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b. Generally. EXCEPT AS OTHERWISE EXPRESSLY SET
<br />FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT
<br />PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, NEITHER
<br />PARTY: (1) WILL BE LIABLE TO THE OTHER PARTY OR ANY
<br />THIRD PARTY FOR ANY LOSS ATTRIBUTABLE TO ANY ACT,
<br />OMISSION OR MISREPRESENTATION BY SAID OTHER PARTY,
<br />ITS DIRECTORS, EMPLOYEES OR AGENTS; AND (2) WILL BE
<br />LIABLE TO THE OTHER, WHETHER A CLAIM BE IN TORT,
<br />CONTRACT OR OTHERWISE, FOR ANY SPECIAL,
<br />CONSEQUENTIAL, PUNITIVE, INDIRECT, LOST PROFIT,
<br />BUSINESS INTERRUPTION, LOSS OF DATA OR SIMILAR
<br />DAMAGES RELATING TO OR ARISING FROM THE SERVICES
<br />PROVIDED UNDER THIS AGREEMENT, REGARDLESS OF
<br />WHETHER SUCH PARTY RECEIVES NOTICE OF THE POTENTIAL
<br />FOR SUCH DAMAGES. THIS AGREEMENT ALLOCATES RISKS
<br />BETWEEN PROVIDER AND CLIENT, AND PROVIDER'S PRICING
<br />REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION
<br />OF LIABILITY SPECIFIED IN THIS SECTION.
<br />(9) Client's Consent to Network Intrusion and Waiver of
<br />Claims.
<br />a. Some of the techniques Provider will employ in providing
<br />the Services would constitute improper and unauthorized access,
<br />absent the consent thereto given by Client to Provider herein.
<br />Accordingly, on the condition that Provider performs the
<br />Services in accordance with the terms of this Agreement
<br />(including the provisions of Section 6.b hereof), Client provides
<br />its consent to Provider's employment of such invasive and/or
<br />intrusive techniques as being part of the Services to be
<br />performed at Client's request pursuant to this Agreement.
<br />b. Client acknowledges that, notwithstanding Provider's
<br />performance of the Services in accordance with the terms of this
<br />Agreement (including the provisions of Section 6.b hereof),
<br />Provider may inadvertently cause damage to Client's System or
<br />data, including causing Client's System to suffer degraded
<br />performance or responsiveness. art ryg r tSxPg),pltfaSl I�l�..l�sig,!
<br />lvd,lrim tjAti�IT watlp:....,tht d, rlli .-aL t
<br />1ling t7c„Incrft,arn,unp��ndarlas td�a�It
<br />l gcs rl _rtl ti a xc�Iitlivag any QClion (If tv.Y
<br />dcseriq� Rn Scctip_n Tir 1 rgp,,(, Client agrees to waive any and
<br />all claims against Provider and Provider's Related Parties for
<br />any such damage, including damage that may be caused by
<br />Provider actually gaining access to such System.
<br />C. Client's conditional consent to Provider's actions and
<br />conditional waiver of claims are based on Client's understanding
<br />of its own System as well as its understanding of the Services to
<br />be provided pursuant to this Agreement. Client further warrants
<br />and represents that it has had the opportunity to question
<br />Provider regarding the Services and the techniques involved in
<br />implementing the Services, and therefore agrees that its
<br />conditional consent and waiver constitute an informed
<br />conditional consent and waiver.
<br />d. Notwithstanding any provision of this Article 9 to the
<br />contrary, Provider remains obligated to indemnify Client
<br />and its Related Parties from and against Losses pursuant to
<br />the provisions of Section 7.a of this Agreement.
<br />(10) Dispute Resolution & Escalation Policy. The Parties agree to
<br />seek to resolve any and all claims, controversies and disputes between
<br />them arising out of or related to this Agreement in accordance with the
<br />procedures set forth in this Section 10.
