VENDOR SERVICES AGREEMENT (Enhanced Care Initiatives)

Exhibit 99.1

VENDOR SERVICES AGREEMENT (Enhanced Care Initiatives)

          This Vendor Services Agreement including all Attachments hereto (as the same may be amended, modified or supplemented, the “Agreement”) is entered into this 9 ^th day of July, 2009, by and between ENHANCED CARE INITIATIVES (“Vendor”) and Touchstone Health HMO, Inc. (“HMO”), a health maintenance organization licensed pursuant to Article 44 of the New York State Public Health Law, and is effective as of the date of its execution by HMO (“Effective Date”).

          WHEREAS, HMO is a health maintenance organization that arranges for the provision of Covered Services for Covered Persons;

          WHEREAS, Vendor provides certain services listed on Exhibit A (the “Services”) attached hereto; and

          WHEREAS, HMO desires that Vendor provide the Services set forth herein subject to the terms and conditions set forth in this Agreement.

          NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

SECTION 1

DEFINITIONS

Agreement: This agreement and all exhibits hereto.

Benefit Plan: A benefit program that includes health care coverage and is issued or sponsored by HMO and contains the terms and conditions of a Covered Person’s coverage.

CMS: The Centers for Medicare & Medicaid Services.

Commissioner: Commissioner of the New York State Department of Health.

Covered Person: An individual, including a Medicare beneficiary, entitled to receive coverage for certain health care services under a Benefit Plan.

Covered Services: Those health care services for which a Covered Person is entitled to receive coverage under the terms and conditions of a Benefit Plan.

Effective Date: Shall have the meaning set forth in the preamble to this Agreement.

Healthcare Integrity and Protection Data Bank (“HIPDB”): Shall have the meaning set forth in Section 2.1.2 of this Agreement.

Medicare Advantage Contract: The applicable payor contract with CMS to provide services as a Medicare Advantage managed care organization to Medicare eligible recipients, including recipients dually eligible for the Medicare and Medicaid programs.

Policies and Procedures: Shall have the meaning set forth in Section 3.1 of this Agreement.

Provider. An individual or an organization who or which is certified, licensed or otherwise legally authorized to provide Covered Services to Covered Persons.

Services. Shall mean the activities that may be conducted by Vendor in connection with this Agreement as set forth on Exhibit A.

Term: Shall have the meaning set forth in Section 7.1 of this Agreement.

SECTION 2

REPRESENTATIONS AND WARRANTIES OF PARTIES

Section 2.1 Vendor’s Representations, Warranties and Covenants.

                     2.1.1 Vendor represents and warrants that it is, and shall remain throughout the Term, in good standing under applicable laws and regulations, including those regulations promulgated by CMS, governing its existence and operations and that it is in compliance with and shall continue to comply with all applicable federal, state and local laws, including, but not limited to, Medicare laws and regulations and applicable CMS instructions that relate to the subject matter of this Agreement or Vendor’s duties and obligations to perform the Services hereunder and Vendor has in effect all required licenses and permits to operate and conduct its operations, including, but not limited to, the provision of the Services.

                     2.1.2 At all times with respect to the provision of Services as set forth hereunder, Vendor represents and warrants that neither it or any employee or contractor through which Vendor provides Services to HMO hereunder has (i) pled guilty or no contest to or been convicted of any felony involving dishonesty or breach of trust; (ii) been excluded from participation in any federal or state funded health program, including, but not limited to, Medicare and Medicaid or has been barred from participation in federal procurement programs; or (iii) been listed in the Healthcare Integrity and Protection Data Bank (“HIPDB”). If the Vendor is listed in the HIPDB after the Effective Date, HMO shall have the right, in its sole discretion and judgment, to terminate the Agreement as provided in Section 7.2 herein or to disqualify the listed person(s) from providing any Services hereunder.

                     2.1.3 Vendor represents and warrants that this Agreement has been executed by its duly authorized representative and that executing this Agreement and performing its obligations hereunder shall not cause Vendor to violate any term or covenant of any other agreement or arrangement now existing or hereinafter executed.

