Application Services Provider Services Agreement

FORM D.1Application Services Provider Services AgreementThis Application Services Provider Services Agreement (this “Agreement”), dated ______, 20__ (“Effective Date”) is made by and between ______, a ______corporation, with offices at ______, on behalf of its Affiliates (“Customer”), and [VENDOR], a ______corporation, with offices at ______(“Vendor”). INTRODUCTION A. Customer is a full service, diversified provider of managed care services in the healthcare industry; B. Vendor is a provider of certain hosted software application services, as well as related business, management, integration, connectivity, support and other similar services; and C. Customer desires to obtain from Vendor, and Vendor desires to provide to Customer, certain services as described herein. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, hereby contract and agree as follows:1. DEFINITIONS AND INTERPRETATION1.1 DefinitionsCapitalized terms (or, where so specified, non-capitalized phrases) used herein without definition shall have the meanings ascribed to them below: “Affiliate” means, as to each Party, any Person directly or indirectly controlled by, controlling, or under common control with, such Party. For the purposes of this definition, “control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise. “ASP” means application service provider. “Authorized Users” means: (a) Customer and its Affiliates; (b) employees, consultants and agents of Customer and its Affiliates; (c) third party consultants, including any systems integrator and its employees and agents, and other independent contractors, when they are performing services for Customer or any Customer Affiliate, provided that, when performing such services, they are subject to confidentiality obligations substantially similar to those set forth in this Agreement protecting Vendor’s Confidential Information; and (d) any governmental or regulatory bodies lawfully requesting or requiring access to any of Customer’s equipment and/or software. “Business Day” means any weekday other than a day designated as a holiday under the then applicable Customer holiday schedule. Any reference herein to “day” that is not specifically referenced as “Business Day” means calendar day. “Confidential Information” means information, whether provided or retained in writing, verbally, by electronic or other data transmission or in any other form or media whatsoever or obtained through on-site visits at Customer or Vendor facilities and whether furnished or made available before or after the date of this Agreement, that is confidential or proprietary to a Party or otherwise not generally made available by a Party to the public including trade secrets, marketing and sales information, product information, technical information and technology, customer and supplier information, information about trade techniques and other processes and procedures, financial and billing information and business information, plans and prospects. Customer’s Confidential Information includes, but is not limited to: (i) the Work Product; (ii) the Customer Data; and (iii) Privileged Information. “Critical SL” means those service levels identified as Critical SLs in Schedule 2.3. “Custom Programming” means any Software programming developed, authored, written, and/or created by Vendor or its agents or subcontractors for or on behalf of, or to be used in the provision of the Services to, Customer. “Defect” means a characteristic that causes a failure of the Software and/or the Vendor System to perform, function, or operate in accordance with the applicable Documentation, Specifications, SLs, or Regulatory Requirements. “Deposits” shall have the meaning set forth in Exhibit 3.5. “Disabling Device” shall have the meaning set forth in Section 2.7. “Documentation” means, collectively: (a) all of the written, printed, electronic, or other format materials that relate to the Vendor System; and (b) all user, operator, system administration, technical, support and other manuals and all other written, printed, electronic, or other format materials that describe the functional, operational, and/or performance capabilities of the Vendor System. Documentation includes all those items described in Schedule 3.1. “Enhancements” means any new Software releases, versions, improvements, Modifications, upgrades, updates, fixes, and additions to the Software that the applicable vendor markets or makes available to its customers who are eligible to receive maintenance support services from time-to-time and that correct deficiencies and/or to improve or extend the capabilities of the Software. Enhancements shall include Regulatory Requirements modifications and any re-platformed software, whether on different operating systems or equipment, except, however, that Enhancements shall not include new, separate product offerings. “Excess Services” shall have the meaning set forth in Section 5.4.3. “First Productive Use” means Customer’s first acceptance and use of the Vendor System in a live, production environment for all of a given customer’s needs using actual customer data. “Implementation Period” means the period of time commencing on the Effective Date and ending on Project Completion. “Implementation Services Statement of Work,” or “Implementation SOW” means the document attached hereto as Schedule 2.2. “Implementation Workplan” means the schedule for the accomplishment of the elements of the Implementation SOW and constitutes Attachment 1 to the Implementation Services Statement of Work. “Including”, whether or not capitalized, means “including, but not limited to.” “Internal Purposes” means all internal purposes including processing on multiple workstations and at multiple sites, and the engagement of Authorized Users (and the disclosure of source code, documentation, and other confidential information thereto) to prepare system modifications and provide other services. Internal Purposes also includes engaging an Authorized User on an outsourcing or similar basis to provide services for the internal purposes of the Party engaging the outsourcer. Internal Purposes of Customer also includes the provisions of data and claims processing services to current and future Customer Affiliates, and to entities that hereafter become former Customer Affiliates, provided that processing for such former Customer Affiliates shall be deemed “Internal Purposes” only for a period of two years after such entity ceases to be a Customer Affiliate. “Customer Data” means, in or on any medium or form of any kind: (i) data or summaries or indices of data related to Customer, its customers, Members and Providers, or the Services (regardless of whether or not owned by Customer, generated or compiled by Customer, or provided by its customers), including data that is in Customer’s databases or otherwise in Customer’s possession on the Effective Date or at any time during the Term; and (ii) all other Customer records, data, files, input materials, reports, forms, and other such items that may be received, computed, developed, used, or stored by Vendor, or by any subcontractors, for Customer in the performance of Vendor’s duties under this Agreement. “Customer’s Key Personnel” means the individuals filling the positions so designated in Schedule 5.2, as they may be assigned and replaced by Customer. “Customer’s Relationship Manager” means the individual who is so designated in Schedule 5.2, as such individual may be replaced from time to time by Customer. “Member” means an individual recipient of healthcare benefits who is enrolled in a Customer benefit program. “Milestone” means a scheduled event, accomplishment, or achievement (including delivery of a deliverable) that is specified as a “Milestone” in the Implementation Services Statement of Work. “Critical Milestone” means a Milestone identified as a Critical Milestone in the Implementation Services Statement of Work. “Miscellaneous Work” shall have the meaning set forth in Section 2.12. “Modification” means a change to Software that changes the Source Code. “Ongoing Services” shall have the meaning set forth in Section 2.3. “Ongoing Services Statement of Work,” or “Ongoing SOW” means the document attached hereto as Schedule 2.3. “Party” means either Customer or Vendor. “Performance Credit” means a credit against Vendor’s fees to which Customer is entitled pursuant to Section 6.6 as a result of Vendor’s failure to meet an SL. “Person” means any natural person, corporation, limited liability company, limited liability partnership, general partnership, limited partnership, trust, association, governmental organization or agency, or other legal person or legally constituted entity of any kind. “Privileged Information” means: (i) any patient data, histories and other patient information, memoranda, flow sheets, and similar patient reports; (ii) physician information or data and information relating to Customer’s employees; and (iii) other information of a similar nature and identified by Customer as privileged. “Project” means all of the activities specified in the Implementation Services Statement of Work, and all other activities reasonably associated therewith, including those activities specified in the Project Plan. “Project Plan” shall have the meaning set forth in Section 2.2.2. “Provider” means a provider of health care services to Members and may include medical doctors, laboratory facilities, radiology, ambulatory surgery facilities, home care agencies, and hospitals. “Provider Data” means all data residing on Customer’s systems and/or the Vendor System, as applicable, that relates to a Provider and Customer’s contractual relationship with such Provider. “Regulatory Requirements” shall have the meaning set forth in Schedule 2.3. “Residuals” means Vendor’s general knowledge, skills, and experience, and any ideas, concepts, know-how, methodologies, and techniques that are not protected or susceptible of protection under U.S. patent or copyright laws but are used by Vendor within the scope of Vendor’s business practice and may be used by it in the course of providing the Services; except, however, that Residuals shall not include any Work Product, Customer Data, or Customer Confidential Information. “Root Cause Analysis” shall have the meaning set forth in Section 2.10. “Services” shall have the meaning set forth in Section 2.1. “Service Rates” shall have the meaning set forth in the Schedule 6.1. “SL” means a service level set forth in Schedule 2.3. “Software” means computer programs and program objects of any kind (including source code and object code), program set-up and customization parameters, tools, and data and the tangible media on which any of the foregoing are recorded. Software includes all Software that is utilized by Vendor in connection with the Vendor System and the provision of Services to Customer, including all interfaces, Vendor Software, Third Party Software, and Custom Programming, and all Enhancements to the foregoing. “Source Code” means computer software in the form of source statements for the Software including all software in the form of electronic and printed human-readable, mnemonic or English-like program listings, and printed and on-line descriptions of the design of such software including data definition models, indices, structure tables, system flow charts, program flow charts, defined terms, file layouts, program narratives, global documentation (including global variables) and program listings. “Specifications” means the descriptions of the Vendor System and other deliverables hereunder, its components, and their capacities, functions, or methods, set forth in this Agreement or in the Documentation or otherwise provided to Customer by Vendor in writing. “Third Party Software” means Software that is proprietary to a third party. “Underlying Works” means tangible and intangible information and developments that: (i) had already been conceived, invented, created, or acquired by Vendor or third parties prior to the Effective Date and were not conceived or created for Customer’s use or benefit in connection with this Agreement; or (ii) were conceived, invented, created, or acquired by Vendor or third parties after the Effective Date but do not constitute Work Product hereunder. An Underlying Work includes all intermediate and partial versions thereof, including all source code and object code with respect thereto, and all designs, specifications, inventions, discoveries, improvements, materials, program materials, software, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, other creations, and the like, whether or not patented or patentable or otherwise protectable by law. “Vendor Underlying Works” are those conceived, invented, created, or acquired by Vendor, rather than by a third party. “Vendor Software” means Software that is proprietary to Vendor. “Vendor System” means the ASP system consisting of the Software and equipment used by Vendor to provide the Services. The Vendor System includes the Vendor Software and Third Party Software specified in Schedule 3.1, all Modifications, Enhancements, all Custom Programming specified in any Statements of Work, and all revisions and customizations to any or all of the above Software. “Vendor’s Key Personnel” means the individuals who are so designated in Schedule 5.2, and any individuals who replace such personnel (or such replacements) in such positions pursuant to Section 5.2. “Vendor’s Project Manager” means the individual who is so designated in the Implementation Services Statement of Work, and any individual who replaces him or her (or his or her replacement) in such position pursuant to Section 5.2. “Vendor’s Relationship Manager” means the individual who is so designated in Schedule 5.2, and any individual who replaces him or her (or his or her replacement) in such position pursuant to Section 5.2. “Work Product” means information, documentation, computer programs (and all configurations and set-ups of any such program and all templates reflecting same), and developments and all intermediate and partial versions thereof, including all source code and object code with respect thereto, and all designs, specifications, inventions, discoveries, improvements, materials, program materials, software, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, templates of configurations and set-up elections regarding the Vendor System, other creations, and the like, whether or not patented or patentable or subject to copyright, or otherwise protectable by law, created, invented, or conceived for the use or benefit of Customer in connection with this Agreement, by Customer, by Vendor, or by any other Person engaged by Customer or Vendor, including work product created pursuant to the Implementation Services Statement of Work, pursuant to the Ongoing Services Statement of Work, or as Custom Programming. Work Product shall not include Residuals or Underlying Works.1.2 Captions; Section NumbersSection numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular Section of this Agreement shall be deemed to include reference to any and all subsections thereof. 