(j) **PBM Call Center Services** shall mean services that include the receipt and handling ofcalls pursuant to the Services described in the Project Schedules attached hereto.(k) **Pharmacist** shall mean an individual licensed to practice pharmacy in the state inwhich such individual is employed by Vendor. Pharmacists may assist CSRs and/or members withspecific questions or any other task as directed by the DPP.(l) **Pharmacy** shall mean the area of Vendor’s facility where pharmacy services are to beperformed and which is licensed as a pharmacy by the State in which such facility is located.(m) **Program** shall mean those Services listed in the applicable Project Schedules attachedhereto and made a part hereof that are performed by the Vendor for the Company.(n) **Talk Time** shall mean the time taken to handle an Inbound Call commencing at the timethe Inbound Call is accessed by the Vendor’s CSR and ending when the call is released byVendor’s CSR or is otherwise disconnected.(o) **Team Meeting Time** shall mean time spent by CSRs at meetings at which the agendaconcerns the Company’s programs and/or materials and has been approved by the Company.(p) **Term** shall mean the period from September 26, 2004 through September 25, 2009.(q) **Vendor Employees** shall mean CSRs and Pharmacists employed by Vendor and assigned toprovide Services to Company.**1.** **SERVICES**   Vendor’s services will consist of providing certain service assistance and other serviceassistance on behalf of the Company to its members or other Company-designated recipients(the “Services”), as more particularly described on the applicable project-specificschedule(s), which shall be substantially in the form of Exhibit B attached hereto and whichshall, upon execution, be attached hereto and made a part hereof as sequentially numberedschedules to this Agreement. The Company will route, at the Company’s discretion, InboundCalls to Vendor’s call center as set forth in the applicable Project Schedule.   Vendor Employees who have been trained by the Company and Vendor to perform the Serviceswill perform the Services in accordance with the standard operating procedures set forth inthe Training Manual, a copy of which is attached hereto and made a part hereof as Exhibit A.
 
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**2.** **COMPENSATION**   If Vendor timely performs its obligations in accordance with the specifications set forthherein, the Company agrees to compensate Vendor as set forth in the applicable ProjectSchedule attached hereto and made a part hereof. The parties acknowledge and agree that allrates will remain fixed for the initial 3 year Term of this Agreement (a) **Payment Terms.** Vendor shall invoice the Company at the end of eachmonth for all Services performed during such month at the rates and pursuant to theterms set forth in an applicable Project Schedule, and Company shall pay Vendor in fullno later than thirty (30) days after the receipt of an undisputed invoice. In theevent of a disputed invoice, Vendor will re-invoice for all undisputed amountscontained in such invoice and Company shall pay Vendor in full no later than thirty(30) days after the receipt of the undisputed amount invoice. Vendor will re-invoice,if applicable, a revised invoice once the dispute has been settled. Company shall payVendor in full no later than thirty (30) days after the receipt of the revised invoice.Company will notify Vendor in writing of any disputes within five (5) business daysafter receipt of an invoice. The parties will work together to resolve such invoicedisputes. If Vendor does not receive payment of an invoice by fifty (50) days afterthe receipt of the invoice, the unpaid balance of any undisputed amounts will accrueinterest at the rate of one and one half percent (1.5%) per month (18% annually),commencing on the thirty-first (31st) day after the receipt of the invoiceand ending on the date payment is received. Company will establish procedures for theprompt processing of Vendor invoices; such procedures to be provided to Vendor inwriting.  (b) **Taxes.** Company shall pay all applicable sales, use, and any othertaxes (other than Vendor’s income taxes), however designated, which are collected orlevied on account of this Agreement.  