|
Term.
<br />Section 10. INDEMNITY, LIMITATION OF LIABILITY.
<br />10.1 Indemnification of Comoanv. 4Sight shall fully
<br />indemnify, defend and hold harmless Company, its
<br />affiliates, and their officers, directors, employees, agents,
<br />successors and assigns ("Company Indemnitees") from
<br />and against any and all third party claims, damages,
<br />liabilities, losses, and expenses (including any and all
<br />reasonable attorney fees, expenses and costs) incurred by
<br />or asserted against any Company Indemnitee due to: (a)
<br />any gross negligence acts or willful misconduct of 4Sight;
<br />and (b) violations of applicable laws by 4Sight. In the event
<br />of a Company Indemnitees, or if 4Sight reasonably believes
<br />the Services owned by 4S1ght may infringe or
<br />misappropriate the rights of a third party, 451ght may, in its
<br />sole discretion, and at no cost to Company Indemnitees,
<br />(a) modify Services owned by 4Sight so that it no longer
<br />infringes or misappropriates, (b) obtain a license for
<br />Company Indemnitees' continued use of the Services
<br />owned by 4Sight in accordance with this MSA and any
<br />applicable Ordering Document, or (c) terminate this MSA
<br />upon thirty (30) days' prior written notice and refund to
<br />Company Indemnitees any prepaid fees covering the
<br />remainder of the term after the effective date of
<br />termination.
<br />10.2 Indemnification of 4Sieht. To the extent
<br />permitted by applicable law, Company shall fully
<br />indemnify, defend and hold harmless 4Sight, Its affiliates,
<br />and their officers, directors, employees, agents, successors
<br />and assigns ("4Sight Indemnitees") from and against any
<br />and all third party claims, damages, liabilities, losses, and
<br />expenses (including any and all reasonable attorney fees,
<br />expenses and costs) Incurred by or asserted against any
<br />4Sight Indemnitee of whatever kind or nature due to (a)
<br />the use of the Service, including use in any manner not
<br />otherwise permitted in this Agreement; (b) care and
<br />experience of Monitored Individual under Company's
<br />supervision including but not limited to: the proper
<br />assessment, treatment, monitoring and care of Monitored
<br />Individual; the supervision, qualification and actions of
<br />their respective caregivers, Company's employees,
<br />professionals or other persons; (c) the acts and omissions
<br />of Company's employee, supervisors, agent, or
<br />representatives; (d) misuse of the Services or any
<br />component thereof; (e) any material breach under this
<br />MSA, or (f) a claim related to the gross negligence or willful
<br />misconduct of Company, its employees, or agents.
<br />10.3 Indemnification Procedures. If any claim or
<br />action is asserted that would entitle a Party to
<br />indemnification pursuant to this Section 10 (a
<br />"Proceeding"), the Party who seeks indemnification will
<br />give written notice thereof to the other Party (the
<br />"Indemnitor") promptly (and in. any event within fifteen
<br />(15) calendar days after the service of the citation or
<br />summons); provided, however, that the failure of the Party
<br />seeking indemnification to give timely notice hereunder
<br />will not affect rights to indemnification hereunder, except
<br />to the extent that Indemnitor demonstrates actual damage
<br />caused by such failure. Indemnitor may elect to direct the
<br />defense or settlement of any such Proceeding by giving
<br />written notice to the Party seeking indemnification, which
<br />election will be effective immediately upon receipt by the
<br />Party seeking indemnification of such written notice of
<br />election. The Indemnitor will have the right to employ
<br />counsel reasonably acceptable to the Party seeking
<br />indemnification to defend any such Proceeding, or. to
<br />compromise, settle or otherwise dispose of the same, if
<br />the Indemnitor deems It advisable to do so, all at the
<br />expense of the Indemnitor; provided that the Indemnitor
<br />will not settle, or consent to any entry of judgment in, any
<br />Proceeding without obtaining either: (a) an unconditional
<br />release of the Party seeking indemnification (and its
<br />Affiliates and each of their respective officers, directors,
<br />employees and agents) from all liability with respect to all
<br />claims underlying such Proceeding; or (b) the prior written
<br />consent of the Party seeking indemnification. The Parties
<br />will fully cooperate with each other in any such Proceeding
<br />and will make available to each other any books or records
<br />useful forthe defense of any such Proceeding.
<br />10.4 LIMITS OF LIABILITY OF4SIGHT.
<br />10.4.1 NEITHER PARTY SHALL BE LIABLE TO
<br />THE OTHER PARTY (OR TO ANY PERSON OR ENTITY
<br />CLAIMING THROUGH THE OTHER PARTY) FOR LOST
<br />PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT,
<br />CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT
<br />OF OR IN ANY MANNER CONNECTED WITH THE MSA OR
<br />THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM
<br />OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF
<br />WARRANTY OR OTHERWISE), AND REGARDLESS OF
<br />WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF,
<br />OR OTHERWISE MIGHT HAVE ANTICIPATED, THE
<br />POSSIBILITY OF SUCH DAMAGES. 4SIGHT SHALL NO
<br />LIABILITY TO COMPANY (OR TO ANY PERSON OR ENTITY
<br />CLAIMING THROUGH THE COMPANY) FOR ANY PERSONAL
<br />INJURY CLAIM BY MONITRED INDIVIDUAL.
<br />10.4.2 EACH PARTY'S AGGREGATE, MAXIMUM
<br />LIABILITY TO THE OTHER ARISING FROM OR RELATING TO
<br />THIS MSA, OUTSIDE OF ANY CONFIDENTIALITY
<br />OBLIGATIONS CONTAINED HEREIN, REGARDLESS OF THE
<br />FORM OF ACTION (WHETHER IN CONTRACT, TORT, BREACH
<br />OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE
<br />FEES ACTUALLY PAID OR DUE TO 4SIGHT BY OR FROM
<br />COMPANY WITH RESPECT TO THE SIX (6) MONTH PERIOD
<br />PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
<br />10.4.3 Without limiting any other provision of
<br />this MSA, 4Sight may Immediately cease or refrain
<br />providing services provided for under this MSA in any
<br />geographic area if in 4Sight' individual determination, the
<br />Implementation or provision of services is or might be in
<br />6735516v.4
<br />
|