2. VENDOR SERVICES2.1 Definition, Agreement to Perform Services As used herein, “Services” shall mean all of the tasks and services described in Sections 2.2 (Implementation Services), 2.3 (Ongoing Services), 2.4 (Training Services), 2.5 (Documentation), 2.6 (Disentanglement Services), 2.7 (Virus; Disablement), 2.8 (Disaster Recovery); 2.9 (Commitment to Research and Development), 2.10 (Root-Cause Analysis and Resolution), or 2.9 (Incidental Services). Vendor shall perform all of the Services for the benefit of Customer in accordance with the terms of this Agreement.2.2 Implementation Services 2.2.1 General Commencing on the Effective Date, and in accordance with the timelines and deadlines set forth in the Implementation Workplan, Vendor shall provide to Customer all of the services described in this Section 2.2, in the Implementation SOW, or in the Project Plan (collectively, the “Implementation Services”).2.2.2 Project Plan Within the first [sixty (60) days] following the Effective Date, Vendor shall provide to Customer an appropriate Project Plan describing in significantly greater detail than the Implementation SOW how Vendor shall perform the Implementation Services under this Agreement, including the design, development, installation, implementation, configuration, training, Custom Programming, Data Conversion, and other services with respect to the implementation of the Vendor System. The Project Plan shall also include a more detailed description of the scope of the Implementation Services including the following components: roles and responsibilities, work breakdown structure, a final Implementation Workplan, and risk identification and tracking, which, when viewed as a whole with the Implementation SOW initially attached to this Agreement, shall set forth a comprehensive and appropriate description of the Implementation Services required to provide Customer with a system capable of satisfying Customer’s business needs with respect to the provision of managed care services to its customers. The Project Plan shall be subject to the review and approval of Customer, in its sole discretion. Upon Customer’s written approval, the Project Plan shall be attached to and become part of the Implementation Services SOW by amendment. The Parties acknowledge and agree that the delivery by Vendor of an acceptable Project Plan is a Critical Milestone.2.2.3 Design and Development During the Implementation Period, Vendor shall provide the design and development services set forth in Schedule 2.2. Such services shall include the development of all Custom Programming identified in Schedule 2.2, or later described in the Project Plan.2.2.4 Transition and Data Conversion During the Implementation Period, Vendor shall provide to Customer all data conversion services (“Data Conversion Services”) that are necessary to transfer all data and information from Customer’s existing business and claims management systems to the Vendor System. Vendor shall provide Services in a manner so as to accomplish the seamless and orderly transition from the manner in which Customer currently manages its business and claims management processes to the provision of the Ongoing Services by Vendor. Such transition shall be accomplished by Vendor in accordance with the Implementation Workplan and in such a manner as to have no adverse effect upon Customer or upon the quality or continuity of Customer’s business operations. The Data Conversion and other transition Services are fully described in Schedule 2.2. Vendor shall perform all of its obligations related to the Data Conversion, and provide all related deliverables, in accordance with the timetable and Milestones set forth in the Implementation Workplan, except, however, that Customer may, in its sole discretion, extend such dates without any additional cost to Customer.2.2.5 Testing and Acceptance 2.2.5.1 Test Plan. Within sixty (60) days following the Effective Date, Vendor shall develop to the reasonable satisfaction of Customer, and deliver to Customer as part of the Project Plan, an appropriate test plan for testing all converted data, the Software, and the Vendor System (“Test Plan”). The Test Plan will incorporate testing methodologies to confirm that all of the converted data can be fully reconciled with Customer’s original data, and that the Software and Vendor System operate in accordance with the applicable Documentation, Specifications, SLs, and Regulatory Requirements. The date to complete development of the Test Plan shall, unless otherwise agreed to by the Parties, be a Critical Milestone. In addition to the above, the Test Plan shall describe the exact scope, methodologies and procedures (including expected performance results) for testing the converted data, the Software, and the Vendor System. The Parties may modify or amend the scope, methodologies, and procedures for executing the testing process to include additional testing criteria as may be reasonably necessary to conduct the testing in accordance with the Project Change process set forth in Section 5.3.3. 2.2.5.2 Conversion Testing. Throughout the Implementation Period, upon completion of the necessary Data Conversion Services, Customer shall test the converted data in accordance with the Test Plan for the applicable Software and/or System Component to verify and confirm that such converted data can be fully reconciled with Customer’s original data. In the event that Customer discovers any discrepancies or errors in connection with such conversion testing, and if Customer shall notify Vendor of such discrepancies and errors, Vendor shall correct such discrepancies and errors within seven (7) day of receipt of Customer’s notice thereof, at which time Customer shall again be entitled to test the converted data as set forth herein. This procedure shall continue until Customer is satisfied that all Data Conversion Services have been properly performed. Customer and Vendor agree that the First Productive Use of the Vendor System shall not occur until Customer confirms in writing that, with respect to Provider Data, all Data Conversion Services have been properly performed. 2.2.5.3 Pre-Production Testing. Upon Vendor’s notification to Customer that Vendor has completed the implementation of any one or more components of the Vendor System (“System Components”), and that such implemented System Component or System Components, including all related Custom Programming, are ready for testing, pre-production testing for such System Components and related Software (“Pre-Production Testing”) shall commence in a non-production environment, including the execution of the test suites as provided for in the Test Plan. Customer shall have a period of not less than sixty (60) calendar days to conduct the Pre-Production Testing. If Customer determines that a System Component, or any related Custom Programming, is not operating in accordance with its Specifications and warranties, Customer shall deliver to Vendor a report describing the discrepancies. Vendor shall correct the errors or defects within fifteen (15) calendar days after receiving such report, and Customer may re-test the System Components for an additional test period of up to forty-five (45) calendar days, at the end of which the process described in this Section shall be repeated. 2.2.5.4 Conditional Acceptance. If Customer determines that the System Component is operating in accordance with its Specifications and warranties, Customer shall notify Vendor in writing that “Conditional Acceptance” of such System Component has occurred. The Pre-Production Testing process shall continue until Conditional Acceptance of all System Components, including all related Custom Programming, is achieved (“Conditional System Acceptance”). Customer and Vendor agree that First Productive Use of the Vendor System shall not occur until all Defects identified during Pre- Production Testing are either resolved to Customer’s satisfaction or until Customer agrees in writing that such issues will not be used as a basis for Customer to withhold Final System Acceptance. However, Customer and Vendor may agree in writing to proceed to First Productive Use notwithstanding the existence of issues which must be resolved prior to Final System Acceptance and in such instance, such issues shall be preserved. 2.2.5.5 Production Testing. Customer shall have a period of not less than one hundred twenty (120) days following the date on which First Productive Use occurs (the “Production Testing Period”) to test the Vendor System as a whole under actual, everyday operating conditions with actual customer data to assess whether the Vendor System is operating in accordance with the applicable Documentation, Specifications, SLs, and Regulatory Requirements (“Production Testing”). If Customer determines that the Vendor System is not operating in accordance with the applicable Documentation, Specifications, SLs, and Regulatory Requirements, and if Customer shall report such Defects to Vendor, Vendor shall promptly correct all such Defects. Upon Vendor’s receipt of notice from Customer of any Defects, the Production Testing Period (but not Customer’s use of the Software or Vendor System) shall be suspended temporarily and shall recommence upon Vendor’s receipt of written notice from Customer that such Defects have been corrected. Customer shall in all events have thirty (30) calendar days to verify any correction provided by Vendor. Subject to the terms of Section 2.2.5.7, such process shall repeat as often as necessary until all Defects have been corrected. Successful Production Testing shall occur when the Vendor System: (i) has been operating for the Production Testing Period and all Defects have been corrected; and (ii) have been operating during the last fifteen (15) calendar days of the Production Testing Period without experiencing any Defects. 2.2.5.6 System Acceptance. “System Acceptance” shall occur only when Vendor has provided to Customer all deliverables required to be provided to Customer pursuant to the Implementation Services SOW, and either (i) Customer has notified Vendor in writing that all testing for the Vendor System has been completed successfully in accordance with the terms of this Section 2.2.5 and that the Vendor System is operating in accordance with the applicable Documentation, Specifications, SLs, and Regulatory Requirements; or (ii) Vendor has provided to the Customer Relationship Manager a written notice of completion stating that Vendor believes all Defects have been corrected, unless Customer provides Vendor with notice of additional Defects within fifteen (15) calendar days following the date of receipt by the Customer Relationship Manager of Vendor’s written notice of completion. Nothing else, including Customer’s use of the Vendor System, or any portion thereof, in a live, operational environment (or “acceptance” under the Uniform Commercial Code of New York) shall constitute System Acceptance. 2.2.5.7 Failure to Achieve System Acceptance. In the event System Acceptance is not achieved within one hundred eighty (180) calendar days following commencement of Production Testing, Customer shall have the right to declare a Default and terminate this Agreement pursuant to the terms of Section 11. 2.2.5.8 Project Completion. “Project Completion” shall occur only when Customer has notified Vendor in writing that (i) System Acceptance has been achieved pursuant to Section 2.2.5.6; (ii) all necessary Data Conversion Services have been properly provided and tested; and (iii) Customer is providing its managed care services for all Customer customers via the Vendor System. Nothing else, including Customer’s use of the Vendor System, or any portion thereof, in a live, operational environment (or “acceptance” under the Uniform Commercial Code of New York) shall constitute Project Completion. 2.2.5.9 Test Criteria. Unless otherwise specifically provided in the Test Plan and/or the Implementation Services Statement of Work, the test for each System Component of the Vendor System shall include testing to Customer’s reasonable satisfaction in the following regards: (a) unit testing (i.e., individual testing of each field, screen, screen-related action, and module/program); (b) system testing (i.e., testing of the System Component’s integration with the Vendor System as a whole and its integration with other Customer systems); and (c) volume/stress testing (i.e., testing of the Vendor System under peak conditions to measure response time and Vendor System reaction to load).2.3 Ongoing Services 2.3.1 General Commencing on the date on which First Productive Use occurs, and continuing thereafter throughout the Term, Vendor shall provide to Customer the services described in this Section 2.3 and in the Ongoing Services SOW attached hereto as Schedule 2.3 (“Ongoing Services”).2.3.2 Claims Management Services The Ongoing Services provided by Vendor shall include services relating to Customer’s management of claims and related business services in the following categories: (1) Benefits Management, (2) Group Maintenance, (3) Membership Management, (4) Billing, (5) Commissions, (6) Credentialing, (7) Network Management, (8) Utilization Management, (9) COBRA Administration, (10) Customer Service, (11) Claims Processing, and (12) Accounting. The Ongoing Services provided by Vendor in connection with each such category are described in greater detail in Schedule 2.3.2.3.3 Maintenance and Support Services Vendor shall provide the Services and otherwise maintain the Software and Vendor System so that the Services, Software, and Vendor System function in accordance with the applicable Documentation, Specifications, SLs, and Regulatory Requirements. The Ongoing Services provided by Vendor in connection with its maintenance and support obligations are described in greater detail in Schedule 2.3.2.3.4 Service Levels 2.3.4.1 General Except as otherwise specified in this Agreement, Vendor shall perform all of its obligations related to the Ongoing Services at levels at least in accordance with the SLs set forth in Schedule 2.3. The Parties agree that Vendor’s holidays are to be determined in accordance with Customer policies. Customer shall provide Vendor, annually, with its holiday schedule. 2.3.4.2 Measurement and Reporting. Vendor shall measure and report its performance against the SLs during each month, by the tenth (10th) business day of the following month. Vendor’s report shall be delivered as described in Section 5.4.2.4 Training ServicesVendor shall provide to Customer the training services described in Schedule 2.4.2.5 Documentation At all times throughout the Term, Vendor shall provide to Customer sufficient information, including complete documentation for all training content, for substantiation of choices made by Customer as requested, and for all set-ups and other such actions and choices made by Vendor or Customer with respect to the implementation of the Vendor System, including Software and equipment, to enable Customer, or its designee, to fully assume and continue the provision of the Services to Customer. Vendor shall provide such documentation for all upgrades to or replacements of Software or hardware, concurrently with the installation thereof.2.6 Disentanglement Services 2.6.1 Disentanglement Process The Disentanglement process shall begin on the earlier of the following dates: (i) ninety (90) days prior to the end of any initial or extended term that Customer has not elected to extend pursuant to Section 11.1; or (ii) the date a Termination Notice is delivered pursuant to Section 11.2. Subject to the terms of Section 2.6.2, Vendor’s obligation to provide the Services, and Customer’s obligation to pay for the Services (other than for Services previously performed and not yet paid for in accordance with the terms hereof), shall expire: (a) at the end of the initial or extended term set forth in Section 11.1; or (b) on the Termination Date, specified pursuant to Section 11.2 (with the date on which Vendor’s obligation to provide the Services expires being referred to herein as the “Expiration Date”). Vendor shall remain obligated to provide Disentanglement Services (as defined below) with respect to the terminated Services, as and to the extent required by Customer, for up to eighteen (18) months after any such Expiration Date.2.62. Disentanglement Obligations In the event of any termination of this Agreement, Vendor will provide to Customer, or, at Customer’s request, to Customer’s designated alternative service provider, reasonable cooperation, assistance, and services to facilitate the orderly transition and migration of the Services to Customer or its designee (the “Disentanglement Services”). At Customer’s discretion, the Disentanglement Services may require Vendor to continue to provide the Ongoing Services until such time that all of the Customer Data files have been completely converted and transferred to Customer’s alternative system provider. Vendor shall use its best efforts to cooperate with Customer and any new service provider and otherwise promptly take all steps required to assist Customer in effecting a complete Disentanglement. Vendor shall provide all information regarding the Services as needed for Disentanglement. Vendor shall provide for the prompt and orderly conversion of all Customer Data files on the Vendor System and the conclusion of all work, as Customer may