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<br />Page 24 of 27 <br /> <br />(1) All information that the Diversion Authority discloses to Consultant; and <br />(2) All information to which Consultant gains access while providing services under <br />this Agreement. <br /> <br />B. Confidential information does not include any information that Consultant can <br />demonstrate has been made available to the public (other than through a breach of this <br />Agreement). As between Consultant and the Diversion Authority, the Diversion <br />Authority owns the confidential information, and the Diversion Authority authorizes <br />Consultant to use it only for purposes of performing this Agreement. Consultant may <br />also disclose the Diversion Authority’s confidential information to the extent necessary <br />to comply with law, provided Consultant gives the Diversion Authority prior written <br />notice. Upon the end date of this Agreement, Consultant must destroy or return all <br />confidential information to the Diversion Authority, at the Diversion Authority’s <br />discretion, and certify to the Diversion Authority, in writing, that it has done so; <br />provided, however, such destruction shall include, without limitation, the process of <br />expunging, to the extent reasonably practicable, all such confidential information from <br />any computer, hard drive, word processor, server, backup tape, or other electronic device <br />containing such confidential information. Notwithstanding the foregoing, Consultant <br />may retain one archival copy of the confidential information in its confidential files for <br />the purpose of complying with applicable laws or established company procedure <br />regarding the preservation of business records. <br /> <br />C. Consultant must not make any public announcement, press release, or other writing <br />relating to the services under this Agreement without the Diversion Authority’s prior <br />written approval. <br /> <br />D. Consultant understands a breach under this Section may result in irreparable damage for <br />which no adequate remedy may be available. Accordingly, injunctive relief and other <br />equitable relief are remedies available to the Diversion Authority. <br /> <br />49. ENTIRE AGREEMENT; MODIFICATION. This Agreement, including its attachments and <br />schedules, constitutes the entire Agreement, supersedes all prior written or oral <br />understandings, and may only be changed by a written amendment approved by the <br />Diversion Authority and executed by Consultant and the Chair of the Diversion Authority on <br />behalf of the Diversion Authority. The following attachment is hereby made a part of this <br />Agreement: (1) Exhibit A – General Scope of Services. This Agreement may be modified as <br />to terms and conditions from time to time upon the mutual consent of the parties; however, <br />such modification shall be reduced to writing, signed by the parties and the document <br />appended to and made a part of this Agreement. <br /> <br />50. FORCE MAJEURE. Consultant is not responsible for damages or delay in performance <br />caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of <br />Consultant. In any such event, Consultant’s contract price and schedule shall be equitably <br />adjusted. <br /> DRAFT