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legal counsel in the defense thereof. <br />TriTech may in its discretion (i) contest, <br />(ii) settle, (iii) procure for City the right <br />to continue using the TriTech Application, or <br />(iv) modify or replace the TriTech <br />Application so that it no longer infringes <br />(as long as the functionality and performance <br />described in the Specifications substantially <br />remains following such modification or <br />replacement.) The City may participate in <br />the defense of such Action at its own <br />expense. If TriTech concludes in its sole <br />judgment that none of the foregoing options <br />are commercially reasonable, and the City's <br />use of the TriTech Software is permanently <br />enjoined as a result of a judgment of a court <br />of competent jurisdiction in such Action, <br />then TriTech will return to Client the <br />TriTech Application license fee(s) paid by <br />the City under this Agreement less a prorated <br />portion of said fee(s) for the City's use of <br />the TriTech Application (calculated by <br />multiplying the ratio of the number of months <br />of actual Use in Live Operations to thirty- <br />six (36) months times the license fees paid) <br />and the licenses granted in this Agreement <br />shall terminate. In addition, in the event <br />such Action results in a money judgment <br />against the City which does not arise, wholly <br />or in part, from the actions or omissions of <br />the City, its officers, directors, employees, <br />contractors, agents, or elected officials, or <br />a third party, TriTech will, subject to the <br />paragraph d below, indemnify the City there <br />from to the extent indemnification for such <br />judgment is not provided under the City's <br />insurance policies (unless the City is self - <br />insured in which case the preceding clause <br />shall not apply). <br />Notwithstanding the above, TriTech shall have <br />no duty under this section with respect to, <br />and the City shall hold TriTech harmless from <br />and against any claim, action or proceeding <br />arising from or related to infringements <br />(i) by Third -Party software, or equipment, <br />(ii) arising out of modifications to the <br />TriTech Application and/or Documentation not <br />made by or under the direction of TriTech, <br />(iii) resulting from use of the TriTech <br />Application to practice any method or process <br />which does not occur wholly within the <br />TriTech Application, or (iv) resulting from <br />modifications to the TriTech Application or <br />Primary Agreement Page 30 <br />