10-10-11 Regular Meeting of La Porte City Council

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DIR Contract No. DIR -SDD -890 20. Appendix A, Section 9.A., Indemnification is hereby restated in its entirety as follows: A. Indemnification 1) Acts or Omissions Vendor shall indemnify and hold harmless the State of Texas and Customers, AND /OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, and that result in personal injury or damage to physical property resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, in the execution or performance of the Contract and any Purchase Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. 2) Infringements a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND /OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, from any and all third -party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights for Vendor branded products or Vendor provided services in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR and the CUSTOMER agree to furnish timely written notice to each other of any such claim. VENDOR AGREES TO DEFEND AGAINST ANY AND ALL THIRD PARTY CLAIMS WITH REGARDS TO VENDOR — BRANDED PRODUCT OR SERVICES, AT VENDOR'S EXPENSE, WHETHER OR NOT SUCH CLAIMS BECOME THE SUBJECT OF LITIGATION SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS' FEES PROVIDED THAT CUSTOMER (i) NOTIFIES VENDOR PROMPTLY OF SUCH CLAIM (ii) GRANTS VENDOR CONTROL OVER THE DEFENSE AND SETTLEMENT THEREOF AND (iii) REASONABLY COOPERATES IN RESPONSE TO VENDOR'S REQUEST FOR ASSISTANCE. The defense shall be coordinated by the Office of the Attorney General FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. b) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with timely notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non - infringing or (iii) accept return of the Product freight collect and provide a reasonably depreciated refund for the Product. Page 11 of 15