Stipulated Direct Damages. Without limiting (1) each Party’s responsibility for direct damages under this Agreement, and (2) each Party’s right to claim other direct damages, the following items shall be considered direct damages under this Agreement and are not prohibited by Section 24.2(a), to the extent they are reasonable:
(i) Costs incurred by Health Net to correct or have corrected any errors or other deficiencies in the Services rendered by Supplier;
(ii) Any portion of overpayments paid by Health Net to members due to errors of Supplier that remain unrecovered by Health Net ***;
(iii) Amounts paid by Health Net for interest arising out of Supplier’s performance of the Services relating to examiner error ***;
(iv) Amounts paid by Health Net for fines arising out of Supplier’s performance of the Services during each calendar year ***
(v) Performance Guarantee Group Payment Amounts owed by Supplier to Health Net pursuant to Schedule B (Service Levels);
(vi) Costs of recreating, restoring or reloading any of Health Net’s information lost or damaged as a result of a failure by Supplier to perform the Services at all or in accordance with this Agreement. Such recreation, restoration and reloading costs shall include all activities and efforts that an IT group of a health insurance company may reasonably undertake to recreate, restore or reload such lost or damaged information, using efforts that are proportionate to the importance to Health Net of the information to be recreated, restored or reloaded and the volume of such lost or damaged information;
(vii) Costs of implementing a workaround in respect to a failure to perform the Services at all or in accordance with this Agreement;
(viii) Costs and expenses incurred by Health Net to acquire and have performed substitute services conforming to this Agreement in place of any Services Supplier fails to provide at all or in accordance with this Agreement;
(ix) Straight time, overtime, or related expenses incurred by Health Net or its Affiliates, including wages and salaries of additional personnel, travel, expenses, telecommunication and similar charges, arising out of the failure of Supplier to perform at all or in compliance with this Agreement;
(x) Amounts required to be paid by Health Net under any Law or by any court or governmental or regulatory authority, or incurred by Health Net to create and implement any corrective actions plan, and to satisfy an order or directive of a court or governmental or regulatory authority arising...
Stipulated Direct Damages. The Parties acknowledge and agree that the following will be considered direct damages and that neither Party will assert that they are types of damages that are excluded under Section 19.2(a) to the extent they result from a Party’s failure to perform in accordance with the Agreement:
(i) Costs and expenses of restoring or reloading any lost, stolen, corrupted or damaged Solectron Data in the event that IBM fails to Solectron/IBM Confidential make backups as required under the Agreement (including failure to accurately or completely make such backups) or fails to maintain and store such backups;
(ii) Costs and expenses of implementing a work-around in respect of a failure to provide any Services as required by the Agreement;
(iii) Costs and expenses of replacing lost, stolen or damaged Equipment, Software or materials;
(iv) Incremental straight time, overtime and related expenses incurred by either Party, including overhead allocations for employees, wages and salaries of additional employees, travel expenses, overtime expenses, telecommunications charges and similar charges, incurred in connection with clauses (i) through (iii) above due to IBM’s failure to provide any Services as required by the Agreement or to otherwise perform in accordance with the Agreement;
(v) Costs and expenses incurred for Solectron (or its Affiliates) to bring the Services in-house or to contract to obtain services similar to the Services from an alternate source, including the costs and expenses associated with the retention of external consultants and legal counsel to assist with any re-sourcing;
(vi) Damages suffered by any Solectron Affiliate that would be direct damages if they had instead been suffered by Solectron; and
(vii) Payments, fines, penalties or interest imposed by a governmental body or regulatory entity for failure to comply with requirements or deadlines to the extent they are the subject of Sections 18.2(h) or 18.4(h).
