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9 <br /> 4.3 Status of the Parries. Magellan and Sponsor agree that Magellan and all Providers are <br /> independent contractors with respect to the Services performed under this Agreement and,except as otherwise <br /> specifically provided in this Agreement,(a)no Provider is the agent of Magellan or Sponsor nor is any Provider <br /> authorized to act on behalf of Magellan or Sponsor in any manner and(b)neither Magellan nor Sponsor is the agent <br /> of the other,nor is either party authorized to act on behalf of the other in any manner. <br /> 4.4 Waiver. The failure of either party in any one or more instances to insist upon strict performance <br /> of any of the terms and provisions of this Agreement,or to exercise any option conferred herein shall not be <br /> construed as a waiver or relinquishment,to any extent,of the right to assert or rely upon any such terms,provisions <br /> or options on any future occasion. <br /> 4.5 Governing Law. This Agreement has been entered into between the parties in the State of Utah <br /> and the laws of such state,without reference to its choice of law rules,shall govern its interpretation and <br /> enforcement,except as such laws may be preempted by ERISA. <br /> 4.6 Severability. If any of the provisions of this Agreement shall be invalid or unenforceable by a <br /> court with jurisdiction over the parties to this Agreement,such invalidity or unenforceability shall not invalidate or <br /> render unenforceable the entire Agreement. <br /> 4.7 Authority. Each party hereto represents and warrants to the other that the person executing this <br /> Agreement on behalf of such party has been duly authorized to execute and deliver this Agreement on behalf of said <br /> ply. <br /> 4.8 Entire Agreement,Modification. This Agreement represents the entire agreement between the <br /> parties and supersedes any and all previously written or oral agreements or understandings. This Agreement may <br /> only be changed in writing signed by Magellan and Sponsor. <br /> 4.9 Limited Liability and Warranties. Magellan warrants that it or its subcontractors will make every <br /> effort to ensure the accuracy of the information or the appropriateness of any service or product provided to <br /> Participants. Referrals given by Magellan to Participants for elder or child care,legal services or other community <br /> services are not endorsements or recommendations for the referred programs or providers. The responsibility for <br /> selecting and engaging such providers lies solely with the Participant. Vendors and other providers of elder or child <br /> care,legal services,convenience services or other community services are not and shall not be deemed agents of <br /> Magellan or Sponsor. <br /> 4.10 Exclusions. <br /> (a) For purposes of this Agreement,the term"Participant"shall be deemed to exclude all <br /> Participants(as otherwise deemed)whose residence or place of employment with Sponsor is located outside of the <br /> United States,Puerto Rico or Canada unless Sponsor has selected International Services as indicated by the <br /> designation on the Fee Schedule and Conditions of Offer attached as Addendum C and notifies Magellan of the <br /> location(s)of the Participants eligible for International Services. <br /> (b) Coverage is not available to Sponsor's employees by employee choice under a cafeteria <br /> plan. <br /> (c) EAP services do not include any of the following: <br /> (i) Gatekeeping to the behavioral component of Sponsors group health plan; <br /> (ii) Evaluations required by any state or federal judicial officer to other <br /> governmental official or agency mandating that a Participant undergo <br /> counseling; <br /> Magellan Behavioral Health,Inc. 6 Rev. 07127101 <br /> Growing Business Services Agreement <br />