and of the promises and
covenants herein, it is hereby agreed as follows:
1. Incorporation of Recitals. The above recitals are hereby incorporated by refence and made
a part of this Agreement fully as if set forth herein.
2. Proprietary Information; Definition. As used herein, the term “Proprietary Information”
shall mean any and all non-public, confidential, proprietary information whether in written, oral,
electronic or any other tangible form, disclosed by either Party (a “Disclosing Party”) to the other
Party (a “Receiving Party”) on or after the Effective Date in furtherance of the Purpose: (i) that have
been marked as “PROPRIETARY” or “CONFIDENTIAL”; (ii) whose confidential or proprietary
nature has been made known by the Disclosing Party to the Receiving Party; or (iii) due to its
character and nature, a reasonable person under like circumstance would treat it as confidential or
proprietary. When marking information as “PROPRIETARY” or “CONFIDENTIAL”, the
Disclosing Party must affix the word “PROPRIETARY” or “CONFIDENTIAL” to each page that
contains Proprietary Information. If only a portion or portions of the material on a page qualifies as
Proprietary Information, the Disclosing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins).
Proprietary Information includes, without limitation: (a) licenses, pricing, business and marketing
plans, financial data, compiled data bases, computer software, customer lists, personnel names and
e-mail addresses, ideas, concepts, prototypes, professional methodologies, techniques, processes,
algorithms, procedures, general know-how, business processes and any other matters relating to the
products, technical information or business or client information of the Parties; (b) compensation
information, performance and evaluation information, personally identifiable information (“PII”),
health and benefit information; (c), financial statements and analyses, budgets, business plans, tax
returns; and/or (d) Proprietary Information shall further include all notes, analyses, summaries,
compilations, studies, forecasts, interpretations or other documents or information prepared by the
Page: 1 of 6
Parties which contain, reflect or are based upon, in whole or in part, the information furnished or
otherwise made available to each other. The Parties' Proprietary Information shall include any
proprietary information of their personnel, their clients, and affiliates.
3. Non-Proprietary Information; Exclusions. Information shall not be deemed Proprietary
Information, and the Receiving Party shall have no obligation with respect to any such information,
that:
a) Is in the public domain at the time of disclosure or comes into the public domain without
breach of this Agreement; or
b) Is known to the Receiving Party at the time of disclosure from a source other than the
Disclosing Party as evidenced by competent proof; or
c) Is disclosed with the prior written approval of the Disclosing Party; or
d) Is independently developed by the Receiving Party without reference or use to the
Proprietary Information; or
e) Becomes known to the Receiving Party from a source other than the Disclosing Party
without breach of this Agreement by the Receiving Party.
4. Safeguarding and Use Limitations.
a) The Receiving Party shall hold Proprietary Information of the Disclosing Party in
confidence, use such information solely for the Purpose, and disclose and reproduce the
Proprietary Information only to the extent necessary for the Purpose. The Receiving Party
shall not use, nor cause to be used, the Proprietary Information of the Disclosing Party to the
economic detriment of the Disclosing Party.
b) The Receiving Party agrees not to alter, modify, disassemble, reverse engineer or decompile
any of the materials unless permitted in writing by the Disclosing Party, and shall not copy
such materials unless reasonably required in furtherance of the Purpose.
c) The Receiving Party may disclose such Proprietary Information only to its affiliates,
employees and/or contractors who have a need to know for such Purpose
(“Representatives”) provided such Representatives shall have previously agreed, either as a
condition to employment or as a contractual obligation to be bound by terms and conditions
substantially similar to but no less restrictive than the confidentiality obligations set forth in
this Agreement. The Receiving Party further agrees to be responsible for any breach of this
Agreement by any of its Representatives. A Receiving Party shall have the right to
communicate the Proprietary Information of the Disclosing Party via Receiving Party’s
internal communications network for use by Representatives. The Receiving Party agrees to
notify the Disclosing Party in writing of any misappropriation or misuse by any person of
such Proprietary Information of which the Receiving Party may become aware. “Affiliate”
means any entity that directly, or indirectly through one or more intermediaries, controls, is
Page: 2 of 6
controlled by or is under common control with the entity specified. The term “control”
(including the terms “controlling,” “controlled by” and “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting securities,
by contract, or otherwise.
