Exclusion from Limited Liability. To the extent Business Associate has limited its liability under the terms of the underlying service agreement, whether with a maximum recovery for direct damages or a disclaimer against any consequential, indirect or punitive damages, or other such limitations, such limitation shall not apply to the following costs to the extent they arise from Business Associate’s breach of its obligations relating to the use and disclosure of Protected Health Information:
(1) the costs of notifying patients of a breach of their protected health information as required by 45 C.F.R. § 164.400 et seq.;
(2) any civil monetary penalties, fines, or other damages resulting from the action of any state or federal government agency as a result of the breach;
(3) fees of counsel, forensic computer specialists, and other consultants used to assist the Covered Entity in responding to a breach of Protected Health Information and any subsequent investigation by a federal or state government agency;
(4) the defense of lawsuits brought by patients alleging invasions of privacy, and any liability resulting from such lawsuits (whether in the form of a judgment or settlement), provided that Business Associate shall have the opportunity to participate in the defense of such lawsuits and to approve any proposed settlement for which it would be financially responsible.
Exclusion from Limited Liability. To the extent Business Associate has limited its liability under the terms of the underlying service agreement, whether with a maximum recovery for direct damages or a disclaimer against any consequential, indirect or punitive damages, or other such limitations, such limitation shall not apply to the following costs to the extent they arise from Business Associate’s breach of its obligations relating to the use and disclosure of Protected Health Information:
i. The costs of notifying patients of a breach of their protected health information as required by 45 C.F.R. § 164,400 et seq.;
ii. Any civil monetary penalties, fines, or other damages resulting from the action of any state or federal government agency as a result of the breach;
iii. Fees of counsel, forensic computer specialists, and other consultants used to assist the Covered Entity in responding to a breach of Protected Health Information and any subsequent investigation by a federal or state government agency;
iv. The defense of lawsuits brought by patients alleging invasions of privacy, and any liability resulting from such lawsuits (whether in the form of a judgment or settlement), provided that Business Associate shall have the opportunity to participate in the defense of such lawsuits and to approve any proposed settlement for which it would be financially responsible.
Exclusion from Limited Liability. Clause 9.4 does not apply to loss or liability that is recoverable by the Client from BMT EA under contracts of insurance maintained by BMT EA as specified in this Agreement.
