|
6.A. - Page 7 of 22
<br />(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 Property 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/TU RBO DATA AGREEMENT
<br />REV: 05-01-15 MLG
<br />Page 3 of Z8
<br />14
<br />
|