Section 2.2 HMO’s Representations, Warranties and Covenants. HMO represents and warrants that: (i) it is licensed as a HMO by the applicable regulatory authority; (ii) it is, and shall remain throughout the Term, substantially in compliance with all applicable Federal and

2

state laws and regulations related to this Agreement; provided however, that for the purposes of this paragraph (iii); Vendor will have no basis for termination to the extent that any alleged noncompliance does not impact the obligations of HMO under this Agreement; (iv) this Agreement has been executed by its duly authorized representative; and (v) executing this Agreement and performing its obligations hereunder shall not cause HMO to violate any term or covenant of any other agreement or arrangement now existing or hereinafter executed.

SECTION 3

GENERAL RESPONSIBILITIES OF VENDOR

Section 3.1 Compliance with Policies and Procedures. Vendor shall be bound by and comply with all applicable policies and procedures, established by HMO from time to time in its discretion (collectively, the “Policies and Procedures”). Vendor acknowledges receipt and/or opportunity to review all Policies and Procedures in effect prior to execution of this Agreement and hereby agrees to comply with same. Vendor shall be provided at least thirty (30) days written notice prior to implementation of all such Policies and Procedures. Failure to comply with the Policies and Procedures may result in loss of reimbursement to Vendor and/or termination of this Agreement, as determined by HMO in its discretion.

Section 3.2 Provision of Services. Vendor agrees that all Services provided pursuant to this Agreement shall at all times meet or exceed: (i) all of HMO’s standards, Policies and Procedures; and (ii) all applicable federal and state statutes and regulations, including, but not limited to, CMS statutes and regulations and all fiduciary obligations under ERISA. Without limiting the foregoing, Vendor also agrees to comply with the terms and provisions of the Medicare Addendum attached as Exhibit C to this Agreement.

Section 3.3 Incentives. Vendor further agrees that as of the Effective Date, and throughout the Term (i) compensation to persons performing any Services under this Agreement shall not contain incentives or remuneration, direct or indirect, in cash or in-kind, that would violate the Medicare and Medicaid Patient Protection Act of 1987, as amended, 42 U.S.C. §1320a-7b.

Section 3.4 Reporting Requirements. Vendor acknowledges that HMO is subject to reporting requirements specified in the Medicare Advantage regulations. In furtherance of any such applicable reporting requirements, Vendor shall comply with all data and reporting requirements of HMO and/or CMS. Vendor hereby expressly acknowledges that data and information submitted by Vendor to HMO may be used by HMO for submission to CMS and Vendor hereby represents and warrants that all data and information submitted by Vendor to HMO and/or to CMS hereunder is (based on best knowledge, information, and belief) accurate, complete, and truthful.

Section 3.5 Submission of Reports to HMO. Vendor shall provide to HMO periodic reports on Services provided by Vendor. Said reports shall be provided in accordance with Exhibit A and at such other times as HMO shall request or as Vendor shall deem necessary or appropriate to ensure that HMO is fully apprised of Vendor’s activities and for purposes of enabling HMO to meet all applicable CMS and/or NCQA submission requirements and deadlines. Vendor will provide to HMO all such required reports at least 1 month in advance of the applicable

3

government filing dates and shall cooperate with HMO using Vendor’s best efforts to address any HMO questions and/or and correct any errors or omissions as identified by HMO during its review to ensure that complete, accurate and timely filings can be made by HMO. All reports provided to HMO shall include a summary report in a format agreed to by HMO. Vendor shall provide such additional ad hoc reports for no additional charge as HMO may request from time to time in order to support HMO’s ability to analyze its operations relating to the programs and business purposes its engagement of Vendor hereunder.

Section 3.6

                     3.6.1 In addition to any periodic reports required by Section 3.5 above, Vendor shall provide annual reports on its operational or financial data relevant to the provision of Services requested by the HMO or the Commissioner.

Section 3.7 Required Data. Vendor shall provide data to HMO in accordance with HMO’s specifications, immediately upon request to enable HMO to respond to Covered Person, regulator and Provider inquiries, as necessary.

Section 3.8 Statement Submission. In accordance with the Policies and Procedures, Vendor shall submit statements or other information to HMO required for payment for Services rendered hereunder. Vendor agrees that HMO shall have the right to determine the accuracy of all statements submitted by Vendor prior to compensating Vendor as set forth in Section 5.3.

