Common use of Liability of Contractor Clause in Contracts

Liability of Contractor. (a) CONTRACTOR bears all risk of loss or damage due to: (1) Defects in Services or Deliverables; (2) The negligence or intentional misconduct of CONTRACTOR or its employees, agents, subcontractors, or representatives. (b) CONTRACTOR MUST, AT THE CONTRACTOR’S OWN EXPENSE, DEFEND WITH COUNSEL APPROVED BY THE STATE, INDEMNIFY, AND HOLD HARMLESS THE STATE AND STATE EMPLOYEES, OFFICERS, DIRECTORS, SUBCONTRACTORS AND AGENTS FROM AND AGAINST ANY LOSSES, LIABILITIES, DAMAGES, PENALTIES, COSTS, FEES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, AND EXPENSES FROM ANY CLAIM OR ACTION FOR PROPERTY DAMAGE, BODILY INJURY OR DEATH, TO THE EXTENT CAUSED BY OR ARISING FROM THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CONTRACTOR AND ITS EMPLOYEES, OFFICERS, AGENTS, OR SUBCONTRACTORS. (c) CONTRACTOR will not be liable to HHSC for any loss, damages or liabilities attributable to or arising from: (1) The failure of HHSC or any state agency or HHSC CONTRACTOR to perform a service or activity in connection with this Agreement; or (2) CONTRACTOR’s prudent and diligent performance of the Services in compliance with instructions given by HHSC in accordance with Section 1.03 (relating to implied authority) and Section 3.03 (relating to delegation of authority) of this Agreement. (d) CONTRACTOR will ship all Equipment and Software purchased and Third Party Software licensed pursuant to the Agreement, freight prepaid, FOB HHSC’s destination. The method of shipment will be consistent with the nature of the Equipment and Software and hazards of transportation. Regardless of FOB point, CONTRACTOR agrees to bear all risks of loss, damage, or destruction of Deliverables, in whole or in part, ordered hereunder that occurs prior to Acceptance, except loss or damage attributable to HHSC’s fault or negligence; and such loss, damage, or destruction will not release CONTRACTOR from any obligation hereunder. After Acceptance, the risk of loss or damage will be borne by HHSC, except loss or damage attributable to CONTRACTOR’s fault or negligence.

Liability of Contractor. (a) CONTRACTOR bears all risk of loss or damage due to: (1) Defects in products, Services or Deliverables; (2) Unfitness or obsolescence of products, Services or Deliverables; or (3) The negligence or intentional misconduct of CONTRACTOR or its employees, agents, subcontractors, or representatives. (b) CONTRACTOR MUST, AT THE CONTRACTOR’S OWN EXPENSE, DEFEND WITH COUNSEL APPROVED BY THE STATE, INDEMNIFY, AND HOLD HARMLESS THE STATE AND STATE EMPLOYEES, OFFICERS, DIRECTORS, SUBCONTRACTORS CONTRACTORS AND AGENTS FROM AND AGAINST ANY LOSSES, LIABILITIES, DAMAGES, PENALTIES, COSTS, FEES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, AND EXPENSES FROM ANY CLAIM OR ACTION FOR PROPERTY DAMAGE, BODILY INJURY OR DEATH, TO THE EXTENT CAUSED BY OR ARISING FROM THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CONTRACTOR AND ITS EMPLOYEES, OFFICERS, AGENTS, OR SUBCONTRACTORS. (c) CONTRACTOR will not be liable to HHSC for any loss, damages or liabilities attributable to or arising from: (1) The failure of HHSC or any state agency or HHSC CONTRACTOR to perform a service or activity in connection with this the Agreement; or (2) CONTRACTOR’s prudent and diligent performance of the Services in compliance with instructions given by HHSC in accordance with Section 1.03 (relating to implied authority) and Section 3.03 (relating to delegation of authority) of this the Agreement. (d) CONTRACTOR will ship all Equipment and Software purchased and Third Party Software licensed pursuant to under the Agreement, freight prepaid, FOB HHSC’s destination. The method of shipment will be consistent with the nature of the Equipment and Software and hazards of transportation. Regardless of FOB point, CONTRACTOR agrees to bear all risks of loss, damage, or destruction of Deliverables, in whole or in part, ordered hereunder that occurs prior to Acceptance, except loss or damage attributable to HHSC’s fault or negligence; and such loss, damage, or destruction will not release CONTRACTOR from any obligation hereunder. After Acceptance, the risk of loss or damage will be borne by HHSC, except loss or damage attributable to CONTRACTOR’s fault or negligence.

