Rebate Changes. Without limiting rights and obligations set forth elsewhere in this Agreement, Client acknowledges and agrees that Rebates and Rebate guarantees are subject to change for reasons including but not limited to:
7.4.1 Rebate eligibility is modified under an agreement between PBM and/or its Vendor and a Manufacturer;
7.4.2 Laws affecting the distribution or the amount of Rebates available or payable; or
7.4.3 Any action(s) or inaction(s) by Manufacturer that impacts the availability or amount of Rebate earned, that includes, but is not limited to, Manufacturer’s discontinuation of a Covered Drug. If any condition set forth in this Section 7.4 occurs, PBM may provide written notice to Client of the occurrence of such condition and notify Client of the revision to or elimination of such Rebates. PBM reserves the right to amend the financial terms of the Agreement to account for the impact of such reduction or elimination of the Rebate payment in a manner that preserves PBM’s economic position as existed immediately before the effective date such change, including but not limited to a change in the Administrative Services Fee, a change in the percentage of Rebates retained by PBM, a change in the pricing terms outlined in Exhibit D (Retail Pharmacy Network, Mail Order Pharmacy Network and Specialty Pharmacy Network Prescription Drug Claims Pricing) and/or a change in the Rebate guarantees as described in Exhibit E (Rebate Guarantees).
Rebate Changes. CLIENT acknowledges that its eligibility to receive credits for Rebates or to receive a Rebate amount/percentage may change because of changes in its benefit plan design, changes to the number of covered members or pharmacy Claims volume of greater than 10% (e.g. channel, formulary, line of business, etc. ) as compared to the data and claims experience provided by CLIENT during RFP process which has a material impact on BENECARD PBF’s ability to obtain Rebates, CLIENT changes to the Formulary, including but not limited to Utilization Management changes that cause a negative impact to rebates government action including government best-price policies, a change in any law, regulation, interpretation of a law or regulation, or any change within the PBM marketplace which would lead to a deviation from the current economic environment upon which these Guaranteed Rebates are based. Rebate changes also include unexpected market events such as generics launched at risk, authorized Generic Drug launches, products launched at risk, introduction of biosimilars, the loss of patent protection for Brand Drugs or the extension of such protection, the entry of Generic Drugs into the marketplace, changes in BENECARD PBF’s contracts or performance related to those contracts with other firms associated with providing pharmaceutical rebates, and other situations which make it commercially unreasonable for BENECARD PBF to collect Rebates. BENECARD PBF shall use reasonable effort to provide not less than forty-five (45) days’ written notice to CLIENT of any such change in Rebates or change in Rebate Guarantee amounts. CLIENT agrees that BENECARD PBF shall not have any liability or obligation to CLIENT or its Members for any failure by rebate aggregator or other persons associated with providing pharmaceutical rebates to pay any Rebates, any breach of an agreement related to the transactions contemplated by this Agreement by any such manufacturer or other person, or any negligence or willful misconduct of any such manufacturer or other person. BENECARD PBF shall not be required to institute or participate in any litigation, arbitration or mediation to obtain Rebates.
