Agmt15 IPS Group, Inc. Parking Meter Field Trial

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IPS Parking Meter Field Trial Agreement Furthermore, notwithstanding the forgoing, to the extent this Agreement is a construction contract as defined by California Civil Code section 2783, as may be amended from time to time, such duties of IPS to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. Nothing herein contained in this Agreement shall be construed to require IPS to indemnify Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8. The Parties expressly agree that any reasonable payment, attomey'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 is included as a Liability for the purposes of this section. Notwithstanding anytime contained herein to the contrary, except for indemnification of third party claims, IPS shall not be responsible to CITY for any indirect loss, loss of profits or any consequential loss of any nature. Further, without restricting the generality of the foregoing, IPS agrees to, at its expense, defend and/or settle any claim made by a third party against CITY alleging that the IPS-owned metering technology ("IPS Technology") infringes such third party's United States patent, copyright, trademark or trade secret (an "IP Claim"), and pay those amounts finally awarded by a court of competent jurisdiction against CITY (including damages, interest, losses, costs and expenses including attomeys' fees) or payable pursuant to a settlement agreed to by IPS with respect to such IP Claim, provided that CITY provides IPS with (i) prompt written notice of the IP Claim, except that any failure to provide this notice promptly only relieves IPS of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay, (ii) sole control over the defense and settlement of the IP Claim, provided that IPS 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 IPS under this Section) without CITY's prior written consent, not to be unreasonably withheld, delayed or conditioned; and (iii) all assistance, information and authority reasonably requested by IPS for the defense and/or settlement of the IP Claim. IPS shall have no obligation with respect to any claim arising out of or relating to: (x) any unauthorized use, distribution or display of the IPS Technology; (y) any modifications to the IPS Technology not authorized or made by IPS; or (z) any combination of the IPS Technology with any third party hardware, software, service or technology if such claim would not have arisen but for such combination. If IPS, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then IPS may, at its expense, (a) obtain a license from such third party claimant that allows for continued operation of the IPS Technology, (b) modify the IPS Technology so as to be non- infringing, or (c) if neither (a) nor (b) is available to IPS at a commercially reasonable terms, terminate this Agreement upon written notice to CITY. ATTY/AGR.2015.184/IPS Group, InC. Page 6 of 8 REV:08-20-15 VR