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(D) any other loss or cost, including but not limited to that caused by the concurrent
<br /> active or passive negligence of City and/or its officers, agents, employees, or servants.
<br /> However, Contractor's duty to indemnify and save harmless under this Section shall not
<br /> apply to injuries or damage for which City has been found in a court of competent
<br /> jurisdiction to be solely liable by reason of its own negligence or willful misconduct.
<br /> The duty of Contractor to indemnify and save harmless as set forth by this Section shall include
<br /> the duty to defend as set forth in Section 2778 of the California Civil Code.
<br /> b. Intellectual Proaertv Indemnification
<br /> Contractor hereby certifies that it owns, controls, or licenses and retains all right, title, and
<br /> interest in and to any intellectual property it uses in relation to this Agreement, including the
<br /> design, look, feel, features, source code, content, and other technology relating to any part of
<br /> the services it provides under this Agreement and including all related patents, inventions,
<br /> trademarks, and copyrights, all applications therefor, and all trade names, service marks, know
<br /> how, and trade secrets (collectively referred to as "IP Rights") except as otherwise noted by this
<br /> Agreement. Contractor warrants that the services it provides under this Agreement do not
<br /> infringe, violate, trespass, or constitute the unauthorized use or misappropriation of any IP
<br /> Rights of any third party. Contractor shall defend, indemnify, and hold harmless City from and
<br /> against all liabilities, costs, damages, losses, and expenses (including reasonable attorney fees)
<br /> arising out of or related to any claim by a third party that the services provided under this
<br /> Agreement infringe or violate any third-party's IP Rights provided any such right is enforceable
<br /> in the United States. Contractor's duty to defend, indemnify, and hold harmless under this
<br /> Section applies only provided that: (a) City notifies Contractor promptly in writing of any notice
<br /> of any such third-party claim; (b) City cooperates with Contractor, at Contractor's expense, in all
<br /> reasonable respects in connection with the investigation and defense of any such third-party
<br /> claim; (c) Contractor retains sole control of the defense of any action on any such claim and all
<br /> negotiations for its settlement or compromise (provided Contractor shall not have the right to
<br /> settle any criminal action, suit, or proceeding without City's prior written consent, not to be
<br /> unreasonably withheld, and provided further that any settlement permitted under this Section
<br /> shall not impose any financial or other obligation on City, impair any right of City, or contain any
<br /> stipulation, admission, or acknowledgement of wrongdoing on the part of City without City's prior
<br /> written consent, not to be unreasonably withheld); and (d) should services under this Agreement
<br /> become, or in Contractor's opinion be likely to become, the subject of such a claim, or in the
<br /> event such a third party claim or threatened claim causes City's reasonable use of the services
<br /> under this Agreement to be seriously endangered or disrupted, Contractor shall, at Contractor's
<br /> option and expense, either: (i) procure for City the right to continue using the services without
<br /> infringement or (ii) replace or modify the services so that they become non-infringing but remain
<br /> functionally equivalent.
<br /> Notwithstanding anything in this Section to the contrary, Contractor will have no obligation or
<br /> liability to City under this Section to the extent any otherwise covered claim is based upon: (a)
<br /> any aspects of the services under this Agreement which have been modified by or for City
<br /> (other than modification performed by, or at the direction of, Contractor) in such a way as to
<br /> ATTY/AGR/2015.079/TURBO DATA AGREEMENT
<br /> REV:05-01-15 ML6
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