Business Associate Agreement - TriZetto Provider Solutions LLC - EMS Billing Services

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the extent that an Indemnified Claim arises out of: (a) Client's breach of this Agreement; (b) third party software; (c) Client's failure to incorporate updates or upgrades that would have avoided the alleged infringement, provided TriZetto offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; (d) TriZetto's modifications made in compliance with specifications provided by Client, including without limitation deliverables to the extent created based on such specifications; (e) any deliverable, if the SoW or a disclosure provided at or before delivery states that such deliverable incorporates third party software or other assets; or (0 use of the Subscription Services in combination with hardware or software not provided by TriZetto. 8.2. From Client. Client will indemnify and defend TriZetto and TriZetto's Associates (as defined below in Section 8.3) against any "Indemnified Claim," meaning any unaffiliated third party claim, suit, or proceeding arising out of or related to Client's alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Client's customers or employees; (b) claims related to the submission of false, misleading or fraudulent enrollment forms and/or claims for payment or reimbursement related to a healthcare transaction; and (c) violations of law. 8.3. Litigation and Additional Terms. The obligations of the indemnifying party ("Indemnitor") pursuant to Section 8.1 or 8.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor's expense and payment of judgments; and (b) will be excused to the extent that the indemnified party's or any of such indemnified party's Associates' failure to provide prompt notice of the Indemnified Claim or reasonably cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided the indemnified party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party's "Associates" are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.) 9. Limitation of Liability. 9.1. Exclusion of Consequential Damages. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATION UNDER ARTICLE 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. 9.2. Dollar Cap. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATION UNDER ARTICLE 8, PAYMENT OBLIGATIONS UNDER ARTICLE 6, CLAIMS BY EITHER PARTY AGAINST THE OTHER PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF THE CLAIMING PARTY'S INTELLECTUAL PROPERTY RIGHTS, OR CLAIMS FOR BREACH OF ARTICLE S (CONFIDENTIAL INFORMATION), NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CLIENT TO TRIZETTO DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. 9.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) TO OBLIGATIONS UNDER THE BAA; (d) EVEN IF TRIZETTO IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CLIENT'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of this Article 9, TriZetto's liability will be limited to the maximum extent permissible. 10. Term and Termination. 10.1. Term. The term of this Agreement will commence on the Effective Date of the first Order and continue until the expiration or termination of all Orders or SoWs, unless terminated earlier as provided herein. The term, including renewal term(s), for a Service is described on an Order. Except as provided on an Order, terms for a Service renew automatically unless either party notifies the other of its intent not to renew thirty (30) or more days before any renewal date, and such renewal terms for a Service may be terminated without cause by 4