reasonably direct, including completion or partial completion of some projects, documentation of work in process, and other measures to ensure an orderly transition to Customer or Customer’s designee. Vendor’s obligation to perform the Disentanglement shall not cease until a Disentanglement satisfactory to Customer has been completed. All Disentanglement Services to be performed by Vendor prior to the Expiration Date shall be performed by Vendor at no additional cost to Customer beyond what Customer would pay for the Services absent the performance of the Disentanglement Services. For Disentanglement Services to be provided after such Expiration Date, Vendor may charge Customer at one hundred ten percent (110%) of Vendor’s actual costs of providing such services.2.7 Viruses; DisablementVendor shall use industry best practices regularly to identify, screen, and prevent any Disabling Device in resources utilized by Vendor or Customer in connection with the provision or receipt of the Services, and shall not itself knowingly install any Disabling Device in resources utilized by Vendor, Customer, or any subcontractor, in connection with the provision or receipt of the Services. A “Disabling Device” is any virus, timer, clock, counter, time lock, time bomb, or other limiting design, instruction, or routine that would erase data or programming or cause any resource to become inoperable or otherwise incapable of being used in the full manner for which such resource were intended to be used. Vendor shall assist Customer in reducing the effects of any Disabling Device discovered in any resource related to the provision or receipt of the Services, especially if causing a loss of operating efficiency or data.2.8 Disaster Recovery [Alternative Language] [Vendor’s disaster and recovery plan (“Disaster Recovery Plan”) is attached hereto as Schedule 2.8. Vendor shall not modify the Disaster Recovery Plan without Customer’s prior written approval. In addition, Vendor shall: (i) allow Customer or its appointed agent to annually conduct in-person reviews of Vendor’s Disaster Recovery Plan; (ii) provide Customer with a copy of any third party certification report(s) that review Vendors’ Disaster Recovery Plan when such report(s) is made available; (iii) allow Customer or its designated agent on a semi-annual basis to audit, test and review the Disaster Recovery Plan procedures; and (iv) permit Customer to test Customer’s backup date communications links to Vendor’s disaster recovery facility.] [Within sixty (60) days after the Effective Date, Vendor shall develop and implement to the satisfaction of Customer, and deliver to Customer as part of the Project Plan, a Disaster Recovery Plan applicable to all of Customer; provided, however, that to the extent any portions of the Disaster Recovery Plan are developed prior to the expiration of such sixty (60) day period, Vendor shall deliver such portions to Customer as soon as they are so developed. The Disaster Recovery Plan shall address each of the items described in Schedule 2.8 hereto.]2.9 Commitment to Research and DevelopmentVendor will continue to invest in the research and development of the Vendor System and Vendor Software for as long as Customer is obtaining Services under this Agreement. In the event that Vendor decides not to continue to actively market the Vendor System and/or fails to continue to generally enhance the Vendor System and Vendor Software as required by Section 2.2 of Schedule 2.3, Customer, at no cost or penalty to Customer, shall have the right to: (i) migrate to the new service or system that Vendor offers to its customers, provided that such service or system would provide Customer with equivalent functionality and would not adversely affect Customer’s ability to continue to provide managed care services to its customers; or (ii) if Customer, in its sole discretion, determines that the requirements for subsection (i) cannot be met, terminate this Agreement and obtain all Source Code and other Deposits related to the Vendor System and Vendor Software necessary to enable Customer to run and support the Vendor System on its own.2.10 Root Cause Analysis and Resolution. Upon Vendor’s discovery of, or, if earlier, Vendor’s receipt of a notice from Customer of, a failure by Vendor with respect to: (i) a Milestone or Critical SL; or (ii) the provision of a Service in accordance with this Agreement, Vendor shall promptly (and in any event within five (5) days), or in the case of a failure described in clause (i) above immediately, perform a root-cause analysis (a “Root-Cause Analysis”) to identify the cause of such failure. Vendor shall promptly and, in any event, within five (5) days after such discovery or notice: (a) correct such failure (regardless of whether caused by Vendor); and (b) provide Customer with a written report detailing the cause of, and procedure for correcting, such failure and providing Customer with reasonable evidence that such failure will not recur. The correction of any such failure shall be performed entirely at Vendor’s expense unless it has been determined, by mutual agreement of the Parties or through any dispute resolution process hereunder, that Vendor was not a material contributing cause of the failure and Vendor could not have worked around the substantial contributing cause of the failure without expending a material amount of additional time and/or resources, in which event Vendor shall be entitled to Service compliance relief to the extent Vendor’s failure is the direct result of such material contributing cause. For purposes hereof, the pre-existing condition of Customer’s properties and systems shall not be deemed to be a material cause of any failure.2.11 Incidental ServicesAlthough the Parties have attempted in Sections 2.2 through 2.10 to delineate the specific services to be provided by Vendor, the Parties acknowledge that some items may not have been specifically identified in such Sections. Accordingly, it is mutually agreed that Vendor’s obligations hereunder shall in all events include the performance of all incidental services that are ancillary, or necessary, to the performance of any of the services and functions described in Sections 2.2 through 2.10.2.12 Miscellaneous Work Customer may at any time, and from time to time, request that Vendor perform services other than those described in Section 2.2 through 2.11 (“Miscellaneous Work”) for Customer, and Vendor shall perform such Miscellaneous Work at the time-and-materials rates specified in Schedule 6.1, based upon reasonable notice and a reasonable specification of the nature, extent and time frame for the work from Customer. Miscellaneous Work shall be considered “Services” under this Agreement and shall be governed by the terms and conditions of this Agreement, to the extent that such terms are not inconsistent with the payment provisions contained in this Section 2.12.2.13 Use of Affiliates and Subcontractors Vendor shall use commercially reasonable efforts to minimize its travel and related expenses hereunder by utilizing its personnel and/or the personnel of its Affiliates that are located in the geographic regions in which the required Services are to be performed. Vendor shall not perform its obligations through the use of subcontractors, without the advance written consent of Customer, which consent shall not be unreasonably withheld. Vendor shall not be relieved of its obligations under this Agreement by use of any such Affiliates or subcontractors, and shall be responsible for the performance of each such Affiliate or subcontractor. If Customer determines that the performance or conduct of any Vendor subcontractor is unsatisfactory, Customer may notify Vendor of its determination in writing, indicating the reasons therefore, in which event Vendor shall promptly take all necessary actions to remedy immediately the performance or conduct of such contractor and, if so requested by Customer, to replace such contractor.2.14 Nonexclusivity Nothing herein shall prevent Customer from obtaining any type of Services, or any other services, from itself or any other provider during the Term.2.15 Vendor Cooperation with Third PartiesVendor acknowledges that Customer is now and will be, during the course of this Agreement, working with a number of third parties. Vendor shall cooperate with all third parties as may be necessary to implement the Vendor System. Vendor shall disclose information as requested by Customer to third parties who have a need to know such information in order to perform services for Customer related to the Vendor System; provided that, prior to disclosure, and as a condition precedent to any such disclosure of any Confidential Information of Vendor, such third parties are subject to written confidentiality obligations with Customer.3. Software and Equipment3.1 License GrantVendor hereby grants to Customer and Customer’s Authorized Users a perpetual, irrevocable, nonexclusive, royalty-free, fully paid, worldwide license to: (i) use the Vendor Software and related Documentation as described on Schedule 3.1 for Customer’s Internal Purposes only; and (ii) use and access the Services and Vendor System (as described on Schedule 3.1) via Vendor’s ASP environment. In addition, Vendor hereby grants to Customer and its Authorized Users a perpetual, irrevocable, nonexclusive, royalty-free, fully paid, worldwide sublicense to use the Third Party Software and related Documentation as described on Schedule 3.1 and provided by Vendor in connection with the provision of the Services hereunder. (The Vendor Software and Third Party Software described on Schedule 3.1 shall be referred to herein as the “Licensed Products”.) Customer may copy the Licensed Products as reasonably necessary for archival, backup, testing, training and other similar purposes.3.2 Ownership Rights Reserved No title or ownership of intellectual property rights to the Licensed Products and Documentation is transferred to Customer hereunder. Customer shall not disassemble, reverse-compile, reverse-engineer, or otherwise translate the Licensed Products licensed hereunder except as may be allowed under applicable law, except, however, that Customer shall have the right to change, alter, modify, and adapt the Source Code (and compile such modified Source Code) if the Deposits are released to Customer in accordance with the terms of the Source Code Escrow Agreement, attached as Exhibit 3.5.3.3 InterfacesVendor acknowledges that Customer is working with a number of third parties in developing, maintaining, and supporting Customer’s various systems and that Customer’s use of the Services and the Vendor System may involve the development and/or use of one or more interfaces between such Third Party systems and the Vendor System. Vendor agrees that it will cooperate and work with Customer and such Third Parties to use industry-standard interfaces or to develop interfaces using industry-standard protocols to the extent possible. In the event Vendor must program or develop an interface, such interface development shall be considered Custom Programming and will be developed in accordance with the terms set forth in Section 3.4.3.4 Custom Programming Customer may request at any time, and from time-to-time, during the Term that Vendor develop Custom Programming including additional interfaces, other than that described in, or contemplated by, the Implementation SOW or the Project Plan. Upon receipt of such request, Vendor shall prepare and submit to Customer a written response that includes the items required to be included in a Change Response, as described in Section 5.3.3, and a general statement of work relating to the functionality, interoperability, and performance of the requested Custom Programming. If Customer issues a written order for the Custom Programming, Vendor shall provide to Customer a detailed written statement of work. Upon Customer’s approval of the statement of work, Vendor shall perform the Custom Programming in accordance with the terms of such statement of work and this Agreement, and such work shall be considered Miscellaneous Work. Customer shall have the right to terminate any Custom Programming project upon written notice to Vendor. In such event: (i) Vendor shall discontinue Custom Programming Services; and (ii) Customer shall pay to Vendor the cost of any such Services provided, pro-rated, as appropriate, for any fixed-fee Custom Programming project, and the cost of the actual expenses incurred by Vendor as of the date of termination. 3.5 Source Code Escrow AgreementVendor shall deposit Source Code and other Deposits to all Software licensed to Customer hereunder pursuant to the terms of the Source Code Escrow Agreement attached as Exhibit 3.5, a copy of which has been executed by the Parties concurrently with the Parties’ execution of this Agreement. The Source Code Escrow Agreement is supplementary to this Agreement (as such term is used in Section 365(n) of the U.S. Bankruptcy Code). In the event Vendor fails to deposit all the Deposits within the time frames specified in the Source Code Escrow Agreement, in its sole discretion, Customer shall have the right to terminate this Agreement and/or the applicable Statement(s) of Work in accordance with Section 11 and/or withhold payment of any and all monies that may be owed to Vendor until such time as Vendor complies with the terms of this Section; provided, however, that Customer’s election of its right to withhold the payment of monies owed to Vendor as provided herein shall not constitute a waiver of Customer’s right to later terminate this Agreement and/or the applicable Statement(s) of Work in accordance with the terms of Section 11. In the event Customer elects to withhold payment of such monies, Vendor’s obligations hereunder shall continue unabated during such period.3.6 Equipment 3.6.1 Equipment; Equipment Configuration Vendor shall be responsible for providing, at no cost or expense to Customer, all equipment, other than Customer’s local area network, necessary to provide the Services to Customer. Vendor will provide to Customer a list of the equipment components recommended by Vendor to operate the Vendor System as set forth in this Agreement. In the event that, based on such Vendor recommendations, Customer agrees to purchase additional equipment, other than that equipment that is the responsibility of Vendor to provide, Vendor shall offer to convey such equipment to Customer at fair-market value, provided, however, that Customer shall retain the right to purchase such equipment directly from third party vendors.3.6.2 Title; Risk of Loss Title to any equipment acquired by Customer from Vendor shall remain vested in Vendor until the equipment has been certified to operate in accordance with the applicable manufacturer’s specifications and full payment is made. Risk of damage or loss to the equipment shall pass to Customer after possession transfers to Customer; provided, however, that, Vendor shall remain responsible for damage or loss to equipment caused by its employees, agents and subcontractors.4. RESPONSIBILITIES OF CUSTOMERCustomer agrees to perform the tasks specifically identified as Customer tasks on the Roles and Responsibilities matrices attached to the Implementation Services Statement of Work and the Ongoing Services Statement of Work (the “Customer Responsibilities”). Customer may use subcontractors or an outsourcing service provider to perform any of the Customer Responsibilities.5. RELATIONSHIP MANAGEMENT5.1 Steering CommitteeThe Parties shall establish and maintain a Steering Committee, which shall be composed of an equal number of Vendor’s representatives and Customer’s representatives. The initial representatives and their positions with Customer and Vendor, respectively, are set forth in Schedule 5.1. The members appointed by either Party may be replaced at the discretion of such Party. The general responsibilities of the Steering Committee shall be: (i) to monitor the general progress of the performance of this Agreement; (ii) to analyze and attempt to resolve matters referred by the Relationship Managers; and (iii) to consider and approve or reject Project Change requests. The Steering Committee shall meet once per quarter, or more frequently as requested with, at a