Vendor shall collect from Company and transmit tothe proper authorities all taxes that Vendor is required by law to collect from Companyin connection with this Agreement or the transactions contemplated by this Agreement. Company shall not be liable for any penalties and/or late fees, which may be imposed iftaxes are not paid by Vendor.  Vendor further agrees that Vendor shall indemnify andhold Company, its affiliates, and agents, harmless for any judgments, fines, costs,penalties, assessments or fees associated with such required payments.  (c) **Billing Reports.** With respect to the Services performed by Vendor,Vendor shall invoice Company for the actual number of Billable Hours completed byVendor Employees.    Notwithstanding the location(s) where Services will be provided, during the term ofthis Agreement, Vendor will provide the Company with weekly reports, which includebilling summaries. In addition to the reports/invoicing procedures outlined in thisSection, Company reserves the right to reasonably request future management, audit,usage or other ad hoc reports, and/or to request changes in reporting procedures.If Medco requests any supplementary or customized reports requiring Vendor toperform additional programming work, Vendor maycompile such reports and charge Medco for all applicable programming and other fees,as more specifically set forth in the applicable Project Schedule. Medco shall payVendor the per hour programming fee multiplied by the number of hours required tocomplete the work. Before commencing any such additional work, Vendor shall provideMedco with a good faith estimate of the number of hours of programming required, aswell as any other material costs involved. Vendor will not begin any such workuntil Medco approves the estimate in writing. Vendor agrees that the source dataused to develop the reports is subject to audit by Company as stated in Section12(d).
 
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**3.** **UMBRELLA AGREEMENT; AMENDMENTS**   This Agreement shall be an “Umbrella Agreement” which shall apply to projects between theCompany and Vendor involving services of the same or similar type as the Services providedfor in Section 1. From time to time and as mutually determined by the parties, thisAgreement may be amended, by affixing hereto additional Project Schedules (each a “ProjectSchedule”)(commencing with Schedule B-1 and increasing numerically, B-2, B-3, as necessary)regarding services to be performed by Vendor and compensation to be paid to Vendor by theCompany, which services, in each case and on each schedule referred to in this Section 3,shall be the “Services” collectively regarding all such schedules the “Services”. Thepreceding sentence does not constitute a commitment by the Company to continue any currentarrangements beyond its stated term or to enter into any future arrangements with Vendor. **4.** **VENDOR’S OBLIGATIONS**   Vendor represents, warrants and covenants to the Company: (a) **Chinese Wall**. Only those Vendor Employees who have been trained byVendor and the Company to perform the Services set forth on the schedules attachedhereto are authorized to perform the Services. Vendor Employees will be dedicatedexclusively to the performance of the Services set forth in this Agreement. Vendoragrees that no Vendor Employee shall be re-assigned to Vendor’s other business areas orother programs without providing prior written notice to the Company. All informationobtained in connection with performing the Services (including, without limitation,Confidential Material, as defined in Section 15) shall be utilized for the sole purposeof performing the Services.  (b) **Physical Security Requirements**. Vendor shall perform the Services inan environment mutually agreed upon by Company and Vendor and in compliance withCompany’s commercially reasonable requests and applicable law. The aforementionedenvironment may include, but is not limited to, a request by Company for Vendor toprovide a secure or physically segregated area in which to perform the Services.Vendor agrees that compliance with any commercially reasonable requests shall not beunreasonably withheld.
