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c) initially disclosed orally, if (i) the Confidential Information is designated as confidential or
proprietary prior to or at the time of such disclosure, (ii) the Confidential Information is
subsequently clearly summarized in writing, and (iii) the writing is transmitted to the receiving party
labeled as set out in Paragraph (a) above within thirty (30) days of the initial disclosure.
4. NEED TO KNOW
The receiving party agrees that any disclosure within its company will only be made to its employees and
consultants under a confidentiality obligation as are needed to perform work for the aforementioned
Purpose in accordance with this Agreement. END USER acknowledges that NAVISTAR through the use of
the OnCommand® Link hardware, or software, or Navistar’s OnCommand Connect Program may collect
telematics information from a number of customers and that NAVISTAR may release information to
vehicle component or system suppliers. NAVISTAR may also release the information to other third
parties in a compiled, aggregate, or conclusory form in such a way that END USER or its individual
information will not be individually identified. END USER acknowledges that Navistar may allow END
USER’s designated dealer(s) access to view END USER’s data.
5. EXCLUSIONS
Notwithstanding any other provisions of this Agreement, Confidential Information shall not include any
information that:
a) is or becomes publicly known through no wrongful act on the receiving party's part;
b) is already known to receiving party at the time of disclosure;
c) is rightfully received by the receiving party from a third party who is not under a confidentiality
obligation to the disclosing party;
d) is independently developed by the receiving party without reference to or use of the Confidential
Information;
e) is produced to a third party in response to a subpoena or order of a Court or administrative agency
provided that the disclosing party is notified sufficiently prior to disclosure to seek a protective
order regarding such production, unless prohibited by law; or
f) is explicitly approved for release by written authorization of the disclosing party.
6. WARRANTY AND DAMAGES
The disclosing party makes no representation or warranty to, and shall have no liability to, the receiving
party relating to the accuracy or completeness of the Confidential Information supplied by the disclosing
party or the sufficiency of the same for the Purpose of this Agreement or otherwise, except as may be
specifically agreed in a subsequent written agreement. Notwithstanding the above, each party to this
agreement warrants that it either owns or has the right to disclose the information that it discloses to
the other party. Navistar makes no representation or warranty to the accuracy or success of any over-
the-air programming accomplished through use of the OnCommand® Link hardware. NEITHER PARTY
SHALL BE LIABLE FOR ANY PERSONAL INJURIES, EQUIPMENT DAMAGE, LOSS OF PROFITS, LOSS OF USE,
LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, UNAVAILABILITY OF VEHICLES, DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT ARE INCURRED BY THE OTHER
PARTY RESULTING FROM THE USE OF CONFIDENTIAL INFORMATION DISCLOSED TO THE OTHER PARTY,
OR RESULTING FROM ANY USE OF OR TAMPERING WITH THE OnCommand® Link HARDWARE OR
SOFTWARE, ARISING UNDER THIS AGREEMENT OR THE BREACH THEREOF, WHETHER THE CLAIM IS IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN ANY EVENT, NEITHER
PARTY’S LIABILITY TO THE OTHER FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT SHALL
EXCEED THE GREATER OF THE AGGREGATE OF FEES PAID TO NAVISTAR UNDER THIS AGREEMENT.
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