Section 3.9 Notification of Limitations. Vendor shall notify HMO promptly of: (i) any litigation brought against Vendor related to the Services provided by Vendor to other persons; (ii) the occurrence of any events specified in Sections 2.1 or 7.2.2 with respect to Vendor; (iii) any legal or governmental action filed against Vendor that could materially affect Vendor’s performance under this Agreement; (iv) any actions taken or investigations initiated by any government agency involving Vendor; and (vii) the listing of Vendor in the HIPDB. Upon HMO’s request, Vendor shall provide all known details of the nature, circumstances, and disposition of any suits, claims, actions, investigations, or listings to HMO.

                     3.9.1 Vendor shall notify HMO in writing not less than ninety (90) days prior to any closure or diminution of its offices or substantial change in its operations, as applicable.

                     3.9.2 Vendor shall provide all necessary information in writing to HMO about all non-routine inquires with respect to Vendor’s performance hereunder by regulatory agencies or attorneys within ten (10) days of such an inquiry.

Section 3.10 Accountability. Vendor acknowledges that HMO oversees and is accountable to CMS for any functions and responsibilities set forth in the regulations governing the Medicare Advantage program. Vendor further acknowledges and agrees that pursuant to the Medicare Advantage regulations, HMO or its designees shall monitor Vendor’s performance hereunder and HMO and/or CMS shall have the right to terminate this Agreement and Vendor’s participation in the Medicare Advantage Contract if Vendor does not perform satisfactorily hereunder.

4

Section 3.11 Hold Harmless. Vendor acknowledges and agrees that in no event, including, but not limited to, the insolvency of HMO, breach or termination of the Agreement and/or non-payment for Services, shall Vendor bill, charge, collect a deposit from, seek compensation, remuneration or reimbursement from, or have any recourse against Covered Persons or persons acting on behalf of Covered Persons for payment of any fees owed to Vendor.

Section 3.12 Non-Delegated Functions. Nothing contained in this Agreement constitutes or shall be construed to constitute delegation of HMO’s ultimate responsibility for the establishment and oversight of its Policies and Procedures, management, and operation, including, but not limited to:

                     3.12.2 All HMO functions not expressly delegated to Vendor herein shall remain the sole obligation of HMO.

Section 3.13 Compliance with Applicable Laws. Vendor shall comply with all applicable federal, state and local laws, including, but not limited to, Medicare laws and regulations and applicable CMS instructions.

SECTION 4

VENDOR SERVICES

Section 4.1 Vendor Services. During the term of this Agreement, Vendor shall provide to HMO the Services as set forth on Exhibit A. HMO shall fully cooperate with Vendor in connection with the provision of such Services.

5

SECTION 5

RESPONSIBILITIES OF HMO

Section 5.1 Monitoring and Ultimate Responsibility. Notwithstanding any other provision in this Agreement to the contrary, New York State and applicable federal law require HMO to be responsible for ensuring that any Services provided on behalf of HMO by Vendor pursuant to this Agreement complies with all pertinent provisions of federal, state and local laws. HMO shall monitor any responsibilities delegated to Vendor hereunder on an ongoing basis. All functions not expressly delegated to Vendor herein shall remain the sole obligation of HMO.

Section 5.2 Audit Activities. If HMO has reason to believe that Vendor has failed to carry out any or all of the Services specified this Agreement, in accordance with the terms set forth herein or meet HMO’s reasonable performance expectations, HMO may take such steps, as it deems necessary, including, but not limited to, the following:

                     5.2.1 Audit Vendor’s performance of Services upon reasonable notice and during regular business hours or as otherwise provided herein. Vendor shall fully and promptly comply with HMO’s reasonable audit requests;

                     5.2.2 Require Vendor to submit, within a specified time frame, a corrective action plan to address any compliance or other problems identified by HMO. Vendor shall implement such corrective actions at its expense as reasonably directed by HMO as necessary to bring the Services into compliance with this Agreement, including, but not limited to, any applicable CMS requirements.

Section 5.3 Compensation to Vendor. Subject to Section 3.7, HMO shall compensate Vendor pursuant to the compensation rates set forth in Exhibit B which shall constitute payment in full for all Services performed hereunder and when rendered, such payment shall fully satisfy HMO’s payment obligations to Vendor for Services provided pursuant to this Agreement.

