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Member County from providing such indemnification. To the extent permitted by applicable Law, Caremark shall
<br />indemnify and hold harmless Member County, Customer and their officers, directors, employees, agents, successors,
<br />and assigns (collectively "Customer Indemnitees ") for, from and against any damages, costs, or attorney's fees, actually
<br />incurred by any Customer Indemnitee, as the result of a third party claim that Caremark, its officers, directors,
<br />employees, agents, successors, or assigns acted with negligence, willfully, and/or in violation of applicable standards of
<br />care, provided that the Customer Indemnitee has acted in a manner that is consistent with this Agreement, the Consumer
<br />Card Program and applicable standards of care. However, nothing in this Agreement is to be construed as a waiver of
<br />governmental immunity as offered by the court or state law.
<br />d. Compliance with Law. Customer and Member County will comply with all Laws applicable to its
<br />prescription drug benefit plan, including without limitation insurance licensing, antitrust, consumer protection, and any
<br />other Laws that may apply. Caremark has no responsibility to advise Member County or Customer about the
<br />applicability of or compliance with any applicable Law including, without limitation, HIPAA, the Employee Retirement
<br />Income Security Act, or the Americans with Disabilities Act.
<br />Caremark will comply with all Laws applicable to it and to the Services it provides under this Agreement. Member
<br />County and Customer have no responsibility to advise Caremark regarding its compliance with any applicable Law.
<br />Effective as of September 8, 2005, each party certifies that it shall not violate the federal anti - kickback statute, set forth
<br />at 42 U.S.C. § 1320a -7b(b) ( "Anti- Kickback Statute "), or the federal "Stark Law," set forth at 42 U.S.C. § 1395nn
<br />( "Stark Law "), with respect to the performance of its obligations under this Agreement. Further, Caremark shall ensure
<br />that individuals meeting the definition of "Covered Persons" (as such term is defined in the Corporate Integrity
<br />Agreement between the Office of Inspector General of the Department of Health and Human Services and
<br />AdvancePCS) shall comply with Caremark's Compliance Program, including training related to the Anti - Kickback
<br />Statute and the Stark Law. In addition, Caremark's Code of Conduct and policies and procedures on the Anti- Kickback
<br />Statute and Stark Law may be accessed at http: / /www.caremark.com /vps /portal/ s.155/3370?cms=CMS-2-007764.
<br />e. Change in Law. The parties will attempt to equitably adjust the terms of this Agreement to take into
<br />account any Change in Law or any material change in drug industry practice that materially alters the rights or
<br />obligations of either party under this Agreement. If the parties are unable to agree upon an equitable adjustment within
<br />sixty days after either party notifies the other of such a Change in Law or material change in drug industry practice, this
<br />Agreement will automatically terminate.
<br />f. Limitations. In no event shall either party be liable to the other party, nor shall Caremark be liable to
<br />any Participant for any indirect, special, or consequential damages or lost profits, arising out of or related to
<br />performance of this Agreement or a breach of this Agreement, even if advised of the possibility of such damages or lost
<br />profits.
<br />Caremark (and its affiliates, directors, employees, agents, successors or assigns) will not be liable for any claim which is
<br />asserted by Member County or Customer more than ninety days after Member County or Customer is or reasonably
<br />should have been aware of such claim, and will in no event be liable for any claim which is asserted more than twelve
<br />months after the event resulting in damages or loss.
<br />Caremark does not direct or exercise any control over the professional judgment exercised by any pharmacist in
<br />dispensing prescriptions or otherwise providing pharmaceutical related services at a Participating Pharmacy.
<br />Participating Pharmacies are independent contractors, not subcontractors or agents of Caremark, and Caremark shall
<br />have no liability to Member County or Customer for a claim arising out of any act or omission of any Participating
<br />Pharmacy or its agents or employees.
<br />Caremark shall be entitled to rely on First Data Bank, Medi -Span or any other nationally available reporting service of
<br />pharmaceutical prices selected by Caremark to determine AWP for purposes of establishing the pricing provided to
<br />Customer under this Agreement. Customer acknowledges that Caremark does not establish AWP, and Caremark shall
<br />have no liability to Customer arising from the use of First DataBank, Medi -Span or any other nationally available
<br />reporting service. Customer acknowledges that if the reporting source for determining Customer's AWP should not
<br />continue to support AWP, Customer shall cooperate with Caremark to negotiate the pricing hereunder to maintain the
<br />parties' respective economic position under this Agreement as of the Effective Date.
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