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(8) damage to any property of any kind whatsoever and to whomsoever belonging;
<br />(C) any sanctions, penalties, or claims of damages resulting from Contractor's failure to comply, if
<br />applicable, with the requirements set forth in the Health Insurance Portability and Accountability
<br />Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended; or
<br />In the event of concurrent negligence (or intentional/reckless acts) of the County and/or its officers and
<br />employees, on the one hand, and the Contractor and/or its officers, employees, agents, and servants, on
<br />the other hand, then the liability for any and all claims for injuries or damage to persons and/or property
<br />which arise out of terms and conditions of this Agreement shall be apportioned according to the California
<br />theory of comparative fault.
<br />The duty of Contractor to indemnify and save harmless as set forth by this Section shall include the duty
<br />to defend as set forth in Section 2778 of the California Civil Code.
<br />b. Intellectual Prooertv Indemnification
<br />Contractor hereby certifies that it owns, controls, and/or licenses and retains all right, title, and/or interest
<br />in and to any intellectual property it uses in relation to this Agreement, including the design, look, feel,
<br />features, source code, content, and/or other technology relating to any part of the services it provides
<br />under this Agreement and including all related patents, inventions, trademarks, and copyrights, all
<br />applications therefor, and all trade names, service marks, know how, and trade secrets (collectively
<br />referred to as "IP Rights") except as otherwise noted by this Agreement.
<br />Contractor warrants that the services it provides under this Agreement do not infringe, violate, trespass,
<br />or constitute the unauthorized use or misappropriation of any IP Rights of any third party. Contractor shall
<br />defend, indemnify, and hold harmless County from and against all liabilities, costs, damages, losses, and
<br />expenses (including reasonable attorney fees) arising out of or related to any claim by a third party that
<br />the services provided under this Agreement infringe or violate any third -party's IP Rights provided any
<br />such right is enforceable in the United States. Contractor's duty to defend, indemnify, and hold harmless
<br />under this Section applies only provided that: (a) County notifies Contractor promptly in writing of any
<br />notice of any such third -party claim; (b) County cooperates with Contractor, at Contractor's expense, in all
<br />reasonable respects in connection with the investigation and defense of any such third -party claim; (c)
<br />Contractor retains sole control of the defense of any action on any such claim and all negotiations for its
<br />settlement or compromise (provided Contractor shall not have the right to settle any criminal action, suit,
<br />or proceeding without County's prior written consent, not to be unreasonably withheld, and provided
<br />further that any settlement permitted under this Section shall not impose any financial or other obligation
<br />on County, impair any right of County, or contain any stipulation, admission, or acknowledgement of
<br />wrongdoing on the part of County without County's prior written consent, not to be unreasonably
<br />withheld); and (d) should services under this Agreement become, or in Contractor's opinion be likely to
<br />become, the subject of such a claim, or in the event such a third party claim or threatened claim causes
<br />County's reasonable use of the services under this Agreement to be seriously endangered or disrupted,
<br />Contractor shall, at Contractor's option and expense, either: (i) procure for County the right to continue
<br />using the services without infringement or (ii) replace or modify the services so that they become non -
<br />infringing but remain functionally equivalent.
<br />Notwithstanding anything in this Section to the contrary, Contractor will have no obligation or liability to
<br />County under this Section to the extent any otherwise covered claim is based upon: (a) any aspects of
<br />the services under this Agreement which have been modified by or for County (other than modification
<br />performed by, or at the direction of, Contractor) in such a way as to cause the alleged infringement at
<br />iem0Iote VeY IOR AUYWt 26, 2016
<br />REV: 12-02-16 RL
<br />Page 3 of 14
<br />ATTY/AGR.2016.326/SMC STEP Safe Routes 2017-19 RC2020
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