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they arise from the negligent or willful misconduct in the performance of operations or errors or <br />omissions of the Consultant or its contractors, subcontractors, agents, employees, or other <br />persons acting on their behalf which relates to the services described in section 1 of this <br />Agreement. <br />Inasmuch as measures to prevent or mitigate the effect of any act or terrorism are unique <br />to the act, and the actions that may be taken in controlling, preventing or suppressing acts of <br />terrorism are unique to the act, Consultant is not responsible to City for designing or advising on <br />or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any <br />action which may be taken in controlling, preventing, suppressing or in any way relating to an act <br />of terrorism. <br />8. 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 />9. 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 />10. NOTICE <br />Any notice, tender, demand, delivery, or other communication pursuant to this <br />Agreement shall be in writing and shall be deemed to be properly given if delivered in person or <br />mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other <br />telegraphic communication in the manner provided in this Section, to the following persons: <br />Page 4 of 9