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Contract Template <$200,000
<br />May 2021
<br />REV: 09-22-22 VR
<br />(C) any sanctions, penalties, or claims of damages resulting from party’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 />(D) any other loss or cost, including but not limited to that caused by the concurrent active or
<br />passive negligence of one of the parties and/or its officers, agents, employees, or servants.
<br />However, party’s duty to indemnify and save harmless under this Section shall not apply to injuries
<br />or damage for which party has been found in a court of competent jurisdiction to be solely liable by
<br />reason of its own negligence or willful misconduct.
<br />The duty of party to indemnify and save harmless as set forth by this Section shall include the duty to defend
<br />as set forth in Section 2778 of the California Civil Code.
<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 />and/or (b) any aspects of the services under this Agreement which have been used by County in a manner
<br />prohibited by this Agreement.
<br />ATTY/AGR.2022.201/County of San Mateo (Page 3 of 20)
<br />DocuSign Envelope ID: 48103F1F-8EC3-4EF4-AA5B-D8465A300A24
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