The Bia Factory
Mutual Nondisclosure and Confidentiality Agreement
This Nondisclosure and Confidentiality Agreement (the “Agreement”) made and entered into this 2nd day of April, 2024, by and between KeHo Fitness and Nutrition, LLC, doing business as The Bia Factory (“Bia”) and Company, witnesseth: (Hereinafter “Company is designated by the form fill below “Company Name”.)
WHEREAS, Bia and the Company wish to enter into detailed discussions related to the disclosure of certain information from Bia to Company;
WHEREAS, the parties further agree that in the course of the relationship between the parties, the Bia will disclose to the Company certain confidential and proprietary information relating to, among other things, its businesses, affairs, finances, processes, software and/or technologies “Confidential Information”;
WHEREAS, in order to protect the Bia interests in and to its Confidential Information, the Company has agreed to abide by the terms and conditions set forth in this Agreement;
1. “Company” and all divisions and subsidiaries owned or controlled by Company or any company, person or entity that is controlled by Company, anywhere in the world. Any persons, directors, trustees, officers, employees, attorneys, professional advisors or representatives (including agents, accountants, financing sources and financial advisors), firms or entities directly associated with Company shall be informed by Company of the confidential nature of this Agreement and the confidential information discussed whereby and made aware of their obligations of non-disclosure hereunder.
2. As used in this letter agreement, the term “Confidential Information” of a party means all information provided by or on behalf of the Bia to the Company or its representatives and that is either (i) disclosed in writing and conspicuously marked as “confidential,” “proprietary,” or the like, or (ii) disclosed orally, if within 30 days after such oral disclosure Bia identifies such information in writing and indicates that such information is confidential or proprietary; in each case, except information that:
(a) was known to the Company prior to such disclosure by Bia, as evidenced by documentary or other physical evidence predating the date of such disclosure;
(b) was public knowledge at the time of such disclosure to the receiving party, or becomes public knowledge after such disclosure, through no action or omission by or on behalf of the Company;
(c) is lawfully disclosed or made available to the Company by a third party having no obligation-to the Bia to maintain the confidentiality of such information; or
(d) is independently developed by the Company without use of the Confidential Information of the other.
(e) is disclosed by the Company in response to a proper request under The Public Records Act of Ohio (Ohio R.C. Chapter 149), a valid subpoena, court order or other legal process, and not subject to a protective order; provided that, if disclosure is so required, the Company shall promptly notify Bia, in writing, of such subpoena, order or other legal process; or
(f) is obtained from a third party and was disclosed based on the reasonable belief of the Company that the third party had a valid right of disclosure.
3. Company will maintain the confidentiality of all Confidential Information of Bia and hold it in trust, under appropriate safeguards at least as stringent as those used to protect the Company’s own information of like nature, but in no event shall the Company use less than reasonable safeguards to protect such Confidential Information, for the exclusive benefit of the other. All Confidential Information will remain the exclusive property of the Bia, and will be used by the Company exclusively for purposes of the discussions referred to above. Unless previously authorized in writing by the Bia, the Company will not use Confidential Information for any other purpose or for the benefit of itself or others, and will not disclose it to anyone else (except its employees and authorized representatives, on a “need-to-know” basis pursuant to written confidentiality agreements containing terms substantially similar to those of this letter agreement).
4. Without the prior written consent of Bia, or as required under securities or other laws, Company will disclose to any third party (other than to its accountants, counsel, and other authorized representatives) (i) the fact that any Confidential Information of the other party has been disclosed, or made available to it, (ii) that discussions or negotiations are taking place concerning a possible transaction between the parties, or (iii) any of the terms or conditions with respect to any such possible transaction, including the statue thereof.
5. Company will promptly deliver to Bia, upon request, all documents and other tangible media that contain or reflect Confidential Information (including all copies, reproductions, digests, abstracts, analyses, and notes) in its possession or control, will destroy any related computer files, and will cease all use of the Confidential Information of Bia upon termination or expiration of this Agreement.
6. Bia makes no representations or warranties, nor shall it incur any liability, in respect of any information (including Confidential Information) provided by or on behalf of it to Company, including without limitation with respect to the accuracy or completeness of such information.
7. If Company is required by law to disclose any Confidential Information of Bia, it will provide Bia with prompt notice of such requirement so that it may seek a protective order or take other appropriate action and/or waive compliance with this Agreement to the extent of such required disclosure.
8. Company acknowledges that any breach by it of its obligations under this Agreement would inevitably cause substantial and irreparable damage to the Bia, and that money damages would be an inadequate remedy therefore. Accordingly, Company acknowledges and agrees that Bia will be entitled, in addition to any other available remedies, to an injunction, specific performance, and/or other equitable relief to prevent the violation of such obligations.
9. In the event of any litigation with respect to this Agreement or any breach or alleged breach hereof, the non-prevailing party in such litigation will reimburse the prevailing party for all costs and expenses (including investigatory costs, attorneys’ fees and expenses, and court costs) incurred by the prevailing party in connection with such litigation.
10. Either party may at any time terminate the discussions with the other that are the subject of this Agreement, for any reason or for no reason, and the provisions of this Agreement will survive any such termination for a period of two (2) years, whereupon all obligations hereunder will terminate.
11. Neither party shall assign or otherwise transfer this Agreement, or any right or obligation under this letter agreement, without the prior written consent of the other party. The obligations of either party hereunder shall not terminate upon any assignment attempted without such prior written consent.
12. This Agreement shall not be construed to create, give effect to, or otherwise imply a joint venture, partnership, or business association of any kind. Company and Bia are independent parties, and neither shall act as an agent for or partner of the other party for any purpose. This Agreement does not limit or restrain in any way either party’s right to execute similar agreements with other parties.
13. Other than the limited right of access to and use of the Confidential Information as provided for herein, no title, license, interest, or right shall be granted, either expressly, by implication, by estoppel or otherwise, to the Company under any patent, trademark, copyright, trade secret or other proprietary right now or hereafter owned or controlled by the Bia.
14. This Agreement constitutes the entire understanding and agreement between the parties and shall supersede any prior agreement, written or oral, not incorporated herein. No disclosure made pursuant to this letter agreement shall result in any obligation on the part of either party to enter into any further agreement or discussion relating to the subject matter or any other matter. The terms and conditions of this letter agreement shall not be amended except by written agreement signed by both parties.
If the foregoing is acceptable, please sign and return two copies of this Agreement. These copies will be counter-signed and a copy returned to the Company for its files. This Agreement will then constitute an agreement under seal governed by, interpreted, construed and enforced in accordance with the laws of the State of Ohio without reference to its conflict of laws provisions or principles. Any suit under this letter agreement shall only be brought in a court of competent jurisdiction in the State of Ohio.
We look forward to productive discussions with you.
Very truly yours,
KeHo Fitness and Nutrition, LLC, dba The Bia Factory
Agreed to and accepted the date of this form submission as stated in the email confirmation.
