NONDISCLOSURE AGREEMENT

This agreement (“Agreement”) is entered into as of the date the Counterparty completes the form referencing this Agreement (the “Effective Date”), by and between Yard Management Solutions LLC (YMS) and the Counterparty completing the form (“Counterparty”). YMS and Counterparty are hereinafter referred to as the “Parties".

WHEREAS, it is the mutual desire of the Parties to disclose certain Confidential Information to each other; and

WHEREAS, the Parties both recognize that careful protection and non-disclosure by the Party receiving Confidential Information (the “Receiving Party”) from the Party disclosing such Confidential Information (the “Disclosing Party”) is of vital importance to the prosperity of the Parties.

NOW THEREFORE, in consideration of the promises made herein, each Party agrees to disclose and receive Confidential Information of the other Party only under the following terms and conditions:

  1. CONFIDENTIAL INFORMATION
    1. Definition. As used herein, “Confidential Information” of a Disclosing Party means any information and data disclosed by Disclosing Party to Receiving Party or any of its representatives or agents concerning the Disclosing Party’s business, operations, financial condition or prospects, including but not limited to, customer information, proprietary technical, financial, personnel, marketing, pricing, sales and/or commercial information; ideas, concepts, designs and inventions, computer source and object code and computer programming techniques; and all record bearing media containing or disclosing such information and techniques which are disclosed pursuant to this Agreement. The terms and existence of this Agreement, the fact that Confidential Information has been made available hereunder, that discussions or negotiations are taking place concerning a potential business relationship involving the Parties and all of the terms, conditions and other facts with respect thereto (including the status thereof) shall also be considered Confidential Information that is subject to the provisions of this Agreement, notwithstanding which, if the negotiations lead to a business relationship between the parties, the existence of such business relationship will not be considered Confidential Information.” Confidential Information shall also include the third party confidential information that a Disclosing Party possesses if the Disclosing Party has a duty of confidentiality with respect to that third party information.
    2. Purpose. The purpose of the disclosure of Confidential Information is to enable the Parties to advance their efforts in evaluating a potential business relationship involving the Parties. Receiving Party shall use the Confidential Information for this purpose only. No party hereto is under any obligation to complete any transaction unless the parties otherwise agree in writing.
    3. Ownership. The Confidential Information shall be considered valuable trade secrets, owned by the Disclosing Party. The Disclosing Party retains all right, title, and interest in the Confidential Information. No license to the Receiving Party, under any trademark, patent or copyright, or applications for same which are now or may thereafter be obtained by such Receiving Party, is either granted or implied by the conveying of Confidential Information to the Receiving Party.
    4. No Warranties. THE DISCLOSING PARTY ASSUMES NO RESPONSIBILITY FOR ANY LOSS OR DAMAGES TO THE RECEIVING PARTY, ITS CUSTOMERS OR ANY THIRD PARTIES CAUSED BY OR ARISING FROM THE CONFIDENTIAL INFORMATION. THE DISCLOSING PARTY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION. ONLY THOSE REPRESENTATIONS OR WARRANTIES WHICH ARE MADE IN OR PURSUANT TO ONE OR MORE FINAL AGREEMENTS REGARDING A TRANSACTION INVOLVING THE PARTIES WILL HAVE ANY LEGAL EFFECT.
  2. COVENANTS
    1. Use of Confidential Information. The Receiving Party may only use the Confidential Information for the purposes stated above. The Receiving Party recognizes that this Agreement imposes an affirmative duty to hold such information in confidence and protect it from dissemination to and use by unauthorized persons. In the absence of the Disclosing Party’s prior written consent, the Receiving Party shall not reproduce nor disclose the Confidential Information to any third party.
    2. Further Responsibility. The Receiving Party agrees to use the same degree of care to protect the confidentiality of the Confidential Information as it would exercise to protect its own trade secrets, but in no case less than a reasonable degree of care. Receiving Party will grant access to the Confidential Information only to its directors, officers, employees, affiliates, agents, advisors and consultants (“related parties”) who have a clear need to know for purposes of this Agreement and shall advise those related parties of the existence and terms of this Agreement and of the obligations of confidentiality herein. Each Party shall be responsible for the breach of the terms of this Agreement by such Party, or its related parties.
