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 IN PERFORMING