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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 />conswed 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 Authori .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 />party, <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 subconvactors 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 defined) 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 Che Pazticipants 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 />(iii) Performance evaluations or recommendations to be used in child custody <br />proceedings, child abuse proceedings, criminal proceedings, workers <br />compensation proceedings, or any legal actions of any kind; <br />(iv) Performance of professional assessments for fitness for duty determinations or <br />excuses for leaves of absence or time off; <br />(v) Treatment for any problem or condition that is not amenable to resolution in <br />brief counseling. <br />Magellan Behavioral Health, Inc. 6 Rev. 3/08/09 <br />Gro~oing Business Services Agreement <br />