LIABILITY FOR EXCLUDED MATTERS.
SUBJECT TO THE
EXCLUDED MATTERS CAP DESCRIBED IN THE FOLLOWING SENTENCE, THE PARTIES SHALL BE
LIABLE TO ONE ANOTHER FOR ONE HUNDRED PERCENT (100%) OF ALL DIRECT DAMAGES
RESULTING FROM (I) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
(II) PROVIDER'S IMPROPER OR ILLEGAL USE OR DISCLOSURE OF CONSUMER INFORMATION
(INCLUDING, BUT NOT LIMITED TO, PERSONAL, CREDIT OR MEDICAL INFORMATION)
REGARDING ANY CUSTOMER OR POTENTIAL CUSTOMER OF THE CUSTOMER GROUP, (III)
PROVIDER'S BREACH OF ITS AGREEMENT NOT TO VOLUNTARILY WITHHOLD SERVICES, (IV) A
BREACH OF SECTION 15.1(F), OR (V) A PARTY'S VIOLATION OF LAW (COLLECTIVELY, THE
"EXCLUDED MATTERS").
THE PARTIES AND THEIR AFFILIATES' LIABILITY TO EACH OTHER
FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE EXCLUDED MATTERS AND THEIR
RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER ARTICLE XII ARISING UNDER ALL OF
THE MOAS DURING THE INITIAL TERM SHALL NOT EXCEED $25,000,000 IN THE AGGREGATE
(THE "EXCLUDED MATTERS CAP").
13.4
NO LIABILITY FOR ACTS IN ACCORDANCE WITH
INSTRUCTIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE
AGREEMENT OR ANY RELATED PSA, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
OR ANY OF ITS AFFILIATES WITH RESPECT TO ANY ACT OR OMISSION TAKEN OR NOT TAKEN
PURSUANT TO THE SPECIFIC INSTRUCTION, DIRECTION OR REQUEST, IN WRITING OF SUCH
OTHER PARTY MADE THROUGH ITS AUTHORIZED REPRESENTATIVE.
23
14.0
PROVIDER EMPLOYEES.
14.1
RESPONSIBILITY FOR PROVIDER EMPLOYEES.
PROVIDER
SHALL BE RESPONSIBLE FOR ALL PAYMENTS TO ITS EMPLOYEES INCLUDING ANY INSURANCE
COVERAGE AND BENEFIT PROGRAMS REQUIRED BY APPLICABLE LAW AND REGULATION.
NOTHING IN THIS AGREEMENT SHALL CONSTITUTE AN EMPLOYER-EMPLOYEE RELATIONSHIP
BETWEEN THE EMPLOYEES OF PROVIDER AND THE CUSTOMER.
15.0
REPRESENTATIONS, WARRANTIES AND COVENANTS.
15.1
PROVIDER REPRESENTATIONS.
PROVIDER REPRESENTS,
WARRANTS AND COVENANTS THAT:
(A)
PROVIDER HAS THE FACILITIES, EQUIPMENT,
STAFF, EXPERIENCE AND EXPERTISE TO PERFORM AND PROVIDE THE SERVICES REQUIRED
HEREUNDER;
(B)
PROVIDER IS SOLVENT AND ABLE TO MEET ALL
FINANCIAL OBLIGATIONS AS THEY MATURE, AND AGREES TO NOTIFY CUSTOMER PROMPTLY OF
ANY CHANGE IN THIS STATUS;
(C)
PROVIDER HAS THE NECESSARY POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT
AND THIS AGREEMENT HAS BEEN OR WILL BE DULY EXECUTED AND DELIVERED BY PROVIDER
AND CONSTITUTES OR WILL CONSTITUTE THE VALID AND BINDING AGREEMENT OF PROVIDER,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS;
(D)
SUBJECT TO SECTION 6.3, THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY PROVIDER AND THE CONSUMMATION BY PROVIDER OF THE
TRANSACTIONS HEREIN CONTEMPLATED WILL NOT CONTRAVENE ANY PROVISION OF APPLICABLE
LAW, AND WILL NOT CONSTITUTE A BREACH OF OR DEFAULT UNDER ANY AGREEMENT OR OTHER
INSTRUMENT OR ANY DECREE, JUDGMENT OR ORDER TO WHICH PROVIDER IS CURRENTLY A
PARTY OR BY WHICH PROVIDER IS BOUND;
(E)
PROVIDER HAS PROVIDED TO CUSTOMER A LIST
REFERRING TO THIS PARAGRAPH WHICH, TO THE KNOWLEDGE OF PROVIDER, SETS FORTH ALL
SOFTWARE USED BY PROVIDER (OTHER THAN SUCH SOFTWARE PROVIDED TO PROVIDER BY
CUSTOMER) IN THE PERFORMANCE OF THE SERVICES AS OF THE EXECUTION DATE;
(F)
AFTER THE EXECUTION DATE, PROVIDER WILL
NOT USE ANY NEW PROVIDER MATERIALS