5. Degree of Care. The Receiving Party shall take reasonable precautions to prevent disclosure to
the public or to prevent unauthorized use of Proprietary Information meeting the requirements
set forth in this Agreement. The Receiving Party will be considered to have taken reasonable
precautions to prevent disclosure to the public of Proprietary Information if the Receiving Party
(i) use at least the same degree of care in protecting Proprietary Information as it uses for its
own Proprietary Information of like import provided such degree of care is reasonably
calculated to prevent inadvertent disclosure or unauthorized use, but it is no less than a
reasonable standard of care; (ii) limit access to Proprietary Information to its Representatives as
set forth above; and (iii) upon discovery of any inadvertent disclosure or unauthorized use of
Proprietary Information, promptly use reasonable efforts to prevent any further inadvertent
disclosure or unauthorized use, and promptly notify the Disclosing Party.
6. Exceptions. Notwithstanding the foregoing, the Receiving Party may disclose the Proprietary
Information of the Disclosing Party to the extent that it is required to be disclosed pursuant to a
statutory or regulatory provision, or court or administrative order. If the Receiving Party
receives a subpoena or other validly issued administrative or judicial demand requiring it to
disclose the Proprietary Information of the Disclosing Party, the Receiving Party shall, unless
prohibited by law, provide prompt written notice to the Disclosing Party of such demand in
order to permit it to seek a protective order. So long as the Receiving Party gives notice as
provided herein, the Receiving Party shall be entitled to comply with such demand to the extent
required by law, subject to any protective order or the like that may have been entered in the
matter.
7. Term and Termination.
a) The Receiving Party shall not disclose any Proprietary Information received pursuant to this
Agreement, in whole or in part, for a period expiring three (3) years of the Effective Date of
this Agreement, notwithstanding the earlier termination of this Agreement.
b) Both Parties shall have the right to terminate this Agreement upon providing thirty (30)
days' written notice to the other Party. Notwithstanding the foregoing, the obligations
hereunder with respect to any disclosure made within that period will continue indefinitely
thereafter, subject to Section 3 of this Agreement.
8. Return of Proprietary Information. Upon the request of a Disclosing Party or after the
expiration or termination of this Agreement, whichever is sooner, a Receiving Party shall (1)
cease use of Proprietary Information received from the other party, and (2) deliver to the
Disclosing Party, destroy or permanently delete (without the ability to recover) all such
Proprietary Information, including copies thereof, except for anything that may be stored in
Page: 3 of 6
back up media or other electronic data storage systems, latent data and metadata. If the
Disclosing Party requests destruction of all Proprietary Information, the Receiving Party shall
furnish the Disclosing Party with written certification of destruction. However, the Receiving
Party shall be permitted to retain one (1) copy for purposes of continued compliance with
Federal, state and local laws and regulations only, in accordance with this Agreement. Any
Proprietary Information retained by the Receiving Party in accordance with this paragraph shall
remain subject to the confidentiality provisions of this Agreement.
9. Cost. Each Party shall bear all costs and expenses incurred by it in complying with this
Agreement. This Agreement is only for the purpose of protecting Proprietary Information. No
license to either party, including under any patents or copyrights, is granted, or implied by the
disclosure of information hereunder.
10. Ownership. Receiving Party acknowledges and agrees that (a) as between the Parties, the
Proprietary Information of Disclosing Party is owned by and shall remain the sole and exclusive
property of the Disclosing Party, and (b) the disclosure of such Proprietary Information to the
Receiving Party does not confer upon Receiving Party any license, interest or rights of any kind
in or to such Proprietary Information. Nothing in this Agreement requires either Party (i) to
disclose any of its Proprietary Information, which shall be disclosed, if at all, solely at the option
of such Party, or (ii) to negotiate or proceed with any contemplated transaction or agreement in
connection with the Purpose.
