2004 S Personnel - MAGELLAN BEHAVIORAL HEALTH, INC Employee Assistance Program Contract Renewal

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4.4 Waiver. The failure of either party in any one or more instances to insist upon strict performance of any of the terms and provisions of this Agreement, or to exercise any option conferred herein shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms, provisions or options on any future occasion. 4.5 Governing Law. This Agreement has been entered into between the parties in the State of Utah and the laws of such state, without reference to its choice of law rules, shall govern its interpretation and enforcement, except as such laws may be preempted by ERISA. 4.6 Severability. If any of the provisions of this Agreement shall be invalid or unenforceable by a court with jurisdiction over the parties to this Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement. 4.7 Authori .Each party hereto represents and warrants to the other that the person executing this Agreement, on behalf of such party has been duly authorized to execute and deliver this Agreement on behalf of said P~Y• 4.8 Entire Agreement; Modification. This Agreement represents the entire agreement between the parties and supersedes any and all previously written or oral agreements or understandings. This Agreement may only be changed in writing signed by Magellan and Sponsor. 4.9 Limited Liability and Warranties. Magellan warrants that it or its subcontractors will make every effort to ensure the accuracy of the information or the appropriateness of any service or product provided to Participants. Referrals given by Magellan to Participants for elder or child care, legal services or other community services are not endorsements or recommendations for the referred programs or providers. The responsibility for selecting and engaging such providers lies solely with the Participant. Vendors and other providers of elder or child care, legal services, convenience services or other community services aze not and shall not be deemed agents of Magellan or Sponsor. 4.10 Exclusions. (a) For purposes of this Agreement, the term "Participant" shall be deemed to exclude all Participants (as otherwise defined) whose residence or place of employment with Sponsor is located outside of the United States, Puerto Rico or Canada unless Sponsor has selected International Services as indicated by the designation on the Fee Schedule and Conditions of Offer attached as Addendum C and notifies Magellan of the locations} of the Participants eligible for International Services. plan. (b) Coverage is not available to Sponsor's employees by employee choice under a cafeteria (c) EAP services do not include any of the following: (i) Gatekeeping to the behavioral component of Sponsors group health plan; (ii) Evaluations required by any state or federal judicial officer to other governmental official or agency mandating that a Participant undergo counseling; (iii) Performance evaluations or recommendations to be used in child custody proceedings, child abuse proceedings, criminal proceedings, workers compensation proceedings, or any legal actions of any kind; (iv) Performance of professional assessments for fitness for duty determinations or excuses for leaves of absence or time off; (v) Treatment for any problem or condition that is not amenable to resolution in brief counseling. Magellan Behavioral Health, Inc. 6 Rev. 3/08/04 Growing Business Services Agreement