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CONTRACT NUMBER: 14-[QE]-101Confidential Information201419528.21

QUALIFIED ENTITY PARTICIPATION AGREEMENT

BETWEEN

NEW YORK EHEALTH COLLABORATIVE, INC.

AND

[QE]

This Qualified Entity Participation Agreement (“Agreement”) is made and entered into as of April 1, 2014 (“Effective Date”), by and between New York eHealth Collaborative, Inc., a New York not-for-profit corporation with its principal place of business at 40 Worth Street, New York, NY 10013 (“NYeC”), and [QE], a New York not-for-profit corporation with its principal place of business at the location set forth on the signature page hereto (“QE”) and signed by both parties on May , 2014 (“Execution Date”).

R E C I T A L S

1. The New York State Department of Health (“NYS DOH”), NYeC and Qualified Entities (as defined below) spread through the State of New York have been working collaboratively to develop and facilitate the use of health information technology to support the provision of better, more cost effective health care, including through use of the Statewide Health Information Network of New York (“SHIN-NY”). The SHIN-NY is the set of agreements (and the transactions, relations and data that are created by and through such set of agreements) between NYS DOH, NYeC (as the designee of NYS DOH responsible for overseeing the implementation of the SHIN-NY pursuant to the contract effective as of April 1, 2014 (as amended from time to time, “NYS CONTRACT”) between NYS DOH and NYeC), Qualified Entities (as defined below), including QE, and QE Participants (as defined below) to make possible the exchange of clinical information among Authorized Users (as defined below) for authorized purposes to improve the quality, coordination and efficiency of patient care, reduce medical errors and carry out public health and health oversight activities, while protecting privacy and security. Pursuant to such agreements, NYeC, Qualified Entities, including QE, and QE Participants agree to be bound by policy and technical requirements in Statewide Policy Guidance (as defined below) that has been created through the Statewide Collaboration Process (as defined below).

2. The objective of the SHIN-NY is to transform the largely paper-based medical records system into an electronic, interconnected system that will assist the healthcare community to address challenges including but not limited to preventable medical errors, disparities in quality of care, high costs, administrative inefficiencies, public health reporting and lack of coordination across the spectrum of care, including among physicians, hospitals, other healthcare providers, public and private payors, public health agencies and patients.

3. The SHIN-NY will be operated in accordance with the Statewide Policy Guidance (as defined below), including, but not limited to the following Statewide Policy Guidance:

(a) the “Privacy and Security Policies and Procedures for QEs and their Participants in New York State” attached hereto as Exhibit 1(a) (as amended from time to time, the “Policies and Procedures”);

(b) the “Oversight and Enforcement Policies for Qualified Entities” attached hereto as Exhibit 1(b) (as amended from time to time, the “Oversight and Enforcement Policies”);

(c) the “Qualified Entity (QE) Dial Tone Service Requirements” attached hereto as Exhibit 1(c) (as amended from time to time, the “Dial Tone Service Requirements”);

(d) the “Qualified Entity (QE) Member Facing Services Requirements” attached hereto as Exhibit 1(d) (as amended from time to time, the “Member Facing Services Requirements”); and

(e) the “Qualified Entity (QE) Organizational Characteristics Requirements” attached hereto as Exhibit 1(e) (as amended from time to time, the “Organizational Characteristics”).


All references to the Statewide Policy Guidance shall include the Policies and Procedures, the Oversight and Enforcement Policies, the Organizational Characteristics, the Dial Tone Service Requirements and the Member Facing Services Requirements, as applicable.

4. QE is designated by NYS DOH as a Qualified Entity. QE has entered or will enter, or has caused or will cause its subcontractor to enter, into Participant Agreements (as defined below) with QE Participants (as defined below), regarding access to and use of the SHIN-NY by the QE Participants.

5. Effective as of April 1, 2014, QE has entered into a contract with NYS DOH (“QE NYS CONTRACT”) through which NYS DOH will provide funding to the QE in accordance with the scope of work set forth therein..

6. QE hereby agrees to participate in the SHIN-NY to provide the QE Participants access to and use of, and NYeC hereby agrees to provide to the QE Participants, through QE, access to and use of, the SHIN-NY and the SHIN-NY Services (defined below), in accordance with Statewide Policy Guidance and the terms and conditions set forth in this Agreement. In support of its participation in the SHIN-NY, QE receives funding in accordance with QE NYS CONTRACT.

7. Further, the QE may also provide services from time to time at the request of NYS DOH and under the direction of NYeC pursuant to a master services agreement executed with NYeC, effective April 1, 2014 (the “QE Master Services Agreement”) and in accordance with applicable Law, Statewide Policy Guidance, and the NYS CONTRACT.

8. QE hereby acknowledges and agrees that its participation in the SHIN-NY is subject to the NYS CONTRACT, the QE NYS CONTRACT, the QE Master Services Agreement, the Statewide Policy Guidance and the Statewide Collaboration Process.

9. NYeC and QE will cooperate towards the goal of achieving the operation of the SHIN-NY in accordance with the following principles:

Compliance with Statewide Policy Guidance . Each Party (as defined below) will comply, and facilitate the compliance by others, with Statewide Policy Guidance.

Statewide Collaboration Process . Each Party will participate in the Statewide Collaboration Process in accordance with applicable Law.

Transparency . Operations between NYeC and QE relating to the SHIN-NY, including with respect to past practices (e.g., reports related to audits and investigations) and future practices will be transparent in accordance with the Oversight and Enforcement Policies, the Certification Process (as defined below), any other applicable Statewide Policy Guidance, the NYS CONTRACT, the QE NYS CONTRACT and the QE Master Services Agreement.

Reliability of Infrastructure and Data . The Parties will use commercially reasonable efforts to make the Equipment (as defined below) and Software (as defined below) of the SHIN-NY and the Clinical Data (as defined below) transmitted through the SHIN-NY secure and free from Malicious Code (as defined below) introduced by NYeC or QE.

10. Both Parties acknowledge that NYeC may provide services (other than SHIN-NY Services (as defined below)) to the QE from time to time, under a separate Transition Services Agreement, Direct Messaging Services Agreement or other future services agreement (“NYeC Services Agreements”) that are outside the scope of this Agreement.


A G R E E M E N T

NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties (as defined below) agree as follows:

1. DEFINITIONS. Capitalized terms used in this Agreement have the meanings set forth in Schedule A.

2. ACCESS; SHIN-NY SERVICES; PERFORMANCE STANDARDS.

2.1 Access to the SHIN-NY and Data Exchange . QE acknowledges and agrees that NYeC has been designated by NYS DOH as its designee to oversee the implementation of the SHIN-NY. NYeC hereby grants to QE the right to participate in, access and use the SHIN-NY and exchange Clinical Data and Administrative Data with other Qualified Entities, in each case, in accordance with the Statewide Policy Guidance and the terms and conditions set forth in this Agreement. QE hereby grants (a) to NYeC, as the designee of NYS DOH to oversee the implementation of the SHIN-NY, the right to oversee, facilitate and support the exchange and use of Clinical Data and Administrative Data, including among QE, other Qualified Entities and QE Participants of QE and other Qualified Entities, in each case, in accordance with the Statewide Policy Guidance and the terms and conditions set forth in this Agreement and (b) to other Qualified Entities and QE Participants of other Qualified Enti ties that participate in the SHIN-NY, the right to receive, use and exchange Clinical Data and Administrative Data, in each case, in accordance with the Statewide Policy Guidance and the terms and conditions set forth in this Agreement; provided, however, that until such time that a Qualified Entity receives Formal Certification, QE may restrict, and may require NYeC to restrict, access to QE’s Clinical Data and Administrative Data by another Qualified Entity that has failed to meet, prior to Formal Certification, those Certification Requirements that are applicable to and deemed material for data exchange (such material elements as determined by the Business Operations Committee), until such time as the Qualified Entity meets such requirements and until such time as the QE completes the work contemplated under Section 5.1(a) necessary for QE to allow such access. The exchange and use of Clinical Data and Administrative Data between QE and other Qualified Entities and QE Participants of QE and other Qualified Entities described herein shall be achieved no later than March 2015.

2.2 SHIN-NY Services . In connection with the provision by NYeC to QE and QE Participants accessing the SHIN-NY through QE of access to and use of the SHIN-NY, from the Effective Date through the end of the Term, NYeC will make available and provide the Dial Tone Services designated in the Dial Tone Service Requirements as “Cross-Community” (the “SHIN-NY Services”) to QE and QE Participants accessing the SHIN-NY through QE in accordance with the Dial Tone Service Requirements.

2.3 Additional Services . Pursuant to an amendment to the Dial Tone Service Requirements or the adoption of an additional policy constituting Statewide Policy Guidance or as otherwise required by the NYS CONTRACT and applicable Law, NYeC shall from time to time provide Additional SHIN-NY Applications, infrastructure and services to be made available as part of access to and use of the SHIN-NY and the SHIN-NY Services. NYeC shall notify QE when any Additional SHIN-NY Application becomes available. QE shall have the right, in its own discretion or otherwise in accordance with the Statewide Policy Guidance or as required by applicable Law, to use any such Additional SHIN-NY Applications. Subject to applicable Law and the Statewide Policy Guidance, QE shall have the right to determine the extent to which QE’s Clinical Data and Administrative Data will be made available for use in connection with such Additional SHIN-NY Applications, infrastructure and services.

2.4 Standard of Performance . QE acknowledges and agrees that the standard of performance applicable to the provision by NYeC of (a) access to and use of the SHIN-NY and (b) the SHIN-NY Services, in each case, are set forth and subject to the NYS CONTRACT. QE further acknowledges and agrees that NYeC

CONTRACT NUMBER: 14-[QE]-10

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shall be responsible solely to NYS DOH in connection with such standard of performance; provided, however, that QE may escalate and report to NYS DOH issues and concerns relating to NYeC’s standard of performance. Notwithstanding the foregoing, such standards of performance shall be developed in accordance with the Statewide Collaboration Process.

2.5 NYS CONTRACT . NYeC shall use reasonable efforts to provide notice to QE of any amendment to the NYS CONTRACT at least 30 days in advance of the effective date of such amendment.

2.6 QE NYS CONTRACT . QE shall use reasonable efforts to provide notice to NYeC of any amendment to the QE NYS CONTRACT at least 30 days in advance of the effective date of such amendment.

2.7 No Fees . NYeC shall not charge QE any fees in connection with the performance of the SHIN- NY Services hereunder or in connection with participation in, access of and use of the SHIN-NY by QE and QE Participants.

2.8 Certification Process . The Parties recognize that, although the Effective Date of this Agreement is as of April 1, 2014, the QE shall not be in compliance with all of its obligations and requirements hereunder until such time as the QE has completed its Formal Certification process, which shall be completed no later than March 31, 2015 or such other later date as determined by NYS DOH. As such, the QE shall not be considered to be out of compliance with or in breach of this Agreement for failure to meet such obligations or requirements prior to its completion of the Formal Certification process, provided, however, that, prior to the QE participating in any exchange of data under Section 2.1, the QE shall be in compliance with Sections 9.1 and 2.1.

3. TERM; SUSPENSION, QUARANTINE AND TERMINATION.

3.1 Term . The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Section 3, shall continue in effect through March 31, 2015 (the “Initial Term”). Thereafter, this Agreement shall be automatically renewed for successive terms of 1 year each, unless earlier terminated in accordance with this Section 3. The Initial Term and any renewal terms are, collectively, the “Term”.