Section 5.4 Compliance with Applicable Laws. HMO shall comply with all applicable federal, state and local laws, including, but not limited to, Medicare laws and regulations and applicable CMS instructions relevant to the requirements of HMO hereunder.

SECTION 6

INSURANCE AND INDEMNIFICATION.

Section 6.1 Vendor. Throughout the Term, Vendor shall procure and maintain, at Vendor’s sole expense, (1) general liability insurance in the amount of $1,000,000.00 per occurrence and $3,000,000.00 in the aggregate; and (2) if applicable, managed care errors and omissions professional liability insurance in minimum amounts of five million dollar ($5,000,000) per occurrence and ten million dollars ($10,000,000) aggregate. If applicable, Vendor’s professional liability insurance shall be either occurrence or claims made with retroactive coverage or an extended period reporting option under such terms and conditions as may be reasonably required by HMO. Vendor shall provide to HMO certificates of insurance evidencing such coverage

6

upon request and shall provide HMO with thirty (30) days prior written notice of any modification or termination of such coverage.

Section 6.2 HMO. Throughout the Term, HMO shall maintain or ensure the maintenance of such policies of insurance as are customary and reasonably carried by entities providing services similar to those provided by HMO hereunder. Evidence of such insurance policies shall be provided to Vendor upon request.

Section 6.3 Responsibility of Vendor. Vendor shall indemnify and hold harmless HMO for all claims, liabilities, damages or judgments, and including reasonable attorneys which may arise as a result of Vendor’s acts or omissions, including, but not limited to, actions of its employees and contractors.

Section 6.4 Regulatory Fines. The parties also acknowledge that Services hereunder are subject to regulation by applicable federal and state laws and regulations. If Vendor does not or is not able to fulfill any or all of its obligations hereunder and HMO is subject to any fines or fees from a regulatory agency as a result thereof, Vendor shall pay to HMO the amount of such fines and any penalties incurred, including any applicable interest. HMO shall have sole discretion to pay such fees, fines or penalties or to settle or compromise with such regulatory agencies.

SECTION 7

TERM AND TERMINATION

Section 7.1 Term. The initial Term shall remain in effect for twelve (12) months from the Effective Date. This Agreement shall automatically renew for additional successive periods of twelve (12) months, unless earlier terminated in accordance with the provisions of Section 7.2 below or unless Vendor or HMO elect not to renew the Agreement by providing written notice to the other party at least ninety (90) days prior to the expiration of the twelve (12) month period then in effect. As used herein, “Term” shall mean the initial and any renewal term(s) of this Agreement.

Section 7.2 Termination. This Agreement may be terminated as follows:

                     7.2.1 At any time by HMO without cause upon one hundred twenty (120) days prior written notice.

                     7.2.2 Immediately by HMO upon prior written notice to Vendor in the event of:

7

                     7.2.3 By either party if the other party defaults in the performance of any material duty or obligation hereunder, and the defaulting party fails to cure such default or breach within thirty (30) days after receipt of written notice of such breach or default; provided, however, that any written notice of termination shall provide for a date of termination no earlier than the date on which such notice is given; or

                     7.2.4 At any time by either party upon the mutual consent of the parties.

Section 7.3 Effect of Termination. Termination of this Agreement shall have no effect upon the rights, obligations or remedies of the parties arising out of any breach, services or transactions occurring prior to the effective date of such termination.

Section 7.4 Wind-Down. In the event that this Agreement expires, is not renewed or is terminated, the Parties shall work together in good faith to effect an orderly transition as follows:

                     7.4.1 HMO shall resume Services or, at HMO’s sole discretion, delegate such Services to a third party, subject to approval by CMS and/or the Commissioner, as necessary.

                     7.4.2 Vendor shall, in good faith, comply with any requirements and information exchanges requested by HMO, as necessary to effectuate the orderly transfer of the Services to HMO.

Section 7.5 Obligation to Cooperate. Upon termination of this Agreement for any reason, Vendor shall cooperate fully with HMO, and comply with HMO’s Policies and Procedures, if any, in the transfer of Vendor’s obligations hereunder to HMO. Vendor shall promptly provide HMO with any and all information and documentation necessary for such transfer. This shall include the provision of copies of all information relating to the Services provided pursuant to this Agreement and all accompanying records and information submitted by Providers as requested by HMO.

