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Page 32 of 38 ATTY/AGR/2017.104/SMART ENERGY SYSTEMS – CUSTOMER WATER USE PORTAL REV: 05-15-17 MI 10.2(a) through (e) of the Agreement. In the event of a breach of the warranty in this Subsection 6.1(b), Consultant, at its own expense, will promptly take the following actions: (i) secure for City the right to continue using the Software; (ii) replace or modify the Software to make it non-infringing, provided such modification or replacement will not materially degrade any functionality listed in the Specifications; or (iii) refund the prorated SaaS subscription Fee paid for the Software for every month remaining in the Term, following the date after which City is required to cease use of the Software. In conjunction with City’s right to terminate for breach where applicable and the provisions of Section 10.2 of the Agreement (Indemnified IP Claims), the preceding sentence states Consultant’s sole obligation and liability, and City’s sole remedy, for breach of the warranty in this Subsection 6.1(b) and for potential or actual infringement by the Software. 6.2. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required hereunder. 6.3. Warranty Disclaimers. Except for the express warranties in Sections 6.1 and 6.2 above, CONSULTANT MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Consultant does not warrant that the Software will perform without error or that it will run without immaterial interruption. Consultant provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Consultant, unless Consultant approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized or specifically forbidden in the Specifications or Documentation or with hardware or software. 7. TERMINATION. 7.1. Effects of Termination. Upon termination of the Agreement, City shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions of these Terms and Conditions will survive termination or expiration of the Agreement: (a) any obligation of City to pay fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Software Rights) 4 (IP & Feedback), 5 (Confidential Information), 6.3 (Warranty Disclaimers), and (c) any other provision herein that must survive to fulfill its essential purpose. 8. MISCELLANEOUS. 8.1. Force Majeure. No delay, failure, or default, other than a failure to pay fees, will constitute a breach of the Agreement to the extent caused by acts of war; terrorism, excluding cyber- terrorism; embargoes, or other causes beyond the performing party’s reasonable control. 8.2. Background Checks. Consultant shall conduct criminal background checks and not utilize any 6.1.E. - Page 35