Common use of Indemnity by IBM Clause in Contracts

Indemnity by IBM. IBM agrees to indemnify, defend and hold harmless ACE and the Eligible Recipients and their respective officers, directors, employees, agents, Affiliates, successors, and assigns from any and all Losses and threatened Losses due to third party claims arising from or in connection with any of the following: (a) IBM's breach of any of the material representations and warranties set forth in this Agreement; (b) IBM's decision to terminate or failure to observe or perform any duties or obligations to be observed or performed on or after the Commencement Date by IBM under any of the contracts assigned to IBM or for which IBM has assumed financial, administrative, or operational responsibility; (c) IBM's failure to observe or perform any duties or obligations to be observed or performed on or after the Commencement Date by IBM under Third Party Software licenses, Equipment Leases or Third Party Contracts assigned to IBM pursuant to this Agreement, or any duties or obligations to be observed or performed by IBM after the Commencement Date; (d) IBM's breach of its material obligations with respect to ACE Proprietary Information; (e) Occurrences that IBM is required to insure against pursuant to Section 16.1, to the extent of IBM's actual coverage under its ------------ insurance policies, or in the event IBM fails to obtain the applicable insurance policy pursuant to Section 16.1, to the ------------ extent of the coverage required therein; provided, however, that this provision shall not limit ACE's right to indemnity under any other provision of this Article 17; ---------- (f) Infringement or alleged infringement of a patent, trade secret, copyright or other proprietary rights conferred by contract, common law or by the law of the U.S. or any state therein in contravention of IBM's representations and warranties in Sections 15.5 and 15.6 provided that IBM shall ---------------------- have no obligation with respect to any Losses to the extent the same arises out of or in connection with ACE's modification or misuse of Equipment, systems, programs or products, or ACE's combination, operation or use with devices, data, Equipment, systems, programs or products not furnished by IBM or its subcontractors or agents; provided further that if such a claim is made or appears likely to be made, ACE agrees to permit IBM to obtain the right for ACE to continue to use such Equipment, system, program or product, or to modify it or replace it with one that is at least functionally equivalent; (g) IBM's acts or omissions during the interview, hiring or transition process with respect to any ACE Personnel or former ACE Personnel listed in Schedule M; ---------- (h) Claims by government regulators or agencies for fines, penalties, sanctions or other remedies arising from or in connection with IBM's failure to perform its responsibilities under this Agreement to the extent such fines, penalties, sanctions or other remedies related to such failure were caused by IBM and not by ACE or at ACE's direction and to the extent that ACE provides to IBM advance written notice of the Law that is the basis of the same; Ace/IBM Proprietary Information 61 (i) Taxes assessed against ACE, together with interest and penalties, that are the responsibility of IBM under Section ------- 11.4; and ---- (j) Products, services or systems provided by IBM or its Subcontractors or authorized distributors directly to a third party, unless or to the extent such claim arises from the acts or omissions of ACE or Subcontractors or agents, or from the ACE Owned Software. (k) IBM shall also indemnify ACE and the Eligible Recipients for any Losses incurred by them as a result of any failure by IBM to perform fully and completely those obligations of ACE for which IBM has responsibility under Schedule F of the Agreement ---------- under Software licenses or Third Party Contracts to the extent that IBM has the obligation to do so and IBM's failure to perform such obligations is not caused by ACE or the Eligible Recipients or CIGNA.

Indemnity by IBM. IBM agrees to indemnify, defend and hold harmless ACE and the Eligible Recipients and their respective officers, directors, employees, agents, Affiliates, successors, and assigns from any and all Losses and threatened Losses due to third party claims arising from or in connection with any of the following: (a) IBM's ’s breach of any of the material representations and warranties set forth in this Agreement; (b) IBM's ’s decision to terminate or failure to observe or perform any duties or obligations to be observed or performed on or after the Commencement Date by IBM under any of the contracts assigned to IBM or for which IBM has assumed financial, administrative, or operational responsibility; (c) IBM's ’s failure to observe or perform any duties or obligations to be observed or performed on or after the Commencement Date by IBM under Third Party Software licenses, Equipment Leases or Third Party Contracts assigned to IBM pursuant to this Agreement, or any duties or obligations to be observed or performed by IBM after the Commencement Date; (d) IBM's ’s breach of its material obligations with respect to ACE Proprietary Information; (e) Occurrences that IBM is required to insure against pursuant to Section 16.1, to the extent of IBM's ’s actual coverage under its ------------ insurance policies, or in the event IBM fails to obtain the applicable insurance policy pursuant to Section 16.1, to the ------------ extent of the coverage required therein; provided, however, that this provision shall not limit ACE's ’s right to indemnity under any other provision of this Article 17; ----------; (f) Infringement or alleged infringement of a patent, trade secret, copyright or other proprietary rights conferred by contract, common law or by the law of the U.S. or any state therein in contravention of IBM's ’s representations and warranties in Sections 15.5 and 15.6 provided that IBM shall ---------------------- have no obligation with respect to any Losses to the extent the same arises out of or in connection with ACE's ’s modification or misuse of Equipment, systems, programs or products, or ACE's ’s combination, operation or use with devices, data, Equipment, systems, programs or products not furnished by IBM or its subcontractors or agents; provided further that if such a claim is made or appears likely to be made, ACE agrees to permit IBM to obtain the right for ACE to continue to use such Equipment, system, program or product, or to modify it or replace it with one that is at least functionally equivalent; (g) IBM's ’s acts or omissions during the interview, hiring or transition process with respect to any ACE Personnel or former ACE Personnel listed in Schedule M; ----------; (h) Claims by government regulators or agencies for fines, penalties, sanctions or other remedies arising from or in connection with IBM's ’s failure to perform its responsibilities under this Agreement to the extent such fines, penalties, sanctions or other remedies related to such failure were caused by IBM and not by ACE or at ACE's ’s direction and to the extent that ACE provides to IBM advance written notice of the Law that is the basis of the same; Ace/IBM Proprietary Information 61; (i) Taxes assessed against ACE, together with interest and penalties, that are the responsibility of IBM under Section ------- 11.4; and ----and (j) Products, services or systems provided by IBM or its Subcontractors or authorized distributors directly to a third party, unless or to the extent such claim arises from the acts or omissions of ACE or Subcontractors or agents, or from the ACE Owned Software. (k) IBM shall also indemnify ACE and the Eligible Recipients for any Losses incurred by them as a result of any failure by IBM to perform fully and completely those obligations of ACE for which IBM has responsibility under Schedule F of the Agreement ---------- under Software licenses or Third Party Contracts to the extent that IBM has the obligation to do so and IBM's ’s failure to perform such obligations is not caused by ACE or the Eligible Recipients or CIGNARecipients.