dear potential bower & branch digital partner, To date you have indicated interest in becoming a Digital Partner in Bower & Branch: Trees for Life. The time has now come to move forward with the next step in positioning your business today for tomorrow s market. The attached document is a Non-Disclosure which requires your understanding and signature. This agreement will allow us to share our Digital Partner Agreement with you. Much of the information in that agreement is proprietary and requires your commitment to not share or discuss with anyone outside of your leadership and staff. It is critical that we protect market advantage going forward for all eventual Brand Partners. Upon the return of the signed Non-Disclosure, Bower & Branch will forward you the detailed Digital Partner Agreement for your consideration. The Digital Partner Agreement speaks to many things including marketing strategy, services provided and other benefits you will receive in our partnership. The Agreement also speaks to brand alignment, pricing structures and display behaviors items that we need our Partners to champion for the strength of the brand. Bower & Branch is requiring a fee of $250.00 to be forwarded at this time to receive Pre-Enrollment information for your consideration. This fee will be credited towards Partnership fees if you choose to become a Brand Partner. The fee will be forfeited should you decide a Bower & Branch partnership is not in the best interest of your Garden Center. Please include the payment with return of the Non-Disclosure agreement payable to Bower & Branch. Through 2015 we will be making ourselves available for meetings to further share program specifics. Detailed promotion schedules and other strategic marketing plans will be shared in more detail during these meetings but still not in full detail until a firm decision is made to partner with Bower & Branch. It will be important for you to make your appointment for these meetings. The initial offer will be closed when we reach our desired partner goals covering all of the Mid-Atlantic and Northeast market areas. Bower & Branch is a culture of meaningful sales and marketing efforts that will empower your business to grow and to be relevant in the years ahead. Bower & Branch will determine trends for our industry and will provide you the opportunity to lead your business to growth through new profit opportunities. Bold, courageous decisions today are required. Thank you for your interest and support in our efforts. Don Eaton don@eatonfarms.com c: 484.651.0176 Patrick Miller patrick@bowerandbranch.com c: 610.804.6931 bowerandbranch.com
REVISED 010815 eaton farms, l.p. P.O. Box 704, Leesport, PA 19533 don@eatonfarms.com t 484.651.0176 bower & branch confidentiality and nondisclosure agreement This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (the Agreement ) is made this day of, 20, by and between D.K. MARKETING, LLC d/b/a BOWER & BRANCH with its principal offices at 12 Jefferson Place, Bernville, PA 19506 ( Bower & Branch ) and the undersigned,, an adult individual/corporation/limited liability company with a mailing address as set forth below (the Receiving Party ). background A) Bower & Branch owns and operates a commercial tree nursery marketing business (the Business ) B) Bower & Branch has approached the Receiving Party regarding entering into a potential business relationship (the Potential Business Relationship ). C) In connection with negotiations arising from the Potential Business Relationship, Bower & Branch will disclose to the Receiving Party certain confidential and proprietary information concerning the Business. D) Bower & Branch wishes to protect the Confidential Information (as defined below) and to limit the use and disclosure of such Confidential Information by the Receiving Party. E) In light of the foregoing, the Receiving Party has agreed to protect Bower & Branch against the disclosure of the Confidential Information all on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the foregoing recitals, the disclosure of certain Confidential Information, and the following covenants, Bower & Branch and the Receiving Party agree as follows: 1) background. The Background section of this Agreement is incorporated herein by reference and is intended to be an integral part of this Agreement. 2) non-disclosure. (a) Any information given by Bower & Branch to the Receiving Party concerning the Business, including, but not limited to, (i) personnel, salary or other compensation information, business techniques, technology, products, services, trade secrets, ideas, copyrights, trademarks, service marks, methods, formulae, compositions, processes, research and development, hardware, software, purchasing, accounting, business methods and techniques (including without limitation all customer lists, client lists, distributor lists, records of customer usage and requirements, and similar information relating to customers or to prospective customers), marketing and/or sales plans or proposals, terms of contracts, cost information, non-public pricing materials, or business communications; and/or (ii) product development or other research and development plans or activities; and/or (iii) financial information, including without limitation pricing strategies, profit and loss statements, income statements, balance sheets, financial position statements, budgets, financial contracts, or any related or similar information; and/or (iv) any other information regarding the Business that Bower & Branch has
