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6.2.C. - Page 8
<br />9. Hold Harmless.
<br />9.1 Contractor shall, to the fullest extent allowed by law, with respect to all
<br />services performed in connection with this Agreement, defend with counsel acceptable to City,
<br />indemnify, and hold City, its officers, employees, agents, and volunteers, harmless from and
<br />against any and all claims that arise out of, pertain to, or relate to the negligence, recklessness, or
<br />willful misconduct of the Contractor, any subcontractor, or anyone directly or indirectly
<br />employed by any of them or anyone for whose acts any of them may be liable ("Claims").
<br />Contractor will bear all losses, costs, damages, expense and liability of every kind, nature and
<br />description, including attorneys' fees, experts fees, court costs and disbursements, that arise out
<br />of, pertain to, or relate to such Claims, whether directly or indirectly ("Liability"). Such
<br />obligations to defend, hold harmless and indemnify the City shall not apply to the extent that
<br />such Liability is caused by the sole negligence or willful misconduct of the City.
<br />9.2 Infringement Indemnity.
<br />9.2.1 Without limiting the generality of Section 9.1, Contractor will
<br />defend or settle any action brought against City by a third party to the extent that
<br />it is based upon a claim that any equipment, hardware, software or other
<br />technology provided or licensed to City by , as provided by Contractor or any
<br />subcontractor to City under this Agreement and used within the scope of this
<br />Agreement, infringes any third -party intellectual property rights, including,
<br />without limitation, patent, trademark, copyright, or misappropriations of any trade
<br />secret of such third party, and will pay any costs, damages, interest, losses,
<br />expenses, and reasonable attorneys' fees attributable to such claim that are
<br />awarded against City, provided that City: (a) promptly notifies Contractor in
<br />writing of the claim, except that any failure to provide this notice promptly only
<br />relieves Contractor of its responsibility pursuant to this section to the extent its
<br />defense is materially prejudiced by the delay; (b) grants Contractor sole control of
<br />the defense and settlement of the claim (unless the terms and conditions of such
<br />settlement create duties or obligations on the part of City or involve an admission
<br />of fault by the City, in which case City's approval shall be required); and
<br />(c) provides Contractor, at Contractor's expense, with all assistance, information
<br />and authority reasonably required for the defense and settlement of the claim.
<br />9.2.2 Iniunctions. If City's use of any of the Software hercunder is, or in
<br />Contractor's opinion is likely to be, enjoined due to the type of claim
<br />specified in Section 9.2.1 above, Contractor shall, at its sole option and
<br />expense: (a) procure for City the right to continue using such Software
<br />under the terms of this Agreement; (b) provide a replacement or modified
<br />version of such Software that is non -infringing and substantially
<br />equivalent in function to the enjoined Software; or (c) if options (a) or (b)
<br />above cannot be accomplished despite Contractor's best reasonable
<br />efforts, then Contractor may terminate City's rights and Contractor's
<br />obligations hereunder with respect to such Software and refund to City the
<br />fees paid hereunder and remove all equipment provided hereunder at
<br />Contractor's sole cost and expense, provided that City may choose to
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<br />ATTY/AGR/2016.082/ViMOC TECHNOLOGIES INC
<br />RFV: 04-22-16 J5
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