3.2 Suspension .

(a) QE may voluntarily suspend its participation in the SHIN-NY at any time for any reason upon not less than 24 hours’ notice to NYeC in accordance with Section 13.8.

(b) A voluntary suspension may include, but is not limited to, QE’s restriction of, and a requirement that NYeC restrict, access to QE’s Clinical Data and Administrative Data by (i) another Qualified Entity that QE reasonably and in good faith believes (1) is not in compliance with the Statewide Policy Guidance or applicable Law or (2) has acted or failed to act in such a way that places QE’s Clinical Data or Administrative Data at risk; or (ii) NYeC and all or a portion of the other Qualified Entities in QE’s sole discretion if QE reasonably and in good faith believes that (1) NYeC has committed a material breach of this Agreement,(2) NYeC has failed to comply with the Statewide Policy Guidance or applicable Law or (3) the SHIN-NY is being operated in a manner that places QE’s Clinical Data or Administrative Data at risk. QE must notify the affected Qualified Entity or Qualified Entities and NYeC within 24 hours after QE restricts access to its Clinical Data or Administrative Data, indicating the specific Qualified Entities being restricted, and the reasons supporting the restriction. Such notice is in addition to any rights or obligations under the Oversight and Enforcement Policies and, in the case of privacy breaches, under the Policies and Procedures.

(c) Any voluntary suspension will be for no longer than 5 consecutive days or for no more than 20 days during any 12-month period, unless a longer period is agreed to by NYeC; provided, however, that



such limitation shall not apply to a restriction described in clause (b), which restriction may continue until such time as the QE reasonably and in good faith believes the alleged non-compliance by another Qualified Entity or NYeC, as applicable, or other activity which has placed the QE’s Clinical Data or Administrative Data at risk, has been resolved.

(d) QE may exercise its rights set forth in this Section during the implementation by NYeC of a Quarantine on another Qualified Entity.

3.3 Breach of NYeC; Termination by QE .

(a) In the event of any material breach by NYeC of this Agreement or a failure by NYeC to comply with the Statewide Policy Guidance or applicable Law, QE shall provide NYeC with notice in accordance with Section 13.8 of such breach or failure.

(i) As promptly as reasonably practicable but in any event within 30 days after NYeC’s receipt of notice of the breach or failure, NYeC will remedy the breach or failure or, if QE reasonably determines that the breach or failure is not capable of remediation within such 30-day period, NYeC will provide QE with a detailed plan setting forth the steps to be taken by NYeC to cure the breach or failure and the period of time required to cure such breach or failure (which period shall be within 60 days after NYeC’s receipt of notice of the breach or failure). If NYeC fails to remedy the breach or failure or to provide a cure plan in accordance with this Section, QE may terminate this Agreement upon 30 days’ notice to NYeC in accordance with Section 13.8.

(ii) QE may either accept or reject the cure plan and shall provide notice thereof to NYeC in accordance with Section 13.8 within 5 business days after receipt of such plan. If the cure plan is accepted or if QE fails to provide notice of acceptance or cure within such 5 business day period, NYeC will implement the cure plan and shall provide QE with periodic progress reports regarding such implementation. If the cure plan is rejected, NYeC and QE will work in good faith to develop a cure plan that is acceptable to both NYeC and QE. If NYeC and QE are unable to develop a mutually acceptable cure plan, NYeC or QE may submit the dispute to the dispute resolution procedures set forth in Section 11.1.

(iii) In the event (A) NYeC and QE are unable to reach agreement on a cure plan after submission of the dispute to the dispute resolution procedures set forth in Section 11.1 within 30 days after the initial submission of the cure plan or (B) NYeC fails to cure the breach or failure within the applicable period of time set forth in the cure plan, QE may terminate this Agreement immediately upon notice to NYeC in accordance with Section 13.8.

(b) QE may terminate this Agreement upon not less than 30 days’ notice to NYeC in accordance with Section 13.8 in the event of:

(i) the loss by NYeC of authorization from NYS DOH to oversee the implementation of the SHIN-NY or funding from NYS DOH for such purpose or the termination of the NYS CONTRACT;

(ii) the winding up, transfer of substantially all of QE’s assets, or dissolution of QE’s business or operations relating to participation in the SHIN-NY;

(iii) the failure by NYeC to execute a Qualified Entity Participation Agreement with a Qualified Entity other than QE by the Effective Date or



(iv) the termination during the Term of all Qualified Entity Participation Agreements other than this Agreement.

(c) QE may terminate this Agreement without cause upon not less than 90 days’ notice to NYeC in accordance with Section 13.8.

Agreement.(d) QE may terminate this Agreement in accordance with the Standard Business Associate

3.4 Breach of QE; Termination by NYeC .

(a) In the event of (i) any material breach by QE of this Agreement other than a failure by QE to comply with the Statewide Policy Guidance or applicable Law (which failures shall be subject to the Oversight and Enforcement Policies) or (ii) a failure of QE to maintain certification as a Qualified Entity in accordance with Section 6.3 (other than a failure of QE that is (x) not caused by QE’s failure to comply with the Certification Process and (y) is directly attributable to failure by NYeC or the Certification Body to fulfill its obligations related to the Certification Process), NYeC shall provide QE with notice in accordance with Section13.8 of such breach or failure.

(b) As promptly as reasonably practicable but in any event within 30 days after QE’s receipt of the notice of the breach or failure, QE will remedy the breach or failure or, if NYeC reasonably determines that the breach or failure is not capable of remediation within such 30-day period, QE will provide NYeC with a detailed plan setting forth the steps to be taken by QE to cure the breach or failure and the period of time required to cure such breach or failure (which period shall be within 60 days after QE’s receipt of notice of the breach or failure). If QE fails to remedy the breach or failure or provide a cure plan in accordance with this Section, NYeC may terminate this Agreement upon 30 days’ notice to QE in accordance with Section 13.8.

(c) NYeC may either accept or reject the cure plan and shall provide notice thereof to QE in accordance with Section 13.8 within 5 business days after receipt of such plan. If the cure plan is accepted or if NYeC fails to provide notice of acceptance or cure within such 5 business day period, QE will implement the cure plan and shall provide NYeC with periodic progress reports regarding such implementation. If the cure plan is rejected, NYeC and QE will work in good faith to develop a cure plan that is acceptable to both NYeC and QE. If NYeC and QE are unable to develop a mutually acceptable cure plan, NYeC or QE may submit the dispute to the dispute resolution procedures set forth in Section 11.1.

(d) In the event (A) NYeC and QE are unable to reach agreement on a cure plan after submission of the dispute to the dispute resolution procedures set forth in Section 11.1 within 30 days after the initial submission of the cure plan or (B) QE fails to cure the breach or failure within the applicable period of time set forth in the cure plan, NYeC may terminate this Agreement immediately upon notice to QE in accordance with Section 13.8.

3.5 Termination In Connection With Bankruptcy or Insolvency .

(a) Either Party may terminate this Agreement upon not less than 120 days’ notice to the other Party in accordance with Section 13.8, subject to applicable federal and state Laws relating to bankruptcy and insolvency proceedings, if the other Party shall appoint or consent to the appointment of a receiver, trustee or liquidator of such Party or of all or a substantial part of its assets, file a voluntary petition in bankruptcy, file a petition for dissolution in accordance with N.Y. NOT-FOR-PROFIT CORP. LAW § 1102(a)(1)(A), make a general assignment for the benefit of creditors, file a petition or an answer seeking reorganization of such Party or arrangements with creditors or to take advantage of any insolvency Law, or if an order, judgment or decree shall



be entered by any Regulatory Authority, on the application of a creditor, adjudicating such Party bankrupt or insolvent, and such order, judgment or decree shall continue unstayed and in effect for a period of 90 days.

(b) In the event of a termination by QE in accordance with Section 3.3(b)(i) or Section 3.5(a) or by NYeC in accordance with Section 3.8, NYeC shall take such action as required by NYS DOH in order to transfer the designation to manage and control the SHIN-NY on behalf of NYS DOH to NYS DOH or such other entity designated by NYS DOH.

(c) In the event of a termination by QE in accordance with Section 3.3(b)(ii) or Section 3.8 or by NYeC in accordance with Section 3.5(a), within 30 days after provision of notice by QE to NYeC or provision of notice by NYeC to QE, as applicable, QE shall provide NYS DOH with a detailed plan setting forth the steps to be taken by QE to transition its QE Participants to another Qualified Entity and will implement such plan as approved and required by NYS DOH.

3.6 Termination In Connection With Other Injunction . Either Party may terminate this Agreement immediately upon notice to the other Party in accordance with Section 13.8 upon the occurrence of the enactment, issuance, promulgation, enforcement or entering of any statute, rule, regulation, injunction or other order by any Regulatory Authority to the extent such statute, rule, regulation, injunction or other order is permanent and non-appealable and has the effect of making the transactions or performance contemplated by this Agreement illegal or otherwise prohibiting consummation of the transactions or performance contemplated hereby or thereby.

3.7 Termination In Connection With Human Rights Law and Debarment . Either Party may terminate this Agreement immediately (a) in the event of any failure by the other Party to comply with the requirements of Article 15 of the New York State Executive Law (Human Rights Law) or any other applicable federal, state and local Laws or constitutional provisions relating to non-discrimination; (b) if the other Party is or becomes, as fully set forth in the Certification Regarding Debarment and Suspension attached here to as Exhibit 2 and incorporated into this Agreement, proposed for debarment under 48 C.F.R. part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions; or (c) in the event of any failure by the other Party to comply with the provisions of the Certification Regarding Debarment and Suspension.

3.8 Termination In Connection With Funding . In the event of a loss of funding or change in the amount of funding by NYeC and/or the Qualified Entity in connection with the SHIN-NY, (ii) a failure of NYeC and/or the Qualified Entity to receive an amount of funding under the NYS CONTRACT or QE NYS CONTRACT, respectively, that is commensurate with its prior requests and expectations, or (iii) the termination, expiration, non-renewal or other failure of the QE NYS CONTRACT or NYS CONTRACT, the Business and Operations Committee shall meet to discuss and develop strategies and a plan of action to respond to any of the events listed in subsections (i), (ii) or (iii) above. Notwithstanding the foregoing, upon the occurrence of an event listed under subsections (i), (ii) and (iii) in the prior sentence, QE and/or NYeC may terminate this Agreement upon not less than 90 days’ notice to the other Party in accordance with Section 13.8.

3.9 Suspension and Termination In Accordance With Oversight and Enforcement Policies and NYS CONTRACT. In the event of any failure by NYeC, QE or QE Participants to comply with the Statewide Policy Guidance, NYeC, QE and the QE Participants, as applicable, shall be subject to the processes and procedures set forth in the NYS CONTRACT, the QE NYS CONTRACT, and the Oversight and Enforcement Policies, respectively.

3.10 Notice of Suspension, Quarantine or Termination . In the event of any suspension, Quarantine or termination of this Agreement pursuant to this Section 3, NYeC shall be required to provide notice in writing of such suspension, Quarantine or termination to each other Qualified Entity and the NYS DOH.