a reasonable basis to believe to be confidential or proprietary information of Bower & Branch shall be treated as a confidential and proprietary trade secret (the Confidential Information ) of Bower & Branch. The Receiving Party and its affiliates shall accept and hold all Confidential Information as secret and confidential. (b) (c) (d) (e) (f) The Receiving Party shall not, without the prior written consent of Bower & Branch, disclose any Confidential Information now or hereafter received or obtained by the Receiving Party to any person, corporation, partnership or other entity, except that any such Confidential Information may be disclosed to representatives of the Receiving Party who need to know such information for the purpose of evaluating the Potential Business Relationship. The Receiving Party understands that all of its employees and representatives are bound by this Agreement to the same extent as if they were parties hereto. The Receiving Party shall not, without the prior written consent of Bower & Branch, disclose any Confidential Information now or hereafter received or obtained by the Receiving Party to any person, corporation, partnership or other entity, and if written consent is provided by Bower & Branch shall not disclose any Confidential Information, without said person, corporation, partnership or entity executing a Confidentiality and Non-Disclosure Agreement in form similar to this Agreement. The Receiving Party shall not utilize any Confidential Information for any purpose whatsoever, except for the evaluation of the Potential Business Relationship. The Receiving Party shall, at Bower & Branch s request, promptly return all Confidential Information which it receives from Bower & Branch, including any copies or summaries thereof and will not retain any copies or summaries or extracts therefrom. Notwithstanding the foregoing, nothing shall be regarded as Confidential Information if it is information that either: (i) is in the public domain at the time of disclosure; (ii) becomes part of the public domain through no fault of the Receiving Party; (iii) the Receiving Party can show by written document that the information was in its rightful and lawful possession at the time of disclosure; or (iv) the Receiving Party lawfully receives such information at a later date from a third party without restriction as to disclosure, provided such third party has the right to make the disclosure to the Receiving Party. 3) breach. The Receiving Party acknowledges that the covenants, conditions and limitations contained in this Agreement are reasonable and necessary to protect the legitimate business interests of Bower & Branch. The Receiving Party further acknowledges and agrees that its violation of the covenants, conditions and limitations, or any of them, may result in irreparable injury to Bower & Branch and that the remedy at law for a breach, or threatened breach, of any of the provisions of Section 2 of this Agreement would be inadequate. In recognition of this fact, in the event of a breach, or threatened breach, by the Receiving Party of any of the provisions of Section 2 of this Agreement, it is agreed that, in addition to all remedies at law, Bower & Branch shall be entitled to, without posting any bond, equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction, or any other equitable remedy which may then be available. Nothing herein contained shall be construed as prohibiting Bower & Branch from pursuing any other rights or remedies available to it for such breach or threatened breach. 4) termination of agreement. Either party may immediately terminate this Agreement with or without cause for any reason, upon written notice to the other party. Upon termination of this Agreement, all Confidential Information and copies thereof shall be returned to Bower & Branch within ten (10) days of the termination of the Agreement. The termination of this Agreement shall not affect any right or remedy existing hereunder prior to the effective date of termination, and all agreements of the parties, as well as any rights or benefits accruing to them, shall survive such termination. 5) attorney s fees. All costs of litigation reasonably incurred by Bower & Branch in successfully asserting its rights under a claim in accordance with the provisions of this Agreement, including
reasonable attorney s fees, costs and expenses, shall be paid by the Receiving Party. 6) governing law. This Agreement shall be governed for all purposes by the laws of the Commonwealth of Pennsylvania. 7) binding effect. This Agreement is binding upon the parties hereto and their respective successors and assigns. Notwithstanding the foregoing, neither party may assign this Agreement or their rights and duties hereunder, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party. 8) modification. This Agreement may not be modified except by a written agreement executed by both parties. 9) severability. If any provision of this Agreement is declared unenforceable, such provision shall be deemed separate from this Agreement, and this Agreement shall otherwise remain in full force and effect. 10) entire agreement. This Agreement contains the entire agreement between the Receiving Party and Bower & Branch, and in executing this Agreement, neither the Receiving Party nor Bower & Branch relied on any representations or statements, oral or written, not expressly contained in this Agreement. 11) waiver. The failure of Bower & Branch to object to or to take affirmative action with respect to any conduct of the Receiving Party which is in violation of this Agreement shall not constitute a waiver of that violation or of any future violations of this Agreement. 12) applicability. Nothing contained in this Agreement shall obligate Bower & Branch to disclose any information concerning the Business to the Receiving Party, and the covenants contained in this Agreement shall be applicable regardless of Bower & Branch s failure or unwillingness to disclose information to the Receiving Party. 13) counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. Delivery of this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. If delivery is by facsimile transmission, it will be followed by delivery of a manually executed counterpart hereof. [signature page follows]
IN WITNESS WHEREOF, Bower & Branch and the Receiving Party have executed this Confidentiality and Nondisclosure Agreement as of the date first above written. bower & branch : d.k. marketing, llc d/b/a/ bower & branch by don eaton, president receiving party : by name title address