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REV: 12-08-2022 RL <br />negligent conduct, whether active or passive, on the part of Vendor or of anyone <br />employed by or working under Vendor. Losses will include, without limitation, allegations <br />that the Goods are defective in manufacture or design and allegations that the Goods or <br />Services infringe any patent or other intellectual property right belonging to a third party. <br />Vendor will promptly defend the Indemnitees pursuant to this Section, whether or not <br />applicable claims, allegations, lawsuits or proceedings (collectively, “Proceedings”) have <br />merit or are meritless, and whether or not such Proceedings involve claims or allegations <br />that any of the Indemnitees were actively, passively or concurrently negligent, or which <br />otherwise assert that the Indemnitees are responsible, in whole or in part, for any loss, <br />damage or injury. Vendor agrees to provide this defense immediately upon written notice <br />from City, and with well qualified, adequately insured and experienced legal counsel <br />acceptable to City. <br />The Parties expressly agree that any payment, attorneys’ fees, costs or expense that City <br />incurs or makes to or on behalf of an injured employee under City’s self-administered <br />workers’ compensation is included as a loss, expense or cost for the purposes of this <br />Section, and that this Section will survive the expiration or early termination of the <br />Agreement. <br />Without limiting the generality of the forgoing, Vendor shall defend the Indemnified Parties <br />from and against any claim, suit, or action (an “Infringement Claim”) by a third party that <br />is based upon an allegation that any product or service, including, without limitation, the <br />Software Service, any Software, technology or any other product or content made <br />available to the Indemnified Parties by Vendor and/or Bank, infringes or otherwise violates <br />the intellectual property rights of such third party. Vendor shall also indemnify and hold <br />harmless the Indemnified Parties from and against any final award of damages or <br />settlement amounts for release of liability from any such Infringement Claim. In addition, <br />if an Infringement Claim is made, or if Vendor has reason to believe such a claim may be <br />made, Vendor may replace or modify the relevant products or services to make them non- <br />infringing, or procure a license for City under the rights allegedly infringed. If none of the <br />options described in the preceding sentence is available to Vendor using commercially <br />reasonable efforts, then Vendor may terminate this Purchase Agreement and refund to <br />City a pro rata portion of any fees paid in advance for the Services for the terminated <br />portion of the term. Vendor shall have no liability under this subsection with respect to <br />any use or other exploitation of the Services not in compliance with this Purchase <br />Agreement or applicable law. This subsection states Vendor’s sole liability to, and City’s <br />exclusive remedy, under this Purchase Agreement with respect to infringement or other <br />violation of third party intellectual property rights. Vendor shall not settle any Claim or <br />Infringement Claim without the prior written approval of City, which approval may be <br />unreasonably withheld or delayed. <br />ATTY/AGR.2022.422/EleMech, Inc. (Page 6 of 15)