Agmt17 Smart Utility Systems, Inc.

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has been a data breach. The Consultant shall (1) cooperate with the City as reasonably requested by the City to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the data breach, including any post -incident review of events and actions taken to make changes in business practices in providing the services, if necessary. c. Unless otherwise stipulated, if a data breach is a direct result of the Consultant's breach of its contract obligation to encrypt personal data or otherwise prevent its release, the Consultant shall bear the costs associated with (1) the investigation and resolution of the data breach; (2) notifications to individuals, regulators or others required by state law; (3) a credit monitoring service required by state (or federal) law; (4) a website or a toll-free number and call center for affected individuals required by state law — all not to exceed the average per record per person cost calculated for data breaches in the United States (currently $201 per record/person) in the most recent Cost of Data Breach Study: Global Analysis published by the Ponemon Institute17 at the time of the data breach; and (5) complete all corrective actions as reasonably determined by Consultant based on root cause; all [(1) through (5)] subject to this contract's limitation of liability. 5. CONFIDENTIAL INFORMATION. 5.1. Confidential Information Defined. "Confidential Information" refers to the following types of material or content one party to the Agreement ("Discloser') discloses to the other ("Recipient"): (a) any information Discloser marks or designates as "Confidential" at the time of disclosure and (b) information collected and stored by Consultant that is obtained from City's customers or the use by City's customers or the Software. Consultant acknowledges that City is a public agency subject to the disclosure requirements of the California Public Records Act ("CPRA"). If confidential information is contained in documents submitted by Consultant to City Consultant must clearly mark such information "CONFIDENTIAL" or "PROPRIETARY," and identify the specific lines containing the confidential information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is rightfully obtained by Recipient from a third party without breach of any confidentiality obligations. 5.2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the Agreement (the "Purpose"). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 5; and (b) shall not disclose Confidential Information to any third party without Discloser's prior written consent. Notwithstanding the Page 30 of 38 ATTY/AGR/2017.104/SMART ENERGY SYSTEMS — CUSTOMER WATER USE PORTAL REV: 05-15-17 MI