3.11 Procedure for Quarantine . In the event that NYeC reasonably and in good faith determines that a material breach by QE of this Agreement or a failure by QE to comply with the Statewide Policy Guidance or applicable Law creates an immediate threat or is likely to cause irreparable harm to the SHIN-NY or any Person accessing or using the SHIN-NY or any Person whose Administrative Data or Clinical Data is accessed or transmitted through the SHIN-NY, upon not less than one business day’s notice thereof, NYeC shall have the right to suspend the portion of QE’s access to or use of the SHIN-NY that NYeC reasonably and in good faith determines creates an immediate threat or is likely to cause irreparable harm to the SHIN-NY or any Person. Upon the earlier of (a) the reasonable and good faith determination by NYeC that QE’s acts or omissions does not create an immediate threat and is not likely to cause irreparable harm to the SHIN-NY or any Person, (b) cure by QE of the applicable breach of the Agreement in accordance with Section 3.4, or (c) resolution of the failure to comply with the Statewide Policy Guidance or applicable Law in accordance with the Oversight and Enforcement Policies, NYeC shall fully reinstate QE’s access to and use of the SHIN-NY and shall notify all other Qualified Entities participating in the SHIN-NY of such remediation.

4. ROLES AND RESPONSIBILITIES.

4.1 NYeC Roles and Responsibilities . NYeC will be responsible for the operation, management, support and maintenance of the SHIN-NY and shall perform the following functions, in each case in accordance with this Agreement and applicable Law:

(a) Relating to Technical Requirements.

(i) Building and maintaining interconnectivity between QE and other Qualified Entities through the SHIN-NY;

(ii) Complying with and performing the roles and responsibilities relating to technical requirements that may be designated for NYeC pursuant to applicable Law, the Statewide Policy Guidance and the NYS CONTRACT;

(iii) Providing access to and use of the SHIN-NY to QE and QE Participants through QE in accordance with the NYS CONTRACT;

(iv) Providing the SHIN-NY Services to QE and QE Participants through QE in accordance with this Agreement, the Statewide Policy Guidance and the NYS CONTRACT; and

(v) Managing all contractual relationships with third parties providing goods, services or personnel to NYeC in connection with the operation, management, support and maintenance of the SHIN-NY (“SHIN-NY Vendors”).

(b) Relating to Promotion of the SHIN-NY.

(i) Providing the specifications and know-how required to comply with the Certification Requirements;

(ii) Serving as the SHIN-NY's ambassador at the state, inter-state and federal level;

(iii) Collaborating with NYS DOH and Qualified Entities (including QE) regarding marketing and promoting of adoption of access to and use of the SHIN-NY and the SHIN-NY Services by entities, including, but not limited to, physician practices, hospitals and other healthcare providers; and



(iv) Performing such other roles and responsibilities relating to promotion of the SHIN-NY that may be designated for NYeC pursuant to applicable Law, the Statewide Policy Guidance and the NYS CONTRACT.

4.2 QE Roles and Responsibilities . QE has no responsibility under this Agreement for any users accessing or utilizing the SHIN-NY through any other Qualified Entity. In accordance with applicable Law, QE will be responsible for the promotion (which method of promotion shall be in QE’s discretion and as consistent with NYS DOH strategy and guidance) and management of QE Participant participation in the SHIN-NY and access to the SHIN-NY and the SHIN-NY Services and shall perform the following functions, as applicable, in each case in accordance with this Agreement and applicable Law:

(a) Relating to Technical Requirements.

(i) Acting as an intermediary between NYeC and entities, including, but not limited to, physician practices, hospitals and other healthcare providers, seeking to exchange information;

(ii) Building, maintaining and operating a network of entities, including, but not limited to, physician practices, hospitals, health homes and other healthcare providers, seeking to exchange information;

(iii) Complying with and performing the roles and responsibilities relating to technical requirements that may be designated for QE pursuant to applicable Law, the Statewide Policy Guidance the NYS CONTRACT and the QE NYS CONTRACT;

(iv) Managing implementation of access to and use of the SHIN-NY and the SHIN- NY Services for QE Participants and, with the cooperation and reasonable assistance of NYeC, coordinating activities of NYeC, the SHIN-NY Vendors and other applicable third parties in connection with such implementation;

(v) Providing QE Participants with, or arranging for and coordinating the provision to QE Participants of Dial Tone Services designated in the Dial Tone Service Requirements as “Local” in accordance with the Dial Tone Service Requirements and Member Facing Services in accordance with the Member Facing Services Requirements; and

(vi) Escalating to NYeC any technical issues affecting Authorized Users’ access to and use of the SHIN-NY and the SHIN-NY Services to NYeC.

(b) Relating to Promotion of the SHIN-NY.

(i) Adhering to minimum standards applicable to Qualified Entities, including QE, in accordance with the Certification Process.

(ii) Organizing, providing and promoting adoption, marketing and education related to the SHIN-NY in accordance with the Statewide Policy Guidance;

(iii) Marketing and promoting, in accordance with the Member Facing Services Requirements, adoption of access to and use of the SHIN-NY, the SHIN-NY Services and the Dial Tone Services by entities, including, but not limited to, physician practices, hospitals and other healthcare providers and collaborating with NYS DOH, NYeC and other Qualified Entities as necessary in connection therewith; and



(iv) Performing such other roles and responsibilities relating to promotion of the SHIN-NY that may be designated for QE pursuant to applicable Law, the Statewide Policy Guidance and the NYS CONTRACT.

5. TERMS OF ACCESS AND USE. QE will provide access to the SHIN-NY and the SHIN-NY Services to QE Participants in accordance with the Statewide Policy Guidance and with the following terms and conditions:

5.1 Participant Agreements .

(a) QE has executed or shall execute a written agreement (a “Participant Agreement”) with each of its QE Participants regarding each such QE Participant’s access to and use of the SHIN-NY. QE shall use commercially reasonable efforts to amend existing Participant Agreements or include in new Participant Agreements such provisions as are required by applicable Law, QE NYS Contract or the Statewide Policy Guidance and the provisions set forth on Schedule D.

(b) QE will oversee, to the extent and in the manner required by applicable Law and the Statewide Policy Guidance, that no user is granted access to or use of the SHIN-NY through QE unless (a)(i) such user is accessing the SHIN-NY through a QE Participant and (ii) such QE Participant has entered into a Participant Agreement with QE in accordance with applicable Law; or (b) such user is an employee or contractor of QE accessing the SHIN-NY in connection with the performance of the obligations of QE under this Agreement.

5.2 A UTHORIZED U SERS ; U NAUTHORIZED U SE .

(a) THE SHIN-NY IS INTENDED FOR USE, IN COMPLIANCE WITH ALL APPLICABLE LAWS IN THE U.S., SOLELY BY OR ON BEHALF OF AUTHORIZED USERS.

(b) QE SHALL PERFORM SUCH OBLIGATIONS RELATED TO PRIVACY AND SECURITY TO THE EXTENT AND IN THE MANNER SET FORTH IN THE STATEWIDE POLICY GUIDANCE OR OTHERWISE AS REQUIRED BY APPLICABLE LAW.

(c) NYEC SHALL BE ENTITLED TO MONITOR USE, BUT, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, INCLUDING SECTION 9.2, AND THE STATEWIDE POLICY GUIDANCE OR AS REQUIRED BY APPLICABLE LAW, SHALL HAVE NO OBLIGATION TO IDENTIFY OR INVESTIGATE UNAUTHORIZED USE OR TERMINATE ACCESS BY PERSONS BELIEVED TO BE ENGAGED IN UNAUTHORIZED USE; PROVIDED, HOWEVER, NYEC SHALL NOTIFY QE OF ANY UNAUTHORIZED USE IDENTIFIED BY NYEC.

(d) IF NYEC BELIEVES IN GOOD FAITH THAT PERSONS ACCESSING OR USING THE SHIN-NY ARE NOT AUTHORIZED USERS OR ARE ENGAGED IN UNAUTHORIZED USE, NYEC RESERVES THE RIGHT TO TAKE COMMERCIALLY REASONABLE MEASURES TO STOP SUCH USE OR UNAUTHORIZED USE, INCLUDING, BY(I) IMPLEMENTING A QUARANTINE IN ACCORDANCE WITH SECTION 3.11 AND (II) ENFORCING SANCTIONS TO THE EXTENT AND IN THE MANNER REQUIRED BY THE STATEWIDE POLICY GUIDANCE, AND IN SUCH EVENT, NYEC SHALL NOTIFY QE OF SUCH MEASURES TAKEN BY NYEC.

5.3 Data and System Security . QE hereby represents that at the time of transmission, the Clinical Data transmitted accurately reflects the Clinical Data as it exists in the systems of QE as provided by the applicable QE Participant.

5.4 Certain Acknowledgement Regarding Patient Rights . NYeC and QE acknowledge and agree to protect patient rights as set forth in N.Y. COMP. CODES R. & REGS. tit. 10, § 300.6 as if it became effective as of April



1, 2014, and as may be amended from time to time, attached hereto as Exhibit 4, and as described in more detail in the Statewide Policy Guidance and subject to further elaboration in accordance with the Statewide Collaboration Process.

5.5 Permitted Purposes . Each of NYeC and QE agree that the SHIN-NY, access to and use of the SHIN-NY and Clinical Data and Administrative Data contained in the SHIN-NY shall be used only for the Permitted Purposes. QE shall, and shall require that its QE Participants, only access and use the SHIN-NY and Clinical Data and Administrative Data contained in the SHIN-NY only for Permitted Purposes. NYeC agrees that NYeC, SHIN-NY Applications and SHIN-NY Vendors shall only access and use the SHIN-NY and Clinical Data and Administrative Data contained in the SHIN-NY only as specified in the Statewide Policy Guidance and to perform NYeC’s obligations under this Agreement. Furthermore, QEs shall, and shall require the QE Participants to, and NYeC shall, and shall ensure that the SHIN-NY Applications and require the SHIN-NY Vendors to, only access and use de-identified data created from the Clinical Data and Administrative Data as specified in the Statewide Policy Guidance.

6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES.

6.1 By NYeC . NYeC hereby represents and warrants to QE:

(a) that (i) it has all requisite corporate power and authority to execute and deliver this Agreement, to consummate the transactions contemplated hereby and thereby, to grant any rights it purports to grant hereunder, and to perform its obligations hereunder in accordance with the terms hereof and (ii) all necessary action required to have been taken by it or on its behalf has been taken to authorize the execution and delivery of this Agreement and the other agreements contemplated hereby, the consummation of the transactions contemplated hereby and thereby, the granting of any rights it purports to grant hereunder and thereunder, and the performance of its obligations hereunder and thereunder.

(b) that the execution, delivery and performance of its obligations under this Agreement does not and will not (a) violate or conflict with any provision of its respective articles of incorporation or bylaws, (b) violate the Statewide Policy Guidance or any Laws or other requirements of NYS DOH or any other Regulatory Authority, or (c) conflict with, result in a breach of, constitute a default under or require the consent of any counterparty (which consent has not been obtained) to any agreement to which it is a party or by which it is bound.

(c) that it has and will, for the duration of the Term, maintain certification from the Electronic Healthcare Network Accreditation Commission and will submit to regular third-party HIPAA audits.

