Common use of Indemnity by IBM Clause in Contracts

Indemnity by IBM. IBM agrees to defend, at its expense, Empire and its Affiliates and their respective officers, directors, employees, agents, successors and assigns against any and all non-Affiliated third party claims set forth below: (a) Any claim alleging an IBM failure to observe or perform any duties or obligations to be observed or performed on or after the Effective Date by IBM under any of the contracts, including Software licenses, Equipment leases and Third Party Services Contracts, assigned to IBM or for which IBM has assumed financial, administrative or operational responsibility; provided that IBM shall not be responsible for any IBM failure due to Empire's express instruction to IBM to continue to operate under any of such contracts in violation of the duties or obligations thereunder; (b) Any claims of infringement or misappropriation of any patent, trade secret, trademark, copyright or other proprietary rights, alleged to have occurred because of systems or other resources provided by IBM to Empire, or based upon performance of the Services by IBM; provided that: (i) this indemnity shall apply to third party systems or third party resources unless: (A) with respect to third party systems or other third party resources provided by IBM to Empire, IBM determines that the indemnity provided by such third party with respect to such systems or other resources is more limited than the indemnity provided in this Section 18.1(b), and (B) IBM, prior to using such systems or resources, notifies Empire and requests that IBM's indemnity -77- Empire/IBM CONFIDENTIAL obligations be similarly limited as the indemnity offered by the third party and Empire approves the limited indemnity in writing; provided however, that if Empire does not approve the limited indemnity, then: (I) if IBM proceeds with providing such third party system or third party resource, then IBM shall be responsible for the indemnity set forth in this Section 18.1(b), or (II) IBM shall not provide such third party system or third party resource; provided however, that such a decision by IBM not to provide such system or resource shall not relieve IBM of its obligation to provide the Services. Notwithstanding items (I) and (II), Empire shall have the right to separately negotiate with the third party providing such limited indemnity, or any other third party, and to be legally responsible for such system or resource; and (ii) IBM shall have no obligation to indemnify Empire if and only to the extent that such Loss arises out of: (A) Empire's or Empire's agents modification of such Equipment, Software or products or use by Empire of such Equipment, Software or products in other than their specified operating environment, unless such modification or use was at the direction, request or recommendation of, or in accordance with the specifications provided by, IBM; (B) Empire's or Empire's agents combination of such Equipment, Software or products with products, data, or apparatus not provided by IBM unless such combination was at the direction, request or recommendation of, or in accordance with the specifications provided by, IBM; (C) any portion of such Equipment, Software or products that are designed in accordance with written, detailed specifications provided by Empire, to the extent that infringement necessarily arises from such specifications; (D) any health care business process employed by Empire as of the Effective Date and followed by IBM, and any IT business process employed by Empire as of the Effective Date and followed by IBM, which health care business process or IT business process Empire specifically directs IBM to follow; provided, however that with respect to IT business processes, this item (D) shall only apply to claims arising and asserted during the one (1) year following transition of the Services from which the claim arises; (E) any infringement or misappropriation claims for which Empire is required to indemnify IBM under Section 18.2(b); or (F) any claims of patent infringement, including contributory infringement or inducement to infringe, of any call center patents. Notwithstanding the previous sentence, IBM shall have an obligation to indemnify Empire, in accordance with this Article 18, for any claims of patent infringement, including contributory infringement or inducement to infringe, of any call center patents where: (1) calls to the Help Desk are related solely to information technology issues and questions related directly to the Services; (2) the Help Desk Services are provided from facilities owned or leased by IBM or its Affiliates; and (3) no entity other than IBM or its Affiliates update databases associated with provision of the Help Desk Services (e.g., databases tracking help desk calls and trouble tickets); or (II) IBM fails to comply with applicable IBM licenses for call center patents, if any, and such failure directly causes a Loss to Empire. IBM is only obligated to provide Help Desk Services in accordance with Schedule A-3. IBM shall not be responsible for determining whether Empire requires a license to call center patents, obtaining any such license on Empire's behalf, or paying any fees relating to any such licenses. (c) Any claim or action by, on behalf of, or related to, a Transitioned Employee's employment with IBM arising on or after the Employment Start Date for such employee, including claims arising under occupational health and safety, worker's compensation, ERISA or other applicable federal, state, or local laws or regulations; (d) Any claim or action by IBM's subcontractors arising out of IBM's breach or violation of IBM's subcontracting arrangements; (e) Any claim alleging a violation by IBM or act or omission of IBM arising out of or relating to: (i) any law or regulation for the protection of persons or members of a protected class or category of persons, (ii) sexual discrimination or harassment, or (iii) any other aspect of the employment relationship between or among IBM, IBM Personnel, IBM's subcontractors or agents or the termination of such relationship (including claims for breach of a contract of employment); (f) Any claim alleging an IBM breach of its obligations with respect to Confidential Information set forth in Article 15; (g) Any claim with respect to IBM's use of any Third Party Software to the extent the Loss results from a breach by IBM of any provisions of the applicable third party license agreement; (h) Any environmental claims (i.e., hazardous materials, asbestos, but not environmental problems such as non-functioning chillers, air conditioning) arising at IBM's facilities, except to the extent that the environmental claim or damage is caused by Empire or arises from a failure of Empire's responsibilities; provided however, that any environmental claims related to the Staten Island Data Center shall be governed by the provisions of the Staten Island Data Center Sublease between the Parties; (i) Any claim alleging an IBM failure to obtain and provide to Empire any Required Consent which IBM is obligated to provide under this Agreement; and (j) Any claim arising out of or related to occurrences that are covered by the insurance coverages IBM is required to insure against pursuant to Section 17.1(c) or 17.1(f), but only if IBM has failed to obtain the required insurance coverage or obtained coverage in an amount less than the insurance coverage limits that IBM is required to maintain pursuant to such Sections and only to the extent such a claim would have been covered under such insurance policies. In no event shall IBM's liability under this Section 18.1(j) be greater, in the aggregate, than the amount of insurance coverage IBM is required to maintain pursuant to Article 17. The limitations set forth in this Section 18.1(j) are not intended to otherwise limit IBM's overall liability, but only IBM's liability under this Section 18.1(j).