minimum, ten (10) Business Days’ prior written notice, by either Customer or Vendor, and at these meetings shall discuss reports prepared by the Relationship Managers with respect to the status of the performance of this Agreement and significant events that have occurred since the previous meeting. The site for such meetings shall be as mutually agreed by the Parties, and each Party shall be responsible for its own costs and expenses associated with attending such meetings.5.2 Key Personnel and Relationship Manager 5.2.1 Vendor’s Key Personnel and Relationship Manager Each of Vendor’s Key Personnel shall have the functions assigned to him or her as set forth in Schedule 5.2. Without Customer’s prior written consent, Vendor shall not reassign any of Vendor’s Key Personnel, including Key Personnel assigned solely to Customer, to other functions if doing so would require the alteration or reduction of such Key Personnel’s contribution to, or involvement with, Vendor’s obligations under this Agreement. Except in the event of termination of an individual for cause, Vendor must obtain Customer’s prior written consent thirty (30) calendar days in advance of any contemplated reassignment resulting in alteration or reduction of time expended by any Key Personnel in the performance of Vendor’s duties under this Agreement. If any one of Vendor’s Key Personnel is reassigned, or is incapacitated, and therefore becomes unable to perform the functions or responsibilities assigned to him or her, or is no longer employed by Vendor, Vendor shall promptly replace such person with another person at least as well qualified, who shall be deemed a Key Personnel hereunder. Customer shall not be charged for any such replacement (including any such replacement made pursuant to Section 5.2.4) until such time as Customer reasonably determines that the replacement has become knowledgeable regarding, and is contributing to, the Project. Vendor represents that Vendor’s Relationship Manager is an experienced manager who is, or will undertake reasonable efforts to become, knowledgeable as to Customer’s business activities. Customer shall have the right to interview, as Customer deems necessary, and participate in the selection of Vendor’s Key Personnel and Relationship Manager, and Vendor shall not designate any Key Personnel or its Relationship Manager without Customer’s prior written consent. Vendor shall not replace Vendor’s Key Personnel during the term of this Agreement without Customer’s prior written consent. Vendor’s Relationship Manager will act as the primary liaison between Vendor and the Customer Relationship Manager, will have overall responsibility for directing all of Vendor’s activities hereunder, and will be vested with all necessary authority to fulfill that responsibility.5.2.2 Customer’s Key Personnel and Relationship Manager Each of Customer’s Key Personnel shall have the functions assigned to him or her as set forth in Schedule 5.2. If any one of Customer’s Key Personnel is unable to perform the functions or responsibilities assigned to him or her in connection with this Agreement, or if he or she is no longer employed by Customer, Customer shall promptly replace such person or reassign the functions or responsibilities to another person. Customer’s Relationship Manager shall act as the primary liaison between Customer and Vendor’s Relationship Manager and shall have overall responsibility for directing all of Customer’s activities hereunder and shall be vested with all necessary authority to fulfill that responsibility, excluding approval of any Project Change or other amendment, which may not be made without the express written consent of all of Customer’s Steering Committee members.5.2.3 Additional Personnel Requirements 5.2.3.1 In addition to Vendor’s Key Personnel, Vendor shall make available such number of additional professionals as are necessary to properly perform Vendor’s obligations under this Agreement. 5.2.3.2 All Vendor personnel performing Services in connection with this Agreement shall have the qualifications, and shall fulfill the requirements, set forth in this Agreement and as reasonably specified by Customer from time to time. For all Vendor personnel, to the extent permitted by, and in accordance with, applicable law, Vendor shall have conducted routine reference checks (i.e., work experience), verification of education and technical training, and background checks (i.e., felony and misdemeanor conviction check), and any other checks required by law. Vendor shall ensure that all Vendor personnel have been properly trained to perform the Services pursuant hereto and is oriented and abides by the policies and procedures of Customer as communicated to such Vendor personnel. Customer shall not be required to pay any Fees relating to any Vendor personnel prior to such time as the training and orientation with respect to such Vendor personnel is completed and such Vendor personnel commences performing the Services hereunder. The Vendor personnel, including the Key Personnel, shall have experience, training, and expertise at least equal to prevalent industry standards applicable to such personnel for their responsibilities in the business in which Vendor is engaged and shall have sufficient knowledge of the relevant aspects of the Services and Customer practices and areas of expertise to enable them to properly perform the duties and responsibilities assigned to them in connection with this Agreement. 5.2.4 Individual Performance Notwithstanding Section 5.2.1, if Customer believes that the performance or conduct of any person employed or retained by Vendor to perform Vendor’s obligations under this Agreement is, for any reason, unsatisfactory to Customer or is not in compliance with the provisions of this Agreement, Customer may so notify Vendor and upon any such notice Vendor shall promptly remedy the performance or conduct of such person, or, at Customer’s request, replace such person with another person acceptable to Customer.5.2.5 Non-Solicitation of Employees Except as otherwise provided in this Agreement, during the Term and for six (6) months thereafter, Vendor shall not, without Customer’s prior written consent, which may be withheld in its sole discretion, directly or indirectly solicit any employee of Customer whose duties and responsibilities include: (i) services performed directly or indirectly in connection with this Agreement; or (ii) the performance of other information technology services, to leave Customer’s employ in order to accept employment with Vendor, its Affiliates, actual or prospective contractors, or any other entity.5.3 Project Management 5.3.1 Project Manager The Implementation Services Statement of Work shall designate a Vendor project manager (“Vendor Project Manager”) for the Project. The Vendor Project Manager shall have responsibility for ensuring the performance of Vendor’s responsibilities and obligations as set forth in the Implementation Services Statement of Work. The Vendor Project Manager shall be considered “Key Personnel” for purposes of Section 5.2. If the Parties deem it to be appropriate, the Vendor Relationship Manager may also serve as a Vendor Project Manager.5.3.2 Implementation Delays If Customer reasonably determines that Vendor is likely to fail to meet a Critical Milestone, or if Vendor has failed to meet a Critical Milestone, then in addition to any other rights and remedies that may be available to Customer as provided in this Agreement, at no additional cost to Customer and at Customer’s option, Vendor shall provide to Customer all necessary additional Vendor personnel to accelerate performance as may be required or necessary to timely achieve the Critical Milestone or, if Vendor has already failed to meet one (1) or more Critical Milestones, complete the Critical Milestone within a re-adjusted time frame established by Customer. In addition, upon the failure of Vendor to meet one (1) or more Critical Milestones, Customer shall be entitled to receive late charges from Vendor in an amount equal to five percent (5%) of the fees for the particular Critical Milestone Services under the Implementation Services Statement of Work per week for each week a Critical Milestone has been missed, except, however, that if Vendor accelerates its performance and completes the Project on schedule then no late charges will be assessed. Such late charges shall be calculated upon, and paid by Vendor or credited to Customer within thirty (30) calendar days of System Acceptance. In addition to the foregoing, and subject to the terms of Section 11, Customer shall be entitled to withhold any and all payments due from Customer to Vendor until such Critical Milestone is achieved. Notwithstanding any of the foregoing, Vendor shall not be obligated to provide additional personnel or to pay late charges to Customer as provided in this Section if and to the extent Vendor’s failure to achieve a Critical Milestone is caused by: (i) Customer’s failure to meet its responsibilities as set forth in this Agreement; (ii) changes to the scope of such Critical Milestone as documented in accordance with the Project Change procedure set forth in Section 5.3.3; or (iii) any force majeure event, as described in Section 12.5. In no event shall the relief specified in this Section 5.3.2 be Customer’s sole and exclusive remedy with respect to any failure of Vendor to meet a critical Milestone.5.3.3 Project Change Procedure If Customer wishes to make an amendment to the Project or otherwise modify the scope of the Implementation SOW attached hereto (a “Project Change”), Customer shall deliver to the Vendor Relationship Manager a written request for a Project Change specifying the Project Change with sufficient details to enable Vendor to evaluate it. Within ten (10) Business Days following the date of receipt of such request, Vendor shall provide Customer with an evaluation of the Project Change request and, as applicable, a preliminary estimate of the time, estimated completion date, and cost to implement the Project Change. Within ten (10) Business Days thereafter (the “Response Period”), Customer will notify Vendor in writing whether to proceed with an assessment of the Project Change request. If, within the Response Period, Customer notifies Vendor in writing not to proceed, or fails to notify Vendor, then the Project Change request shall be deemed withdrawn and Vendor shall take no further action with respect to it. If, within the Response Period, Customer notifies Vendor in writing to proceed with the Project Change request, then Vendor shall prepare a Project Change document in accordance with the preliminary estimate, that: (i) assesses the impact (if any) of the Project Change on the Services, the Specifications, and other areas that are likely to be affected by the requested Project Change; (ii) contains a description of all services to be performed, specifications, and schedule for performance; (iii) describes any additional costs or changes to existing pricing associated with the Change Request; and (iv) contains completion and acceptance criteria, if applicable. Vendor shall provide Customer with the completed Project Change document within ten (10) Business Days of Vendor’s receipt of Customer’s notice to proceed. The Project Change document shall constitute an offer by Vendor to perform the Project Change. Such offer shall be irrevocable for thirty (30) calendar days following the date of receipt thereof by Customer. If Customer accepts Vendor’s offer by the express written approval of Customer’s Steering Committee members on the Project Change document and delivers the accepted Project Change document back to Vendor before revocation, then the accepted Project Change document shall be considered an amendment to this Agreement. In the event Vendor wishes to make a Project Change, it shall notify Customer in writing of the requested Project Change and provide Customer with a preliminary estimate; thereafter, the procedure shall be as stated above.5.4 Reporting Requirements 5.4.1 Project Status Reports During the Implementation Period, on a weekly basis, Vendor shall deliver to the Customer Relationship Manager a “status report” summarizing the progress of the Project during the preceding week, including problems that have occurred and that could delay Vendor’s performance of anticipated activities, and expected problems during the upcoming month. At a minimum, the status report shall include: (i) the current status of progress under the Implementation Services Statement of Work; (ii) all actual delays; (iii) all anticipated delays; and (iv) such other information as Customer may reasonably request from time to time. Customer shall have the right to assume that Vendor does not know of any problems, difficulties or issues that may have an adverse impact on the Project (whether from a timing, cost or performance standpoint) unless Vendor specifically identifies such problems, difficulties or issues in its written status reports.5.4.2 Project Status Meetings During the Implementation Period, each month, at a time and place mutually agreed upon by the Parties, Vendor’s Relationship Manager, applicable Project Manager and other appropriate Vendor personnel shall meet in person with Customer’s Relationship Manager, for the purpose of discussing the progress of the Project during the preceding month, including problems that have occurred and that could delay performance of anticipated activities, and expected problems during the upcoming month.5.4.3 Notification of Delays In the event of any delay or default by Customer that causes or can reasonably be expected to cause a delay in Vendor’s performance hereunder or increase the amount of Services required of Vendor to complete the Project, Vendor shall, as soon as practicable after the occurrence of such delay or default, notify the Steering Committee in writing of the particulars of such delay or default, the estimated impact of such delay or default on the timetable under the Implementation Services Statement of Work and the estimated amount, if any, of additional Services required. If Customer disputes any of the matters set forth in Vendor’s notice, the matter shall be resolved through the dispute resolution process of Section 5.5. If and to the extent that Customer does not cure the delay or default and the delay or default directly causes an increase of at least [___ days] of Services to carry out the Project then, to the extent set forth in either (i) Vendor’s notice (if Customer shall not have disputed such notice); or (ii) in a written agreement resulting from the dispute resolution process (if Customer shall have initiated such process) and solely with respect to the matters described therein, Vendor shall be relieved of its obligation of timeliness hereunder and shall be entitled to invoice Customer, and Customer shall be required to pay, for the increased Services (the “Excess Services”) on a time-and- materials basis at the Service Rates. Vendor shall not be entitled to any such relief with respect to any delay or default by Customer other than in compliance with the timely notice and other requirements of this Section. Any such extension in time granted to Vendor due to Customer’s delay in meeting a required pre-condition shall be no greater than the actual amount of time that Customer’s performance was delayed. 