|
6. The article and section headings contained in this Agreement are solely for the purpose of reference,
<br />are not part of the agreement of the parties and shall not in any way affect the meaning or
<br />interpretation of this Agreement.
<br />E. Authority; Counterparts. The signatories to this Agreement each represents and warrants that he/she has
<br />full corporate or company authority to sign this Agreement on behalf of his/her respective Party and to legally
<br />bind and obligate such Party by so signing. Additionally, upon such signature by such authorized
<br />signatories) of Client in each signature block of this Agreement (and the Client Application and the Business
<br />Associate Agreement made a part of this Agreement), Client represents, warrants, covenants and agrees that
<br />it has the necessary power and authority, corporate, company or otherwise (and that all necessary action has
<br />been taken for Client), to enter into this Agreement and such other agreements and to consummate the
<br />transactions provided for herein and therein. This Agreement (including the exhibits hereto) may be executed
<br />simultaneously in any number of counterparts, each of which shall be deemed an original, but all of which
<br />shall constitute one and the same instrument. Facsimile signatures or signatures transmitted by electronic
<br />mail shall be deemed to be original signatures for all purposes.
<br />F. Relationship of the Parties.
<br />1. Administrator and Client are, and shall at all times be, solely independent contractors. Neither Party
<br />nor its Representatives is, nor shall such Party or its Representatives be construed to be, by any Party
<br />to this Agreement or by any third party, an employee, joint venturer, partner, principal, agent,
<br />master, servant, fiduciary or other Representative of the other Party. Neither Party is authorized to
<br />assume or create any obligations, duties or liabilities, express or implied, on behalf of or in the name
<br />of the other Party, except as otherwise expressly provided to the contrary in this Agreement.
<br />Furthermore, Client acknowledges, agrees and understands that Administrator, on the one hand, and
<br />PBM and any other contracting parties of Administrator, on the other hand, are unaffiliated entities
<br />and independent parties who are solely independent contractors of one another.
<br />2. Client acknowledges that: (i) Client shall be responsible, in its sole discretion, for the selection of
<br />any consultants or experts to provide advice to Client as to Iiabilities under the Plan or duties or
<br />obligations of the Plan or Client under applicable law or otherwise; and (ii) Client is not contracting
<br />hereunder with Administrator for the provision of any such advice by Administrator. To the
<br />contrary, the Parties expressly acknowledge that Administrator will not provide such advice to
<br />Client, and that neither Party has any obligation or responsibility to advise the other Party about
<br />such other Party's compliance or noncompliance with any law, regulation, statute, rule or otherwise
<br />(including without limitation under ERISA, the Internal Revenue Code, the Public Health Services
<br />Act and/or any regulation with respect to the any of the foregoing).
<br />3. Client expressly acknowledges and agrees that: (i) Administrator is not (nor shall it be deemed to
<br />be at any time) a "fiduciary" for any purpose under ERISA, the Internal Revenue Code and/or the
<br />Public Health Services Act (and any regulations thereunder), applicable state law, common law or
<br />otherwise; (ii) Administrator is not (nor shall it be deemed to be at any time) the administrator of
<br />the Plan for any purpose; (iii) Client (and not Administrator) possesses and expressly retains at all
<br />times during this Agreement and thereafter the sole and absolute authority and responsibility to
<br />design, amend, terminate, modify, in whole or in part, all or any portion of the Plan, including
<br />without limitation the sole and absolute authority to control and administer the Plan and any assets
<br />of the Plan, and such authority and responsibility cannot be delegated to Administrator; and (iv)
<br />Client (and not Administrator) has complete discretionary, binding and final authority to construe
<br />the terms of the Plan, to interpret ambiguous Plan language, to make factual determinations
<br />regarding the payment of Prescription Drug Claims or provision of benefits, to review denied
<br />Prescription Drug Claims and to resolve complaints by Members.
<br />G. Compliance with Laws; Force Majeure.
<br />I. Each Parry hereby certifies and shall perform its duties and obligations under this Agreement in a
<br />manner that complies with all federal, state, local and other laws and regulations applicable to such
<br />NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY
<br />AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS
<br />1E
<br />
|