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5a Proprietary to Caremark. Member County and Customer acknowledge that the Formulary is
<br /> proprietary to Caremark . Further, all Caremark databases , as well as the software, hard coding , and logic
<br /> used to
<br /> generate the compilations of information contained in Caremark ' s Claims adjudication system and in all other databases
<br /> developed by Caremark or its designees in connection with performing Services including identifiers assigned
<br /> by
<br /> Caremark, and the format of all reports , printouts, and copies there from , and any prior and future versions thereof
<br /> by
<br /> any name , are the property of Caremark and are protected by copyright which shall be owned by Caremark.
<br /> 5 . 7 Tradenames ; Trademarks ; and Service Marks. None of the parties hereto may use any
<br /> tradenames , trademarks or service marks of another, or any word or symbol likely to be confused with such tradenames ,
<br /> trademarks or service marks , unless authorized in writing or as expressly permitted by this Agreement.
<br /> 508 Remedies. Any unauthorized disclosure or use of Confidential Information would cause Caremark ,
<br /> Member County or Customer immediate and irreparable injury or loss that cannot be adequately compensated with
<br /> money damages . Accordingly , if any party hereto fails to comply with this Section 5 , the other( s ) will be entitled
<br /> to
<br /> specific performance including immediate issuance of a temporary restraining order or preliminary injunction enforcing
<br /> this Agreement, and to judgment for damages ( including reasonable attorneys' fees ) caused by the breach, and to any
<br /> other remedies provided by Law .
<br /> 6. LIMITATION OF LIABILITY ; COMPLIANCE WITH LAW.
<br /> 6, 1 Warranty. This Agreement is not a contract for the sale of goods . Caremark will perform the
<br /> Services in a good and workmanlike manner in accordance with the customs , practices , and standards of providers
<br /> skilled in the industry . EXCEPT AS WARRANTED IN THIS SECTION 6 . 1 , CAREMARK DISCLAIMS ALL
<br /> EXPRESS AND ALL IMPLIED WARRANTIES OF ANY KIND , INCLUDING THE SUITABILITY FOR ANY
<br /> PARTICULAR PURPOSE OF THE DATA GENERATED THROUGH THE CAREMARK SYSTEM , CAREMARK
<br /> RELIES ON FIRST DATABANK , M`EDI- SPAN , OR INDUSTRY COMPARABLE DATABASES IN PROVIDING
<br /> CUSTOMER , MEMBER COUNTY AND PARTICIPANTS WITH DRUG UTILIZATION REVIEW SERVICES ,
<br /> CAREMARK HAS UTILIZED DUE DILIGENCE IN COLLECTING .AND REPORTING THE INFORMATION
<br /> CONTAINED IN THE DATABASES AND HAS OBTAINED SUCH INFORMATION FROM SOURCES
<br /> BELIEVED TO BE RELIABLE . CAREMARK , HOWEVER, DOES NOT WARRANT THE ACCURACY OF
<br /> REPORTS , ALERTS , CODES , PRICES , OR OTHER DATA CONTAINED IN THE DATABASES . THE CLINICAL
<br /> INFORMATION CONTAINED IN THE DATABASES AND THE FORMULARY 1S INTENDED AS A
<br /> SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, THE KNOWLEDGE , EXPERTISE, SKILL , AND
<br /> JUDGMENT OF PHYSICIANS , PHARMACISTS , OR OTHER HEALTH -CARE PROFESSIONALS INVOLVED IN
<br /> PARTICIPANT' S CARE . THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION
<br /> SHALL NOT BE CONSTRUED TO INDICATE THAT THE DRUG OR DRUG COMBINATION IS SAFE,
<br /> APPROPRIATE OR EFFECTIVE FOR ANY PARTICIPANT. CAREMARK DOES NOT WARRANT THAT ITS
<br /> SERVICES WILL BE UNINTERRUPTED OR ERROR FREE .
<br /> 6 . 2 Force Majeure. Except for the payment obligations set forth in Section 2 of this Agreement, the
<br /> parties are excused from performance under this Agreement to the extent that a party is prevented from performing any
<br /> obligation , in whole or in part, as a result of causes beyond its reasonable control , including, acts of God
<br />, war, civil
<br /> disturbance , court order, governmental intervention , Change in Law, nonperformance by the other party or any third
<br /> party , failures or fluctuations in electrical power, heat, light, air conditioning , or telecommunications equipment . Any
<br /> nonperformance under this Section 6 .2 will not constitute a default or a ground for termination of this Agreement .
<br /> 6.3 Indemnity. To the extent permitted by applicable Law applicable to Customer and each Member
<br /> County , Customer and Member County shall indemnify and hold harmless Caremark and its officers ,
<br /> directors,
<br /> employees , agents , successors , and assigns ( "Caremark Indemnitees " ) for, from and against any damages, costs , or
<br /> attorney ' s fees , actually incurred by Caremark a Caremark Indemnitee, as the result of a claim brought by
<br />any third
<br /> party or a participant or beneficiary relating to the Services , provided that the Caremark Indemnitee has
<br /> acted in a
<br /> manner that is consistent with this Agreement and applicable standards of care . The foregoing indemnification shall not
<br /> apply and shall not be enforceable to the extent any applicable Law prohibits a Member County from providing such
<br /> indemnification . Caremark shall indemnify and hold harmless Member County , Customer and their officers , directors .
<br /> employees , agents , successors, and assigns ( collectively " Customer Indemnitees" ) for, from and against any damages ,
<br /> costs , or attorney ' s fees , actually incurred by any Customer Indemnitee , as the result of a third
<br /> party claim that
<br /> NACo k .) . doc ( 02r24/2006 ) IR % Ctaiml Pace 6 of 29
<br /> This document contains proprietan information of Caremark . and may not be used for any purpose other [ ban to evaluate enterinst
<br /> into a relationsbip
<br /> with Caremark , nor may it be duplicated or disclosed to others for any purpose .
<br />
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