5.4.4 Ongoing Reporting and Meetings Beginning with the first calendar month after the month in which First Productive Use occurs, and no later than the tenth (10th) Business Day of each month, Vendor shall deliver to the Customer Relationship Manager, a detailed, written report summarizing Vendor’s performance during the previous month vis-à-vis the SLs. Such report shall break down Vendor’s performance by particular SL, as further described in Schedule 2.3. Such reports also shall specify all applicable Performance Credits (as provided for in Schedule 2.3) that are due to Customer as a result of any failure of Vendor to meet a designated SL. Beginning during the first calendar quarter after the calendar quarter in which First Productive Use occurs, and each quarter thereafter, at a time and place mutually agreed upon by the Parties, Vendor’s Relationship Manager and other appropriate Vendor personnel shall meet in person (or via tele-conference if mutually agreed) with Customer’s Relationship Manager, for the purpose of reviewing the SLs and discussing possible adjustments thereto. Vendor shall continuously evaluate new and better ways to improve its performance and shall promptly make such improvements available to Customer.5.5 Dispute Resolution 5.5.1 Relationship Manager Review In the event of a dispute hereunder, the Relationship Managers shall discuss and make a good faith effort to resolve such dispute at or prior to the next Steering Committee meeting. If the Relationship Managers shall have executed a written resolution of the dispute, each Party shall begin performance in accordance with such resolution, provided that no agreement of the Relationship Managers may amend or modify the terms of this Agreement without the concurrence of the Steering Committee and without going through either the Project Change procedure set forth in Section 5.3.3 or the amendment process referenced in Section 12.1.5.5.2 Steering Committee Review At any time, a Party may refer a dispute to the Steering Committee for resolution. If the disputed matter has not been resolved by the Steering Committee at the next occurring meeting thereof, or such longer period as agreed to in writing by the Parties, the Parties may, but shall not be obligated to, mutually agree in writing to submit the dispute to non-binding mediation with the American Health Lawyers Association.5.5.3 Voluntary, Non-binding Mediation Mediation must occur within ten (10) Business Days after the Parties agree to submit the dispute to mediation, and the duration of the mediation shall be limited to one (1) business day. The Parties mutually shall select an independent mediator from the American Health Lawyers Association experienced in commercial information systems disputes, and each shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the dispute. The specific format for the mediation shall be left to the discretion of the mediator and the designated Party representatives and may include the preparation of agreed-upon statements of fact or written statements of position furnished to the other Party.5.5.4 Unresolved Disputes In the event that a dispute between the Parties remains unresolved after (i) thirty (30) days have passed since the dispute was first raised at the Relationship Manager level, or (ii) the Parties have earlier exhausted the procedures described in Sections 5.5.1 through 5.5.3, and without regard to whether either Party has contested whether these procedures, including the duty of good faith, have been followed, either Party shall have the right to commence any proceedings at law and/or in equity in a court of competent jurisdiction.5.5.5 No Termination or Suspension of Services Notwithstanding anything to the contrary contained elsewhere herein, and even if any dispute arises between the Parties (regardless of whether or not it requires at any time the use of the dispute resolution procedures described above), in no event nor for any reason shall Vendor interrupt the provision of Services to Customer, or any obligations related to Disentanglement, disable the Vendor System or any portion thereof or any other deliverable hereunder, or perform any other action that prevents, slows down, or reduces in any way the provision of Services or Customer’s ability to conduct its business, unless: (i) authority to do so is granted by Customer in writing or conferred by a court of competent jurisdiction; or (ii) the Term of this Agreement has been terminated or has expired pursuant to Section 11 (Term and Termination) and a Disentanglement has occurred in accordance with Section 2.6.5.5.6 Injunctive relief Neither Party shall be obligated to follow the procedures set forth in Sections 5.5.1 through 5.5.4 in order to seek injunctive relief.5.6 Customer-Retained AuthorityCustomer shall have the exclusive right and authority to set Customer’s general business strategies and its strategies with respect to the Vendor System, and to determine, alter, and define any or all of Customer’s business processes. Customer shall have the right to determine and to assess Vendor’s quality and performance. With respect to the Services, Customer shall have the right to approve or reject any and all proposed decisions by Vendor with respect to design, technical platform, architecture, and standards, or that could reasonably be expected to materially increase the Fees payable by Customer or to materially increase the costs incurred by Customer in operating its business, and shall have the right and authority to cause Vendor at any time, upon reasonable notice, to change any or all of the foregoing. Moreover, Vendor shall be required to obtain the prior written authorization of Customer before undertaking any activity that is within the exclusive authority of Customer to order, request, or designate, pursuant to the terms hereof.6. PRICE AND PAYMENT TERMS6.1 Fees 6.1.1 Project Plan Vendor shall provide the Project Plan on a fixed fee basis as set forth on Schedule 6.1 (the “Price Schedule”). Vendor shall invoice Customer for the Implementation Services in accordance with the payment terms set forth on the Price Schedule.6.1.2 Implementation Services Vendor shall provide the Implementation Services on a fixed fee basis as set forth on Schedule 6.1 (the “Price Schedule”). Vendor shall invoice Customer for the Implementation Services in accordance with the payment terms set forth on the Price Schedule.6.1.3 Ongoing Services Vendor shall provide all Ongoing Services at the monthly per Member, per month (“PMPM”) rates set forth on Schedule 6.1 (the “Price Schedule”). Vendor shall invoice Customer for the Ongoing Services in accordance with the payment terms set forth on the Price Schedule.6.1.4 Miscellaneous Work All Miscellaneous Work shall be provided by Vendor at the Service Rates set forth on Schedule 6.1 (the “Price Schedule”), and shall be invoiced on a monthly basis with respect to the Services actually performed in the preceding month.6.2 Most Favored CustomerVendor’s charges to Customer for the Ongoing Services and the Miscellaneous Work shall, taken as a whole, be at least as low as Vendor’s lowest charges for similar services to Vendor’s best customers (excluding customers entitled to governmental pricing) purchasing comparable volumes of services under similar circumstances. The Parties agree that the circumstances to be considered include the following: the technology base used by the customer, the specific combination of services required by the customer, the SLs or other service level standards desired by the customer, the geographic location where the services are to be provided, the time period during which services are provided, the terms and conditions of the agreement to provide the services, the type of customer, and the overall revenue stream generated by the customer. The provisions of this Section 6.2 shall only apply if the services and terms and conditions offered by Vendor to the customer are reasonably similar in each of these factors to the Services provided to Customer. If Vendor offers to any such customer, similar services at a price lower or a discount greater than the price charged to Customer hereunder, then Vendor shall offer such lower price or greater discount to Customer in lieu of the price thereof that is reflected in the price set forth in this Agreement (or, if the price has already been paid, Vendor shall pay to Customer a refund of the difference between the price already paid and the lower price). Customer may offset such overcharge amount against any amounts due to Vendor under this Agreement. Vendor shall notify Customer of the occurrence of the lower price or greater discount as described in this Section 6.2 within thirty (30) days after its implementation of such lower price or greater discount. From time to time, but in any event no more than once during each year of the Term, Vendor shall, upon written request from Customer, certify in writing that it is in compliance with this Section 6.2.6.3 Invoices 6.3.1 General Customer shall pay all invoices properly issued in compliance with Schedule 6.1 within thirty (30) calendar days after receipt thereof. All payments shall be made in U.S. dollars.6.3.2 Disputed Amounts Customer may, after giving Vendor prior written notice with full particulars of the reasons, withhold payment of any invoiced amounts that Customer disputes in good faith, pending resolution of the matter. In such case, Customer shall, by the applicable due date, pay any amounts then due that are not disputed. If any disputed amounts are later determined to have been improperly withheld (i.e., properly charged by Vendor), then Customer shall be obligated to pay the withheld amount. If any paid amounts are later disputed by Customer and determined to have been improperly paid (i.e., improperly charged by Vendor), then Vendor shall be obligated to pay the improperly paid amount until Customer is reimbursed in full. The failure of Customer to pay a disputed invoice, or to pay the disputed part of an invoice, to the extent permitted under this clause, shall not constitute a breach or default by Customer.6.3.3 Right to Set off Customer may set off against and deduct from any and all amounts otherwise to be paid to Vendor pursuant to any of the provisions of this Agreement any amounts claimed in good faith to be owed to Customer by Vendor, provided that Vendor shall have been given written notice of the assertion of the right of setoff.6.4 Taxes The fees provided herein do not include U.S. or foreign sales and use taxes. If Vendor is required to pay U.S. or foreign sales or use taxes based on the licenses granted or services provided under this Agreement or on Customer’s use of the licenses or services, then such taxes shall be billed to and paid by Customer; provided, however, that Vendor shall reasonably cooperate with Customer to lawfully minimize the imposition thereof and to the extent Customer or the transactions contemplated by this Agreement may be exempt from such taxes, Vendor will not pay any taxes on behalf of Customer if Customer provides Vendor a tax certificate of exemption. Vendor shall be solely responsible for all other taxes arising by reason of or in connection with this Agreement, including, without limitation taxes based on Vendor’s income or personal property, and any franchise or privilege taxes, or employment related taxes applicable to Vendor’s employees and contractors.6.5 Travel Policy; Out-of-Pocket Expenses and Other Charges Vendor shall be responsible for all travel and out-of-pocket expenses incurred by Vendor, its employees, agents, or subcontractors in connection with the performance of the Implementation Services and the Ongoing Services. Customer shall reimburse Vendor for all reasonable travel and out-of-pocket expenses incurred by Vendor in connection with Miscellaneous Work, provided that: (i) Vendor uses commercially reasonable efforts to minimize all such travel and related expenses by utilizing its personnel and/or the personnel of its Affiliates that are located in the geographic regions in which the required Miscellaneous Work is to be performed; and (ii) such travel and related expenses are pre-approved by Customer and conform to the Customer travel and out-of-pocket expense policy attached hereto as Schedule 6.5.6.6 Performance CreditsSchedule 2.3 sets forth specified Performance Credits which shall be granted to Customer if and when Vendor’s actual performance of Services fails to meet certain levels, as measured against the SLs. It is understood that Performance Credits are intended to reflect, to some extent, the diminished value of Vendor’s Services in such events, but are not intended to constitute penalties or liquidated damages. In no event shall Performance Credits be Customer’s sole and exclusive remedy with respect to any failure of Vendor to comply with applicable SLs.6.7 Assessments In the event that Vendor fails to perform its obligations relating to the Regulatory Requirements and the Health Care Finance Administration or other Federal or state agency assesses penalties, fines, assessments, or similar charges against Customer, then, in addition to any other rights Customer has under this Agreement, Vendor shall reimburse Customer for any such assessments, penalties, fines, and charges and for any consultation or legal fees incurred by Customer in connection with responding to and correcting any regulatory citations, notices of non-compliance and the like relating or attributable to Vendor’s failure to comply with the Regulatory Requirements.7. PROPRIETARY RIGHTS; CONFIDENTIALITY7.1 Ownership of Work Product 7.1.1 Customer Sole Owner Customer shall be the sole and exclusive owner of all of the Work Product, and of all copyright, patent, trademark, trade secret, and other proprietary rights in the Work Product. Ownership of Work Product shall be conveyed to Customer from the date of conception, creation, or fixation in a tangible medium of expression (whichever occurs first), of such Work Product. Each copyrightable aspect of the Work Product shall be considered a “work made for hire” within the meaning of the Copyright Act of 1976, as amended. Vendor hereby assigns to Customer exclusively all right, title, and interest in and to the Work Product, and all copies thereof, and the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that Vendor may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of Vendor. Vendor shall obtain similar written undertakings from all subcontractors, employees, and consultants who will perform any Services, so as to ensure Customer’s ownership of the Work Product as provided herein, and shall not commence the deployment of any such subcontractor, employee, or consultant until such a written undertaking has been obtained from such subcontractor, employee, or consultant and delivered to Vendor. To the extent the Work Product incorporates or includes Vendor Underlying Works, Vendor hereby grants to Customer (and its Authorized Users, but solely for Internal Purposes) a perpetual, irrevocable, royalty-free, fully paid-up, worldwide license in such Underlying Works to the extent necessary to give Customer unrestricted use and enjoyment of such Work Product and all proprietary rights therein. Vendor acknowledges that the Parties do not intend Vendor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976, as amended, and that in no event shall Vendor be deemed the joint author of any Work Product. Customer shall have access to all Work Product located on Vendor’s premises. Customer hereby grants to Vendor during the Term, a non-transferable, nonexclusive, royalty-free, fully paid-up, personal license to use any Work Product solely for the provision of Services to Customer. Vendor may not use the Work Product in connection with the provision of services to its other customers without the prior written consent of Customer, which may be withheld in Customer’s sole discretion. 