could be deemed a
competitor of Spheris or its licensors.
5. ACCESS TO BOOKS AND RECORDS. If this Agreement is one to which 42 C.F.R.
Subpart D, sections 420.300 - 304 applies, Spheris shall, upon written request and
until the expiration of four (4) years after the Services are furnished, make
available to the Secretary of the Department of Health and Human Services,
Comptroller General of the United States, and their duly authorized
representatives books, documents and records necessary to verify the nature and
extent of the cost of providing the Services. If any subcontract entered into by
Spheris is subject to 42 C.F.R. Subpart D, sections 420.300-304, such
subcontract shall contain a clause to the same effect as this Section 5.
6. LIMITATIONS OF LIABILITY; REMEDIAL ACTION.
6.1. DISCLAIMER; LIMITATIONS OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH HEREIN
SPHERIS AND ITS LICENSORS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND
NONINFRINGEMENT WITH RESPECT TO THE EQUIPMENT AND SERVICES PROVIDED UNDER THIS
AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT, PUNITIVE, EXPECTATION, OR SPECIAL DAMAGES EVEN IF
SPHERIS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SPHERIS' AND ITS LICENSORS AGGREGATE LIABILITY TO CLIENT AND/OR ANY FACILITY
UNDER THIS AGREEMENT AND WITH RESPECT TO SERVICES FURNISHED HEREUNDER (WHETHER
UNDER CONTRACT, TORT OR ANY OTHER THEORY OF LAW OR EQUITY) SHALL NOT EXCEED,
UNDER ANY CIRCUMSTANCES, ONE MILLION DOLLARS ($1,000,000) PER OCCURRENCE/FIVE
MILLION DOLLARS ($5,000,000) AGGREGATE INSURANCE COVERAGE. CLIENT AND FACILITY
ACKNOWLEDGE THAT SPHERIS' OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT
OF CLIENT AND ITS FACILITIES ONLY. THIS LIMITATION OF LIABILITY IS INTENDED TO
APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN
BREACHED OR HAVE PROVEN INEFFECTIVE. THE FOREGOING LIMITATION OF LIABILITY
REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN
THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN
BETWEEN THE PARTIES.
6.2. Remedial Action. Client, Facility and Spheris agree that each Facility is
solely responsible for ensuring the accuracy of the final Medical Report. In no
event shall Spheris have any liability resulting from: (a) the content of any
Medical Report or other report transcribed by Spheris; or (b) malpractice claims
against Client's or a Facility's physicians. In the event Spheris fails to
transcribe an Authorized Dictation Recording in accordance with the terms of
this Agreement and such failure results in damage to Client or a Facility, then
Spheris' and its licensors sole obligation and liability to such Client or
Facility for such event (subject to reasonable mitigation by Client and/or
Facility) shall be limited to Spheris retranscribing and/or retransmitting the
Medical Report relating to such Authorized Dictation Recording and/or waiving
the fee associated with such Medical Report. Any claim against Spheris or its
licensors by Client and/or Facility that Client and/or Facility has knowledge of
must be asserted in writing within sixty (60) days after the