8. Confidential Information
8.1 Definition. “Confidential Information” means information of or relating to Customer or Traxero or their respective affiliates, subsidiaries, vendors, suppliers, service providers or licensors, that is competitively sensitive material not generally known to the public, including without limitation, information that relates to any past, present or future research and development, trade secrets, products and services, pricing, marketing, financial matters, or business affairs (including without limitation, policies, procedures, plans, methods of operation, specifications, manuals, programs, documentation, guidelines, procedures, forms, and report formats), systems, networks, computer equipment and software proprietary to or licensed by a Party, including without limitation, object or source code, custom software modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein.
8.2 Obligations. The Parties acknowledge that the Services require disclosure by each Party (“Disclosing Party”) to the other Party (“Receiving Party”) of certain of the Disclosing Party’s Confidential Information. With respect to Confidential Information of the Disclosing Party that is disclosed to the Receiving Party, the Receiving Party shall, subject to the exceptions stated herein: (a) maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as the Receiving Party uses with its own Confidential Information, but in no event less than a reasonable standard of care; (b) use the information solely to carry out the purposes for which the information was disclosed; and (c) limit access to the information to: (i) employees of the Receiving Party, or of its subsidiaries or affiliates, who have a need to know to facilitate, monitor or review the delivery, receipt or performance of the Services; (ii) employees of the Receiving Party’s suppliers or licensors who have a need to know the information solely for the purpose of facilitating the performance, delivery or use of the Services; and (iii) the Receiving Party’s external attorneys and auditors. Any of the foregoing individuals to whom the Receiving Party discloses information must be under a legally binding obligation to maintain the confidentiality of the information. The Receiving Party shall remain responsible to the Disclosing Party for acts or omissions of such individuals that if committed by the Receiving Party would constitute a violation of the Receiving Party’s confidentiality obligations hereunder. Customer shall not disclose the terms and conditions of this Agreement, including without limitation, pricing, to any third party without Traxero’s prior written consent.
8.3 Exceptions. The Receiving Party shall not be in violation of this Agreement for: (a) disclosing Confidential Information of the Disclosing Party that (i) is or becomes publicly available other than as a result of a breach of this Agreement, (ii) is disclosed to the Receiving Party by a third party not subject to any obligation of confidentiality, (iii) was already known by the Receiving Party prior to the date of this Agreement (unless disclosed in connection with negotiations and discussions related to this Agreement or associated transactions), or (iv) was independently developed by the Receiving Party without reference to Confidential Information received from the Disclosing Party; or (b) disclosing Confidential Information of the Disclosing Party when required to do so by (i) the Receiving Party’s federal or state regulatory agencies, or (ii) a federal or state law or regulation, or a subpoena or court order or agency action that requires disclosure, provided, however, that, if disclosure of Confidential Information is required by any of the foregoing, the Receiving Party shall, unless prohibited by law, regulation or court or agency order, promptly notify the Disclosing Party and, at the Disclosing Party’s request and expense, cooperate with the Disclosing Party’s efforts, if any, to prevent or limit the disclosure. Nothing in this Agreement shall prevent either Party from using any general methodologies or know-how contained in the unaided memory of such Party’s personnel or those of its affiliates developed or disclosed under this Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this Section 8 or using any intellectual property rights of the other Party or any of its affiliates.
8.4 No License; Return of Information. Nothing in this Section shall be construed as a grant or assignment of any right or license in the Disclosing Party’s Confidential Information. The Disclosing Party’s Confidential Information shall at all times remain the property of the Disclosing Party. At any time the Disclosing Party reasonably requests, and in any event upon the termination or expiration of this Agreement, the Receiving Party shall, at the election of the Disclosing Party, promptly return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, or certify in writing to the Disclosing Party that the Confidential Information has been destroyed.
8.5 Remedies and Responsibilities. The Receiving Party acknowledges that the Disclosing Party has the right to take all reasonable steps to protect the Disclosing Party’s Confidential Information, including without limitation, seeking injunctive relief and/or any other remedies that may be available at law or in equity, all of which remedies shall be cumulative and in addition to any rights and remedies available by contract, law, rule, regulation or order.
8.6 Data Sharing. Notwithstanding the confidentiality restrictions in this Section 8, Customer agrees that Traxero may furnish certain information to third-parties, as described herein.
(a) Vehicle History Reporting Information. Customer agrees that Traxero may furnish certain information to third-party vehicle history reporting companies (“VHR Companies”) for the use in creating commercially available vehicle history reports. The information that Traxero may furnish to VHR Companies includes, but is not limited to: the vehicle identification number, vehicle year, make, and model, license plate number and state of registration, odometer reading, airbag deployment status, area of damage, reason for towing, towing location, and other towing-related information (collectively, the “VHR Information”).
(b) Dispatch Job Information.
(i) Traxero understands that Customer has contracted, or may contract in the future, with third-party road service clubs, motor clubs, or other companies that provide substantially similar roadside assistance services (“Contracting Motor Clubs”).
(ii) Customer agrees that Traxero may furnish certain information relating to a dispatch assignment (the “Dispatch Job Information”) to Contracting Motor Clubs, both in real-time during the course of a dispatch assignment, or any time at the request of a Contracting Motor Club. The Dispatch Job Information is defined as follows:
● Current Driver/Truck locations on demand
● Current Driver/Truck Status (Available/Unavailable)
● Driver/Truck Type and Service
● Receive Time/Date
● Dispatch Time/Date
● Assign Time/Date
● Driver Confirm Time
● Driver Arrive Time
● Driver Leave Scene Time (Hooked)
● Driver Destination Arrive Time
● Driver Clear Time
● Continuous ETA updates
● Driver, Truck and Truck Type Assigned to Call
● Call Requested By
● Real-time location of the assigned truck, throughout the progress of the MOTOR CLUB call.
● Purchase Order
● Service Provider Name
● Job Status (Received, Assigned, Cancelled, Finished, Impounded, Holding)
● PTO Status Change Time Stamps
● Driver Photo
(c) Customer may, at its discretion, disable Traxero from furnishing Dispatch Job Information to any Contracting Motor Clubs by utilizing the Software to opt out. Once disabled, Customer may, at its discretion, re-enable Traxero to furnish Dispatch Job Information to Contracting Motor Clubs by utilizing the Software to opt in.
(d) Traxero may disclose any Customer Proprietary or other information or data as required by law. As used in this subsection, “required by law” shall include, but not be limited to, disclosures compelled by lawful subpoena issued by a court of competent jurisdiction, government regulation, court order, or any other lawful process.]
8.7 Other Terms. Customer acknowledges and agrees that Traxero does not desire to receive any Confidential Information from Customer that is not necessary for Traxero to perform its obligations under this Agreement. The Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure or is included in a filing required to be made by a Party with a governmental authority (provided that such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.