Section 7.6 Commissioner Approval. Notwithstanding anything to the contrary in this Section 9, termination under this Section 7 may be subject to approval of the Commissioner and compliance by HMO with the requirements of 10 NYCRR 98.11(m). In addition, this

8

Agreement shall terminate not more than 60 days after notification to HMO and Vendor by the Commissioner pursuant to 10 NYCRR 98.11(n).

SECTION 8

BOOKS, INFORMATION AND RECORDS.

Section 8.1 Patient Confidentiality; Accuracy of Records. Vendor and HMO each agree that in receiving, storing, processing or otherwise dealing with information about Covered Persons, they are fully bound by the patient confidentiality provisions set forth in HMO’s Policies and Procedures as well as federal and state laws and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act (“HIPAA”), and the provisions of the Medicare Advantage Contract regarding confidentiality and disclosure of medical records or other health or enrollment information pertaining to Covered Persons. Without limiting the generality of the foregoing, Vendor shall: (i) safeguard the privacy of all Covered Persons’ medical records and ensure that copies of or information from such records are released only to authorized individuals; (ii) release such records only in accordance with applicable federal or state laws or pursuant to court orders or subpoenas; (iii) maintain all such records in an accurate and timely manner; and (iv) ensure timely access by Covered Persons to records and information that pertain to them. Vendor hereby acknowledges that it shall enter into a Business Associate Addendum with HMO as of the Effective Date, the form of which shall be attached hereto as Exhibit D. Vendor agrees that it shall only release confidential information about Covered Persons in accordance with such Business Associate Addendum.

                     8.1.1 Vendor and HMO each agree that if it is required to disclose the other party’s confidential information by subpoena or similar process, the disclosing party will promptly notify the other party (the “non-disclosing party”) of the request so that a protective order may be sought by such non-disclosing party at its expense.

Section 8.2 Proprietary Information. It is understood and agreed that in connection with this Agreement, each party will share with the other party certain proprietary information regarding such party’s business operations. Proprietary information shall include, but not be limited to, information related to business, financial condition, rates, quality assessment and improvement. Each party shall keep any proprietary information obtained from the other party confidential and, except as may otherwise be required by law or court order, shall not share such proprietary information with any third party without the other party’s written consent; provided, however, that each party may share such proprietary information with its business and legal advisors, who have agreed not to disclose such information except as contemplated by this Agreement, to the extent necessary to implement or protect its rights under this Agreement.

Section 8.3 Financial Information. In accordance with generally accepted accounting practices, Vendor and HMO shall maintain such financial, accounting and statistical records and other records as shall be necessary and appropriate for the proper administration of this Agreement, and shall preserve their confidentiality.

Section 8.4 Retention of Records and Information. Vendor shall retain at its expense all books, contracts, documents, papers, and records, including, without limitation, medical records

9

and other records that pertain to any aspect of Services performed, and determination of amounts payable under HMO’s Medicare Advantage Contract for a minimum of ten (10) years from the end of the applicable one-year contract period in the Medicare Advantage Contract during which time Services are rendered hereunder or the completion of an audit, or in certain instances described in applicable Medicare Advantage regulations, for periods in excess of ten (10) years, if appropriate. Vendor shall maintain such records accurately and update them on a regular basis.

Section 8.5 Audits/Access by Regulatory Agencies. Vendor shall permit audits and inspection by the United States Department of Health and Human Services (“HHS”), the Comptroller General of the United States, the Center for Medicare and Medicaid Services (“CMS”) and/or their designees, the Commissioner or any other applicable federal, state or local regulatory authority regarding any pertinent contracts, books, medical records, documents, papers and any other records (collectively, “Books and Records”) involving or relating to Vendor’s provision of Services. All such Books and Records shall be made available by Vendor for a period of ten (10) years from the final date of the MA Contract period, unless CMS determines that (1) there is a special need to retain a particular record or group of records for a longer period and notifies HMO at least thirty (30) days before the normal disposition date; (2) there has been a termination, dispute or fraud or similar fault by HMO, in which case the retention may be extended to ten (10) years from the date of any resulting final resolution of the termination, dispute, or fraud or similar fault; or (3) CMS determines that there is a reasonable possibility of fraud, or similar fault in which case it may inspect, evaluate, and audit HMO at any time. Such audits shall occur during regular business hours upon at least ten (10) calendar days prior written notice, or upon shorter notice in the event that HMO determines a shorter period is necessary to ensure HMO’s compliance with applicable law, including CMS requirements. Vendor further shall provide such records for the purpose of inspection and copying at no charge.