7.1.2 Intellectual Property Vendor shall promptly and fully disclose and deliver all Work Product to Customer, in writing and (with respect to computer programs) in both source code and object code form and with all available user manuals and other documentation, as requested by Customer, and shall execute and deliver any and all patent, copyright, or other applications, assignments, and other documents that Customer requests for protecting the Work Product, whether in the United States or any other country. Customer shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Vendor shall reasonably cooperate, at Customer’s expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product.7.1.3 Residuals Nothing in this Agreement shall prevent Vendor from making any desired usage of the Residuals.7.1.4 Underlying and Derivative Works Notwithstanding anything to the contrary provided in this Agreement, including this Section 7.1.4, Vendor shall be the sole and exclusive owner of all Vendor Underlying Works, including the Vendor Software, and all derivatives thereof that do not contain any Work Product (“Vendor Derivatives”). Vendor shall provide to Customer, as part of the Services, a copy (including source code and all technical documentation) of, and hereby grants to Customer and (for the sole purpose of their providing services to Customer) any Authorized Users a perpetual, irrevocable, nonexclusive, royalty- free, fully paid, worldwide license to use, copy, modify, exploit, and sublicense all Vendor Underlying Works and Vendor Derivatives, and all Enhancements, customizations, and improvements made thereto by Vendor during the Term, that are used by Vendor at any time during the Term in providing the Services, but solely for use in connection with Customer’s receipt and usage of the Services provided herein. Vendor shall identify in writing all Vendor Underlying Works and Vendor Derivatives used in performing the Services.7.1.5 Third Party Underlying Works Notwithstanding anything to the contrary provided in this Agreement, including this Section 7.1.5, the sole and exclusive owner of any third party’s Underlying Works, and of all derivative works thereof that are created, invented, or conceived of by such third party (such derivatives, collectively with the third party’s Underlying Works, the “Third Party Works”) shall be the applicable third party. Vendor shall not implement or utilize any Third Party Works in the provision of any Services unless the Third Party Works are commercially available or Vendor shall have caused such third party to agree to grant to Customer and (for purposes of their providing services to Customer) any third party service providers engaged by Vendor, at Vendor’s expense, a perpetual, irrevocable, nonexclusive, royalty-free, fully paid, worldwide license to use, copy, modify, and sublicense the Third Party Works in connection with the conduct of Customer’s business. Vendor shall identify in writing all Third Party Works used in performing the Services.7.2 Confidentiality 7.2.1 Protection of Confidential Information Neither Party shall disclose to any third party during or after the Term and each Party shall keep strictly confidential all Confidential Information of the other, protecting the confidentiality thereof with the same level of efforts that it employs to protect the confidentiality of its own proprietary and confidential information of like importance to it and in any event, by reasonable means. Each Party may, however, disclose the Confidential Information of the other to those of such Party’s personnel engaged in a use permitted by this Agreement and with a need to know, provided that such personnel (i) are directed to treat such Confidential Information confidentially and not to use it other than as permitted hereby and (ii) are subject to a legal duty to maintain the confidentiality thereof. Neither Party shall use the Confidential Information of the other Party except solely as necessary in and during the performance of this Agreement, or as expressly licensed hereunder. Each Party shall be responsible for any improper use or disclosure of any Confidential Information of the other by such Party’s officers, partners, principals, employees, agents, or independent contractors (including individuals who hereafter become former partners, principals, employee, agents, or independent contractors). 7.2.2 Exceptions The obligations of this Section 7.2 shall not apply (i) to any Confidential Information for a period longer than it is legally permissible to restrict disclosure of that item of Confidential Information, or (ii) to any Confidential Information that a Party can demonstrate was: (a) at the time of disclosure to such Party, in the public domain or commonly known in either Party’s industry; (b) after disclosure to such Party, published or otherwise entered the public domain through no fault of such Party; (c) in the possession of such Party at the time of disclosure to it, if such Party was not then under an obligation of confidentiality with respect thereto; (d) received after disclosure to such Party from a third party who had a lawful right to disclose such Confidential Information to it; (e) independently developed by such Party without reference to Confidential Information of the other Party; or (f) disclosed with the prior written approval of the other Party.7.2.3 Required Disclosure Either Party may disclose Confidential Information to the extent required by law or by order of a court or governmental agency; provided, however, that the recipient of such Confidential Information shall give the owner of such Confidential Information prompt notice, and shall use its best efforts to cooperate with the owner of such Confidential Information if the owner wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information. The owner of such Confidential Information reserves the right to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.7.2.4 Notification In the event of any disclosure or loss of Confidential Information, the receiving Party shall immediately notify the disclosing Party.7.2.5 Injunctive Relief Each Party acknowledges that any breach of any provision of this Section 7.2 by either Party, or its personnel or subcontractors, will cause immediate and irreparable injury to the other Party, and in the event of such breach, the injured Party shall be entitled to seek injunctive relief, without bond or other security, and to any and all other remedies available at law and/or in equity.7.2.6 Return of Confidential Information Unless a Party is expressly authorized by this Agreement to retain the other Party’s Confidential Information, such Party shall promptly return or destroy, at the other Party’s option, the other Party’s Confidential Information, and all copies thereof, within five (5) Business Days of the other Party’s written request, and shall certify to the other Party that it no longer has in its possession or under its control any Confidential Information in any form whatsoever, or any copy thereof.7.3 Customer DataCustomer shall permit Vendor to have access to the Customer Data solely to the extent Vendor requires such access to such data to provide the Services. Vendor may only access and process the Customer Data in connection herewith or as directed by Customer in writing and may not otherwise modify the Customer Data, merge it with other data, commercially exploit it, or do any other thing that may in any manner adversely affect the content, integrity, security, or confidentiality of such data, other than as specified herein or as directed by Customer in writing. Vendor understands and agrees that Customer owns all right, title, and interest in the Customer Data and in any modification, compilation, or derivative work there from (collectively, “Data and Modified Data”), and also owns all copyright, trademark, trade secrets, and other proprietary rights in the Data and Modified Data. Vendor agrees that all copyrightable aspects of such Data and Modified Data shall be considered “work made for hire” within the meaning of the Copyright Act of 1976, as amended. Vendor hereby assigns to Customer exclusively all right, title, and interest in and to the Data and Modified Data and to all copyright or other proprietary rights therein that it may obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of Vendor. Vendor also acknowledges that the Parties do not intend Vendor to be a joint author of the Data and Modified Data within the meaning of the Copyright Act of 1976, as amended, and that in no event shall Vendor be deemed a joint author thereof.7.4 Privileged InformationThe Parties shall keep and maintain all Privileged Information in strict confidence and shall protect all such Privileged information from disclosure to third parties.7.5 Use of Data Vendor shall not compile and/or distribute statistical analyses or reports utilizing information or data derived from Privileged Information or other information and data obtained from Customer, in aggregated form or otherwise.8. REPRESENTATIONS AND WARRANTIES8.1 VendorVendor represents or warrants to Customer as follows:8.1.1 Vendor System Vendor warrants that the Vendor System and all other deliverables furnished hereunder will: (i) meet the criteria for approval as provided for herein; (ii) be free from all material defects; (iii) perform in accordance with the Specifications; and (iv) include all the functionality described on Schedule 2.3.8.1.2 Services Vendor represents that it has had sufficient opportunity to inspect material components, workings, capabilities, procedures, and capacities of the networks, hardware, and software associated with the provision of the Services, and for analysis of Customer’s requirements in connection therewith (as specified in this Agreement and the RFP) to be able to establish the fees in Section 6.1 for the Implementation Services on a fixed fee basis and the fees for the Ongoing Services on a PMPM basis, despite the Parties’ agreement to develop the Project Plan, and Vendor agrees not to seek or claim any relief from such fee amounts or rates, or from the scope of work established by the said statements of work, regardless of any additional information obtained by it in the course of developing the Project Plan. The Services will be performed in a timely, competent, professional manner and in accordance with the requirements hereof and the applicable Statements of Work.8.1.3 Regulatory Requirements Vendor represents that, as of the Effective Date, the Vendor System and the Services meet and satisfy all Regulatory Requirements. Vendor further warrants that Vendor, its employees, agents, and subcontractors shall comply with the Regulatory Requirements set forth in the Business Associate Addendum to this Agreement attached hereto as Exhibit 8.1.3.8.1.4 Documentation Vendor represents that the Documentation will be an accurate description of the Software and Vendor System and will meet or exceed industry standards (applicable to software installations costing over [$______]) for detail and accuracy.8.1.5 Computer Viruses Vendor warrants that the Vendor System and all other Software deliverables used by Vendor to provide the Services hereunder will be free from any Disabling Device that may cause such Software or any data generated or used by it to be erased, become inoperable or inaccessible, or that may otherwise cause such Software to become temporarily or permanently incapable of performing in accordance with this Agreement.8.1.6 Year 2000 Vendor warrants that the Vendor System will recognize, process, and correctly (and without ambiguity as to century) accommodate data reflecting dates before, during, and after the year 2000, including by: (i) data storage of century information, (ii) proper processing of multicentury date calculations, (iii) appropriate user interface accommodation of century information, and (iv) correct handling of the leap year occurring in the year 2000.8.1.7 Legal and Corporate Authority Vendor represents that it has the right and authority to enter into and perform this Agreement, including, the right to grant the licenses provided for herein and deliver the deliverables as provided herein. Vendor warrants that its activities in connection with this Agreement do not and will not constitute a default or breach (or an event which, with the passage of time or giving of notice, would constitute a default or breach) of any agreement by which Vendor or any of its personnel performing Services are bound.8.1.8 Intellectual Property Vendor represents that it has not misappropriated or improperly copied from a third party, and warrants that it will not misappropriate or improperly copy from a third party any deliverables provided or any intellectual property used under this Agreement, or any portion thereof. Vendor represents that it has not infringed or otherwise violated, and neither performance hereunder nor Customer’s exercise of its rights hereunder will infringe or otherwise violate, any statutory or other rights of any third party in or to any intellectual property rights therein including copyrights, patents, trade secrets, and trademarks. Vendor represents that no third party has asserted, is asserting or, to Vendor’s knowledge, has or will have any reasonable basis to assert a claim of any of the foregoing.8.2 CustomerCustomer represents to Vendor that:8.2.1 Legal and Corporate Authority Customer is a corporation duly formed and in good standing under the laws of ______and is qualified and registered to transact business in all locations where the performance of its obligations hereunder would require such qualification; that it has all necessary rights, powers, and authority to enter into and perform this Agreement; that the execution, delivery, and performance of this Agreement by Customer have been duly authorized by all necessary corporate action; and that the execution and performance of this Agreement by Customer shall not violate any law, statute, or regulation and shall not breach any agreement, covenant, court order, judgment, or decree to which Customer is a party or by which it is bound.8.2.2 Right of Use Customer has the right to permit Vendor to use all hardware, software, networks, and other IT-related assets made available by Customer to Vendor under this Agreement.8.2.3 Disclaimer All hardware, software, networks, and other IT-related assets made available by Customer to Vendor under this Agreement are made available to Vendor “AS IS, WHERE IS” and there are no warranties of any kind with respect to the condition, capabilities, or other attributes of such items, except as otherwise expressly stated in this Agreement. 9. REMEDIES AND LIMITATIONS9.1 Basic Remedy; NonexclusivityVendor shall, promptly and at no charge to Customer, (i) re-perform any Services that do not meet the requirements of this Agreement, and (ii) correct all failures of the Vendor System or any other deliverables hereunder to perform in accordance with the requirements of this Agreement. No remedy set forth in this Agreement is intended to be exclusive of any other remedy. Each remedy shall be in addition to every other remedy given hereunder, or now or hereafter existing at law, in equity, by statute, or otherwise. No quality assurance, acceptance test, or other similar procedure shall be deemed to obligate Customer with respect to, or necessarily to constitute, legal “acceptance” of any deliverable and no such procedure shall be deemed to waive any right or remedy hereunder.9.2 Limitation of Liability 9.2.1 Customer’s Liability EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.2.4, THE AGGREGATE CUMULATIVE MONETARY LIABILITY OF CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE AMOUNT OF MONEY DUE AND PROPERLY OWING UNDER THIS AGREEMENT.9.2.2 Vendor’s Liability EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 9.2.4, VENDOR’S AGGREGATE CUMULATIVE MONETARY LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO (i) WITH RESPECT TO CLAIMS ARISING OUT OF THE IMPLEMENTATION SERVICES, AN AMOUNT EQUAL TO TWO TIMES THE AGGREGATE AMOUNT OF FEES PAID AND TO BE PAID BY CUSTOMER FOR THE IMPLEMENTATION SERVICES; AND (ii) WITH RESPECT TO ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT, AN AMOUNT EQUAL TO THE GREATER OF (A) THE AGGREGATE AMOUNT OF FEES PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE EIGHTEEN (18) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO THE FIRST SUCH CLAIM, AND (B) [______DOLLARS ($______)].9.2.3 No Consequential Damages NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS, LOST REVENUES, OR EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE REASONABLE COSTS THAT CUSTOMER IS REQUIRED TO EXPEND TO PROCURE SERVICES FROM AN ALTERNATIVE SOURCE AS A RESULT OF A DEFAULT BY VENDOR, TO THE EXTENT IN EXCESS OF VENDOR’S CHARGES UNDER THIS AGREEMENT, AND ANY AMOUNT OF MONEY UNPAID BY CUSTOMER TO VENDOR FOR SERVICES RENDERED, SHALL BE CONSTRUED AS DIRECT DAMAGES AND NOT AS INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.9.2.4 Exceptions 9.2.4.1 Customer. THE LIMITATIONS CONTAINED IN SECTIONS 9.2.1 AND 9.2.3 UPON THE TYPES AND AMOUNTS OF CUSTOMER’S LIABILITY SHALL NOT APPLY TO: (i) CLAIMS SUBJECT TO INDEMNIFICATION BY CUSTOMER (SECTION 10); (ii) CLAIMS WITH RESPECT TO A BREACH OF CONFIDENTIALITY (SECTION 7); AND (iii) LOSSES ARISING OUT OF THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CUSTOMER. 