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<br />4. <br /> <br />INDEPENDENT CONTRACTOR <br /> <br />Consultant shall, during the entire term of this Agreement, be construed to be an <br />independent contractor and not an employee of the Authority. This Agreement is not intended <br />nor shall it be construed to create an employer-employee relationship, ajoint venture <br />relationship, or to allow the City to exercise discretion or control over the professional manner in <br />which Consultant performs the services which are the subject matter of this Agreement; <br />however, the services to be provided by Consultant shall be provided in a manner consistent with <br />all applicable standards and regulations governing such services. Consultant shall pay all salaries <br />and wages, employer's social security taxes, unemployment insurance and similar taxes relating to <br />employees and shall be responsible for all applicable withholding taxes. <br /> <br />5. <br /> <br />INDEMNIFICATION <br /> <br />At its expense, Fluke will settle or defend and pay all damages (except incidental and <br />consequential damages) and costs finally awarded in any action brought against Buyer to the <br />extent that it is based on a claim that the damages are caused by Fluke's negligence, provided; <br />Buyer promptly notifies Fluke of the action and furnishes copies of each communication related <br />thereto; Buyer gives Fluke the authority and assistance (at Fluke's expense) necessary to defend <br />or settle the claim, and the action does not arise out of the negligence of Buyer, Buyer's service, <br />alteration or handling of the product, Buyer's recommendation or its customer's application or <br />Buyer's failure to provide its customers with warnings as requested in writing by Fluke <br /> <br />6. <br /> <br />CONFIDENTIALITY <br /> <br />If Consultant receives from the City information which due to the nature of such information is <br />reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not <br />use or disclose such information except in the performance of this Agreement, and further agrees <br />to exercise the same degree of care it uses to protect its own information of like importance, but <br />in no event less than reasonable care. "Confidential Information" shall include all nonpublic <br />information. Confidential information includes not only written information, but also information <br />transferred orally, visually, electronically, or by other means. Confidential information disclosed <br />to either party by any subsidiary and/or agent of the other party is covered by this Agreement. <br />The foregoing obligations of non-use and nondisclosure shall not apply to any information that <br />(a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant <br />disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an <br />obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is <br />independently developed by the Consultant without reference to information disclosed by the <br />City. <br />7. CONFLICT OF INTEREST CLAUSE <br /> <br />Consultant covenants that it presently has no interests and shall not have interests, direct <br />or indirect, which would conflict in any manner with performance of services specified under <br />this Agreement. <br />