American Home Shield 2010 Annual Report Download - page 256

constitute, or in Customer's reasonable judgment is likely to constitute, an infringement or misappropriation, Customer will in
addition to its indemnity obligations, at its expense and option, and after consultation with Service Provider regarding Service
Provider's preference in such event, either: (w) procure the right for Service Provider Indemnitees to continue using such Customer
Software; (x) replace such Customer Software with a non-infringing equivalent, provided that such replacement does not result in a
degradation of the functionality, performance or quality of the deliverable or item; (y) modify such Customer Software, or have such
Customer Software modified, to make it non-infringing, provided that such modification does not result in a degradation of the
functionality, performance or quality of the Customer Software; or (z) create a feasible workaround that would not have any adverse
impact on Service Provider;
(b) all Claims by employees of Customer, its Affiliates or subcontractors (excluding Service Provider and its
Affiliates and their subcontractors) arising out of or relating to this Agreement, except to the extent of any indemnification obligation
of Service Provider to any Customer Indemnitee or to the extent caused by the negligence or willful misconduct of Service Provider,
its Affiliates or their subcontractors;
(c) all Claims arising out of, resulting from or related to any act or omission of any member of the Customer
Group in its capacity as an employer of a Person and arising out of or relating to (i) Laws for the protection of Persons who are
members of a protected class or category of Persons, (ii) sexual discrimination or harassment, and (iii) any other aspect of the
employment relationship or its termination (including claims for breach of an express or implied contract of employment) which
arose when the Person asserting the claim, demand, charge, actions, cause of action or other proceeding was an employee of or
candidate for employment by any member of the Customer Group;
(d) all Claims for bodily injuries, death or damage to tangible personal or real property, to the extent caused by
negligent, grossly negligent or reckless acts or omissions or tortious willful misconduct of Customer or any of its Affiliates or
subcontractors (excluding Service Provider and its Affiliates and their subcontractors);
(e) all Claims (i) by Governmental Authorities for fines and penalties arising from a violation by Customer,
its Affiliates or subcontractors (excluding Service Provider and its Affiliates and their subcontractors) of the Laws applicable to
Customer (excluding any such violation to the extent caused by Service Provider, its Affiliates or subcontractors) and (ii) by Third
Parties arising from such a violation to the extent that the resulting Losses are of the type which such Law applicable to Customer
was intended or is generally understood to be intended to avoid, prevent or mitigate;
(f) all Claims arising out of the failure of Customer to obtain, or cause to be obtained, any consent or approval
required for Service Provider and its permitted subcontractors to use the Customer Assets, or any component thereof, to the full
extent provided in the Agreement, including any failure or inability to obtain Required Consents which are the responsibility of
Customer in accordance with Section 9.5;
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