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In addition to the general indemnification provided above, Consultant, at its own expense, will also specifically protect, defend and hold harmless City, its officers, employees, agents, and volunteers against any action brought against them based on any claim that any software of the Consultant infringed a United States patent, copyright, trademark or service mark provided that (a) City promptly notify Consultant in writing of any notice of such claim; (b) Consultant shall have the control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided, however, that Consultant shall not have any authority to negotiate any judgments for liability against the City; and (c) the City shall permit Consultant, at ConsultanYs option and expense, either to procure for the City the right to continue using the software or modify the software so that it becomes non-infringing. 12) Warranties. With respect to the software of Consultant, Consultant warrants that: a) It may lawfully grant any and all licenses for any software or programs necessary to perform the work contracted by this Agreement. Where the terms of any license agreements conflict with the terms of this Technical Services Consulting Agreement, this Agreement shall control. b) Neither the licensed materials, nor the use thereof, infringes a patent or copyright or is claimed to be a trade secret of any person or entity who has not consented to the granting of a license; c) At the time of development, and for so long thereafter as City pays maintenance fees hereunder, the web based system, including all subsequent versions, updates, enhancements and/or releases, will conform to applicable printed documentation (i.e., all reference manuals) delivered by Consultant to the City; d) Neither the web based system, including all subsequent versions, updates, enhancements and/or releases, nor the licensed materials contain any virus, time bomb mechanism or other software or code that can disable or adversely affect any and all of the software or the licensed materials or destroy any data or other software. 13) Professional Licenses. If a license of any kind, which term is intended to include evidence of registration, is required of Consultant, its employees, agents or subcontractors by federal or state law, Consultant warrants that such license has been obtained, is valid and in good standing, and Consultant shall keep it in effect at all times during the term of this Agreement, and that any applicable bond has been posted in accordance with all applicable laws and regulations. ATTY/AGR/2011.075/CDS SERVICES AGREEMENT 083011 6