Indemnity by IBM. IBM agrees to defendindemnify, at its expense, Empire defend and hold harmless SCA and its Affiliates Affiliates, and their respective officers, directors, trustees, employees, agents, successors licensors, successors, and assigns against assigns, from any and all non-Affiliated third party claims set forth belowLosses and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (a) Any claim alleging an IBM 1. IBM's failure to observe or perform any duties or obligations to be observed or performed on or after the Effective Date by IBM under any of the contractsAssigned Agreements on or after the effective date of the assignment and assumption; 2. IBM's use or disclosure, including Software licenses, Equipment leases and Third Party Services Contracts, assigned to IBM or for which IBM has assumed financial, administrative or operational responsibility; provided that IBM shall not be responsible for any IBM failure due to Empire's express instruction to IBM to continue to operate under any of such contracts in violation of the duties or IBM's obligations thereunderunder Article 12 (Confidential Information), of SCA's Confidential Information; (b) 3. Any claims of infringement or misappropriation of any patent, trade secret, trademark, copyright copyright, license or other proprietary rights, alleged to have occurred because of systems IBM or other IBM Agent items or IBM or IBM Agent resources provided by IBM to Empire, or based upon performance of the Services by IBM; provided that: (i) this indemnity shall apply to third party systems or third party resources unless: (A) with respect to third party systems or other third party resources provided by IBM to Empire, IBM determines that the indemnity provided by such third party with respect to such systems or other resources is more limited than the indemnity provided in this Section 18.1(b), and (B) IBM, prior to using such systems or resources, notifies Empire and requests that IBM's indemnity -77- Empire/IBM CONFIDENTIAL obligations be similarly limited as the indemnity offered by the third party and Empire approves the limited indemnity in writingAgents; provided however, that if Empire does not approve the limited indemnity, then: (I) if IBM proceeds with providing such third party system or third party resource, then IBM shall be responsible for the indemnity set forth in this Section 18.1(b), or (II) IBM subsection shall not provide such third party system or third party resource; provided however, that such a decision by IBM not to provide such system or resource shall not relieve IBM of its obligation to provide the Services. Notwithstanding items (I) and (II), Empire shall have the right to separately negotiate with the third party providing such limited indemnity, or any other third party, and to be legally responsible for such system or resource; and (ii) IBM shall have no obligation to indemnify Empire if and only apply to the extent that any such Loss arises out claims are a result of: : (i) (A) Empire's modifications of items or Empire's agents modification resources or the use of such Equipment, Software items or products or use by Empire of such Equipment, Software or products resources in other than their specified operating environment, unless such modification or use was at the direction, request or recommendation of, or in accordance with the specifications provided by, IBM; (B) Empire's the combination, operation, or Empire's agents combination use of such Equipment, Software items or products resources with products, data, or apparatus not provided by IBM IBM, unless for the foregoing subsections (A) or (B) such combination modification, combination, operation or use was at the direction, direction or request or recommendation of, or in accordance with the specifications provided byby IBM; or (ii) items or resources provided to SCA with the written agreement by SCA and IBM that such items or resources shall not be covered by the indemnity in this subsection; or (iii) third party items or resources, IBM; except such items or resources which are IBM Agent items or resources which are made available by IBM hereunder in providing the Services and which are not generally commercially available, provided, however, IBM shall (C) any portion of such Equipment, Software or products that are designed in accordance with written, detailed specifications provided by Empire, to the extent that IBM has the right to do so) make available to SCA any intellectual property infringement necessarily arises from such specifications; (D) indemnifications provided by any health care business process employed by Empire as of the Effective Date and followed by IBM, and any IT business process employed by Empire as of the Effective Date and followed by IBM, which health care business process Third Party or IT business process Empire specifically directs IBM to follow; provided, however that Agent with respect to IT business processes, the foregoing in this item subsection (D) shall only apply to claims arising and asserted during the one (1) year following transition of the Services from which the claim arisesiii); (E) 4. Any claim, demand, charge, action, cause of action, or other proceeding asserted