 
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   The parties agree to meet and review the physical security of the APAC siteswhere the services are performed or will be performed, and agree to develop aSecurity Standards document which will be mutually acceptable to both parties.Such review and document completion will be completed no later than April 1,2005.    Only those employees of Vendor who are assigned to perform the Serviceshereunder or who have a valid business reason for being there shall be allowedaccess to the portion of the Call Center where the Services (the “RestrictedArea”) are being performed. Each employee of Vendor authorized to access theRestricted Area will have a unique identification badge which will clearlyidentify them as an authorized employee of Vendor. For purposes of thisAgreement the term “valid business reason” shall relate to (a) the management ofthe call center, or (b) related to the Company project as set forth on theapplicable Project Schedule.    If required by law, or upon mutual agreement by Company and Vendor, any area wherepotentially regulated pharmacy services will be performed shall be designated as a“Pharmacy,” and as such, access shall only be gained with the consent of andaccompanied by either the DPP or the DPP’s designee, which shall be, at a minimum, aPharmacist. No employee of Vendor shall have a key to a Pharmacy without the DPP’sconsent.  (c) **Replacement of Vendor Employee**. Upon notice from the Company orVendor becoming aware of just cause (just cause includes, but is not limited to, poorquality, ineffective call handling practices, compliance infractions, evidence of drugpossession, distribution or use, conviction of the equivalent of a United States’state or federal felony crime or any crime related to financial fraud, identity theft,or credit card theft, or is not proficient in the English language). Vendor shallimmediately remove for any reasonable business related reason any Vendor Employee if,in the Company’s reasonable opinion, the Vendor Employee is unsatisfactory for theServices requested. Vendor shall use its reasonable best efforts to provide, as soonas possible, a qualified replacement for such Vendor Employee who is acceptable to theCompany.  (d) **Vendor Employee Background Checks and Drug Screens**. Vendor will, atVendor’s sole cost and expense, cause to be performed criminal background checks and5-panel drug tests (criteria for such 5 panel drug tests are attached hereto as Exhibit(D) on all Vendor Employees who will be performing the Services or who are permittedaccess to the area in which the Company’s Services are being performed under Section4(b) above. The Company will provide to Vendor Standard Operating Procedures (“SOPs”)in the form of attached Exhibit E, APAC Background Check SOP 101602, which Vendor shallfollow in conducting criminal background checks and drug screens. The Company mustapprove the scope of and service provider(s) who perform the criminal background checksand drug tests, which approval will not be unreasonably delayed or untimely withheld.
 
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   Upon notice from the Company, Vendor shall immediately remove anyVendor Employee from performing the Services if, in the Company’s reasonableopinion: (i) the employee in question fails the drug test, or (ii) informationcontained in the criminal background check provides the Company withreasonable suspicion that such employee is not a suitable candidate to performthe Services. Vendor shall use its reasonable best efforts to provide aqualified replacement for the employee acceptable to the Company as soon asreasonably possible.    In the event a Vendor Employee working on the Company’s program(s) has not beenadministered the appropriate background check or drug screen as defined above,Vendor will pay a penalty of $1,000 per Vendor Employee not having the appropriatebackground check or drug screen.  (e) Neither the Services, nor any Vendor supplied materials used in connection withor created by Vendor as a result of performing the Services, will infringe any patent,copyright, trademark, or any proprietary rights of a third party or constitutes amisuse or appropriation of a trade secret.  (f) No agreements or obligations exist to which Vendor is a party or otherwisebound, in writing or otherwise, with any entity which in any way interfere with, impedeor preclude Vendor from fulfilling all of the terms and conditions of this Agreement.  (g) The Services will be provided in a professional manner, and in accordance withthe highest standards and practices, and shall comply with all federal, state, andlocal laws, statutes, acts, ordinances, rules, regulations, codes applicable toproviding the Services.  (h) During the term of this Agreement, Vendor shall use Vendor’s best efforts todisclose to the Company any information that has been received by or communicated toVendor or its employees that in Vendor’s reasonable opinion would have a negativeeffect on the Company or any of its affiliates as described in the applicable SOP.  (i) The Vendor shall provide the Company’s management representative(s) with oneprivate office and, at a minimum, two (2) phone lines with telephone sets, a fax lineand fax machine, two (2) modem ports, a PC, and other office supplies and equipmentCompany and Vendor agree are necessary to conduct normal business.  (j) Vendor shall notify the Company within five (5) business days of any change ofsenior officers or any other information that is material to Vendor’s resident andnon-resident pharmacy licenses, provided that Company has informed Vendor of whatinformation is required and when it is required.  (k) Vendor shall be required to provide reasonable prior notification, and receivewritten approval of Company, for any changes to the physical space, lay-out orassociated security equipment, which approval shall not be unreasonably withheld.
