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d. If Consultant fails or refuses to produce or maintain the insurance required by this <br />section or fails or refuses to furnish the City with required proof that insurance has been procured <br />and is in force and paid for, the City shall have the right, at the City's election, to forthwith <br />terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its <br />time and materials expended prior to notification of termination. Consultant waives the right to <br />receive compensation for any work performed prior to approval of insurance by the City. <br />6. INDEMNIFICATION <br />Consultant agrees to indemnify, defend and hold harmless City, its officers, agents, <br />volunteers and employees from any and all loss, damage, injury or death, and from any and all <br />suits, actions and claims filed or brought by any person or persons, however caused, arising out <br />of Consultant's and Consultant's employees' negligent performance or failure to perform, any <br />and all things necessary to and required to be done by Consultant, pursuant to the provisions of <br />this Agreement. <br />City agrees to indemnify, defend and hold harmless Consultant from any and all loss, <br />damage, injury or death, and from any and all suits, actions and claims filed or brought by any <br />person or persons, however caused, arising out of City's and City's employees' negligent <br />performance or failure to perform, any and all things necessary to and required to be done by <br />City, pursuant to the provisions of this Agreement. <br />7. CONFIDENTIALITY <br />If Consultant receives from the City information which due to the nature of such <br />information is reasonably understood to be confidential and /or proprietary, Consultant agrees <br />that it shall not use or disclose such information except in the performance of this Agreement, <br />and further agrees to exercise the same degree of care it uses to protect its own information of <br />like importance, but in no event less than reasonable care. "Confidential Information" shall <br />include all nonpublic information. Confidential information includes not only written <br />information, but also information transferred orally, visually, electronically, or by other means. <br />Confidential information disclosed to either party by any subsidiary and /or agent of the other <br />party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure <br />shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, <br />through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful <br />possession of the Consultant without an obligation of confidentiality; (d) is required to be <br />disclosed by operation of law; or (e) is independently developed by the Consultant without <br />reference to information disclosed by the City. <br />8. CONFLICT OF INTEREST CLAUSE <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 />