6.2 By QE . QE hereby represents and warrants to NYeC:

(a) that (i) it has all requisite corporate power and authority to execute and deliver this Agreement, to consummate the transactions contemplated hereby and thereby, to grant any rights it purports to grant hereunder, and to perform its obligations hereunder in accordance with the terms hereof and (ii) all necessary action required to have been taken by it or on its behalf has been taken to authorize the execution and delivery of this Agreement and the other agreements contemplated hereby, the consummation of the transactions contemplated hereby and thereby, the granting of any rights it purports to grant hereunder and thereunder, and the performance of its obligations hereunder and thereunder.

(b) that the execution, delivery and performance of its obligations under this Agreement does not and will not (a) violate or conflict with any provision of its respective articles of incorporation or bylaws, (b) violate the Statewide Policy Guidance or any Laws or other requirements of NYS DOH or any other



Regulatory Authority, or (c) conflict with, result in a breach of, constitute a default under or require the consent of any counterparty (which consent has not been obtained) to any agreement to which it is a party or by which it is bound.

6.3 Covenant of QE With Respect to Certification .

(a) QE hereby represents and warrants to NYeC that it has received provisional certification in accordance with the Certification Process. QE shall obtain Formal Certification in accordance with the Certification Process pursuant to the timeline established by NYS DOH, which timeline shall allow for certification any time on or before March 31, 2015. QE shall maintain certification as a Qualified Entity for the duration of the Term in accordance with the Certification Process. QE shall be relieved of its obligations set forth in this Section 6.3 if QE’s failure to become certified or maintain certification as a Qualified Entity is(a) not caused by QE’s failure to comply with the Certification Process and (b) is directly attributable to failure by NYeC or the Certification Body to fulfill its obligations related to the Certification Process.

(b) As more fully described in the Organizational Characteristics, the Certification Requirements are set forth in the following documents: (i) the Organizational Characteristics, (ii) the Member Facing Services Requirements, (iii) the Policies and Procedures and (iv) the Dial Tone Service Requirements.

6.4 Record Retention; Audits; Reports .

(a) QE shall retain, and NYeC shall retain (NYeC shall require the SHIN-NY Vendors to retain and shall enforce such requirement on the SHIN-NY Vendors to retain), records related to the subject matter of this Agreement (a) through the end of the 6th full calendar year after the end of the last fiscal year of QE during which any SHIN-NY Services are being provided to QE by NYeC, or any SHIN-NY Vendor or (b) if longer, such period as is required by applicable Laws or the Statewide Policy Guidance (“Retained Records”). To the extent not in violation of privacy rights of third parties and provided that neither Party shall have an obligation to waive applicable attorney-client, auditor-client or other legal privilege, each Party shall at all times during the Term, and thereafter, make available, or cause to be made available, to the other Party for inspection by its authorized representatives during regular business hours, at the place where such Retained Records are located, such Retained Records as are reasonably determined by the requesting Party to be necessary (a) to perform and carry out its responsibilities hereunder, (b) for the defense of any legal or administrative action or claim arising under this Agreement and relating to any Retained Records or (c) subject to Section 10, to defend or prosecute any legal or administrative action or claim brought by or against a third party relating to the SHIN- NY Services. The requesting Party shall give the other Party 10 days’ prior written notice of its need for any such records, and any such inspection shall be conducted without material interference with the operations of such other Party.

(b) In the case of an audit (a “Regulatory Audit”) performed by or on behalf of any Regulatory Authority, which may be performed during business hours upon reasonable notice (in light of the prior notice, if any, provided by the applicable Regulatory Authority), (i) each Party will provide to the Regulatory Authority or to the other Party for delivery to the Regulatory Authority the Retained Records and access to such Party’s facilities to the extent required by such Regulatory Authority, (ii) QE will require QE Participants to provide to the Regulatory Authority or to NYeC for delivery to the Regulatory Authority the Retained Records and access to QE Participants’ or Authorized Users’ facilities to the extent required by such Regulatory Authority, and (iii) NYeC will require the SHIN-NY Vendors to provide to the Regulatory Authority or to QE for delivery to the Regulatory Authority the Retained Records and access to the SHIN-NY Vendors’ facilities to the extent required by such Regulatory Authority.



7. CONFIDENTIAL INFORMATION.

7.1 Use of Confidential Information . A Party receiving Confidential Information from the other Party (the “Receiving Party”) shall not: (a) use the Confidential Information of the Party making a disclosure of Confidential Information to the Receiving Party (the “Disclosing Party”) except as necessary to perform its obligations or exercise its rights hereunder; or (b) disclose or otherwise allow access to the Confidential Information of the Disclosing Party to any individuals or third parties except as provided in Section 7.2 and Section 7.3. In addition, the Receiving Party shall protect the Confidential Information of the Disclosing Party with at least the same level of care as it protects its own confidential information of similar nature, but not less than a reasonable level of care.

7.2 Permitted Disclosure . The Receiving Party may disclose relevant aspects of the Disclosing Party’s Confidential Information to the Receiving Party’s officers, directors, employees, professional advisors (including accountants), contractors, service providers and other agents and representatives (but, for the avoidance of doubt, not other Qualified Entities or QE Participants of QE or other Qualified Entities) to the extent such disclosure is necessary for the current or future performance of their obligations or exercise of rights with respect to the Receiving Party under this Agreement; provided, however, that the Receiving Party shall cause such Confidential Information to be (through legally binding obligations of confidentiality and non- disclosure) held in confidence by the recipient to substantially the same extent and in substantially the same manner as required under this Agreement.

7.3 Disclosure Required by Law . If a Receiving Party is requested by a Regulatory Authority to disclose Confidential Information in any legal or administrative proceeding or determines that a disclosure is affirmatively required by applicable Laws, the Receiving Party shall promptly notify the Disclosing Party of such request or determination so that the Disclosing Party may take, at its expense, such steps as are necessary to protect the Confidential Information. If the Receiving Party is thereafter required to disclose the Confidential Information to the Regulatory Authority compelling such disclosure or to which such disclosure is required to be made, only the part of such information as is required by applicable Laws or for compliance with applicable Laws to be disclosed shall be disclosed.

7.4 Exceptions . The obligations of confidentiality and restrictions on use as set forth in this Agreement shall not apply to any Confidential Information that: (a) is in the public domain or is otherwise publicly known, without any breach hereof; (b) was previously known prior to disclosure by the Disclosing Party hereunder to the Receiving Party free of any obligation to keep it confidential; (c) was rightfully received by the Receiving Party from a third party whose disclosure would not violate a confidentiality obligation owed by such third party to the Disclosing Party and which disclosure was not in breach of this Agreement; (d) was subsequently and independently developed by officers, directors, employees, professional advisors (including accountants), contractors and other agents of the Receiving Party without reference to such Confidential Information disclosed under this Agreement; or (e) was expressly approved for release by the written authorization of the Disclosing Party.

7.5 Return Upon End of Term . Following expiration or termination of this Agreement for any reason, each Party, except as set forth in the next sentence, thereafter: (a) shall not use, recreate or reproduce, and shall cause its officers, directors, employees, professional advisors (including accountants), contractors and other agents and representatives to not thereafter use, recreate or reproduce, Confidential Information of the other Party or (b) shall not disclose, or permit its officers, directors, employees, professional advisors (including accountants), contractors and other agents and representatives to disclose, Confidential Information of the other Party to any third party. Upon expiration or termination of this Agreement for any reason, each Party shall promptly return, or destroy in a secure manner, any Confidential Information of the other Party and shall retain no copies thereof; provided, however, that each Party shall retain or cause to be retained copies of Confidential



Information of the other Party to the extent required by the Statewide Policy Guidance, and may use Confidential Information of the other Party, subject to this Section 7, to verify or document the performance or receipt of the SHIN-NY Services and financial information relating thereto, for audit purposes, and to enforce its rights and defend itself from any claims or causes of action related to this Agreement, the SHIN-NY Services or the other Party.

7.6 Remedies . Each Party recognizes and agrees that the covenants set forth in this Section 7 are reasonable and properly required for the protection of the information, activities and business of the other Party. Each Party agrees that the violation of the covenants or agreements in this Section 7 would cause irreparable harm to the other Party, that the remedy at law for any violation or threatened violation thereof would be inadequate and that, in addition to any other remedies available at law or in equity, the Party seeking enforcement of the covenants set forth in this Section 7 may seek temporary and permanent injunctive or other equitable relief.

8. COMPLIANCE MATTERS.

8.1 Compliance with Laws and Statewide Policy Guidance . In the performance of its respective obligations under this Agreement, NYeC shall, and shall use commercially reasonable efforts to cause, to the extent and in the manner required by applicable Law and the Statewide Policy Guidance, each of the SHIN-NY Vendors, and QE shall, and shall use commercially reasonable efforts to cause, to the extent and in the manner required by applicable Law and the Statewide Policy Guidance, each of its QE Participants to, comply with all Laws and provisions of the Statewide Policy Guidance, in each case to the extent applicable to the performance of such Person under this Agreement. Each Party shall be responsible for any failure on the part of itself or any of its agents to comply with such applicable Laws and provisions of the Statewide Policy Guidance; provided, however, that QE Participants shall not be deemed to be agents of QE.

8.2 C OMPLIANCE WITH HIPAA . NYEC ACKNOWLEDGES THAT THE CLINICAL DATA MAY CONSTITUTE PROTECTED HEALTH INFORMATION FOR PURPOSES OF HIPAA AND MAY BE SUBJECT TO ADDITIONAL PROTECTIONS UNDER NEW YORK STATE LAW. NYEC HEREBY DELIVERS TO QE AS OF THE EFFECTIVE DATE, AND WILL PERIODICALLY RENEGOTIATE AND MODIFY AT QE’S REQUEST, WHEN REQUIRED BY APPLICABLE LAWS, THE STANDARD BUSINESS ASSOCIATE AGREEMENT ATTACHED HERETO AS EXHIBIT 3 AND INCORPORATED INTO THIS AGREEMENT. EACH OF NYEC AND QE WILL COMPLY WITH APPLICABLE LAWS AND, WITH RESPECT TO NYEC, IF MORE RESTRICTIVE, THE TERMS OF THE STANDARD BUSINESS ASSOCIATE AGREEMENT WITH RESPECT TO ITS PROCESSING, USE OR DISCLOSURE OF ANY CLINICAL DATA CONSTITUTING PROTECTED HEALTH INFORMATION.

9. INSURANCE.

9.1 Insurance . Except to the extent that the Certification Body has excused QE from satisfaction of Certification Requirements with respect to insurance/liability coverage in accordance with the Certification Process described in the “Introduction” section to the Organizational Characteristics, each Party, at its sole cost and expense, shall at all times it is engaged in any activity relating to the SHIN-NY or this Agreement, maintain liability insurance in accordance with Schedule C.

9.2 Reporting Requirements . Upon becoming aware of the occurrence of any incident or report involving the use of or access to, whether or not involving Unauthorized Use, the SHIN-NY or any SHIN-NY Services or any component thereof involving illness, injury, death, property damage or other loss, NYeC or QE, as applicable, shall investigate the nature and severity of the circumstances leading to such incident or report. Each of NYeC and QE shall report to each other: (a) within 5 days after becoming aware of the occurrence thereof, any such incident or report and any preliminary or final findings of the investigation, and (b) within 7 days after the filing thereof, any third-party claim or lawsuit filed against it arising from or related to use of or access to, whether or not involving Unauthorized Use, the SHIN-NY or any SHIN-NY Services or any



component thereof. After reporting the occurrence of any such incident or report pursuant to this Section 9.2, NYeC or QE, as applicable, shall provide a supplemental report to the other Party, without unreasonable delay, containing the findings and conclusions of its investigation into the incident or report to the extent not provided concurrent with the initial report. The obligations set forth in this Section shall apply to QE with respect to only acts or omissions by QE or its QE Participants and shall not apply with respect to any information not permitted to be disclosed pursuant to applicable Law.