11. Remedies. The Receiving Party acknowledges and agrees that a breach of any of its promises or
agreements contained herein may result in irreparable injury to the Disclosing Party for which
there may be no adequate remedy at law, and the Disclosing Party shall be entitled to apply for
equitable relief, including injunction and specific performance, in the event of any breach or
threatened breach of this Agreement by the Receiving Party. Such remedies, however, shall not
be deemed to be the exclusive remedies for any breach of this Agreement but shall be in
addition to all other remedies available at law or in equity.
12. No Representation of Warranty. Neither Party to this Agreement makes any representation or
warranty (express, implied, or statutory) with respect to its Proprietary Information, including,
without limitation, the accuracy or completeness thereof. Neither Party is relying on any
representation of the other Party in entering into this Agreement.
13. No Partnership or Agency Relationship. Nothing in this Agreement shall constitute or be
deemed to constitute a partnership between the Parties or constitute or be deemed to create an
agency relationship between the Parties, for any purpose whatsoever, and neither Party shall
have the authority or power to bind the other to any third party, or to contract in the name of or
create an obligation or a liability against the other, in any way for any purpose.
Page: 4 of 6
14. Notices. All notices and authorizations under this Agreement shall be furnished to the following
individuals:
__________: Ballard Brands, LLC:
4480 Highway 22, Suite 2
Mandeville, LA 70471
Attn: __________________ Attn: Brad Graham
With a copy via email to: With a copy via email to:
Melissa Debarbieris, Legal Counsel
15. Export. Each Party represents and warrants that, except as allowed under applicable U.S.
Government export laws and regulations, no technical data, hardware, software, technology, or
other information furnished to it hereunder shall be disclosed to any foreign person, firm, or
country, including foreign persons employed by or associated with such Party. Furthermore, the
Receiving Party shall not allow any re-export of any technical data, hardware, software,
technology, or other information furnished, without first complying with all applicable U.S.
Government export laws and regulations. Prior to exporting any technical data, hardware,
software, technology, or other information furnished hereunder, the Receiving Party shall obtain
the advance written approval of the Disclosing Party. The Receiving Party shall indemnify and
hold the Disclosing Party harmless for all claims, demands, damages, costs, fines, penalties,
attorney’s fees, and all other expenses arising from the Receiving Party not complying with this
clause or U.S. Government export laws and regulations.
16. Choice of Law/Venue. This Agreement and all disputes, claims, causes of action, and litigation
relating to or arising out of this Agreement, in any way shall be governed by the laws of State of
Louisiana, excluding its conflict of laws rules.
17. Entire Agreement. This Agreement contains the entire understanding, superseding all prior or
contemporaneous communications, agreements, and understandings with respect to the
exchange and protection of Proprietary Information. This Agreement may not be modified in
any manner except by written amendment.
18. General.
a. Any waiver, modification or amendment of any provision of this Agreement shall be
effective only if in writing in a document that specifically refers to this Agreement and such
document is signed by both parties.
Page: 5 of 6
b. In the event that any term or provision of this Agreement shall be held to be invalid, void or
unenforceable, then the remainder of this Agreement shall not be affected, and each such
term and provision shall be valid and enforceable to the fullest extent permitted by law.
c. Neither party may assign, transfer or delegate any of its rights or obligations under this
Agreement, whether by operation of law or otherwise, without the prior written consent of
the other party, such consent not to be unreasonably withheld, and any attempted assignment
or transfer without such consent shall be void. Subject to the preceding sentence, this
Agreement shall be binding upon the permitted successors and assigns of both parties.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
By: _______________________________
Name and Title:
[Company Name]
By: ________________________________
Name and Title:
Ballard Brands, LLC
Page: 6 of 6