    3. Return of Confidential Information. Promptly following the request of the Disclosing Party, the Receiving Party will deliver to the Disclosing Party, or certify in writing to the Disclosing Party as to the destruction of (without retaining any copy), all Confidential Information (and copies and extracts thereof) furnished to, or created by or on behalf of, the Receiving Party. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party will continue to be bound by its obligations of confidentiality and other obligations hereunder.
    4. General Exceptions. The foregoing notwithstanding, except as set forth in the last sentence of this section, no information shall be considered Confidential Information if such information: (a) was in the Receiving Party’s possession before execution of this Agreement (as proven by the Receiving Party) other than as disclosed by the Disclosing Party or its representatives; (b) is or becomes generally available to the public through no fault of, or without violation of any duty of confidentiality of the Receiving Party; (c) is received by the Receiving Party from a third party without, to the knowledge of the Receiving Party after reasonable inquiry, violation of a duty of confidentiality and/or (d) was independently developed by the Receiving Party without use or consideration of the Confidential Information (as proven by the Receiving Party). Neither Party shall be liable for disclosure of Confidential Information if disclosure was required by law, regulation, securities exchange or association requirement, or was in response to a valid order of a court or authorized agency of government or other legal process, provided that prior written notice first be given to the Disclosing Party so that a protective order or other relief, if appropriate, may be sought by the Disclosing Party (at the Disclosing Party’s expense).
    5. Remedies. The Parties recognize and acknowledge that Confidential Information is of a special, unique and extraordinary character to the Disclosing Party and that disclosure, misappropriation or unauthorized use of such Confidential Information by the Receiving Party or other violation of this Section 2 cannot be fully compensated and that, further, any such disclosure, misappropriation or unauthorized use of the Confidential Information or other violation of this Section 2 shall cause irreparable injury to the Disclosing Party. The Receiving Party expressly agrees, therefore, that the Disclosing Party, in addition to any rights and remedies it may have under this Agreement or at law or in equity, shall be entitled to seek injunctive and other equitable relief to prevent the breach, or the further breach, of any of the terms and provisions hereof, without the necessity to prove damages or post a bond.
  3. GENERAL
    1. Term and Termination. The Receiving Party shall maintain the Confidential Information in confidence in accordance with the terms of this Agreement until three years after the date hereof; provided that if the Receiving Party retains any Confidential Information of the Disclosing Party after a request for return or destruction pursuant to Section 2.3, the Receiving Party shall maintain the Confidential Information in confidence in accordance with the terms of this Agreement until one year after it has returned or destroyed such Confidential Information.
    2. No Conflicts. Each of the Parties represents and warrants that its actions with respect to this Agreement do not conflict with any prior obligations to any third party. The Parties further agree not to disclose or to use on behalf of the other party any Confidential Information belonging to any third party unless sufficient written authorization from the third party is provided.
    3. No Compete: The Undersigned Counterparty shall not directly or indirectly Own, manage, control, participate in the ownership, management, or control of or be employed or engaged by or otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or business entity that competes with the business of the Company. Without limiting the generality and scope of the foregoing, any entity or person providing products or services competitive with those of the Company is deemed to be competing with the business of the Company. For purposes of this Agreement, the phrase “competes with the business of the Company” means developing, engineering, designing, manufacturing, distributing, or selling products and/or services which are the same as, similar to, reasonably substitutable for, or otherwise capable of displacing the services and/or products of the Company.
    4. General Terms. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns. The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, it shall be enforced to the extent legally permissible and as necessary to reflect the intent of the Parties and shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect. This Agreement may only be amended by a writing executed by both Parties. This Agreement is binding upon each Party and their respective affiliates. This Agreement shall be deemed to be a contract made under the laws of the State of Michigan and shall be governed by the laws thereof without reference to its principles of conflicts of law. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Electronically transmitted signatures shall be deemed originals. This Agreement represents the entire agreement between the Parties with respect to the subject matter herein. The Agreement shall be interpreted as if mutually drafted and negotiated by the parties.