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A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />RYAN L. BUTLER, CLERK
<br />subject of a voluntary or involuntary petition for bankruptcy or is adjudicated insolvent or bankrupt, or (4) a
<br />receiver or trustee is appointed for any portion of Client's property.
<br />E. Termination of this Agreement shall not terminate either Party's rights and obligations under Article III.C,
<br />Article IIID, Article IV (Financial Arrangement), Article V (Late Payment), Article VI.C, Article VII
<br />(Indemnification), Article VIH.B (Notices), Article VIII.0 (Applicable Law; Venue; Consent to Jurisdiction;
<br />Arbitration), Article WILD (Entire Agreement; Construction), Article VIII.F (Relationship of the Parties),
<br />Article VIII.1(Confidential and Proprietary Information), Article IX (Licenses; Intellectual Property), Article
<br />X (ERISA, COBRA & HIPAA Duties) and the Client Application (as amended, if applicable), and all such
<br />rights and obligations shall expressly survive any such termination.
<br />ARTICLE VII — INDEMNIFICATION
<br />A. Except as otherwise provided in this Agreement, Client and Administrator agree to hold harmless and to
<br />indemnify each other and each other's Representatives from and against any Losses arising out of or related
<br />to the indemnifying Party's breach or violation of this Agreement.
<br />B. Client acknowledges that: (1) Administrator and its Representatives do not bear any liability for Losses under
<br />the Plan; (2) Administrator and its Representatives neither insure nor underwrite the liability of Client under
<br />the Plan; and (3) Administrator's execution of this Agreement shall not be deemed as the assumption by
<br />Administrator or its Representatives of any responsibilities, obligations or duties other than those required of
<br />Administrator pursuant to the express terms and conditions of this Agreement.
<br />C. Client further agrees to hold harmless and to indemnify Administrator and its Representatives from and against
<br />all Losses arising out of any claim, demand, suit, or proceeding made or brought against Administrator by a
<br />third Person arising out of or in connection with (1) Client's default in the performance of any duty,
<br />requirement or obligation of Client under this Agreement, the Business Associate Agreement, the Plan or
<br />otherwise owed to Client's employees and their dependents (whether or not in relation to this Agreement or
<br />the Plan); (2) the acts or omissions of any Representative of Client (whether or not in relation to this Agreement
<br />or the Plan); (3) any representations, warranties, covenants or statements, whether written, oral or otherwise,
<br />made by Client to its Representatives and/or their dependents; (4) an allegation that Client's use of any Raw
<br />Data, Service Data and/or Administrator Intellectual Property in combination with any assets, Materials or
<br />other things not provided or authorized by Administrator, infringes or misappropriates such third Person's
<br />Intellectual Property Rights; (5) an allegation that the Raw Data violates a third Person's privacy rights or
<br />other rights; (6) an allegation of gross negligence, grossly negligent omissions, or willful misconduct of Client
<br />or any of Client's employees, agents, or subcontractors; or (7) Client's failure to comply with any law, rule,
<br />or regulation.
<br />D. Administrator further agrees to hold harmless and to indemnify Client and its Representatives from and against
<br />all Losses arising out of any claim, demand, suit, or proceeding made or brought against Client by a third
<br />Person arising out of or in connection with (1) Administrator's default in the performance of any duty,
<br />requirement or obligation of Administrator under this Agreement or the Business Associate Agreement; (2)
<br />the acts or omissions of any Representative of Administrator (whether or not in relation to this Agreement or
<br />the Plan); (3) an allegation of gross negligence, grossly negligent omissions, or willful misconduct of
<br />Administrator or any of Administrator's employees, agents, or subcontractors; or (4) Administrator's failure
<br />to comply with any law, rule, or regulation.
<br />E. Each Party's liability to the other Party and its Representatives hereunder shall not exceed the actual proximate
<br />Losses caused by or arising from the indemnifying Party's breach or violation of, or failure to perform, any
<br />term or provision of this Agreement. In no event whatsoever shall either Party or any of its Representatives
<br />be liable for any indirect, special, incidental, consequential, exemplary or punitive damages (in each case, to
<br />the fullest extent that such damages may be waived by contract under applicable law), or any damages for lost
<br />profits relating to a relationship with a third party, however caused or arising, whether or not they have been
<br />informed of the possibility of their occurrence.
<br />ARTICLE VIII — GENERAL PROVISIONS
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<br />NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY
<br />AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS
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