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REV: 03-27-25 MI alleging that the Services when used by the City as authorized in this Agreement, infringes a third-party’s patent, copyright, trademark, or trade secret and (b) arising out of the t gross negligence or willful misconduct of Consultant, or any Consultant Personnel (collectively, “Responsible Parties”). Consultant’s responsibilities under this Section 11 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of City, which may be in combination with the acts or omissions of any Responsible Party, provided that Consultant’s duty to Indemnify will not include any Losses arising from the sole negligence or willful misconduct of City. In response to an actual or potential infringement claim, if required by settlement or injunction or as Consultant determines necessary to avoid material liability, Consultant may, at its option and expense, either (a) procure for City the right to continue using the Services, (b) replace or modify the Services so that it becomes non-infringing, or (c) terminate this Agreement; provided, in the case of clause (a) and (b), that Consultant shall cause to maintain substantially the same functionality and performance. Notwithstanding the foregoing, Consultant shall have no obligation to indemnify under this Section to the extent such infringement or misappropriation claim is based on (x) use of the Services by City not in accordance with this Agreement, (y) use of the Services in combination with other products, equipment, or software not supplied or approved of by Consultant, or (z) any modification of the Services made by any person other than Consultant or its representatives or agents, and, in each case, provided that such infringement or misappropriation would not have occurred but for the acts described in clauses (x), (y) and (z). THIS SECTION STATES CONSULTANT’S ENTIRE LIABILITY AND CITY’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS. 11.2. Notwithstanding Consultant’s obligation to defend City hereunder, City has the right to conduct its own defense, at the City’s cost and, if City chooses to do so. 11.3. Consultant agrees to pay all reasonable costs City incurs enforcing the provisions set forth in this Section 11. 11.4 Subsection 11.1 notwithstanding, in accordance with California Civil Code Section 1668, as amended, nothing in this Agreement will be construed to exempt the City from its own fraud, willful injury to the person or property of another, or violation of law. 11.5. Nothing contained in this Agreement will be construed to require Consultant to Indemnify Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8, as amended. To the extent this Agreement is a “construction contract” as defined by California Civil Code section 2783, as amended, such duties of Consultant to indemnify will not apply when to do so would be prohibited by California Civil Code Section 2782 as amended. ATTY/AGR.2025.049/Invoice Cloud (Page 4 of 39)