SMART ENERGY SYSTEMS, INC - FOURTH AMENDMENT (#2024086)

5. Sufficiency of Consultant’s Work. All work product and all other documents prepared by Consultant shall be adequate and sufficient to meet the purposes for which they are prepared. 6. Changes. City may request changes in the scope of services to be provided by Consultant. Any changes and related fees shall be mutually agreed upon between the parties and subject to a written amendment to this Agreement. 7. Consultant’s Status. In performing the obligations set forth in this Agreement, Consultant shall have the status of an independent contractor and Consultant shall not be considered to be an employee of the City for any purpose. All persons working for or under the direction of Consultant are its agents and employees and are not agents or employees of City. 8. Handling of City Data. In the event of a termination of this Agreement, Consultant shall implement an orderly return of City data in a CSV or another mutually agreeable format at a time agreed to by the parties and the subsequent secure disposal of City data. During any period of service suspension, Consultant shall not take any action to intentionally erase any City data for a period of 30 days after the effective date of termination, unless authorized by City. City shall be entitled to any post-termination assistance generally made available with respect to the Services; unless a unique data retrieval arrangement has been established as part of the SLA. Consultant shall securely dispose of all requested data in all of its forms, such as disk, CD/ DVD, backup tape and paper, when requested by City. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to City. 9. Non-Assignability. The Consultant shall not assign, sublet, or transfer this Agreement or any interest or obligation in the Agreement without the prior written consent of the City, and then only upon such terms and conditions as City may set forth in writing. Consultant shall be solely responsible for reimbursing subcontractors. Indemnity and Hold Harmless. Consultant shall defend, indemnify, and hold harmless, the City and its officers, agents and employees from and against all claims, losses, damage, injury, and liability for damages to the extent arising from, or alleged to have arisen from, errors, omissions, negligent or wrongful acts of the Consultant in the performance of its services under this Agreement, regardless of whether the City has reviewed or approved the work or services which has given rise to the claim, loss, damage, injury or liability for damages. Consultant shall defend, indemnify, and hold harmless, the City and its officers, agents and employees from and against all claims, losses, damage, injury, and liability for damages to the extent arising from, or alleged to have arisen from allegation that Consultant’s Software infringes a patent, copyright, or any right of a third party or constitutes misuse or misappropriation of a trade secret or any other right in intellectual property, the Consultant will hold the City harmless and defend such action at Consultant’s own expense. This indemnification shall extend for a reasonable period of time after completion of the project as well as during the period of actual performance of services under this Agreement. The City’s acceptance of the insurance certificates required under this Agreement does not relieve the Consultant from its obligation under this paragraph. 10. Cyber Security Incident. In the event a data breach occurs with respect to City Data, or user accounts, Consultant shall immediately notify the appropriate City contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security DocuSign Envelope ID: 6EE86165-D6F1-4646-9E79-5B5C46F230E7Docusign Envelope ID: 8554268A-3B16-47CD-A583-5329ACD47579