Agmt17 Smart Utility Systems, Inc.

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foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. In the event of a request for information marked by Consultant as Confidential or Proprietary pursuant to Section 5.1 above, the CITY will make reasonable efforts to provide notice to Consultant prior to such disclosure, allowing enough time for Consultant to seek a protective order, injunctive relief, or other appropriate remedy. If Consultant contends that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required at its own cost, liability, and expense to obtain a protective order, injunctive relief or other appropriate remedy from a court having jurisdiction over the matter at least two (2) days before City's deadline to respond to the CPRA request. City shall provide Consultant with all reasonable assistance, at Consultant's expense, in obtaining such protections. If Consultant fails to obtain such a remedy before the deadline for City's response to the CPRA request, City will disclose the requested information and shall not be liable or responsible for such disclosure. Consultant represents, warrants, and agrees that it shall defend, indemnify, and hold City harmless for, from and against any and all claims that result from City's denial of a CPRA request for information caused by Consultant's request for such denial with counsel reasonably acceptable to City. 5.3. Injunction. Recipient agrees that breach of this Article 5 would cause Discloser irreparable injury, for which monetary damages would be inadequate, and in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage. 5.4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 5.2 above will survive the termination of the Agreement. 5.5. Retention of Rights. These Terms and Conditions do not transfer ownership of Confidential Information or grant a license or any other right thereto. Discloser will retain all right, title, and interest in and to all Confidential Information. 6. REPRESENTATIONS & WARRANTIES. 6.1. From Consultant. (a) Re: Function. Consultant represents and warrants that, during the Term, the Software will perform materially in accordance with its Specifications and pursuant to the service level targets in Section 3.2 above. (b) Re: IP Rights in the Software. Subject to the next sentence, Consultant represents and warrants that it owns the Software, and has the power and authority to grant the rights in these Terms and Conditons without the further consent of any third party. Consultant's representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections Page 31 of 38 ATTY/AGR/2017.104/SMART ENERGY SYSTEMS—CUSTOMER WATER USE PORTAL REV: 05-15-17 MI