10. INDEMNIFICATION AND LIMITATION OF LIABILITY.

10.1 NYeC Indemnification and Liability . NYeC shall (x) indemnify and hold harmless QE and its directors, officers and employees (the “QE Indemnified Parties”) and the other Qualified Entities and their respective directors, officers and employees (the “QE Cross-Indemnified Parties”), from and against any losses, damages or liabilities (including reasonable costs and expenses, and excluding attorneys’ fees, in each case, incurred by the QE Indemnified Parties and/or the QE Cross-Indemnified Parties in connection with any third party claim, action, lawsuit, proceeding or investigations) (“QE Losses”) awarded or otherwise paid by the QE Indemnified Parties and/or the QE Cross-Indemnified Parties to any third party (whether pursuant to a court order, or as part of a settlement approved by NYeC) arising out of any action, suit, proceeding or other claim, or any threat thereof (whether civil, criminal, administrative, arbitral, investigative or otherwise) against any QE Indemnified Party or any QE Cross-Indemnified Party (including by any Regulatory Authority), and (y) shall be liable to QE Indemnified Parties and/or the QE Cross-Indemnified Parties for any direct damages (including reasonable costs and expenses, and excluding attorneys’ fees, in each case, incurred by the QE Indemnified Parties and/or the QE Cross-Indemnified Parties in connection with any third party claim, action, lawsuit, proceeding or investigations), not to include any indirect, consequential, special, incidental, punitive, or other exemplary losses or damages, including without limitation lost or prospective profits, whether based in contract, warranty, negligence, strict liability or other tort or otherwise, regardless of the foreseeability or the cause thereof, (“QE Damages”) suffered by QE Indemnified Parties and/or the QE Cross-Indemnified Parties, in each case to the extent:

(a) arising out of any breach by NYeC of the Standard Business Associate Agreement or failure of NYeC to comply with Law or the Statewide Policy Guidance in connection with its performance under this Agreement;

(b) relating to a violation of HIPAA or HITECH by NYeC;

(c) relating to the gross negligence of any NYeC Indemnified Party in connection with this Agreement or the SHIN-NY Services;

(d) relating to any taxes, interest, penalties, fines or other amounts, civil or criminal, in connection with this Agreement or the SHIN-NY Services that are assessed against QE and that are not the obligation of QE;

(e) arising out of any claim (an “Infringement Claim”) for actual or alleged infringement of any Patent, Trademark, Copyright, or other intellectual property or proprietary right, including misappropriation of trade secrets, based upon Creation of or a QE Indemnified Party’s use of the NYeC IP, except to the extent such infringement is a result of: (a) a QE Indemnified Party’s use of the NYeC IP in contravention of the Related Documentation or this Agreement; (b) modifications made by a QE Indemnified Party other than at the instruction of NYeC; (c) failure of QE to cease using, to require QE Participants to cease using or to enforce such requirement on QE Participants to cease using any NYeC IP within a reasonable period of time after notice from NYeC that such use is infringing, (d) failure of QE promptly to install or implement, to require QE Participants promptly to install or implement or to enforce such requirement on QE Participants to



install or implement any change in Software or methodology necessary to render use of any NYeC IP non- infringing (but only to the extent that such installation or implementation would have rendered used of the NYeC IP non-infringing) or (e) any combination of the NYeC IP by QE with products or systems other than those provided by, or authorized by, NYeC;

(f) relating to any obligations of NYeC to SHIN-NY Vendors;

(g) relating to any claim by or on behalf of any SHIN-NY Staff (A) in connection with their employment or engagement by NYeC or any SHIN-NY Vendor or (B) alleging co-employment by QE, in each case, except to the extent such claim is based upon an affirmative statement or representation by an QE Indemnified Party; or

Party.(h) relating to any theft or misappropriation of Clinical Data by any NYeC Indemnified

10.2 QE Indemnification and Liability . QE shall (x) indemnify and hold harmless NYeC and its directors, officers and employees (the “NYeC Indemnified Parties”) and the QE Cross-Indemnified Parties, from and against any losses, damages or liabilities (including reasonable costs and expenses, and excluding attorneys’ fees, in each case, incurred by the NYeC Indemnified Parties and/or the QE Cross-Indemnified Parties in connection with any third party claim, action, lawsuit, proceeding or investigations) (“NYeC Losses”) awarded or otherwise paid by the NYeC Indemnified Parties and/or the QE Cross-Indemnified Parties to any third party (whether pursuant to a court order, or as part of a settlement approved by QE) arising out of any action, suit, proceeding or other claim, or any threat thereof (whether civil, criminal, administrative, arbitral, investigative or otherwise) against any NYeC Indemnified Party or any QE Cross-Indemnified Party (including by any Regulatory Authority) and (y) shall be liable to NYeC Indemnified Parties and/or the QE Cross- Indemnified Parties for any direct damages (including reasonable costs and expenses, and excluding attorneys’ fees, in each case, incurred by the NYeC Indemnified Parties and/or the QE Cross-Indemnified Parties in connection with any third party claim, action, lawsuit, proceeding or investigations), not to include any indirect, consequential, special, incidental, punitive, or other exemplary losses or damages, including without limitation lost or prospective profits, whether based in contract, warranty, negligence, strict liability or other tort or otherwise, regardless of the foreseeability or the cause thereof, (“NYeC Damages”) suffered by NYeC Indemnified Parties and/or the QE Cross-Indemnified Parties, in each case to the extent:

(a) arising out of any breach by QE of the Standard Business Associate Agreement or failure of QE to comply with Law or the Statewide Policy Guidance in connection with its receipt of the SHIN- NY Services under this Agreement;

(b) relating to a violation of HIPAA or HITECH by QE;

(c) relating to the gross negligence of any QE Indemnified Party in connection with this Agreement or the SHIN-NY Services;

(d) relating to any taxes, interest, penalties, fines or other amounts, civil or criminal, in connection with this Agreement or the SHIN-NY Services that are assessed against NYeC and that are the obligation of QE; or

(e) relating to any theft or misappropriation of Clinical Data by any QE Indemnified Party.

10.3 Indemnification Procedure .



(a) If any claim is commenced against a Party entitled to indemnification under Section 10.1 or Section 10.2 (the “Indemnified Party”), prompt notice thereof shall be given by the Indemnified Party to the other Party (the “Indemnifying Party”). The Parties shall agree upon the Party who will be responsible for the defense of such claim; provided, however, that if the Parties cannot agree upon the Party who will be responsible for the defense of such claim within 15 days after receipt by the Indemnifying Party, (1) the Indemnifying Party shall immediately take control of the defense of such claim and shall engage attorneys acceptable to the Indemnified Party (which acceptance shall not be unreasonably withheld) to defend such claim; and (2) the Indemnified Party shall cooperate with the Indemnifying Party (and its attorneys) in the defense of such claim. The Indemnified Party may, at its own cost and expense, participate (through its attorneys or otherwise) in such defense. If the Indemnifying Party does not assume control over the defense of a claim as provided in this Section, the Indemnified Party may defend the claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party. If the Indemnifying Party assumes control over the defense of a claim as provided in this Section, the Indemnifying Party may not settle such claim without the consent of the Indemnified Party if the settlement provides for relief other than the payment of monetary damages or for the payment of monetary damages for which the Indemnified Party will not be indemnified in full pursuant to this Section 10.

(b) If a claim of infringement under Section 10.1 occurs, or if NYeC determines that a claim is likely to occur, NYeC will have the right, in its sole discretion, to either: (i) procure for the QE Indemnified Parties the right or license to continue to use the NYeC IP free of the infringement claim; or (ii) modify the NYeC IP to make it non-infringing, without loss of material functionality.

10.4 Sole Recourse; Assignment of Insurance Rights .

(a) Except as otherwise set forth in this Section 10.4, in each case, the aggregate liability of NYeC to QE Indemnified Parties and the QE Cross-Indemnified Parties for any Losses or Damages incurred by QE Indemnified Parties and/or the QE Cross-Indemnified Parties arising under or in connection with this Agreement or the SHIN-NY Services will be limited to (1) in the event that the Losses or Damages are subject to insurance coverage, (i) the insurance proceeds actually recovered by the NYeC Indemnified Parties, plus (ii) any amounts actually received by the NYeC Indemnified Parties from third-party service providers, vendors and suppliers (including, but not limited to the SHIN-NY Vendors), in each case in respect of the claim giving rise to such Losses or Damages; or (2) in the event that the Losses or Damages are not subject to insurance coverage,(i) One Million Dollars ($1,000,000), plus (ii) any amounts actually received by the NYeC Indemnified Parties from third-party service providers, vendors and suppliers (including, but not limited to the SHIN-NY Vendors) in respect of the claim giving rise to such Losses or Damages; provided, however, that in either event the indemnification obligation of NYeC set forth in Section 10.1(e) and any Losses or Damages caused by the intentional acts or omissions of a NYeC Indemnified Party shall not be subject to such limitation. Except as otherwise provided in Section 7.6, Section 10.4(d), and Section 12.3(b), Section 10.1, as limited by this Section 10.4(a), shall constitute the sole and exclusive recourse of the QE Indemnified Parties and the QE Cross-Indemnified Parties with respect to any Losses or Damages incurred by the QE Indemnified Parties and/or the QE Cross-Indemnified Parties or any other liability of NYeC to the QE Indemnified Parties and/or the QE Cross-Indemnified Parties, in connection with this Agreement, regardless of the theory under which any claim for Losses, Damages or such other liability is made.

(b) Except as otherwise set forth in this Section 10.4, in each case, the aggregate liability of QE to NYeC Indemnified Parties and the QE Cross-Indemnified Parties for any Losses or Damages incurred by NYeC Indemnified Parties and/or the QE Cross-Indemnified Parties arising under or in connection with this Agreement or the SHIN-NY Services will be limited to (1) in the event that the Losses or Damages are subject to insurance coverage, (i) the insurance proceeds actually recovered by the QE Indemnified Parties, plus (ii) any amounts actually received by the QE Indemnified Parties from third-party service providers, vendors and



suppliers (including, but not limited to any third-party providers or licensors of QE Applications), in each case in respect of the claim giving rise to such Losses or Damages; or (2) in the event that the Losses or Damages are not subject to insurance coverage, (i) One Million Dollars ($1,000,000), plus (ii) any amounts actually received by the QE Indemnified Parties from third-party service providers, vendors and suppliers (including, but not limited to any third-party providers or licensors of QE Applications) in respect of the claim giving rise to such Losses or Damages; provided, however, that in either event any Losses or Damages caused by the intentional acts or omissions of a QE Indemnified Party shall not be subject to such limitation. Except as otherwise provided in Section 7.6, Section 10.4(d) and Section 12.3(b), Section 10.2, as limited by this Section 10.4(b), shall constitute the sole and exclusive recourse of the NYeC Indemnified Parties and the QE Cross-Indemnified Parties with respect to any Losses or Damages incurred by the NYeC Indemnified Parties and/or the QE Cross- Indemnified Parties or any other liability of QE to the NYeC Indemnified Parties and/or the QE Cross- Indemnified Parties, in connection with this Agreement, regardless of the theory under which any claim for Losses, Damages or such other liability is made.