against SCA but resulting from IBM's withholding or failure to withhold taxes with respect to any infringement IBM employee or misappropriation claims for which Empire is required to indemnify IBM under Section 18.2(b); orAgent; (F) any claims of patent infringement, including contributory infringement 5. The death or inducement to infringe, bodily injury of any call center patents. Notwithstanding agent, employee, SCA business invitee, or business visitor or other person caused by the previous sentence, IBM shall have an obligation to indemnify Empire, in accordance with this Article 18, for any claims tortious conduct of patent infringement, including contributory infringement or inducement to infringe, of any call center patents where: (1) calls to the Help Desk are related solely to information technology issues and questions related directly to the Services; (2) the Help Desk Services are provided from facilities owned or leased by IBM or its Affiliates; and (3) no entity other than employees or agents or any subcontractor; 6. The damage, loss or destruction of any real or tangible personal property caused by the conduct of IBM or its Affiliates update databases associated with provision employees or agents or any subcontractor; 7. Any claim, demand, charge, action, cause of the Help Desk Services (e.g., databases tracking help desk calls and trouble tickets); or (II) IBM fails to comply with applicable IBM licenses for call center patents, if any, and such failure directly causes a Loss to Empire. IBM is only obligated to provide Help Desk Services in accordance with Schedule A-3. IBM shall not be responsible for determining whether Empire requires a license to call center patents, obtaining any such license on Empire's behalfaction, or paying other proceeding asserted against SCA but resulting from an act or omission of IBM in its capacity as an employer or prospective employer of a person (including any fees relating to any such licenses. (c) Any claim or action by, on behalf of, or related to, a Transitioned Employee's employment with IBM arising Employee accruing on or after the Employment Start Date for such employeehis or her Hire Date), including claims of harassment, discrimination or wrongful discharge or arising under occupational health and safetyOSHA, worker's workers compensation, ERISA or other applicable federal, state, state or local laws or regulations; 8. any liability for premiums, contributions, or taxes payable under any workers' compensation, unemployment compensation, disability benefit, old age benefit, or tax withholding or failure to withhold for which SCA may be adjudged liable as an employer with respect to any IBM Agent or IBM employee (din the case of any Transitioned Employee who is or was a IBM employee, accruing on or after his or her Hire Date) Any except to the extent caused by SCA; and 9. any claim or action by IBM's subcontractors arising out of IBM's breach or violation of IBM's subcontracting arrangements; (e) Any claim alleging a violation by IBM or act or omission of IBM arising out of or relating to: (i) any law or regulation for the protection of persons or members of a protected class or category of persons, (ii) sexual discrimination or harassment, or (iii) any other aspect of the employment relationship between or among IBM, IBM Personnel, IBM's subcontractors or agents or the termination of such relationship (including claims for breach of a contract of employment); (f) Any claim alleging an IBM breach of its obligations with respect to Confidential Information set forth in Article 15; (g) Any claim with respect to IBM's use of any Third Party Software to the extent the Loss results from a breach by IBM of any provisions of the applicable third party license agreement; (h) Any environmental claims (i.e., hazardous materials, asbestos, but not environmental problems such as non-functioning chillers, air conditioning) arising at IBM's facilities, except to the extent that the environmental claim or damage is caused by Empire or arises from a failure of Empire's responsibilities; provided however, that any environmental claims related to the Staten Island Data Center shall be governed by the provisions of the Staten Island Data Center Sublease between the Parties; (i) Any claim alleging an IBM failure to obtain and provide to Empire any Required Consent which IBM is obligated to provide under this Agreement; and (j) Any claim arising out of or related to occurrences that are covered by the insurance coverages IBM is required to insure against pursuant to Section 17.1(c) or 17.1(f), but only if IBM has failed to obtain the required insurance coverage or obtained coverage in an amount less than the insurance coverage limits that IBM is required to maintain pursuant to such Sections and only to the extent such a claim would have been covered under such insurance policies. In no event shall IBM's liability under this Section 18.1(j) be greater, in the aggregate, than the amount of insurance coverage IBM is required to maintain pursuant to Article 17. The limitations set forth in this Section 18.1(j) are not intended to otherwise limit IBM's overall liability, but only IBM's liability under this Section 18.1(j).