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Contract Template <,000
<br />May 2021
<br /> Page 3
<br />REV: 06-16-22 SK
<br />City shall defend, save harmless and indemnify the County and its officers, employees, agents and servants
<br />from any and all claims, suits, or actions of every name, kind, and description brought by a third party which
<br />arise out of the terms and conditions of this Agreement and which result from the acts or omissions of
<br />Contractor and/or their officers, employees, agents and servants.
<br />The duty of each party to defend, hold harmless, and indemnify the other as set forth herein shall include
<br />the duty to defend as set forth in Section 2778 of the California Civil Code.
<br />In the event of concurrent negligence (or intentional/reckless acts) of Contractor or their officers,
<br />employees, agents, and servants, on the one hand, and the County or its officers, employees, agents and
<br />servants, on the other hand, then the liability for any and all claims for injuries or damage to persons and/or
<br />property which arise out of terms and conditions of this Agreement shall be apportioned according to the
<br />California theory of comparative fault.
<br />b. Intellectual Property 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 under
<br />this 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.
<br />Contractor warrants that the services it provides under this Agreement do not infringe, violate, trespass, or
<br />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 the
<br />services provided under this Agreement infringe or violate any third-party’s IP Rights provided any such
<br />right is enforceable in the United States. Contractor’s duty to defend, indemnify, and hold harmless under
<br />this Section applies only provided that: (a) County notifies Contractor promptly in writing of any notice of
<br />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, or
<br />proceeding without County’s prior written consent, not to be unreasonably withheld, and provided further
<br />that any settlement permitted under this Section shall not impose any financial or other obligation on
<br />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 withheld);
<br />and (d) should services under this Agreement become, or in Contractor’s opinion be likely to become, the
<br />subject of such a claim, or in the event such a third party claim or threatened claim causes County’s
<br />reasonable use of the services under this Agreement to be seriously endangered or disrupted, Contractor
<br />shall, at Contractor’s option and expense, either: (i) procure for County the right to continue using the
<br />services without infringement or (ii) replace or modify the services so that they become non-infringing but
<br />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 the
<br />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 issue;
<br />ATTY/AGR.2022.153/County of San Mateo (HSA Contract June 2022) (Page 3 of 37)
<br />DocuSign Envelope ID: F5FF63A3-8103-4442-8F5F-F37301405123
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