(c) To the extent that either Party is liable to the other Party pursuant to Section 10.1 or Section 10.2 for any Losses or Damages, the Indemnifying Party will use commercially reasonable efforts, at its sole expense, to secure all available insurance proceeds for the benefit of the Indemnified Party from the Indemnifying Party’s insurers. This obligation includes, where warranted, retention of specialized insurance counsel to assist in securing such proceeds.

(d) With respect to any Losses or Damages to which Section 10.1 or Section 10.2 applies, the Indemnifying Party hereby assigns to the Indemnified Party the rights to proceeds of any insurance maintained by the Indemnifying Party covering such Losses or Damages. Notwithstanding the obligations of the Indemnifying Party set forth in Section 10.4(c), the Indemnified Party at any time may elect, at its sole discretion and expense, to assume from the Indemnifying Party responsibility for pursuing insurance recovery, in its own name or as assignee of rights held by the Indemnifying Party, with respect to any rights to insurance proceeds assigned to the Indemnified Party pursuant to this Section 10.4(d); provided, however, that if the Indemnifying Party, prior to such election, has failed to comply with its obligations pursuant to Section 10.4(c), the Indemnifying Party shall, notwithstanding the limitations set forth in Section 10.4(a) and Section 10.4(b), be liable to the Indemnified Party for all reasonable costs incurred by the Indemnified Party in pursuing insurance recovery on its own behalf, including any attorneys’ fees. If the Indemnified Party elects to assume responsibility for pursuing insurance proceeds from one or more of the Indemnifying Party’s insurers pursuant to this Section 10.4(d), the Indemnifying Party shall assist and cooperate with the Indemnified Party in the pursuit of such proceeds to the fullest extent that is commercially reasonable.

(e) To the extent that the assignment of rights to insurance proceeds contemplated by Section 10.4(d) is deemed to invalidate or diminish the availability of insurance proceeds under any of the Indemnifying Party’s insurance policies to cover Losses or Damages to which Section 10.1 or Section 10.2 applies, the Parties mutually intend that Section 10.4(d) not be enforced or enforceable.

10.5 Event Affecting QE and Other SHIN-NY Members . Upon the occurrence of any claim or event giving rise to a Party’s ability to recover any amounts from the other Party for any Losses or Damages incurred by the QE Indemnified Parties or the NYeC Indemnified Parties, as applicable, arising under or in connection with this Agreement or the Services that also gives rise to the right of one or more other Qualified Entity with whom NYeC has executed a Qualified Entity Participation Agreement or other similar agreement to recover any amounts from NYeC (such Party and the other Qualified Entities, collectively, the “Affected SHIN-NY Members”), an equitable allocation of the proceeds among the Affected SHIN-NY Members shall be determined by the Affected SHIN-NY Members. If the Affected SHIN-NY Members are unable to agree upon an equitable allocation, the Business and Operations Committee shall appoint a neutral party to serve as a mediator. If the Business and Operations Committee is unable to agree upon a neutral party or if the Affected SHIN-NY



Members are unable to agree upon an equitable allocation notwithstanding mediation by the neutral party appointed by the Business and Operations Committee, the Board of Directors of NYeC shall appoint a neutral party to serve as a mediator.

11. DISPUTE RESOLUTION.

11.1 Informal Dispute Resolution .

(a) The Parties shall attempt to resolve all disputes between NYeC and QE arising out of or in any way connected with the execution, interpretation or performance of this Agreement, the performance or receipt of the SHIN-NY Services hereunder or the relationship created hereby, in accordance with this Section 11.1. If a dispute cannot be resolved in accordance with this Section 11.1, the Parties may resort to the procedures set forth in Section 11.2.

(b) When a dispute arises between NYeC and QE arising out of or in any way connected with the execution, interpretation or performance of this Agreement, the performance or receipt of the SHIN-NY Services hereunder or the relationship created hereby:

(i) NYeC or QE, as applicable, will send a notice to the other Party containing a detailed description of the issue under dispute, the good faith basis for the dispute and a recommendation for resolution; and

(ii) Within 15 days after receipt of such notice, the Parties will meet and confer in good faith at a mutually agreeable location to attempt to resolve the dispute promptly.

11.2 Arbitration . The Parties may resolve any dispute between NYeC and QE which cannot be resolved in accordance with Section 11.1 by agreeing to submit the dispute to binding arbitration. Such voluntary arbitration shall be conducted in accordance with this Section.

(a) Binding arbitration will be conducted by a single, neutral and impartial arbitrator, mutually acceptable to the Parties, who is an attorney with reasonable experience in the health care and information technology industries. Any such arbitration shall be conducted in New York, New York and in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (such rules, together with the applicable provisions of such procedures, the “AAA Rules”).

11.2:(b) If NYeC or QE determines to submit a dispute for arbitration pursuant to this Section

(i) NYeC or QE will send a notice to the other Party with a dated, written statement (the “Arbitration Notice”) indicating (A) the nature, with reasonable detail, of the dispute and (B) without limiting such Party’s rights, the remedy or remedies such Party will seek;

(ii) Each Party will provide the other Party with production of all Retained Records reasonably related to the dispute in a manner that will minimize the expense and inconvenience of both Parties. Discovery will not include depositions or interrogatories except as the arbitrator expressly allows on a showing of need;

the Arbitration Notice;(iii) Arbitration hearings will commence no later than 60 days following the date of



(iv) The arbitrator will issue a final decision no later than 120 days following the date of the Arbitration Notice that, in his or her judgment, is consistent with the terms of this Agreement (including Section 10), the intent of the Parties, and applicable Laws, as supported by evidence presented by the Parties in the arbitration proceeding;

(v) The arbitrator shall not have authority to award any of the types of damages except those damages permitted under this Agreement;

(vi) To the fullest extent permitted by applicable Laws, any arbitration proceeding and the arbitration award shall be maintained in confidence by the Parties;

(vii) The arbitration award shall be final and shall not be subject to judicial review;

(viii) Judgment on the arbitration award shall be entered and enforced in any court having jurisdiction over the Parties or their assets.

(c) It is the intent of the Parties that the arbitration provisions hereof be enforced to the fullest extent permitted by applicable Laws, including the Federal Arbitration Act, 9 U.S.C. § 2. Subject to Section 13.3, nothing contained in this Section 11 shall preclude, limit or diminish the Parties’ rights to resolve disputes through means other than binding arbitration, including through litigation; nor shall this Section 11 prevent the Parties from seeking injunctive relief for any breach of Section 7, Section 8, Section 10, Section 12.1(a), Section 12.1(c) or Section 12.2(a) or as otherwise permitted at law or equity.

12. PROPRIETARY RIGHTS.

12.1 SHIN-NY Applications.

(a) Except as otherwise agreed to by both Parties in writing, all Software and Tools in existence as of the Effective Date that are owned or controlled by NYeC and that are made available for use in connection with the SHIN-NY (“Existing SHIN-NY Applications”) are, as between the Parties, owned exclusively by NYeC and all right, title and interest, including worldwide ownership of Copyright, Patent, Trademark and all other intellectual property rights in and to such Existing SHIN-NY Applications and all copies, components and derivative works thereof, are hereby vested in NYeC.

(b) All Existing SHIN-NY Applications will be made available to QE pursuant to the terms and conditions required by the NYS CONTRACT and the Statewide Policy Guidance and on the same terms as made available for use by all other Qualified Entities participating in the SHIN-NY.

(c) Except as otherwise agreed to by both Parties in writing, all Software and Tools developed or acquired after the Effective Date by or on behalf of NYeC, including by any SHIN-NY Vendor (“NYeC New Intellectual Property”), are, as between the Parties, owned exclusively by NYeC and, upon creation of any NYeC New Intellectual Property, all right, title and interest, including worldwide ownership of Copyright, Patent, Trademark and all other intellectual property rights in and to such NYeC New Intellectual Property and all copies, components and derivative works thereof, are hereby vested in NYeC. To the extent permitted by applicable Laws, QE hereby irrevocably assigns, transfers and conveys to NYeC, without further consideration and at the sole cost and expense of NYeC, any rights it may have in and to such NYeC New Intellectual Property, including all rights of Copyright, Patent, Trademark, trade secret or other intellectual property rights in and to such NYeC New Intellectual Property. Except as otherwise provided in the Statewide Policy Guidance or the NYS CONTRACT or as required by applicable Law, NYeC will have no obligation to make any NYeC New Intellectual Property available as an Additional SHIN-NY Application.



(d) If (i) pursuant to and in accordance with the NYS CONTRACT and the Statewide Policy Guidance, any NYeC New Intellectual Property is made available for use in connection with the SHIN- NY or (ii) in accordance with Section 12.2(b), any QE Applications are made available for use in connection with the SHIN-NY, any such NYeC New Intellectual Property or QE Application shall be made available for such use (either, “Additional SHIN-NY Applications” and, together with the Existing SHIN-NY Applications, “SHIN-NY Applications”) by QE pursuant to the terms and conditions required by the NYS CONTRACT and the Statewide Policy Guidance and on the same terms as made available for use by all other Qualified Entities participating in the SHIN-NY. Except as otherwise provided in the Statewide Policy Guidance or as required by applicable Law, QE will have no obligation to use any such Additional SHIN-NY Applications.

(e) NYeC hereby grants to QE, a global, irrevocable, fully paid-up, non-exclusive enterprise-wide, license to Use, and to permit QE Participants and Authorized Users to Use, the SHIN-NY Applications during the Term solely as necessary for QE, the QE Participants and Authorized Users to receive the benefit of the SHIN-NY Services.

(f) This Section 12.1 shall be subject to any separate agreement executed by the Parties regarding the proprietary rights of each Party with respect to the Existing SHIN-NY Applications and the NYeC New Intellectual Property. This Agreement shall not modify, amend or otherwise affect the terms and conditions of any such agreement.

12.2 QE Applications .

(a) Except as otherwise agreed to by both Parties in writing, all Software and Tools (including any QE-provided interface or portal), whether in existence as of or developed after the Effective Date, that are owned, controlled by or developed on behalf of QE (“QE Applications”) are owned, as between the Parties, exclusively by QE and its subcontractors and all right, title and interest, including worldwide ownership of Copyright, Patent, Trademark and all other intellectual property rights in and to such QE Applications and all copies, components and derivative works thereof, are hereby vested in QE and its subcontractors. To the extent permitted by applicable Laws, NYeC hereby irrevocably assigns, transfers and conveys to QE and its subcontractors, without further consideration and at the sole cost and expense of QE, any rights it may have in and to such QE Applications, including all rights of Copyright, Patent, Trademark, trade secret or other intellectual property rights in and to such QE Applications.