9.2.4.2 Vendor. THE LIMITATIONS CONTAINED IN SECTIONS 9.2.2 AND 9.2.3 UPON THE TYPES AND AMOUNTS OF VENDOR’S LIABILITY SHALL NOT APPLY TO: (i) CLAIMS SUBJECT TO INDEMNIFICATION BY VENDOR (SECTION 10); (ii) CLAIMS WITH RESPECT TO A BREACH OF CONFIDENTIALITY (SECTION 7); (iii) LOSSES ARISING OUT OF THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF VENDOR; AND (iv) CLAIMS BASED UPON A BREACH OF SECTION 5.5.5 HEREOF OR UPON ANY REPUDIATION OF THIS AGREEMENT BY VENDOR OR VENDOR’S REFUSAL TO PERFORM ITS DUTIES AND OBLIGATIONS HEREUNDER.10. INDEMNIFICATION10.1 Intellectual PropertyVendor shall defend, indemnify, and hold harmless Customer, its officers, directors, employees, agents, and representatives from and against any claims and shall pay all losses, damages, liabilities, claims, and actions, and all related expenses (including reasonable attorneys’ fees and expenses) based on an allegation that the Vendor System or any other intellectual property delivered or licensed hereunder, and any part or parts thereof (collectively, the “IP Assets”) infringe or misappropriate the rights of others, or if their use by Customer is enjoined, Vendor shall, at Customer’s option and Vendor’s expense, either: (i) procure for Customer the right to continue using such IP Assets; (ii) replace the same with equivalent IP Assets that perform, in all respects, in accordance with the requirements of this Agreement and do not infringe or misappropriate the rights of others; or (iii) modify the same so they no longer infringe or misappropriate the rights of others while still performing in all respects in accordance with the requirements of this Agreement.10.2 Injury or Damage Each Party shall, defend, indemnify, and hold harmless the other Party and its respective officers, directors, employees, agents and representatives from and against any claims and shall pay all losses, damages, liabilities, claims and actions, and all related expenses (including reasonable attorneys’ fees and expenses) based on allegations of bodily injury (including death) or damage to tangible personal or real property, to the extent that such injury or damage arises from the negligence or willful misconduct of, or breach of this Agreement by, the indemnifying Party in connection with the matters that are the subject of this Agreement.10.3 Third Party ServicesVendor shall defend, indemnify, and hold harmless Customer, its officers, directors, employees, agents, and representatives from and against any claims and shall pay all losses, damages, liabilities, claims, and actions, and all related expenses (including reasonable attorneys’ fees and expenses) based on allegations, including allegations of non- payment, from Vendor’s subcontractors arising out of or related to services performed by them hereunder.10.4 Procedures If any legal action covered by this Section 9.2.4 is commenced against a Party (“Indemnified Party”), prompt written notice thereof shall be given to the other Party (“Indemnifying Party”). After such notice, if Indemnifying Party shall acknowledge in writing to Indemnified Party that the right of indemnification under this Agreement applies with respect to such claim, then Indemnifying Party shall be entitled, if it so elects, in a written notice delivered to Indemnified Party not fewer than ten (10) Business Days prior to the date on which a response to such claim is due, to take control of the defense and investigation of such claim and to employ and engage attorneys of its sole choice to handle and defend same, at Indemnifying Party’s expense. Indemnified Party shall cooperate in all reasonable respects with Indemnifying Party and its attorneys in the investigation, trial, and defense of such claim and any appeal arising there from; provided, however, that Indemnified Party may, at its own expense, participate, through its attorneys or otherwise, in such investigation, trial, and defense of such claim and any appeal arising there from. No settlement of a claim that involves a remedy other than the payment of money by Indemnifying Party shall be entered into without the consent of Indemnified Party, which consent will not be unreasonably withheld or delayed. After notice by Indemnifying Party of its election to assume full control of the defense of any such claim, Indemnified Party shall not be liable to Indemnifying Party for any legal expenses incurred thereafter by Indemnifying Party in connection with the defense of that claim. If Indemnifying Party does not assume full control over the defense of a claim subject to such defense as provided in this Section 10.4, Indemnifying Party may participate in such defense, at its expense, and the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate, at the expense of Indemnifying Party.11. TERM AND TERMINATION11.1 TermThe period during which Vendor shall be obligated to provide the Services under this Agreement (the “Term”) shall commence on the Effective Date and (unless extended or earlier terminated pursuant to this Section 11) shall end on the fifth (5th) anniversary of the Effective Date. Vendor shall notify Customer, on the fourth (4th) anniversary of the Effective Date, (i) if Vendor desires to extend the Term, and (ii) of the proposed pricing and other terms and conditions to govern the provision of Services during any such extension. At any time within the nine (9) months following such fourth (4th) anniversary, Customer may notify Vendor if it desires to extend the Term, which notice shall not be deemed an acceptance of Vendor’s proposal unless it explicitly states that Customer accepts such proposal. The Parties shall then commence negotiations regarding the pricing and other terms and conditions applicable during any such extension. Notwithstanding the foregoing, Customer may, in its sole discretion, extend the Term for up to three (3) successive renewal periods of one (1) year each, under the then current pricing and other terms and conditions, by providing written notice delivered to Vendor at least ninety (90) days before what would, but for such extension, be the end of the Term.11.2 Termination 11.2.1 Default Vendor and Customer acknowledge and agree that each of the following shall constitute a default (“Default”) under this Agreement: (a) A failure by Vendor as to any Critical Milestone or Key Deliverable (as such terms may be defined in the Implementation Services Statement of Work) to achieve such milestone or deliver to Customer such deliverable within the time frame specified in the Implementation Workplan for the Project, provided such failure was not caused by the material action or inaction of Customer or a third party contractor or consultant of Customer (not under the control of Vendor), and in no event shall such failure be subject to a cure period. (b) A failure by Vendor, with respect to all or any identifiable portion of the testing or re-testing provided for in Section 2.2.5, to complete it successfully, provided such failure was not caused by the material action or inaction of Customer or a third party contractor or consultant of Customer (not under the control of Vendor), and in no event shall such failure be subject to a cure period. (c) A material breach by Vendor of any warranty set forth in this Agreement, and/or in any Statement of Work, provided that such breach, if curable, is not cured within thirty (30) calendar days following receipt of written notice of such breach. (d) A determination by Customer, based upon conclusive evidence that any representation made by Vendor constituted a material misrepresentation or omission of a material fact. (e) A failure by Vendor to maintain insurance coverage as specified in Section 12.8, provided that such failure is not cured within thirty (30) calendar days following receipt of written notice of such failure. (f) A failure by Customer to timely pay an undisputed amount owed to Vendor, provided that such failure: (i) involves an amount greater than [______]; and (ii) is not cured within thirty (30) calendar days following receipt of written notice of such failure. (g) A failure by Vendor, with respect to any other material obligation under this Agreement, and/or Statement of Work, to perform such obligation in accordance with this Agreement, provided that such failure is not cured within thirty (30) calendar days following receipt of written notice of such failure. (h) The institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against a Party under any section or chapter of the U.S. Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by a Party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of a Party not involving the U.S. Bankruptcy Code; or any corporate action taken by the Board of Directors of Vendor in furtherance of any of the above actions11.2.2 Termination for Convenience Customer shall have the right to terminate the Term for its convenience, for any or no reason effective at 11:59 PM on the intended date of termination (the “Termination Date”), which shall in any event be the last calendar day of a month by delivering to Vendor a written notice of termination specifying the Termination Date (the “Termination Notice”) at least [______(___)] days before said Termination Date.11.2.3 Termination for Default 11.2.3.1 By Customer. Customer shall be entitled to terminate (by delivery of a Termination Notice specifying an effective Termination Date), the Term upon the occurrence of a Default by or with respect to Vendor. 11.2.3.2 By Vendor. Vendor shall be entitled to, subject to Section 5.5.5, discontinue performance of its obligations under this Agreement (by delivery of a Termination Notice specifying an effective Termination Date) if, and only if, Customer is in arrears with respect to the payment of fees that are owed and due by Customer to Vendor hereunder in the amount of at least [______] Dollars $([______]), except for amounts that are being properly withheld by Customer in accordance with the terms hereof.11.2.4 Customer Default The Parties agree that the only obligations of Customer hereunder as to which a failure by Customer to perform may constitute a Default of Customer hereunder, are: (i) Customer’s obligation to pay amounts owed by Customer to Vendor as provided in Section 11.2.3.2; and (ii) obligations as to which a failure by Customer to perform is defined as a Default in Section 11.2.1.11.2.5 Termination for Force Majeure Event If a delay or interruption of performance by Vendor resulting from its experiencing a Force Majeure Event exceeds ten (10) consecutive days, Customer may end the Term or terminate as to any of the categories of Services (in whole or in part), by delivering to Vendor a Termination Notice specifying the Termination Date.11.2.6 Option to Convert License Notwithstanding any other provision to the contrary, Customer shall be entitled, upon sixty (60) days’ prior written notice to Vendor, to convert the licensing relationship between Vendor and Customer from the ASP model solution (Vendor hosted and operated) as set forth under this Agreement to a “turnkey” model solution (Customer hosted and operated). The terms and conditions pursuant to which such conversion shall take place and under which the Parties shall operate after such conversion are set forth in Schedule 11.2.6.11.2.7 Transition In the event of any expiration or termination of the Term, Vendor shall provide Disentanglement Services as described in Section 2.6 in order to cooperate reasonably in: (i) the orderly wind-down of the Project and/or Services; and (ii) the transition to another implementation services vendor (to the extent that a replacement is needed for Implementation Services) and/or ongoing services provider (to the extent that a replacement provider is needed for Ongoing Services).11.2.8 Effect of Ending the Term The expiration or termination of the Term shall not constitute a termination of this Agreement, which shall continue in effect until all other duties and obligations of the Parties (including Customer’s obligations under this Agreement to pay the applicable undisputed fees for Services received) have been performed, discharged, or excused. In particular, the obligations and rights of the Parties pursuant Sections ______and any other sections of the Term of this Agreement that by their nature may reasonably be presumed to have been intended to survive any termination or expiration of this Agreement, shall survive any such termination or expiration. Thus, and even if any dispute arises between the Parties, in no event nor for any reason shall Vendor interrupt the provision of Services to Customer or any obligations related to Disentanglement, disable any hardware used to provide Services, or perform any other action that prevents, slows down, or reduces in any way the provision of Services or Customer’s ability to conduct its activities, except in accordance with the Parties agreed-upon Disentanglement plan, unless authority to do so is granted by Customer or conferred by a court of competent jurisdiction.12. MISCELLANEOUS12.1 AmendmentsExcept as otherwise expressly provided herein, this Agreement may not be modified, amended, or in any way altered except by a written agreement signed by the Parties hereto.12.2 Assignment Vendor shall not assign this Agreement nor delegate any of its duties, in whole or in part, without the prior written consent of Customer, which consent shall be given only in Customer’s sole discretion. In no event shall Customer’s consent be construed as discharging or releasing Vendor in any way from the performance of the Services or the fulfillment of any obligation under this Agreement. Customer may assign this Agreement or delegate its duties, in whole or in part, without the requirement for any consent of Vendor. An authorized assignee of either Party hereunder shall be subject to and bound by the terms of this Agreement. If any assignee shall fail to agree to be bound by all of the terms and obligations of this Agreement or if any assignment is made in breach of the terms of this Agreement, then such assignment shall be null and void and of no force or effect.12.3 CounterpartsThis Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall be deemed the same agreement.12.4 Entire Agreement; Order of Precedence This Agreement, together with all Exhibits, Schedules and all other documents expressly referred to herein, constitutes the complete and exclusive statement of the agreement of the Parties with respect to the subject matter hereof and supersedes all prior proposals, understandings, and agreements, whether oral or written, between the Parties with respect to the subject matter hereof. In case of conflict the order of precedence of the documents constituting this Agreement is as follows, each listed document superseding in the event of any conflicting provision in a later listed document: (1) Agreement text (Introduction through Section 11, excluding Schedules and Exhibits); (2) the Schedules and Exhibits; and (3) any other document.12.5 Force MajeureNeither Party shall be liable for any failure or delay in performing its obligations under this Agreement due to causes beyond its control (each, a “Force Majeure”), including acts of God, the public enemy, riots, fires, natural catastrophes or epidemics, provided that the Party seeking relief due to such delay is using commercially reasonable efforts to mitigate or eliminate the cause of such delay or its effects and, if events in the nature of the Force Majeure event were foreseeable, used commercially reasonable efforts prior to its occurrence to anticipate and avoid its occurrence or effect. In the event of such failure or delay, the date of delivery or performance hereunder shall be extended for a period not to exceed the time lost by reason of the failure or delay. Each Party shall notify the other in writing promptly of any failure or delay in, and the effect on, its performance caused by a Force Majeure event.12.6 Governing Law; Jurisdiction and VenueThis Agreement shall be governed by and interpreted in accordance with the internal substantive laws of the State of ______. The Parties agree that all actions and proceedings arising out of or related to this Agreement shall be brought only in a state or federal court located in ______County, ______, and the Parties hereby consent to such venue and to the jurisdiction of such courts over the subject matter of such proceeding and themselves.12.7 Independent