Agtm22 Packet Fusion, Inc. ( MITEL)

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REV: 01-20-2022 RL upgrade the Equipment into good and maintainable condition may be invoice separate to this Agreement. At Customer’s sole election, the Company shall perform any such necessary work at prevailing Company’s T&M Rates. j.Documentation and Record Access: All relevant documentation and records needed to perform the Support Services on the Equipment, which may include information relating to the equipment, cable plant and relevant software shall be made available to Company for inspection prior to the commencement of the Support Services under this SA. Work determined to be necessary to bring such records into good and usable condition must be completed prior to the commencement of Support Services under this SA. At Customer’s sole election, the Company shall perform any such necessary work at the prevailing Company’s T&M Rates. k. Additional Work: When Customer requests services outside the scope of this SA, Company will utilize its commercially reasonable best efforts to provide such services in a timely manner at the Company’s T&M Rates. l.Premature Termination and Default: Upon and during a Customer Default as defined in this subsection, Company in its sole discretion may suspend Support Services and other services it provides under this SA, and/or bill for Support Services at then-applicable T&M Rates for such services performed, and/or suspend all credit and perform on a cash- only basis, and/or pursue any other legal or equitable remedies available. i. A “Customer Default” includes: 1. Customer’s failure to meet any undisputed payment obligation under this SA or any other agreement between Company and Customer, which failure continues for ten (10) business days after date of written notice of such failure, or 2. Customer’s failure to perform any other material condition or material obligation under this SA or any other agreement between Company and Customer, which failure continues for thirty (30) days after date of written notice specifying the nature of such failure and Customer then fails to continue to diligently cure such failure. If Company terminates this SA under this subsection, Customer shall be liable for any and all outstanding charges up to the date of termination. m.Customer Cancellation: Customer may cancel this SA for any reason at any time upon providing Company thirty (30) days advance written notice of intent to terminate this SA. IV. Indemnification a. Consultant will defend, indemnify and hold harmless (collectively “Indemnify”) City and its officers, boards and commissions, agents, employees and volunteers (collectively “Indemnitees”) from and against all claims, damages, losses and expenses including attorney fees (collectively “Losses”) arising out of the performance of the Services, caused or claimed to be caused by the acts, errors and/or omissions of Consultant, or any Consultant Personnel or anyone for whose acts any of them may be liable (collectively, “Responsible Parties”). Consultant’s responsibilities under this Section IV include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of City, which may be in combination with the acts or omissions of any Responsible Party, provided that Consultant’s duty to Indemnify will not include any Losses arising from the sole negligence or willful misconduct of City. b. Notwithstanding Consultant’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from Consultant, if City chooses to do so. c. Consultant agrees to pay any and all costs City incurs enforcing the provisions set forth in this Section IV. d. Subsection (IV)(a) notwithstanding, in accordance with California Civil Code Section 1668, as amended, nothing in this Agreement will be construed to exempt the City from its own fraud, willful injury to the person or property of another, or violation of law. Nothing contained in this Agreement will be construed to require Consultant to Indemnify Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8, as amended. To the extent this Agreement is a “construction contract” as defined by California Civil Code section 2783, as amended, such duties of Consultant to indemnify will not apply when to do so would be prohibited by California Civil Code Section 2782 as amended. e. The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation plan is included as a loss, expense or cost for the purposes of this Section IV. f. Acceptance by City of Consultant’s services and duties will not operate as a waiver of City’s rights under this Section IV. g. The parties expressly agree that this Section IV will survive the expiration or early termination of the Agreement. h. Company shall not be liable for any loss, cost, expense, or damages resulting from unauthorized calls made by Customer using the Equipment, or other fraudulent activities by Customer from Equipment, except where the ATTY/AGR.2022.006/Packet Fusion (Page 9 of 11)