(b) If, in the sole determination of QE or as otherwise provided in the Statewide Policy Guidance or as required by applicable Law, QE offers to transfer any QE Application to NYeC use in connection with the SHIN-NY and NYeC, in accordance with the Statewide Policy Guidance and the NYS CONTRACT or as required by applicable Law, accepts such offer, the Parties shall enter into written agreements necessary to accomplish the transfer of ownership of such QE Application to NYeC. Such QE Application shall, for all purposes under this Agreement, be deemed to be an Additional SHIN-NY Application to which Section 12.1 is applicable and shall no longer be deemed a QE Application. Except as otherwise provided in the Statewide Policy Guidance or as required by applicable Law, QE is under no obligation to transfer any QE Application to NYeC for use in connection with the SHIN-NY.

(c) If, in the sole determination of QE or as otherwise provided in the Statewide Policy Guidance or as required by applicable Law, QE offers to license to NYeC any QE Application for use in connection with the SHIN-NY and NYeC, in accordance with the Statewide Policy Guidance and the NYS CONTRACT or as required by applicable Law, accepts such offer to license such QE Application for such use, the Parties shall enter into a license agreement granting to NYeC a global, irrevocable, fully paid-up, non- exclusive enterprise-wide, license during the Term to Use, and to permit other Qualified Entities, QE Participants accessing and using the SHIN-NY through such other Qualified Entities to use, such QE



Application. Such QE Application shall, for all purposes under this Agreement, be deemed to be an Additional SHIN-NY Application to which Section 12.1 is applicable and shall no longer be deemed a QE Application for so long as may be agreed by QE and NYeC (regardless of the expiration or termination of this Agreement); provided, however, that, subject to such license agreement, QE shall retain all intellectual property rights in and to such QE Application. Except as otherwise provided in the Statewide Policy Guidance or as required by applicable Law, QE is under no obligation to license any QE Application for use in connection with the SHIN- NY.

(d) This Section 12.2 shall be subject to any separate agreement executed by the Parties regarding the proprietary rights of each Party with respect to the QE Applications. This Agreement shall not modify, amend or otherwise affect the terms and conditions of any such agreement.

12.3 No Reverse Engineering .

(a) Neither Party shall (nor shall either Party authorize or permit any third party to)(i) create or attempt to create by reverse engineering or otherwise any Software or Tools of the other Party,(ii) ascertain or attempt to ascertain the design or operation of any Software or Tools of the other Party or(iii) derive or attempt to derive the source code for any Software or Tools of the other Party. Each Party shall maintain the confidentiality of the Software and Tools of other Party in accordance with the provisions of Section 7.

(b) Without prejudice to the rights and remedies otherwise available to Party, each Party shall be entitled to seek equitable relief by way of injunction or otherwise if the other Party breaches or threatens to breach any of the provisions of this Section 12.3.

12.4 Trademarks and Trade Names . Each Party to this Agreement retains control of its Trademarks presently existing or hereafter established with respect to it. Neither Party will use the Trademarks of the other Party in advertising or promotional materials or otherwise, without the prior written consent of the other party. Each Party shall comply on an ongoing basis with the standards set by the other Party with respect to the use of such Party’s Trademarks, and each Party shall have the right to demand the other Party’s prompt compliance with such standards at any time. Each Party will cease any permitted usage with respect to the other Party’s Trademarks immediately upon termination of this Agreement or at the request of such other Party. Each Party hereby assigns to the other Party any goodwill or reputation in any of such other Party’s Trademarks that may arise in the course of performance hereunder, effective as of when such goodwill or reputation arises, without any payment or consideration. Each Party expressly reserves and retains all intellectual property rights in and to its Trademarks, and no implied license to or rights in or to any of the Trademarks shall arise as a result of or in connection with this Agreement. For purposes of this Section, the Trademarks of the subcontractors of each Party shall, as between the Parties, be deemed the Trademarks of such Party.

12.5 Ownership of PHI. Except as specifically provided here and as otherwise agreed to in writing by both Parties, nothing in this Section 12 shall give rise to any right of NYeC to any right, title and interest in and to any and all PHI received by NYeC from or through, or created or received by NYeC on behalf of, QE, and NYeC does not hold, and will not acquire by virtue of this Agreement or by virtue of providing any services or goods to QE, any right, title or interest in or to such PHI or any portion thereof.

13. MISCELLANEOUS.

13.1 Successors and Assigns; Third-Party Beneficiaries . This Agreement is binding upon, inures to the benefit of, and is enforceable by the Parties and their respective successors and assigns. Except as provided in the Standard Business Associate Agreement or this Agreement, the terms and provisions of this Agreement are



intended solely for the benefit of each Party and its respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person.

13.2 Statewide Policy Guidance; Entire Agreement; Interpretation .

(a) This Agreement is made subject to the terms, conditions and limitations set forth in the Statewide Policy Guidance, which is incorporated herein by reference and made a part of this Agreement.

(b) This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to the subject matter. Notwithstanding the foregoing, in the event of any conflicts of provisions among documents, the provisions in the following documents shall take precedence: (i) the Standard Business Associate Agreement,(ii) the Statewide Policy Guidance, (iii) the Exhibits (exclusive of the Standard Business Associate Agreement and Certification Regarding Debarment and Suspension), (iv) the Agreement (exclusive of the Exhibits and Schedules), (v) the Schedules and the Certification Regarding Debarment and Suspension, (vi) the NYS CONTRACT, (vii) the QE NYS CONTRACT and (viii) the QE Master Services Agreement.

13.3 Governing Law and Jurisdiction . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York applicable to contracts executed and performed in that state, without giving effect to choice-of-laws principles. Subject to Section 11.2, with respect to any legal action, suit or proceeding by a Party arising out of this Agreement, each Party consents to the exclusive jurisdiction and venue of: (i) in any action initiated by QE, the United States District Court for the Southern District of New York or the state courts of the State of New York, Borough of Manhattan and (ii) in any action initiated by NYeC, the United States District Court or the state court of the State of New York located in or having jurisdiction over the county in which QE’s principal place of business is located.

13.4 Fair Construction . The language in all parts of this Agreement shall be construed, in all cases, according to its fair meaning. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement.

13.5 Independent Contractors . Notwithstanding any provision contained herein to the contrary, each of NYeC and QE understand and agree that the Parties hereto intend to act and perform as independent contractors and that therefore neither NYeC nor QE is an employee, partner, joint venturer, of the other. Nothing in this Agreement shall be construed as placing the Parties in a relationship of employer-employee, partners or joint venturers. Neither Party shall have the right to make any promises, warranties or representations, or to assume or create any obligations, on behalf of the other Party, except as otherwise expressly provided herein. NYeC and QE agree to be solely and entirely responsible for their respective acts and, to the extent provided under the Laws, for the acts of any of their respective officers, directors, employees, professional advisors (including accountants), contractors and other agents, except as otherwise expressly provided herein.

13.6 Force Majeure . QE and NYeC shall not be liable to each other for any failure or delay in performance of this Agreement to the extent such failure or delay arises out of a cause beyond the reasonable control of such Party. Such causes may include, but shall not be limited to, acts of God, acts of a public enemy, acts of a civil or military authority, fires or other catastrophes, labor disputes, strikes, delays in transportation or third-party delivery services, outages of a non-proprietary electrical or telecommunications network, riots or war, terrorism, changes in Regulatory Authority regulations (a “Force Majeure Event”), but shall not be deemed to include failures or delays in receiving electronic data other than as a result of outages of the electrical or telecommunications network or problems experienced by QE as a result of a failure of software or hardware of QE. Notwithstanding the occurrence of a Force Majeure Event, QE shall implement its business continuity and disaster recovery plans, except to the extent such implementation is affected by a Force Majeure Event.



13.7 No Warranties . THE WARRANTIES EXPRESSLY INCLUDED HEREIN ARE IN LIEU OF, AND EACH PARTY HERETO HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

13.8 Notices . Any notice, demand or communication required, permitted, or desired to be given hereunder, unless otherwise stated, shall be deemed effectively given when personally received by the intended recipient, and shall be sent by (a) email or facsimile transmission with non-automatic acknowledgment (which need not satisfy the requirements of this Section) from the recipient indicating receipt; (b) express or overnight courier with proof of delivery; or (c) United States Postal Service, certified or registered mail with signed return receipt, addressed to the person or persons identified herein. Notwithstanding the foregoing, any notice of breach or termination must be sent by the method specified in clause (b) or (c) of this Section 13.8. Either Party may change the person and address to which notices or other communications are to be sent to it by giving written notice of any such change in the manner provided herein. The initial notification information is:

NYeC Addresses for Notice : QE Addresses for Notice :

The address set forth in the preamble Attn: David WhitlingerE-mail: [email protected] Fax: (646) 619-6777

The address set forth on the signature page Attn:E-mail:Fax:

with a copy to:New York eHealth Collaborative, Inc. 40 Worth Street, 5th FloorNew York, NY 10013Attn: Kristen Blair, Executive Assistant Email: [email protected]: (646) 619-6777

with a copy to:[QE]ADDRESSADDRESSAttn:E-mail:Fax:

If notice to NYS DOH is required pursuant to Section 3 of the Agreement, the initial notification information is:

State of New York Department of Health

Name: Steven R. Smith

Title: State Health IT Coordinator

Office of Quality and Patient Safety

Address: ESP, Corning Tower – Room 2834

Albany, NY 12237

Telephone Number: 518-474-4987

Facsimile Number: 518-474-4138

E-Mail Address: [email protected]

13.9 Execution in Counterparts . This Agreement may be executed in one or more counterparts, all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier or electronic delivery in pdf format shall be as effective as



delivery of a manually executed counterpart of this Agreement and shall be sufficient to bind the Parties to the terms and conditions hereof.

13.10 Survival . The provisions of Section 6, Section 7, Section 10, Section 11, Section 12, this Section 13, the Standard Business Associate Agreement and any other Section which by its nature or terms would be reasonably understood to have been intended to survive shall survive any termination or expiration of this Agreement.

13.11 Severability . If any provision of this Agreement is determined by competent judicial authority to be invalid or unenforceable, that provision shall be deemed stricken herefrom and the remainder of this Agreement shall continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the Parties, as evidenced herein. In such an event, the Parties shall promptly replace the severed provision with the provision that will come closest to reflecting the intention of the Parties underlying the severed provision, but that is valid, legal, and enforceable.

13.12 No Waiver . Waiver by a Party of any term or condition of this Agreement, or of any breach or default by the other Party hereunder, shall be effective only if made in writing and signed by an authorized representative of the Party waiving compliance herewith. Any such waiver so signed shall be effective only in the specific instance, and for the specific purpose, stated in such writing, and no waiver shall be deemed a waiver of any other term, condition, breach, or default, irrespective of whether similar to that waived. No failure to exercise, and no delay in exercising, on the part of either Party, any right, power, or privilege hereunder shall constitute a waiver thereof, nor will either Party’s exercise of any right, power, or privilege hereunder preclude further exercise of the same right, power, or privilege, or the exercise of any other right, power, or privilege, hereunder.

13.13 References .

(a) Except where otherwise indicated: (i) all references to this Agreement include the Schedules and Exhibits, (ii) all references in this Agreement (exclusive of the Schedules and Exhibits) to Sections are to Sections in this Agreement (exclusive of the Schedules and Exhibits); and (iii) all references in this Agreement to Schedules and Exhibits are to Schedules and Exhibits to this Agreement.

(b) All references in this Agreement to and mentions of the word “include”, “including” or the phrases “e.g.” or “such as” shall mean “including, without limitation.”

