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7.1.B. - Page 6 <br /> any claim by a third party that the services provided under this Agreement infringe or <br /> violate any third - party's IP Rights provided any such right is enforceable in the United <br /> States. Contractor's duty to defend, indemnify, and hold harmless under this Section <br /> applies only provided that: (a) County notifies Contractor promptly in writing of any <br /> notice of any such third -party claim; (b) County cooperates with Contractor, at <br /> Contractor's expense, in all reasonable respects in connection with the investigation <br /> and defense of any such third -party claim; (c) Contractor retains sole control of the <br /> defense of any action on any such claim and all negotiations for its settlement or <br /> compromise (provided Contractor shall not have the right to settle any criminal action, <br /> suit, or proceeding without County's prior written consent, not to be unreasonably <br /> withheld, and provided further that any settlement permitted under this Section shall <br /> not impose any financial or other obligation on County, impair any right of County, or <br /> contain any stipulation, admission, or acknowledgement of wrongdoing on the part of <br /> County without County's prior written consent, not to be unreasonably withheld); and <br /> (d) should services under this Agreement become, or in Contractor's opinion be likely <br /> to become, the subject of such a claim, or in the event such a third party claim or <br /> threatened claim causes County's reasonable use of the services under this <br /> Agreement to be seriously endangered or disrupted, Contractor shall, at Contractor's <br /> 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 <br /> non infringing but remain functionally equivalent. <br /> Notwithstanding anything in this Section to the contrary, Contractor will have no <br /> obligation or liability to County under this Section to the extent any otherwise covered <br /> claim is based upon: (a) any aspects of the services under this Agreement which have <br /> been modified by or for County (other than modification performed by, or at the <br /> direction of, Contractor) in such a way as to cause the alleged infringement at issue; <br /> (b) any aspects of the services under this Agreement which have been used by County <br /> in a manner prohibited by this Agreement. <br /> The duty of Contractor to indemnify and save harmless as set forth by this Section <br /> shall include the duty to defend as set forth in Section 2778 of the California Civil Code. <br /> 8. Assignability and Subcontracting <br /> Contractor shall not assign this Agreement or any portion thereof to a third party or <br /> subcontract with a third party to provide services required by Contractor under this <br /> Agreement without the prior written consent of County. Any such assignment or <br /> subcontract without County's prior written consent shall give County the right to <br /> automatically and immediately terminate this Agreement. <br /> ATTY /AGR/2013.241/RC 2020 - SM COUNTY <br /> REV: 12 -06 -13 MLG <br /> Page 4 of 26 <br />