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A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />:YAN L. BUTLER, CLERK
<br />or enforcement thereof. If the Parties cannot agree on such adjusted amounts or amended terms, then
<br />either Party may terminate this Agreement upon thirty (30) days prior written notice to the other
<br />Party.
<br />2. Neither PBM nor Administrator shall be obligated at any time to provide the prescription drug benefit
<br />and related services identified in this Agreement to Client or the Members if Client or, if applicable,
<br />Members, are located in a state requiring a prescription benefit manager to be a fiduciary to Client or
<br />Members, in any capacity, contrary to or inconsistent with the terms and conditions specifically
<br />identified in this Agreement. In the event any state law or regulation requires PBM or Administrator
<br />to be a fiduciary to Client or a Member contrary to or inconsistent with the terms and conditions
<br />identified in this Agreement, Administrator may elect not to provide such prescription drug benefit
<br />and related services identified in this Agreement to the impacted Members upon thirty (30) days'
<br />prior written notice to Client.
<br />3. Each Party, upon giving prompt written notice thereof to the other Party, shall not be liable for delay
<br />or failure to perform hereunder (except with regard to payment of invoices), if such delay or failure
<br />is due to a cause or causes beyond the reasonable control of such Party (a "Force Majeure Event").
<br />For purposes of this Agreement, a Force Majeure Event may include, but shall not be limited to, acts
<br />of God or the public enemy, fire, flood, storms, explosion, earthquake, war, terrorism, malicious
<br />mischief, accident, transportation tie-up, riot or civil insurrection, embargo, boycott, lock -out, strike
<br />or labor disturbance, slowdown or labor stoppage of any kind or act of any government, foreign or
<br />domestic. Each Party shall have the option, but not the obligation, to terminate this Agreement in its
<br />entirety if the other Party fails to perform any material obligation of this Agreement because of the
<br />occurrence of a Force Majeure Event and either (i) the other Party does not cure such breach within
<br />thirty (30) days after the occurrence of the Force Majeure Event, or (ii) such failure is not reasonably
<br />subject to cure within such period. The non -breaching Party must provide written notice of
<br />termination to the breaching Party.
<br />H. Access to Information; Audit Rights; Government Agency Submitted Claims.
<br />1. 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 the
<br />disclosing Party as a condition precedent to being permitted such access to such information.
<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. Client agrees
<br />that it will execute (and shall cause any mutually acceptable independent, third party auditor taking
<br />part in any such audit to execute) a confidentiality agreement in form and content reasonably
<br />acceptable to Administrator prior to conducting any such audit. Any request by Client to permit an
<br />auditor to perform an audit will constitute Client's direction and authorization to Administrator to
<br />disclose PHI to auditor. In the event of an audit by a mutually acceptable independent third party,
<br />Administrator and Client shall be provided with a copy of any proposed audit report or other written
<br />materials documenting such audit and Administrator will have a reasonable opportunity to comment
<br />on any such report or written materials documenting such audit before such are finalized. Upon
<br />finalization of audit results and agreement between Client and Administrator on any identified
<br />adjustments or discrepancies, if any, the period under review will be considered closed by the Parties
<br />and such agreed upon adjustment payments, if any, shall be paid by the appropriate Party within thirty
<br />(30) days of execution by the Parties of an appropriate release document covering the audit period.
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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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