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Docusign Envelope ID:DA411727-B3A7-4B6F-AC98-ED7692626C6A
<br /> MSSA N:00045246
<br /> Master Security Services Agreement
<br /> 8. Liability Limitations
<br /> EXCLUDING LOSSES ARISING PURSUANT TO SECTION 9 OR FOR A PARTY'S GROSS NEGLIGENCE, WILLFUL OR
<br /> INTENTIONAL MISCONDUCT OR FRAUD,TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,EACH PARTY'S
<br /> LIABILITY TO THE OTHER HEREUNDER FOR ANY LOSSES, LIABILITIES, DAMAGES, FINES, PENALTIES, DEFICIENCIES,
<br /> COSTS OR EXPENSES, INCLUDING THE REASONABLE FEES AND REASONABLE EXPENSES OF LEGAL COUNSEL,
<br /> ACCOUNTANTS OR OTHER EXPERTS AND PROFESSIONAL ADVISERS (COLLECTIVELY, "LOSS"), ARISING FROM OR
<br /> RELATING TO THIS AGREEMENT OR THE PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED TWO TIMES
<br /> THE AMOUNT DUE BY CLIENTTO ESENTIRE ON AN ANNUAL BASIS FOR THE SPECIFIC SERVICE TO WHICH SUCH CLAIM
<br /> RELATES DURING THE THEN-CURRENT CONTRACT PERIOD. REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY
<br /> OF LIABILITY (INCLUDING, WITHOUT LIMITATION, VIOLATION OF ANY REQUIREMENTS OF LAW, BREACH OF
<br /> CONTRACT,STRICT LIABILITY,NEGLIGENCE OR OTHER TORT),NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
<br /> FOR ANY: INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (EVEN IF THE
<br /> PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME
<br /> OR COULD REASONABLY HAVE FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF DATA, BUSINESS
<br /> INTERRUPTION, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS). THE PARTIES AGREE
<br /> THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.
<br /> 9. Indemnities
<br /> 9.1 eSentire Intellectual Property Infringement Indemnity. eSentire will defend or settle, indemnify and hold
<br /> Client and its Affiliates, subsidiaries, officers, directors, employees, agents and assigns harmless from and
<br /> against any third party claim,suit or proceeding, and pay any damages awarded in a final judgment against
<br /> Client, based on a claim that any eSentire Service or eSentire Equipment(for purposes of convenience in this
<br /> Section 9,collectively"Services"or"Service")as provided under this Agreement infringes any U.S.copyright,
<br /> patent right,trademark or similar proprietary right of any third party(a "Third Party IP Claim"). eSentire will
<br /> also pay reasonable attorneys'fees and expenses incurred in connection with such defense or settlement.
<br /> Notwithstanding the foregoing,eSentire will have no indemnity obligation or liability hereunder to Client for
<br /> any Third Party IP Claim which is due in whole or in part,directly or indirectly,to: (i)modification by Client or
<br /> any third party on Client's behalf or direction of the Services or associated technology, provision of the
<br /> Services other than by eSentire or by another party at the direction or instruction of e5entire, including any
<br /> portion ofthe Software or hardware provided to Client as part ofthe Services;or(ii)combination of eSentire's
<br /> Services with parts,equipment,software,devices or third-party services not provided by eSentire where such
<br /> infringement would not exist but for such combination;or(iii) any willful misconduct or fraudulent action of
<br /> Client or any third party. For greater certainty,e5entire will not settle any Third Party IP Claim in a manner
<br /> that attributes liability to Client without Client's written consent (which consent will not unreasonably be
<br /> withheld). In the event that the Services are held to or believed by e5entire to infringe any third party U.S.
<br /> copyright or patent right, eSentire will have the option to: (x) replace or modify the Services to be non-
<br /> infringing, provided that such modification or replacement provides substantially similar features and
<br /> functionality; (y) obtain for Client the right to continue using the Services; or(z) if both (x) and (y) are not
<br /> reasonably practicable,terminate this Agreement on written notice to Client and refund to Client the prorata
<br /> portion of the Fees paid to eSentire for the Services not provided by eSentire after the date eSentire received
<br /> notice of the Third Party IP Claim. eSentire will not have any obligation to indemnify Client hereunder with
<br /> respect to any claim that any third-party "open source" or "shareware" software incorporated into any
<br /> Software provided hereunder infringes any third-party U.S. copyright, patent, or similar proprietary right.
<br /> ESENTIRE WILL HAVE NO OBLIGATION TO CLIENT IF ANY ALLEGED THIRD PARTY IP CLAIM IS BASED UPON THE
<br /> USE OF THE SERVICES FOR A PURPOSE FOR WHICH THE SERVICES WERE NOT INTENDED OR UPON USE OF
<br /> ANYTHING OTHER THAN THE MOST CURRENT VERSION OF THE SERVICES.
<br /> 9.2 Mutual General Indemnity. Each Party will defend or settle,indemnify and hold harmless the other Party and
<br /> its Affiliates, subsidiaries, officers, directors, employees and agents (individually and collectively,
<br /> "Indemnitee") from and against any and all third-party claims, actions, damages, losses, liabilities and
<br /> expenses(of whatever form or nature including,without limitation,reasonable attorneys'fees and expenses
<br /> and all costs of litigation),whether direct or indirect,alleging damages(each a"Covered Claim")(i)to real or
<br /> personal property or personal injury and caused by the active negligence or willful or intentional misconduct
<br /> City of Santa Ana-March 26,2025 Page 6 of 12(2023-11)
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