Section 8.6 Access by HMO. Vendor shall provide HMO at no cost to HMO, with access to, and copies of, all records of Covered Persons which HMO is reasonably required to view in order to administer its Medicare Advantage Contract and fulfill its obligations to federal and state regulatory agencies with jurisdiction over the subject of the Agreement, as set forth in the Policies and Procedures.

Section 8.7 Access by Vendor. Upon written request, HMO shall provide Vendor with timely access to and/or copies of all records reasonably requested which are applicable to Vendor’s performance hereunder for no additional charge.

Section 8.8 Post Termination. Upon termination of this Agreement pursuant to Section 9 herein, the parties agree to immediately discontinue all use of the other party’s confidential information, including information described in Sections 8.1, 8.2 and 8.3 to the extent such information is not necessary to carry out further responsibilities required hereunder. Each party must return or destroy all confidential information belonging to the other party that is in its possession or control and shall provide written certification of completion of such disposition to the other party.

10

SECTION 9

GENERAL PROVISIONS

Section 9.1 Amendments. Except as otherwise set forth in this Section 9.1, this Agreement may not be amended, altered or modified except by a written instrument duly executed by the parties hereto. HMO may amend this Agreement by providing written notice to Vendor of any proposed amendment and upon Vendor’s acceptance of such proposed amendment as follows: Vendor shall notify HMO in writing of Vendor’s acceptance of or objection to a proposed amendment within thirty (30) days following HMO’s written submission of such proposed amendment to Vendor. Any proposed amendment shall be deemed approved by Vendor on the thirtieth (30 ^th ) day following the written submission of such proposed amendment to Vendor if HMO is not notified in writing of any objection of Vendor to such proposed amendment within such thirty (30) day period. Vendor’s written notice of objection shall result in this Agreement remaining in full force and effect without giving effect to the proposed amendment; provided, however, that Vendor’s objection to any proposed amendment designated by HMO as a “material amendment” in HMO’s notice thereof may result in immediate termination of this Agreement pursuant to Section 7.2.2(f) hereof. Notwithstanding the foregoing, HMO may amend this Agreement to reasonably comply with applicable statutes and regulations, and shall give notice to Vendor of such amendment and its effective date. Such an amendment will not require agreement by Vendor. Any amendments or revisions to the Agreement shall be effective only with the prior written consent of the Commissioner to the extent required. Any changes to the Agreement required by the Commissioner will be made by the parties immediately upon receipt of written notice by the Commissioner.

Section 9.2 Notices. All notices required under this Agreement shall be given in writing, signed by the party giving notice and delivered by hand or first-class mail to the other party at such address and/or person as has been identified by each party on the signature page of this Agreement. Any notice shall be deemed to have been given at the time of actual receipt or, if mailed, five (5) days from the date of mailing.

Section 9.3 Relationship of Parties. No provision of this Agreement is intended to create nor shall be deemed or construed to create any relationship between the parties hereto other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement. Neither of the parties hereto, nor any of their respective employees, shall be construed to be the agent, employee or representative of the other, nor does either party have an express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other party. Neither Vendor nor HMO shall be liable to any other party for any act, or any failure to act, by the other party to this Agreement.

Section 9.4 No Third-party Beneficiaries. This Agreement is not a third party beneficiary contract and, except as provided in Section 3.10 above, shall not in any manner whatsoever confer any rights upon or increase the rights of any Covered Person with respect to HMO or the duties of HMO to any Covered Person.

