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Docusign Envelope ID: DA411727-B3A7-4B6F-AC98-ED7692626C6A
<br />MSSA #: 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 SERVICETO 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 S REPRESENTS A REASONABLE ALLOCATION OF RISK.
<br />9. Indemnities
<br />9.1 e5entire 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 eSentire, including any
<br />portion of the Software or hardware provided to Client as part of the 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, eSentire 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 eSentire 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 15 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, reasonab{e 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 25, 2025 Page 6 of 12 (2023-11)
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