Contractor Vendor is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Each Party will be solely responsible for payment of all compensation owned to its employees, as well as employment related taxes. Subject only to the terms of this Agreement, Vendor shall have complete control of its agents and employees engaged in the Project. Vendor shall ensure that neither it nor its agents or employees shall act or hold themselves out as agents or employees of Customer.12.8 Insurance Without limiting Vendor’s undertaking to defend, hold harmless, and indemnify Customer as provided in Section 9.2.4 hereof, Vendor shall purchase and maintain insurance to protect Vendor from claims of the type set forth below that arise out of or result from Vendor’s operations, services, and/or performance under this Agreement and for which Vendor may be liable, whether such operations, services, and/or performance are provided by Vendor or by any of Vendor’s agents, consultants, suppliers, or subcontractors or by anyone directly employed by any of them, or by anyone for whose acts Vendor may be liable. The insurance required hereunder shall be written for not less than the limits of coverage specified herein, or as required by law in any jurisdiction with authority over Vendor’s operations, services, and/or performance, whichever is greater. Coverage shall be written on an occurrence basis, except for Professional Liability Insurance. (a) Worker’s Compensation and Employers Liability insurance affording compensation benefits for all employees in an amount sufficient by virtue of the laws of the state or jurisdiction in which the work or any portion of the work is performed and employers’ liability insurance with limits of one million dollars ($1,000,000) for each accident or disease. (b) Commercial General Liability Insurance with a combined single limit of one million dollars ($1,000,000) per occurrence for personal injury, bodily injury (including wrongful death), and property damage liability inclusive of coverage for all premises and operations, broad form property damage, independent contractors, contractual liability for this Agreement and product/completed operations coverage. (c) Automobile Liability Insurance with combined single limit of one million dollars ($1,000,000) per occurrence for injuries, including accidental death and property damage. (d) Umbrella or Excess Liability Insurance with limits not less than ten million dollars ($10,000,000) per occurrence, which shall provide additional limits for employers’ general liability and automobile liability insurance. (e) Professional Liability Insurance shall be maintained with limits of ten million dollars ($10,000,000). When policies are renewed or replaced, Vendor shall make commercially reasonable efforts to cause the policy retroactive date to coincide with, or precede, the commencement date of services in connection herewith.12.8.3 Certain Specific Requirements Vendor shall comply with the following terms for all insurance coverage required by this Section 12.8. (a) Vendor shall provide insurance coverage by insurance companies having policy holder ratings no lower than “A” and financial ratings not lower than “XII” in the Best’s Insurance Guide, latest edition in effect as of the date of this Agreement. Such insurance shall be written with insurers of good standing and licensed to do business in the locations where the Services are to be performed. (b) Vendor shall verify that all of Vendor’s agents, consultants, suppliers, and Subcontractors are insured against claims arising out of or relating to their performance related to this Agreement. (c) The Policies described in clauses (b), (c), and (d) of Section 12.8.2 shall name Customer as an additional insured on a primary basis with respect to liability arising out of or in any way connected with Vendor’s performance of this Agreement. (d) Vendor hereby waives and shall cause Vendor’s insurers to waive their rights of subrogation against Customer and all its subsidiaries and Affiliates, directors, officers, and employees under policies described in Section 12.8.2 (a), (b), (c), and (d). (e) The insurance policies listed above shall be subject to the laws of the country or state in which the Services are being performed. In the case of Services performed outside the United States and when required by law, the insurance must be placed with a company admitted to do business in that country. (f) The foregoing insurance coverages shall be primary to and non-contributory with respect to any other insurance or self-insurance that may be maintained by Customer and its subsidiaries and affiliates and shall contain a cross-liability or severability-of-interest clause where applicable. The fact that Vendor has obtained the insurance required in this Section 12.8 shall in no manner lessen nor affect Vendor’s other obligations or liabilities set forth in this Agreement. Vendor shall supply certificates of insurance demonstrating that all of the insurance required above is in force, that not less than thirty (30) days’ written notice shall be given to Customer prior to any cancellation or restrictive modification of the policies, and that the waivers of subrogation are in force. At the request of Customer or any of its subsidiaries or affiliates, Vendor shall provide a certified copy of each insurance policy required under this Agreement, provided that Customer has been named as an additional insured on such policy and there has been an occurrence for which such policy provides coverage. (g) Any self-insurance, self-retained layer, deductibles, and exclusions in coverage in the Polices required under Section 12.8.2(b) and 12.8.2 (c) shall be assumed by, for the account of, and at the sole risk of, Vendor. In no event shall Vendor’s liability be limited to the extent of the minimum limits of insurance required above. (h) Vendor shall, at Vendor’s expense, carry, and maintain at all times, and for as long as any item of Vendor’s property is in transit, or in the care, custody, or control of Customer, a policy or policies covering loss, or destruction of, or damage to any item of Vendor’s property in the amount of the full replacement value thereof providing protection against all perils normally covered in an “all risk” physical damage insurance policy. Vendor shall cause its “all risk” physical damage insurers to waive all rights of subrogation against Customer, its Affiliates, and their respective directors, officers, agents, and employees for any loss, or destruction of, or damage to any item of Vendor’s property, which is covered by insurance pursuant to this clause 12.8.3(h).12.9 NoticesAny notice or other document or communication required or permitted hereunder to the Parties hereto will be deemed to have been duly given only if in writing and delivered by any of the following methods: (i) certified U.S. mail, return receipt requested, postage prepaid, to the address of the receiving Party as set forth below or such other address as such Party may dictate according to the notice provisions hereof; (ii) hand delivery to the person specified below or any other person so designated according to the notice provisions hereof; or (iii) facsimile directed to the person specified below at the facsimile number listed below, or such other person or facsimile number so designated according to the notice provisions hereof; with a copy of all such notices delivered to counsel specified below or as such Party may dictate in accordance with the notice provisions hereof. Notices shall be deemed delivered when received by the Party being notified. If to Customer, all notices shall be addressed and delivered to: [Address] With a copy to: [Address] If to Vendor, all notices shall be addressed and delivered to: Name: ______Address: ______Telephone: ______Facsimile: ______With a copy to: Name: ______Address: ______Telephone: ______Facsimile: ______12.10Customer Corporate Policies Vendor shall, and shall cause its subcontractors and employees to, abide by all Customer corporate policies that may be established by Customer from time to time, including the policies set forth in Schedule 12.10 hereto and, to the extent they meet the foregoing requirements, the following:12.10.1 Security All Vendor personnel (including personnel of any subcontractors) shall be subject to and shall at all times conform to Customer’s Industrial Security rules and requirements for the protection of Customer’s facilities, materials, equipment and personnel. Any violations or disregard of these rules shall be cause for denial of access to Customer’s property.12.10.2 Computer Information and Access Vendor will comply with all rules of Customer concerning access to Customer’s computers and use of computer data and software. Prior to performing any services pursuant to this Agreement, Vendor’s personnel shall execute Customer’s standard forms concerning access protection and data/software security. Customer shall issue to Vendor personnel access mechanisms including access IDs, passwords, and access cards that are to be used only by Vendor personnel to whom they are issued. Computer data and software shall be used by Vendor personnel only in connection with Vendor’s obligations hereunder. Failure of Vendor to comply with these rules may result in Customer restricting offending personnel from access to Customer computer systems or immediate termination of this Agreement.12.10.3 Ethical Business Practices This Agreement is subject to and governed by Customer’s “Code of Ethics,” as such may be amended from time to time. Vendor and any subcontractors used by Vendor in the performance of services hereunder shall comply with all applicable laws and regulations and with the “Code of Ethics.”12.10.4 Other Policies Vendor agrees that as part of its provision of services hereunder, it shall ensure that its personnel are trained, qualified, and available to perform all services required in work areas requiring specific health, security, or safety precautions. Vendor shall, and shall cause its subcontractors and employees to, abide by all Customer corporate policies that may be established by Customer from time to time, including the following policies set forth in Schedule 12.10 hereto: [TBD].12.11Publicity Without Customer’s express written consent, which consent shall be given only in Customer’s sole discretion, Vendor shall not use: (a) Customer’s name or the name of any Affiliate of Customer, or any divisions or business units of any of them; (b) the name of any officer, director, employee, or independent contractor of Customer or its Affiliates; (c) the name of any product or service of any of Customer or its Affiliates; or (d) the name of any customer of Customer, in connection with any marketing, advertising, or other publicity.12.12Recordkeeping and Audits 12.12.1 Annual Audits Vendor, at its sole expense, shall have its auditors perform an audit, on not less than an annual basis, of the accuracy of invoices submitted to Customer and of Vendor’s subcontractors’ invoices for licenses and services provided to Customer or Vendor, pursuant to this Agreement and the respective agreements between Vendor and Vendor’s subcontractors. Vendor shall deliver a copy of the report of such audit to Customer within fourteen (14) calendar days after the end of each audit year. Notwithstanding the foregoing, Customer, at any time and from time to time, upon reasonable notice to Vendor and at Customer’s sole expense, may also audit or cause to be audited the relevant portion of the financial records of Vendor and Vendor’s subcontractors to verify the accuracy of Vendor’s invoices to Customer and Vendor’s subcontractors’ invoices to Vendor. Customer and its authorized agents and representatives will have access to inspect and copy such records for purposes of such audit during normal business hours; provided, however, that if such audit discloses that an error of five percent (5%) or more regarding invoices during the audited period was made in favor of Vendor or any Vendor subcontractor, Vendor shall pay the entire cost of such audit. Vendor shall bind each of its subcontractors in writing, as part of the agreements between Vendor and the respective subcontractor, to make its financial records available for audit and inspection as required by this Section 12.12.2.12.12.3 Recordkeeping Requirements Vendor shall maintain, and shall cause each of its subcontractors to maintain, complete and accurate accounting records in a form in accordance with generally accepted accounting principles, to permit substantiation of the charges and prices of Vendor and Vendor’s subcontractors hereunder and to permit verification of compliance by Vendor with the terms of this Agreement. Vendor shall retain, and shall cause each of Vendor’s subcontractors to retain, such records for a period of five (5) years from the date to which each such record pertains.12.13Availability of Records Notwithstanding the provisions of Section 12.12, until the expiration of four (4) years after the furnishing of Services under this Agreement, Vendor agrees that the Secretary of the Department of Health and Human Services (“Secretary”) and the Comptroller General of the United States, or the designee or duly authorized representative of either of them, shall have access to all books and records of Vendor pertaining to the subject matter of this Agreement and the provision of Services hereunder, in accordance with the criteria presently or hereafter developed by the Department of Health and Human Services as provided in Paragraph 952 of the Omnibus Reconciliation Act of 1980, 42 U.S.C. § 1395x(v)(1)(A), et seq. (“OBRA”). Upon the request of the Secretary, the Comptroller General, the designee or the authorized representative of either of them, Vendor shall make available (at reasonable times and places during normal business hours) this Agreement, and all books, documents, and records of Vendor that are necessary to verify the nature and extent of the costs of the Services provide by Vendor and furnished in connection with this Agreement. Vendor further agrees that if Vendor caries out any of the duties of this Agreement through a subcontract with a value or cost of ten thousand dollars ($10,000) or more over a twelve (12) month period with a related organization, such subcontract shall contain a clause to the effect that until the expiration of four (4) years after the furnishing of such services pursuant to such subcontract, the related organization shall make available, upon written request to the Secretary, the Comptroller General, or any of their duly authorized representatives, the subcontract, and such books, documents, and records of such organization that are necessary to verify the nature and extent of the costs of the services rendered thereunder to the full extent required by OBRA. Notwithstanding the foregoing provisions, access to books, records, and documents of Vendor shall be discontinued and become null and void upon a finding by a court or quasi-judicial body of competent jurisdiction that this Agreement is outside the scope of the regulatory or statutory definition of those contracts and agreements included within the purview of Paragraph 952 of OBRA or the rules and regulations promulgated thereunder. 12.14Neither Party Considered DrafterDespite the possibility that one Party may have prepared the initial draft of this Agreement or played the greater role in the physical preparation of subsequent drafts, the Parties agree that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favor of one Party on the ground that such provision was drafted by the other.12.15Severability If any part or application of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions or other applications shall in no way be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.12.16WaiverNo purported waiver by any Party of any default by any other Party of any term or provision contained herein (whether by omission, delay or otherwise) shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving Party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective, duly authorized representatives.CUSTOMER VENDOR By: ______By: ______Its: ______Its: ______Date: ______Date: ______

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