|
REV:01-20-23 MI
<br />OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED, HOWEVER, THAT THE
<br />LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO OR IN ANY
<br />WAY LIMIT THE OBLIGATIONS OF THE SECTIONS ENTITLED “INDEMNITY,” AND
<br />“CONFIDENTIALITY AND PROPRIETARY INFORMATION”. IF NAVIA IS FOUND
<br />LIABLE TO EMPLOYER FOR ANY DIRECT DAMAGES, SUCH DAMAGES SHALL NOT
<br />EXCEED AN AMOUNT EQUAL TO ACTUAL DAMAGES OR THE FEES PAID FOR
<br />SERVICES GIVING RISE TO THE CLAIM WITHIN THE TWELVE (12) MONTHS
<br />PRECEDING THE CLAIM, WHICHEVER IS LESS.
<br />(b) Navia is not liable for the acts or omissions of a prior administrator or the acts or omissions of
<br />Employer if prior administration was conducted by Employer.
<br />(c) Navia shall not be liable for any action, conduct, or activity taken by Navia, or any failure to act,
<br />at the request of Employer.
<br />(d) Neither party will be liable for and will be excused from any failure or delay in satisfying its
<br />obligations set forth herein if such failure or delay is caused by circumstances beyond its control,
<br />including but not limited to any natural disaster (such as earthquakes, hurricanes or floods),
<br />emergency conditions (such as war, riot, fire, theft, severe inclement weather, or labor dispute),
<br />outages, legal constraint or governmental action or inaction, breakdown or failure of equipment
<br />not due directly to the negligence of the Party maintaining the equipment, or the act, omission,
<br />negligence or fault of the other party. This section does not excuse Employer from its
<br />obligations to pay any of the Fees or to fund the Benefit Plans as provided herein.
<br />Navia neither assumes nor underwrites any liability of Employer under the Benefit Plans, and acts only as
<br />provider of the services specifically described herein. Navia shall not be responsible for any over
<br />disbursed benefits, including but not limited to over disbursements due to insurance claim adjustments
<br />after benefits have been reimbursed. The Services performed shall be ministerial in nature and shall be
<br />performed in accordance with the direction, guidance, framework, and interpretation of the Benefit
<br />Plan(s) established and communicated by Employer. Navia shall have no discretionary authority or
<br />control over the Benefit Plan(s), funds, and Covered Individuals. Specifically, the Employer has the
<br />absolute authority with respect to the control, management, investment, or disposition and utilization of
<br />all plan assets, if any; and Navia shall neither have nor be deemed to exercise any discretion, control, or
<br />authority with respect to the disposition of any plan assets.
<br /> 6.2 INDEMNITY
<br />(a) Navia will defend, indemnify and hold harmless (collectively “Indemnify”) Employer and its
<br />officers, boards and commissions, agents, employees and volunteers (collectively “Indemnitees”)
<br />from and against all claims, damages, losses and expenses including attorney fees (collectively
<br />“Losses”) arising out of the performance of the services, caused or claimed to be caused by the
<br />acts, errors and/or omissions of Navia, or any Navia personnel or anyone for whose acts any of
<br />them may be liable (collectively, “Responsible Parties”). Navia’s responsibilities under this
<br />Section include liability arising from, connected with, caused by, or claimed to be caused by the
<br />active or passive negligent acts or omissions of Employer, which may be in combination with the
<br />acts or omissions of any Responsible Party, provided that Navia’s duty to Indemnify will not
<br />include any Losses arising from the sole negligence or willful misconduct of City.
<br />(b) Indemnitee shall give Navia reasonably prompt notice of, and the Parties shall cooperate in, the
<br />defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement
<br />ATTY/AGR.2023.010/Navia Benefit Solutions (Navia Services (Dental HRA) 2023) (Page 13 of 42)
|