Liability of Contractor. (a) CONTRACTOR bears all risk of loss or damage due to: (1) Defects in products, Services or Deliverables; (2) Unfitness or obsolescence of products, Services or Deliverables; or (3) The negligence or intentional misconduct of CONTRACTOR or its employees, agents, subcontractors, or representatives. (b) CONTRACTOR MUSTmust, AT THE at the CONTRACTOR’S OWN EXPENSE’s own expense, DEFEND WITH COUNSEL APPROVED BY THE STATEdefend with counsel approved by the State, INDEMNIFYindemnify, AND HOLD HARMLESS THE STATE AND STATE EMPLOYEESand hold harmless the State and State employees, OFFICERSofficers, DIRECTORSdirectors, SUBCONTRACTORS AND AGENTS FROM AND AGAINST ANY LOSSEScontractors and agents from and against any losses, LIABILITIESliabilities, DAMAGESdamages, PENALTIESpenalties, COSTScosts, FEESfees, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYSincluding without limitation reasonable attorneys' FEESfees, AND EXPENSES FROM ANY CLAIM OR ACTION FOR PROPERTY DAMAGEand expenses from any claim or action for property damage, BODILY INJURY OR DEATHbodily injury or death, TO THE EXTENT CAUSED BY OR ARISING FROM THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE to the extent caused by or arising from the negligence or intentional misconduct of the CONTRACTOR AND ITS EMPLOYEESand its employees, OFFICERSofficers, AGENTSagents, OR SUBCONTRACTORSor subcontractors. (c) CONTRACTOR will not be liable to HHSC for any loss, damages or liabilities attributable to or arising from: (1) The failure of HHSC or any state agency or HHSC CONTRACTOR to perform a service or activity in connection with this Agreement; or (2) CONTRACTOR’s prudent and diligent performance of the Services in compliance with instructions given by HHSC in accordance with Section 1.03 (relating to implied authority) and Section 3.03 (relating to delegation of authority) of this Agreement. (d) CONTRACTOR will ship all Equipment and Software purchased and Third Party Software licensed pursuant to the Agreement, freight prepaid, FOB HHSC’s destination. The method of shipment will be consistent with the nature of the Equipment and Software and hazards of transportation. Regardless of FOB point, CONTRACTOR agrees to bear all risks of loss, damage, or destruction of Deliverables, in whole or in part, ordered hereunder that occurs prior to Acceptance, except loss or damage attributable to HHSC’s fault or negligence; and such loss, damage, or destruction will not release CONTRACTOR from any obligation hereunder. After Acceptance, the risk of loss or damage will be borne by HHSC, except loss or damage attributable to CONTRACTOR’s fault or negligence. (e) CONTRACTOR's General Liability16 (1) SUBJECT TO THE EXCLUSIONS SET FORTH IN SUBSECTION (4) OF THIS SECTION 11.12(e), IF CONTRACTOR SHALL BE FOUND LIABLE TO HHSC FOR ANY MATTER RELATING TO OR ARISING FROM THIS AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, WARRANTY, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM ARISING FROM THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF THE LIABLE PARTY), THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST CONTRACTOR FOR DAMAGES WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER WILL NOT EXCEED THE LIABILITY CAP DESCRIBED IN SUBSECTION (4) OF THIS SECTION 11.12(e). (2) The limitation described in subsection (4) of this Section 11.12 will not apply to CONTRACTOR's obligations under Article 10 (relating to Confidential Information) or Article 14.01 (relating to infringement and misappropriation). (3) Each Party has a duty to mitigate the damages that would otherwise be recoverable from the other Party pursuant to this Agreement by taking such actions as may be required under Texas law to reduce or limit the amount of such damages. (4) CONTRACTOR's limitation of liability under this Agreement during the first year shall be equal to $50 million; CONTRACTOR's limitation of liability for subsequent years shall be $50 million plus 35% of the amounts actually paid during the second year of the Agreement. 16 Section 11.12(e) added to the UTCs. (5) If CONTRACTOR fails to meet a Key Performance Requirement with respect to which Liquidated Damages apply, payment by CONTRACTOR of such Liquidated Damages shall reduce CONTRACTOR's maximum aggregate liability to HHSC under Section 11.12(e)(4) hereof by an amount equal to the Liquidated Damages paid.