11

Section 9.5 Assignment. Neither party may assign any of its rights or responsibilities under this Agreement to any person or entity without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that: such consent shall be deemed granted (i) in respect of any entity that acquires all or substantially all of either party’s assets or including, without limitation, to any subsidiary or affiliate of either party or to any legal entity to which it may transfer all or substantially all of its assets, or any portion thereof, provided notice of same is provided in writing to the other party; (ii) with respect to HMO in the event of any assignment, delegation or other transfer of its rights and/or responsibilities to any affiliate or subsidiary; and (iii) such consent shall be deemed granted with respect to HMO any assignment, delegation or other transfer of its rights and/or responsibilities to any affiliate or subsidiary of HMO.

                    9.5.1 Notwithstanding Section 9.5 above, Vendor acknowledges that HMO shall have the right to delegate, by way of subcontract or otherwise, any or all of HMO’s administrative functions to one or more such parties as HMO, in its sole discretion, may select. Vendor also acknowledges that any such delegation by HMO shall not require Vendor’s prior written consent.

                    9.5.2 Should the name or legal entity of either party change, due to any merger or other cause, the parties agree that this Agreement shall remain in full force and effect.

Section 9.6 Delegation. Any delegation of functions hereunder shall be in accordance with applicable delegation requirements set forth in the Medicare Advantage regulations.

Section 9.7 Waiver. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach hereof.

Section 9.8 Resolution of Disputes. If a dispute between HMO and Vendor arises out of or is related to this Agreement, the parties to the dispute shall meet and negotiate in good faith to attempt to resolve the dispute. If, after at least thirty (30) days following the date one party sent written notice of the dispute to the other party, the dispute is not resolved, and if any party wishes to pursue the dispute, it shall be submitted to binding arbitration in accordance with the rules of the American Health Lawyers’ Association (“AHLA”). In no event may arbitration be initiated more than one year following the sending of written notice of the dispute. Any arbitration proceeding under this Agreement shall be conducted in a location agreed to by the parties or as selected by the AHLA if the parties cannot agree on a location. The arbitration proceeding must be conducted in New York City. The arbitrators may construe or interpret but shall not vary or ignore the terms of this Agreement, shall have no authority to award any punitive or exemplary damages, and shall be bound by controlling law.

Section 9.9 Trademarks. Neither party may use the other party’s trademarks or service marks without the express consent of the other party.

Section 9.10 Non-Exclusivity. This Agreement is not exclusive and nothing in this Agreement precludes either party from participating in or contracting with any other party for any purpose.

12

Section 9.11 Severability. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the validity or enforceability of any other term or provision.

Section 9.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original; however, all shall constitute one and the same Agreement.

Section 9.13 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and applicable Federal laws and regulations.

Section 9.14 Conflicts. This Agreement shall not conflict with the provisions of any currently existing agreement between HMO and a third party or Vendor and a third party. If this Agreement should conflict with the provisions of another such agreement(s), this Agreement must either be amended to resolve the conflict to the satisfaction of HMO or be terminated immediately.

Section 9.15 Entire Agreement. This Agreement, its exhibits (incorporated herein by reference), and any other documents incorporated by reference, constitute the entire understanding of the parties and supersede any and all prior written or oral agreements, representations, or understandings regarding the specific subject matter hereof, including, without limitation, any and all agreements with HMO whereby Services are provided.

Section 9.16 Force Majeure. No party shall be liable for an inability to meet its obligations under this Agreement by Force Majeure, provided that the nonperforming party gives the other party written notice as soon as practicable thereafter describing the particulars of the occurrence and uses all reasonable efforts to mitigate the effects of Force Majeure, to remedy its inability to perform and to resume full performance of its obligations under this Agreement. “Force Majeure” means any cause beyond the control of a party, including, but not limited to, an act of God, act or omission of civil or military authorities of a State or nation, natural disaster, fire, flood, riot, or war or military hostilities, provided , however , that the lack of financial resources or the failure to maintain adequate levels of insurance shall never be excused.

Section 9.17 Survival. Sections 3.1, 3.10, 5.3, 6, 7.3, 7.4, 9.8, and 9.17 shall survive the expiration or earlier termination of this Agreement.

Section 9.18 Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. Any exhibits, tables or schedules referred to herein and/or attached or to be attached hereto are incorporated herein to the same extent as if set forth in full herein.

13

           IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement, or caused this Agreement to be duly executed and delivered in their name and on their behalf, as of the Effective Date.