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A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />RYAN L. BUTLER, CLERK
<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. Electronic signatures shall be deemed to be original signatures
<br />for all purposes.
<br />F. Relationship of the Parties.
<br />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, master,
<br />servant, fiduciary or other Representative of the other Party. Neither Party is authorized to assume
<br />or create any obligations, duties or liabilities, express or implied, on behalf of or in the name of the
<br />other Party, except as otherwise expressly provided to the contrary in this Agreement. Furthermore,
<br />Client acknowledges, agrees and understands that Administrator, on the one hand, and PBM and any
<br />other contracting parties of Administrator, on the other hand, are unaffiliated entities and independent
<br />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 liabilities 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 contrary,
<br />the Parties expressly acknowledge that Administrator will not provide such advice to Client, and that
<br />neither Party has any obligation or responsibility to advise the other Party about such other Party's
<br />compliance or noncompliance with any law, regulation, statute, rule or otherwise (including without
<br />limitation under ERISA, the Internal Revenue Code, the Public Health Services Act and/or any
<br />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 be
<br />at any time) a "fiduciary" for any purpose under ERISA, the Internal Revenue Code and/or the Public
<br />Health Services Act (and any regulations thereunder), applicable state law, common law or otherwise;
<br />(ii) Administrator is not (nor shall it be deemed to be at any time) the administrator of the Plan for
<br />any purpose; (iii) Client (and not Administrator) possesses and expressly retains at all times during
<br />this Agreement and thereafter the sole and absolute authority and responsibility to design, amend,
<br />terminate, modify, in whole or in part, all or any portion of the Plan, including without limitation the
<br />sole and absolute authority to control and administer the Plan and any assets of the Plan, and such
<br />authority and responsibility cannot be delegated to Administrator; and (iv) Client (and not
<br />Administrator) has complete discretionary, binding and final authority to construe the terms of the
<br />Plan, to interpret ambiguous Plan language, to make factual determinations regarding the payment of
<br />Prescription Drug Claims or provision of benefits, to review denied Prescription Drug Claims and to
<br />resolve complaints by Members.
<br />G. Compliance with Laws; Force Majeure.
<br />Each Party 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 />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
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<br />NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY
<br />AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS
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