(c) All references to “day”, “week”, “month”, “quarter” or “year” refer to a calendar day, week, month, quarter or year, respectively, unless otherwise indicated.

(d) All references in this Agreement to any Law shall include such Law in changed, supplemented or newly adopted form.

13.14 Assignment . Neither Party shall assign this Agreement without the prior consent of the other Party; provided, however, that (1) NYeC may assign this Agreement without QE’s consent if such assignment has been approved by the NYS DOH and (2) QE may assign this Agreement without consent to any Qualified Entity. This Agreement shall be binding upon the successors and permitted assigns of the Parties.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]



IN WITNESS WHEREOF, the Parties hereto have caused this Qualified Entity Participation Agreement to be executed on the Execution Date by their respective authorized signatories as of the Effective Date.

NEW YORK EHEALTH COLLABORATIVE, INC. [QE]

Signature:

Name: David Whitlinger

Title: Executive Director

Signature:

Name:

Title:

Address:



SCHEDULE A

SCHEDULE OF DEFINED TERMS

A. As used in this Agreement, the following terms have the meanings set forth below:

“Administrative Data” means data pertaining to utilization of the SHIN-NY, Authorized Users and other administrative matters relating to the SHIN-NY provided by or to QE, which shall not include Clinical Data.

“Authorized User” has the meaning set forth in the Policies and Procedures.

“Business and Operations Committee” means the Business and Operations Committee established by the Board of Directors of NYeC, as described in Schedule B.

“Certification Body” has the meaning set forth in the Organizational Characteristics.

“Certification Process” has the meaning set forth in the Organizational Characteristics.

“Certification Regarding Debarment and Suspension” means the certification regarding debarment and suspension set forth in Exhibit 2.

“Certification Requirements” has the meaning set forth in the Organizational Characteristics.

“Clinical Data” means data relating to patient identity, care or condition, healthcare services utilization management or healthcare quality management.

“Confidential Information” of a Party means information (and documentation) which (1) is identified in writing as confidential, restricted, proprietary or in any similar manner or (2) based upon the nature of the information (or documentation) or the circumstances under which it was disclosed, accessed, or learned, a reasonable person would understand is confidential, including, for example: (a) intellectual property (including, but not limited to Patents, Trademarks and Copyrights), in each case, of a Party, its affiliates or its customers, suppliers (including contractors) and other third parties doing business with such Party; (b) financial and business plans and data of a Party; (c) personal data, information (and documentation) relating to human resource operations, policies and procedures of a Party; (d) statistical information of a Party; (e) marketing plans (including marketing data, strategic plans, and client information); (f) product plans (including technical data, service specifications, product specifications, and computer programs) of a Party; (g) either Party’s client or customer data and client business information (including client names and client lists); and (h) anything developed by reference to the information described in this definition, in each case except to the extent any such information is required by applicable Laws or the Statewide Policy Guidance to be made publicly available. Notwithstanding the foregoing, Confidential Information shall not include Clinical Data or Protected Health Information.

“Copyrights” means (1) all common law copyrights, (2) all applications, registrations and recordings relating to such copyrights filed in the United States Copyright Office or in any similar office or agency of the United States, any State thereof, any political subdivision thereof or in any other country and (3) all reissues, extensions, continuations and renewals thereof.

“Creation” means (1) in the case of Copyrights, the authorship, (2) in the case of Patents, the conception and reduction to practice, and (3) in the case of Trademarks, the creation and display.

“Damages” means the NYeC Damages or the QE Damages, as applicable.



“Dial Tone Services” means the services described in the Dial Tone Service Requirements.

“Equipment” means computers and related equipment, including central processing units and other processors, controllers, modems, communications and telecommunications equipment (voice, data and video), cables, smart cards, encryption keys, storage devices, printers, terminals, other peripherals and input and output devices, and other tangible mechanical and electronic equipment intended for the processing, input, output, storage, manipulation, communication, transmission and retrieval of information and data.

“Formal Certification” means the final determination of certification as a Qualified Entity in accordance with the Certification Requirements delineated in the “Introduction” section to the Organizational Characteristics.

“HIPAA” means the Health Insurance, Portability and Accountability Act of 1996, as amended from time to time, and its implementing regulations set forth at 45 C.F.R. Parts 160 and 164.

“HITECH” means the Health Information Technology for Economic and Clinical Health Act, as amended from time to time.

“Laws” means any constitutional provision, statute, ordinance or other law, rule, regulation, interpretation, judgment, decree or order of any Regulatory Authority or any settlement agreement or compliance agreement with any Regulatory Authority.

“Losses” means the NYeC Losses or the QE Losses, as applicable.

“Malicious Code” means any virus, rogue program, time bomb, worm, Trojan horse or other malicious or intentionally destructive code.

“Member Facing Services” means the services described in the Member Facing Services Requirements.

“NYeC IP” means all Existing SHIN-NY Applications and NYeC New Intellectual Property developed by or on behalf of NYeC.

“Parties” means QE and NYeC.

“Party” means QE or NYeC, as applicable.

“Patents” means (1) all letters patent of the United States or any other country and all reissues and extensions thereof and (2) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations in part thereof.

“Permitted Purposes” means Level 1 Use, Level 2 Use and the exceptions to the Affirmative Consent requirement (including One-to-One Exchange, Public Health Reporting and Break the Glass) to the extent and in the manner explicitly permitted in the Policies and Procedures.

“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company, union, association, court, agency, government, tribunal, instrumentality, commission, arbitrator, board, bureau or other entity or authority.

“Protected Health Information” has the same meaning as the term “Protected Health Information”, as defined in 45 C.F.R. 160.103.

“QE IP” means all QE Applications developed by or on behalf of QE.



“QE Participant” has the same meaning as the term “QE Participant” as defined in the draft of N.Y. COMP. CODES R. & REGS. tit. 10, § 300.1 as if it became effective as of April 1, 2014, and as may be amended from time to time, attached hereto as Exhibit 4.

“Qualified Entity” has the same meaning as the term “Qualified health IT entity” as defined in draft of N.Y. COMP. CODES R. & REGS. tit. 10, § 300.1 as if it became effective as of April 1, 2014 and as may be amended from time to time, attached hereto as Exhibit 4.

“Qualified Entity Participation Agreement” means the form of Qualified Entity Participation Agreement as approved in accordance with the Statewide Collaboration Process.

“Quarantine” means the procedures described in Section 3.11.

“Regulatory Authority” means (a) any national, state or local government, any political subdivision thereof;(b) any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, department or bureau; (c) any commission or entity that contracts with a governmental entity to administer or assist in the administration of a government program; or (d) any arbitrator with authority to bind a Party under any Laws.

“Related Documentation” means all materials, documentation, specifications, technical manuals, user manuals, flow diagrams, file descriptions and other written information that describes the function and use of related Software or Tools.

“SHIN-NY Staff” means the employees of NYeC or employees of SHIN-NY Vendors performing the SHIN-NY Services.

“SHIN-NY Stakeholders” has the same meaning as the term “SHIN-NY stakeholders” as defined in draft of N.Y. COMP. CODES R. & REGS. tit. 10, § 300.1 as if it became effective as of April 1, 2014 and as may be amended from time to time, attached hereto as Exhibit 4.

“Software” means the source code and object code versions of any applications programs, operating system software, computer software languages, utilities, other computer programs and Related Documentation, in whatever form or media, including the tangible media upon which such programs, software, languages, and Related Documentation are recorded or printed, together with all corrections, improvements, updates and releases thereof.

“Standard Business Associate Agreement ” means the business associate agreement set forth on Exhibit 3.

“Statewide Collaboration Process” has the same meaning as the term “Statewide collaboration process” as defined in draft of N.Y. COMP. CODES R. & REGS. tit. 10, § 300.1 as if it became effective as of April 1, 2014 and as may be amended from time to time, attached hereto as Exhibit 4.

“Statewide Policy Guidance” has the same meaning as the term “statewide policy guidance” as defined in the draft of N.Y. COMP. CODES R. & REGS. tit. 10, § 300.1 as if it became effective as of April 1, 2014 and as may be amended from time to time, attached hereto as Exhibit 4.

“Tools” means any Software development and performance testing tools, and any know-how, methodologies, processes, technologies or algorithms and Related Documentation.

“Trademarks” means (1) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and the



goodwill associated therewith; (2) all registrations and recordings of the foregoing and all renewals thereof; and(3) all applications in connection with any of the foregoing, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or political subdivision thereof.

“Unauthorized Use” means:

(i) any attempt at or any action that results in circumventing the access controls or access policies of QE;

(ii) use other than in accordance with applicable Laws and policies including, without limitation, the Medicare Shared Savings Program, Section 3022 of the Affordable Care Act (Patient Protection and Affordable Care Act, Pub. L. No. 111-48 (2010) and the Health Care and Education Reconciliation Act of 2010, Pub.L. No. 111-52 (2010)) the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 (Aug. 21, 1996), the Gramm-Leach-Bliley Act of 1999, Pub.L. No. 106-102, 113 Stat. 1338 (Nov. 12, 1999), Export Administration Act of 1979, Pub.L. 96-72, 93 Stat. 503 (Sept. 29, 1979), applicable state and local Law relating to privacy and the protection of personal information and any privacy policies posted on any website or contained in any written materials relating to SHIN-NY or the SHIN-NY;

(iii) use in violation of intellectual property, privacy, publicity, proprietary information rights and policies of others; and

(iv) use other than in accordance with the express terms of this Agreement or the Statewide Policy Guidance.

B. In addition, the following terms are defined in the Section of this Agreement set forth below:

AAA Rules..............................................................11.2

Additional SHIN-NY Applications.........................12.1

Affected SHIN-NY Member...................................10.5

Agreement ...................................................... preamble

Arbitration Notice....................................................11.2

Dial Tone Service Requirements....................... recitals

Disclosing Party........................................................7.1

Effective Date................................................. preamble

Execution Date ............................................... preamble

Existing SHIN-NY Applications.............................12.1

Force Majeure Event...............................................13.6

Indemnified Party....................................................10.3

Indemnifying Party..................................................10.3

Infringement Claim.................................................10.1

Initial Term................................................................3.1

Member Facing Services Requirements............ recitals



NYeC .............................................................. preamble

NYeC Damages.......................................................10.2

NYeC Indemnified Parties......................................10.2

NYeC Losses...........................................................10.2

NYeC New Intellectual Property.............................12.1

NYS DOH.......................................................... recitals

NYS CONTRACT............................................. recitals

Organizational Characteristics ..........................

recitals Oversight and Enforcement Policies

................. recitals Participant Agreement

...................................................................................

5.1

Policies and Procedures.....................................

recitals QE...................................................................

preamble

QE Applications......................................................12.2

QE Cross-Indemnified Parties.................................10.2

QE Damages............................................................10.1

QE Indemnified Parties...........................................10.1



QE Losses................................................................10.1

QE Master Services Agreement……………..recitals

QE NYS CONTRACT…………………..…..recitals

Receiving Party.........................................................7.1

Regulatory Audit.......................................................6.4

Retained Records.......................................................6.4

SHIN-NY ........................................................... recitals

SHIN-NY Applications...........................................12.1

SHIN-NY Services....................................................2.2

SHIN-NY Vendors....................................................4.1

Statewide Policy Guidance................................ recitals

Term..........................................................................3.1

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