<br />a. Designation of Dispute. A Party (the "Complaining
<br />Party") that believes that the other (the "Responding Party") is in
<br />breach of this Agreement in any particular, will deliver written
<br />notification to the Responding Party, setting forth in reasonable
<br />detail the breach for which the Complaining Party seeks redress,
<br />along with a specific request for relief. The Responding Party
<br />will have fifteen (15) business days from receipt to provide a
<br />written reply. The reply will contain a response to the
<br />allegations contained in the notice or any agreement to provide
<br />the relief requested. Upon receipt of the reply, the Complaining
<br />Party will provide written notice to the Responding Party either
<br />that the dispute has been resolved satisfactorily or that the
<br />Complaining Party is invoking the escalation procedure set forth
<br />in Section 10.b.
<br />b. Escalation Procedure. In the event that the Parties are
<br />unable to resolve a dispute in the manner described in Section
<br />10.a, each Party agrees to designate a single representative to
<br />attempt to resolve the dispute. Each Party's representative will
<br />be a senior executive who will have all necessary authority to
<br />commit the Party contractually and to resolve the dispute. The
<br />designated representative will meet for a period of time
<br />reasonably necessary to resolve the dispute, at a location to be
<br />mutually agreed upon by the Parties, in an effort to resolve the
<br />dispute.
<br />C. Arbitration. In the event the Parties are unable to resolve
<br />the dispute pursuant to the foregoing, either Party may submit
<br />the dispute to binding arbitration under the rules of the American
<br />Arbitration Association ("AAA") upon written notice to the
<br />other Party. Any such arbitration shall be held in a location
<br />mutually agreed to by the Parties, before a single arbitrator
<br />agreed to by the Parties. In the event the Parties cannot agree on
<br />a single arbitrator, each shall choose an arbitrator and the two
<br />arbitrators shall choose an arbitrator to arbitrate the dispute. The
<br />arbitrator shall award the prevailing Party with its attorney's fees
<br />and costs of arbitration. The arbitrator's decision may be
<br />enforced in any court of competent jurisdiction.
<br />(11) Confidential Information. Each Party acknowledges that it and
<br />its employees or agents may, in the course of the Agreement, be
<br />exposed to or acquire information that is proprietary or confidential to
<br />the other Party.
<br />"Confidential Information" includes: (a) any information relating to a
<br />Parry's research, development, trade secrets, processes, procedures,
<br />formulas, business practices, business plans, strategies, budgets, client
<br />and vendor relationships, personnel data, financial information and
<br />other similar business information of a confidential nature; (b) other
<br />proprietary information, results of remote assessments, technical
<br />guides, technical data or know-how, including, but not limited to, that
<br />which relates to Client's hardware, software, screens, specifications,
<br />designs, plans, drawings, data, prototypes, discoveries, security
<br />policies, passwords, access codes and the like, router, firewall and
<br />other such equipment's configuration information, filtering
<br />configurations, or any other information directly relating to the
<br />integrity or security of the Client network or computer systems; and
<br />(c) the methods, systems, data and materials used or provided by
<br />Provider in the performance of Services pursuant to this Agreement.
<br />Provider acknowledges and agrees that the presence, nature and extent
<br />of any security vulnerabilities and other information that Provider
<br />discovers regarding Client's information systems and networks during
<br />the course of this engagement is Confidential Information of Client.
<br />The term "Confidential Information" does not include information that
<br />is: (a) known to the receiving Party prior to disclosure by the
<br />disclosing Party or its personnel; (b) publicly available through no act
<br />or omission of the receiving Party; (c) lawfully received by the
<br />receiving Party from a third party (other than the disclosing Party's
<br />former or current personnel) that is not under any confidentiality
<br />obligation to the disclosing Party; or (d) comprised of statistical
<br />information, or other aggregated information regarding security
<br />vulnerabilities, security configurations and the like insofar as such
<br />information does not identify Client or Client's computer network or
<br />computer systems.
<br />Except as otherwise expressly set forth herein, each Party will use
<br />Confidential Information of the other Party which is disclosed to it
<br />only for the purposes of this Agreement and will not disclose such
<br />Confidential Information to any third party without the disclosing
<br />Party's prior written consent. Each Party may disclose to its employees
<br />the other Party's Confidential Information on a need -to -know basis in
<br />connection with this engagement. Each Party agrees to take measures
<br />to protect the confidentiality of the other Party's Confidential
<br />Information that, in the aggregate, are no less protective than those
<br />measures it uses to protect the confidentiality of its own Confidential
<br />, "-il
<br />Attacks are inevitable. Defense is imperative. Page 3 of 5
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