 
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 (l) Upon the request by Company for Vendor to perform the Services in the SpanishLanguage, Vendor covenants that all CSRs designated to receive said calls shall possessa demonstrated level of fluency in the Spanish Language.  Said fluency shall bereasonably defined by Company and implemented by Vendor by means which include, but arenot limited too: (1) a verbal assessment via telephone by a Spanish-speaking employeeof Vendor to determine confidence in the use of, pronunciation and proper and completeword choice within, or the response to word problems and scenarios, in the SpanishLanguage; (2) a written assessment to determine reading and writing skills andcomprehension in the Spanish Language; (3) an interview in person by a Spanish-speakingemployee of Vendor with responses by the aforementioned CSRs given in the SpanishLanguage.  Detailed notes of the aforementioned Spanish Language fluency determinationshall be kept on file as a part of the records of Vendor employees’ who are assessedfor said fluency.  The aforementioned CSRs shall also meet the normal CSR minimumrequirements to perform the Services.**5.** **ACCESS TO THE COMPANY’S COMPUTER SYSTEM** (a) **Access Protocol**. In connection with Vendor’s access to and use offiles within the Company’s computer system (the “System”), only those Vendor Employee’swho have been delegated to perform the Services, and meet the necessary back ground anddrug testing requirements hereunder will have access to the System. Access will bedirectly supervised by both Vendor and the Company’s management. Access will bedetermined by the Company.  (b) **System Modifications**. The Company shall provide Vendor with timelyprior notice of any changes to the System that will require modifications to theServices provided hereunder, and shall provide Vendor with such assistance (includingthe provision of instruction manuals) as is reasonably required in connectiontherewith.    In no event shall Vendor allow any data residing on the System to be input to,entered, transmitted over, stored on or otherwise reside on any computer system orterminal or data base of Vendor other than the terminals, computer system anddatabase specifically dedicated to performing the Services and connected to theSystem.  (c) Vendor will disable the diskette drives, and USB ports on the PCs used by CSRs,Pharmacists and other Vendor Employees to prevent the saving of patient data and anyother Company confidential materials to diskettes or other storage media. Additionally,Vendor will specifically prohibit the saving, printing, recording, or other means ofcopying or transmitting patient data and Company Confidential Information in a meansthat is easily transportable.  (d) Vendor shall follow the Company’s IT Standard Operating Procedures, in the formof attached Exhibit E, Medco IT SOPs, with respect to maintaining the Company’s datasystems, data security, and systems attached to the Company’s network as provided bythe Company. (e) Vendor shall provide IT support to ensure that local vendor systems issues,routine maintenance of Company provided servers, and other related systems do notadversely impact service to the Company’s customers.
 
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**6.** **TRAINING** (a) **New Hire Training.** Vendor shall provide new hire training to CSRs,Pharmacists and other employees, as applicable to handle Inbound Calls (or other typesof calls, as applicable) on behalf of the Company, and Company shall pay the costsassociated with such training at the hours and fees set forth in the applicable ProjectSchedule. Vendor shall pay for the cost of any additional new hire training requiredbecause of attrition among existing Vendor employees providing the Services. The FullTime Equivalent (“FTE”) base line computation process upon which to establish anyfuture new hire training costs due to such incidents as ramp up for additional servicesand/or volumes is attached hereto as an Exhibit F to this Agreement. The FTE base linewill be adjusted as necessary from time to time by mutual consent of the parties. (b) **Ongoing Training.** Vendor shall conduct ongoing Company-specifictraining and skills-based training as required to meet Company-specified standards ofquality service. If the ongoing training is requested by the Company due to a changein Program Materials (as defined in Section 7, below), implementation of a new client,modification of the Company’s service delivery system, or other Program change, theVendor shall bill the Company at the training rate set forth on the applicable ProjectSchedule. If the ongoing training is required by the Vendor to maintainCompany-specified standards of quality service, Vendor shall pay for the cost oftraining. Vendor shall document, in writing, such ongoing training and shall providecopies of such written documents to the Company upon request. (c) **Training Materials.** Vendor shall use only Company-approved trainingmaterials regarding the Company’s information, product knowledge, customer servicepolicies, computer systems, and other Company specific modules as defined by theCompany. (d) **Supervisor/Manager Training**. Vendor shall provide to CSRs who have beenpromoted to supervisor or manager coaching and feedback training, that has beenapproved by the Company no later than two (2) weeks following such CSRs promotion tothe supervisor or manager position. Vendor shall bear the cost of this training.
