Item HA3 - Agreement with Iron Mountain, LLC

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8.INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION Consultant shall defend and indemnify the City from and against any third party claim, demand, action or suit brought against City alleging that the services performed under this Agreement by Consultant infringe the patent, trade secret, copyright or other valid intellectual property right of such third party and, as Consultant’s sole obligation and City’s sole and exclusive remedy, Consultant shall pay for the cost of defense and any amount finally awarded in any judgment rendered against City by a court of competent jurisdiction. The foregoing Obligations of Iron Mountain are conditional upon the duty of City to provide Consultant with prompt written notice of any such claim, suit or demand. City hereby consents and authorizes Consultant to have and maintain the sole control of the defense of any resulting litigation or settlement thereof. Consultant shall have no liability or obligation to City with respect to any claim of infringement or misappropriation in the event and to the extent based upon (i) use of or access to the services in or from an application or environment or on a platform or with devices not authorized in the applicable Consultant published documentation or other requirements specified under this Agreement, (ii) modifications, alterations, combinations or enhancements of the services not created by Consultant or (iii) any patent, copyright, or trade secret in which City has an interest. The foregoing indemnification obligations shall not apply in the event and to the extent that the claim or demand arises as a result of City’s negligence, intentional misconduct, or failure to use the services in accordance with applicable documentation or breach of this Agreement. If any services are held, or in the Consultant’s reasonable opinion could be held, to constitute an infringement or misappropriation of any third party’s intellectual property rights, Consultant may at its option (a) procure the right for City to continue using or accessing the services, (b) replace the services with a non-infringing equivalent service or (c) modify the services to make them non-infringing and without substantially compromising their functionality. This paragraph states Consultant’s entire obligation to City and City’s sole and exclusive remedy with respect to any claims of infringement or misappropriation. 9.RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the invoices rendered under this Agreement for any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records during regular business hours and upon five business days’ notice. 10.CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like Page 5 of 11 #329503v1