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REV: 08-09-2021 RL
<br />Contractor’s duty to indemnify and save harmless under this Section shall not apply to injuries or
<br />damage for which Customer has been found in a court of competent jurisdiction to be solely liable
<br />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 the duty to
<br />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 interest in and
<br />to any intellectual property it uses in relation to this Agreement, including the design, look, feel, features,
<br />source code, content, and other technology relating to any part of the services it provides under this
<br />Agreement and including all related patents, inventions, trademarks, and copyrights, all applications
<br />therefor, and all trade names, service marks, know how, and trade secrets (collectively referred to as “IP
<br />Rights”) except as otherwise noted by this Agreement. Contractor warrants that the services it provides
<br />under this Agreement do not infringe, violate, trespass, or constitute the unauthorized use or
<br />misappropriation of any IP Rights of any third party. Contractor shall defend, indemnify, and hold harmless
<br />Customer from and against all liabilities, costs, damages, losses, and expenses (including reasonable
<br />attorney fees) 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 in the United
<br />States. Contractor’s duty to defend, indemnify, and hold harmless under this Section applies only provided
<br />that: (a) Customer notifies Contractor promptly in writing of any notice of any such third-party claim; (b)
<br />Customer cooperates with Contractor, at Contractor’s expense, in all reasonable respects in connection
<br />with the investigation and defense of any such third-party claim; (c) Contractor retains sole control of the
<br />defense of any action on any such claim and all negotiations for its settlement or compromise (provided
<br />Contractor shall not have the right to settle any criminal action, suit, or proceeding without Customer’s prior
<br />written consent, not to be unreasonably withheld, and provided further that any settlement permitted under
<br />this Section shall not impose any financial or other obligation on Customer, impair any right of Customer,
<br />or contain any stipulation, admission, or acknowledgement of wrongdoing on the part of Customer without
<br />Customer’s prior written consent, not to be unreasonably withheld); and (d) should services under this
<br />Agreement 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 Customer’s reasonable use of the services under
<br />this Agreement to be seriously endangered or disrupted, Contractor shall, at Contractor’s option and
<br />expense, either: (i) procure for Customer the right to continue using the services without infringement or
<br />(ii) replace or modify the services so that they become non-infringing but remain functionally equivalent.
<br />Notwithstanding anything in this Section to the contrary, Contractor will have no obligation or liability to
<br />Customer 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 Customer (other than modification
<br />performed by, or at the direction of, Contractor) in such a way as to cause the alleged infringement at issue;
<br />and/or (b) any aspects of the services under this Agreement which have been used by Customer in a
<br />manner prohibited by this Agreement.
<br />The duty of Contractor to indemnify and save harmless as set forth by this Section shall include the duty to
<br />defend as set forth in Section 2778 of the California Civil Code.
<br />9. Assignability and Subcontracting
<br />Contractor shall not assign this Agreement or any portion of it to a third party or subcontract with a third
<br />party to provide services required by Contractor under this Agreement without the prior written consent of
<br />Customer. Any such assignment or subcontract without Customer’s prior written consent shall give
<br />Customer the right to automatically and immediately terminate this Agreement without penalty or advance
<br />notice.
<br />ATTY/AGR.2021.211/Turbo Data Systems, Inc. (Page 3 of 23)
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