 
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**7.** **PROGRAM MATERIALS**   All materials, scripts, data, results, analyses, reports, software, programming, models,inventions and other information used or developed in connection with performing theServices, but not including any proprietary equipment, software, intellectual property orother materials used by Vendor to perform the Services under this Agreement not specificallydeveloped and paid for by the Company (“Program Materials”), whether provided by theCompany, developed by the Vendor, or otherwise, shall be used or developed by Vendor at theapproval and sole direction of the Company. All ProgramMaterials developed by Vendor will be submitted to and approved by the Company prior to useand Vendor will use only Company approved Program Materials in performing the Services. Inaddition, any information obtained by a Vendor Employee in performing the Services shall beconsidered a Program Material. **8.** **OWNERSHIP OF PROGRAM MATERIALS**   The Company will retain all rights, title and interest, in all intellectual property,including copyright, patent and trademark, in and to the Program Materials. All ProgramMaterials developed by Vendor shall be considered Works Made for Hire for the Company, andif any such work does not so qualify as a Work Made for Hire, Vendor hereby assigns allright, title and interest, including but not limited to copyright, trademark, trade name andpatent rights, in such Program Materials to the Company, effective from the moment ofcreation, for use in any and all media, with or without modification, and with or withoutattribution. Vendor will affix on all Program Materials, at the Company’s direction, anappropriate copyright or other notice to preserve the copyright or other interest of theCompany or the Company’s assignee. **9.** **PROTECTION OF COMPANY BUSINESS**   In addition to the requirements set forth in Section 15 herein, Vendor (i) shall not in anymanner use its knowledge of Company’s business for the benefit of any other person orcompany or divulge to others information or data concerning Company’s business affairs,including the names of customers, names of employees, number or character of contracts,marketing strategies and prices, terms or particulars of Company’s business; and (ii) Vendorshall, in all things and in good faith, protect the good will of Company’s business and keepconfidential its knowledge of such business affairs acquired prior to and during the term ofthis Agreement. **10.** **NON-SOLICITATION**   During the term of this Agreement and for a period of twelve (12) months following itstermination, (a) Vendor shall not solicit or contact any business client (not including theultimate consumer) of the Company for the purpose of offering products or services thatcompete or interfere with the Business of the Company, and (b) neither party shall directlyor indirectly (i) induce or attempt to induce, any employees, agents or other consultants ofthe other party and/or its affiliates to do anything from which each party is restrictedfrom doing by the terms of this Agreement, or (ii) offer or aid others to offer employmentto any employees, agents, or other consultants of either party and/or its affiliates.
