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Party and its performance hereunder, including without limitation the federal anti -kickback statute
<br />set forth at 42 U.S.C. § 1320a-7b(b) ("Anti -Kickback Statute"), the Public Contracts Anti -Kickback
<br />Statute, and/or the federal "Stark Law" set forth at 42 U.S.C. § 1395nn ("Stark Law'), as and to the
<br />extent applicable to each such Party. Each Party is responsible for obtaining its own legal advice
<br />concerning its compliance with applicable laws. If Administrator's performance of its duties and
<br />obligations under this Agreement is made materially more burdensome or expensive due to a change
<br />in federal, state or local laws or regulations or the interpretation or enforcement thereof, the Parties
<br />shall, at the option of Administrator, negotiate promptly and in good faith an appropriate adjustment
<br />to the fees, costs, expenses and/or charges paid to Administrator hereunder or other amendment to
<br />this Agreement reasonably necessary in light of the change in law or regulation or the interpretation
<br />or enforcement thereof. If the Parties cannot agree on such adjusted amounts or amended terms,
<br />then either Party may terminate this Agreement upon thirty (30) days prior written notice to the
<br />other Party.
<br />2. Neither PBM nor Administrator shall be obligated at any time to provide the prescription drug
<br />benefit and related services identified in this Agreement to Client or Client's Members if Client or,
<br />if applicable, Members, are located in a state requiring a prescription benefit manager to be a
<br />fiduciary to Client or Members, in any capacity, contrary to or inconsistent with the terms and
<br />conditions specifically identified in this Agreement. In the event any state law or regulation requires
<br />PBM or Administrator to be a fiduciary to Client or a Member contrary to or inconsistent with the
<br />terms and conditions identified in this Agreement, Administrator may elect not to provide such
<br />prescription drug benefit and related services identified in this Agreement to the impacted Members
<br />upon thirty (30) days prior written notice to Client.
<br />Each Party, upon giving prompt written notice thereof to the other Party, shall not be liable for delay
<br />or failure to perform hereunder, if such delay or failure is due to a cause or causes beyond the
<br />reasonable control of such Party (a "Force Majeure Event"). For purposes of this Agreement, a
<br />Force Majeure Event may include, but shall not be limited to, acts of God or the public enemy, fire,
<br />flood, storms, explosion, earthquake, war, terrorism, malicious mischief, accident, transportation
<br />tie-up, riot or civil insurrection, embargo, boycott, lock -out, strike or labor disturbance, slowdown
<br />or labor stoppage of any kind or act of any government, foreign or domestic. Each Party shall have
<br />the option, but not the obligation, to terminate this Agreement in its entirety if the other Party fails
<br />to perform any material obligation of this Agreement because of the occurrence of a Force Majeure
<br />Event and either (i) the other Party does not cure such breach within thirty (30) days after the
<br />occurrence of the Force Majeure Event, or (ii) such failure is not reasonably subject to cure within
<br />such period. The non -breaching Party must provide written notice of termination to the breaching
<br />Party.
<br />H. Access to Information; Audit Rights; Government Agency Submitted Claims.
<br />Administrator and Client will allow each other reasonable access at reasonable times to
<br />administrative information relating to this Agreement and the Parties' respective duties, obligations
<br />and benefits described herein, upon the giving of reasonable advance notice by the requesting Party
<br />(subject to any limitations with respect to information that is not in the possession or control of
<br />Administrator or is otherwise subject to a covenant of confidentiality in favor of a third party). The
<br />requesting Party agrees to execute a confidentiality agreement in form and content satisfactory to
<br />the disclosing Party as a condition precedent to being permitted such access to such information, so
<br />long as such agreement is consistent with law.
<br />2. Client, or a mutually acceptable independent, third party auditor retained by Client, may conduct,
<br />with at least sixty (60) days prior written notice and at Client's sole cost and expense, an annual
<br />Prescription Drug Claims audit of Administrator's data that directly relates to Prescription Drug
<br />Claims billings for the prior Agreement year. The scope and manner of such a Prescription Drug
<br />Claims audit (including applicable guidelines and timelines) shall be as reasonably determined by
<br />Administrator and communicated to Client sufficiently in advance of any such audit. Any such
<br />audit shall be conducted in accordance with PBM's audit protocol then in place (a copy of which
<br />NOT FOR DISTRIBUTION. THE INFORNMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY
<br />AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS
<br />14 74
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