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)
ANY SUCH