Agmt17 Smart Utility Systems, Inc.

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of, related to, or alleging infringement of any patent, trademark, copyright, trade secret, or other intellectual property right by the Software. Consultant's obligations set forth in this Section 10.2 will not apply to the extent that an Indemnified IP Claim arises out of: (a) City's breach of this Agreement; (b) revisions to the Software made by City without Consultant's written consent; (c) City's failure to incorporate Upgrades that would have avoided the alleged infringement, provided Consultant offered such Upgrades without charges not otherwise required pursuant to this Agreement and alerted City that the update was required to avoid infringement; (d) unauthorized use of the software by third parties; or (e) use of the Software by City with hardware or software not provided by or approved of by Consultant. Consultant's obligations pursuant to Section 10.2 will be excused to the extent that City's or any of City's Associates' failure to provide prompt notice of the Indemnified IP Claim or reasonably to cooperate materially prejudices the defense. Consultant will control the defense of any Indemnified IP Claim, including appeals, negotiations, and any settlement or compromise thereof; provided that Consultant will not admit fault by City or agree to any settlement that would impose obligations or restrictions on City (other than payment of sums which would be paid by Consultant under this Section) without City's prior written consent, not to be unreasonably withheld, delayed or conditioned City. The parties expressly agree that this section shall survive the expiration or early termination of the Agreement. 11. Insurance. Consultant shall obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the Services by Consultant or Consultant's agents, representatives, employees or subcontractors. The insurance carrier is required to maintain an A.M. Best rating of not less than "A-: VII". 11.1 Coveraaes and Limits. Consultant, at its sole expense, shall maintain the types of coverages and minimum limits indicated below, unless otherwise approved by City in writing. These minimum amounts of coverage will not constitute any limitations or cap on Consultant's indemnification obligations under this Agreement. 11.1.1 Commercial General Liabilitv Insurance. Consultant shall maintain occurrence based coverage with limits not less than $2,000,000 per occurrence. If the submitted policies contain aggregate limits, such limits will apply separately to the Services, project, or location that is the subject of this Agreement or the aggregate will be twice the required per occurrence limit. The Commercial General Liability insurance policy shall be endorsed to name the City, its officers, agents, employees and volunteers as additional insureds, and to state that the insurance will be primary and not contribute with any insurance or self-insurance maintained by the City. Page 4 of 38 ATTY/AGR/2017.104/SMART ENERGY SYSTEMS—CUSTOMER WATER USE PORTAL REV: 05-15-17 MI