ANY AND
ALL ACTIONS, LIABILITIES, LOSSES, DAMAGES, INJURIES, JUDGMENTS AND EXTERNAL
EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS, SANCTIONS
IMPOSED BY A COURT, EXPERTS' FEES, INTEREST OR PENALTIES RELATING TO ANY
JUDGMENT OR SETTLEMENT, AND OTHER LEGAL EXPENSES (INCLUDING ALL INCIDENTAL
EXPENSES IN CONNECTION WITH SUCH LIABILITIES, OBLIGATIONS, CLAIMS OR ACTIONS
BASED UPON OR ARISING OUT OF DAMAGE, ILLNESS OR INJURY (INCLUDING DEATH) TO
PERSON OR PROPERTY CAUSED BY OR SUSTAINED IN CONNECTION WITH THE PERFORMANCE OF
THIS AGREEMENT) ("LIABILITIES"), BROUGHT, ALLEGED OR INCURRED BY OR AWARDED TO
ANY PERSON WHO IS NOT A MEMBER OF THE GE GROUP OR THE GENWORTH GROUP (A "THIRD
PARTY CLAIM") ARISING OUT OF OR BASED UPON:
(A)
ANY ALLEGED OR ACTUAL VIOLATION OF ANY LAW
BY PROVIDER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES (EXCLUDING THE GENWORTH
GROUP AND EXCLUDING ANY SUCH VIOLATION TO THE EXTENT CAUSED BY A BREACH OF THIS
AGREEMENT OR ANY PSA BY ANY MEMBER OF THE GENWORTH GROUP);
(B)
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF PROVIDER OR ANY OF ITS AFFILIATES (EXCLUDING THE GENWORTH GROUP);
(C)
PROVIDER'S PROVISION OF ANY SERVICES TO ANY
THIRD PARTY FROM THE SAME FACILITIES FROM WHICH THE SERVICES ARE PROVIDED TO THE
CUSTOMER;
18
(D)
THE IMPROPER OR ILLEGAL USE OR DISCLOSURE OF
CONSUMER INFORMATION (INCLUDING PERSONAL, CREDIT OR MEDICAL INFORMATION)
REGARDING ANY CUSTOMER OR POTENTIAL CUSTOMER OF CUSTOMER IN CONTRAVENTION OF
PROVIDER'S OBLIGATIONS UNDER THIS AGREEMENT OR ANY PSA; AND
(E)
PROVIDER'S TAX LIABILITIES ARISING FROM
PROVIDER'S PROVISION OF SERVICES, AS SET FORTH IN SECTION 2.7 HEREOF.
12.2
INDEMNITY BY CUSTOMER.
CUSTOMER AGREES TO
INDEMNIFY, HOLD HARMLESS AND DEFEND PROVIDER, EACH OTHER MEMBER OF THE GE GROUP,
AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, FROM AND AGAINST
ANY AND ALL LIABILITIES RELATING TO ANY THIRD PARTY CLAIM ARISING OUT OF OR
BASED UPON THE PROVISION OF SERVICES BY PROVIDER TO CUSTOMER, EXCEPT FOR
LIABILITIES ARISING OUT OF OR BASED UPON:
(A)
NEGLIGENCE OF PROVIDER, ITS AFFILIATES OR
REPRESENTATIVES;
(B)
ANY OF THE EXCLUDED MATTERS RELATED TO AN
ACT OR OMISSION OF PROVIDER, ITS AFFILIATES OR REPRESENTATIVES;
(C)
ANY MATTER WITH RESPECT TO WHICH PROVIDER
IS REQUIRED TO INDEMNIFY CUSTOMER UNDER SECTION 12.1 HEREOF; OR
(D)
ANY THIRD PARTY CLAIM THAT ANY RESOURCES
PROVIDED BY THE CUSTOMER OR USED BY PROVIDER IN CONNECTION WITH THE SERVICES
INFRINGE, VIOLATE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY OR TRADEMARKS OF
ANY THIRD PARTY, EXCLUDING ANY SUCH INFRINGEMENT, VIOLATION OR MISAPPROPRIATION
CAUSED BY:
(I)
ANY SUCH RESOURCES FIRST PROVIDED TO
PROVIDER AFTER THE EXECUTION DATE, BUT EXCLUDING ANY INFRINGEMENT, VIOLATION OR
MISAPPROPRIATION RESULTING FROM MODIFICATIONS BY OR ON BEHALF OF THE PROVIDER TO
ANY SUCH RESOURCES, COMBINATIONS OF SUCH RESOURCES WITH OTHER ITEMS, OR USE OF
SUCH RESOURCES, EXCEPT AS SPECIFIED BY CUSTOMER IN EACH CASE (IT BEING
UNDERSTOOD THAT THE USE OF ALL SOFTWARE INCLUDED IN ANY SUCH RESOURCES IN
COMBINATION WITH COMPUTERS OR OTHER HARDWARE WITH WHICH SUCH SOFTWARE IS
INTENDED TO BE USED SHALL BE DEEMED TO BE SO SPECIFIED);
(II)