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D. Client expressly understands, acknowledges and agrees that any and all information, data, documentation or
<br />software disclosed by Administrator and/or PBM in the course of conducting its business and performing
<br />administrative and related services for Members and/or Client are confidential and proprietary to, and a
<br />valuable trade secret of, Administrator and/or PBM and that any disclosure or unauthorized use - that is, any
<br />use other than to evaluate Administrator's performance under this Agreement - will cause irreparable harm
<br />and damage to Administrator and/or PBM. Notwithstanding anything to the contrary in this Agreement or in
<br />any document submitted to Client by Administrator (including, but not limited to, any confidentiality
<br />agreement), Administrator understands and acknowledges that any Confidential Information disclosed to
<br />Client by Administrator may potentially be subject to disclosure under the state or federal open records acts
<br />(each, an "Act"). Upon receipt of any request or demand by any person or entity seeking release of
<br />Confidential Information and/or prior to any release or disclosure of Confidential Information to any person
<br />or entity that Client or its Representatives deem necessary or required under the Act or otherwise, Client shall
<br />immediately notify Administrator in writing of such request, demand or obligation (a "Disclosure Request").
<br />If Administrator fails to give express written consent to the disclosure of the Confidential Information subject
<br />to the Disclosure Request within three (3) business days of receiving written notice from CIient of such
<br />Disclosure Request (initiated by any person other than Client or its Representatives), Client shall not disclose
<br />such information and Administrator shall defend and indemnify Client against any action brought to compel
<br />compliance with the Act, and against any out-of-pocket expense, including, but not limited to, court costs,
<br />all other costs of litigation, attorney's fees, fines, and statutory damages, to the extent arising from
<br />Administrator's failure to consent to disclosure of the requested Confidential Information. Without in any
<br />way limiting Administrator's defense and indemnification obligations under the preceding sentence,
<br />Administrator, at its own expense and at any time, may seek or initiate action to quash, limit, modify, narrow
<br />the scope of, and/or otherwise intervene, obtain a protective order and/or defend against, any requested
<br />disclosure subject to such Disclosure Request (an "Administrator Intervention"). Client agrees to reasonably
<br />cooperate with Administrator in any Administrator Intervention. If Client is ultimately legally compelled to
<br />disclose Confidential Information pursuant to a Disclosure Request, Client shall disclose only the minimum
<br />required pursuant to and in order to comply with the court order or other legal compulsion. Except as provided
<br />in this Subsection D of Article Ill, and except as may be necessary to defend or prosecute litigation between
<br />the parties hereto, Client shall not, directly or indirectly, release or disclose or otherwise use or attempt to
<br />use any patient-specific prescription information, trade secrets, proprietary software and technical processing,
<br />financial, pricing or other confidential information of Administrator and/or PBM obtained by Client from
<br />Administrator and/or PBM (regardless of the reason such information was provided or obtained) to any other
<br />party or for the benefit of any other party without the prior written consent of Administrator and/or PBM,
<br />which consent may be withheld by Administrator and/or PBM in their sole and absolute discretion.
<br />E. Client expressly represents and wan -ants that (i) it has provided notice to its employees and their dependents
<br />regarding participation in the Plan and Client's disclosure or anticipated disclosure of employee or dependent
<br />confidential information to Administrator in connection with the Plan and applicable law, and (ii) it has
<br />obtained all consents and/or other approvals or authorizations (either in writing or through opt -out
<br />procedures) from each Primary Member or, if applicable, each dependent Member or other applicable party,
<br />regarding such disclosures to Administrator for purposes of this Agreement and the services provided to
<br />Client and Members hereunder, and relating to the use and disclosure of information by Administrator or
<br />other applicable parties, including without limitation PHI under HIPAA as permitted under this Agreement
<br />or as otherwise reasonably necessary to effect and/or cavy out the purposes and intent of this Agreement and
<br />the services to be performed and rendered by Administrator, PBM, Client or other applicable third parties
<br />with respect to this Agreement. PBM and/or Administrator may use, disclose, reproduce or adapt information
<br />obtained in connection with this Agreement, including Prescription Drug Claims as well as eligibility
<br />information, which is not identifiable on a Member basis. PBM and/or Administrator shall maintain the
<br />confidentiality of this information to the extent required by applicable law, and may not use the information
<br />in any way prohibited by applicable law.
<br />F. Should Client identify erroneous, mistaken or incorrect Prescription Drug Claims payments made by
<br />Administrator, refunds in the amount of any such erroneous Prescription Drug Claims payments to Client
<br />shall be made by Administrator within 30 days after receipt by Administrator of written notice from Client
<br />identifying such errors and providing reasonable documentation to support them. Client acknowledges,
<br />covenants and agrees that such refunds made by Administrator as provided in this Article III.F shall be the
<br />NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY
<br />AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS
<br />7
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