 
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**11.** **INSURANCE**   Vendor will provide and maintain at Vendor’s expense at least the following insurancecoverage at all times while this Agreement is in effect. (a) Workers’ Compensation & Employer’s Liability Statutory Limits  (b) Comprehensive General Liability (including broad form contractual liabilitycoverage for Vendor’s obligations under this Agreement) and Automobile Liability               Each Person Two Million Dollars $(2,000,000)    Each Accident Two Million Dollars $(2,000,000)   (c) Excess/Umbrella Liability Ten Million Dollars $(10,000,000)  This insurance shall (i) be provided by one (1) or more insurance carriers acceptable to theCompany and (ii) have the Company as an additional named insured and loss payee, as itsinterests may appear. On or prior to this date of this Agreement, Vendor shall provide one(1) or more insurance certificates attesting to this coverage, which certificates shallprovide that the insurer must give the Company not less than thirty (30) days advance noticeof any material change or cancellation of said coverage.   Company shall provide and maintain, at Company’s expense, Pharmacists Errors & Omissionsinsurance for all Pharmacists employed by Vendor, with limits of not less than Five Million($5,000,000) dollars, at all times while this Agreement is in effect, as well as a “tail”policy for such coverage if and when such coverage is terminated for any reason (includingtermination of this Agreement). Vendor and the employed Pharmacists of Vendor shall benamed on such policy as additional insureds. On or prior to the date of this Agreement,Company shall provide to Vendor with a copy of such policy and any endorsement required tofulfill the requirements set forth above. **12.** **SUPERVISION AND REPORTING** (a) **Representatives.** Each party shall at all times designate and maintainat least one (1) representative (“Representative”) responsible for overseeing suchparty’s performance of this Agreement. Each party may replace its Representative bywritten notice to the other party.  (b) **Reporting.** Vendor’s Representative shall provide the Company’sRepresentative with such reports and other briefings as the parties may mutually agree,from time to time, request regarding Vendor’s performance of the Services. If Companyrequests any supplementary or customized reports requiring Vendor to perform additionalprogramming work, Vendor shall compile such reports and charge Company for allapplicable programming and other fees at the rates set out in the applicable ProjectSchedule. Before commencing any such additional work, Vendor will provide Company witha good-faith estimate of the number of hours of programming required, as well as anyother material costs involved. Vendor will not begin any such work until Companyapproves the estimate in writing.
 
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   Routine reports not subject to the above, shall include any normal performancereporting, or Company client related reporting that would normally be required bythe Company to fulfill the requirements, written or verbal, of the Company’s client.  (c) **Reporting – Raw Data.** Vendor agrees to provide to the Company, at theCompany’s request, with the raw data as gathered by the automated call distributionsystem utilized for the Services in the Vendor’s call site where the Services are beingperformed. Vendor further agrees to assist, as necessary and at the fees set forth inthe applicable Project Schedule, with the development of Company generated reportsutilizing the raw data supplied by the Vendor.  (d) **Inspection**. During normal business hours, the Company shall have theright to inspect all areas of the Vendor’s property where the Services are beingperformed, as long as said inspection does not interfere with the business operationsof the location and the Company’s Inspection Team announces it arrival to the SiteManager. The Company has the right to monitor, either real-time or on tape, Vendor’sperformance of the Services.**13.** **INDEMNITY/LIMITATION OF LIABILITY** (a) **Indemnity.** Each party (“Indemnitor”) shall indemnify and hold harmlessthe other and its affiliates and any successor corporation(s) and their respectivedirectors, limited liability company managers, employees, and agents from all damages,claims, suits, proceedings, losses, penalties, liabilities, and costs (including, butnot limited to, reasonable attorney’s fees) (collectively, the “Claims”), caused by,arising out of, or resulting in whole or in part from Indemnitor’s breach of thisAgreement or failure to perform in accordance with the terms of this Agreement,negligence, or intentional misconduct.    Vendor’s indemnity to Company, shall include Claims sustained by the Company byreason of any misrepresentation, or negligent or wrongful acts or omissions, orincorrect warranty, or any breach of any representation or warranty, covenant,agreement, obligation or undertaking in this Agreement by Vendor or its directors,officers, employees or other representatives, or by any person or entity acting onbehalf of or under control of Vendor (except that this indemnification will not beapplicable if such Losses are adjudged to have been caused solely by Company’s act oromissions) whether in connection with their performance under this Agreement or not.    Company’s indemnity to Vendor shall include Claims resulting from any act or omissionof either party attributable to the Director of Pharmacy Practice or the Servicesperformed by the other Pharmacists under this Agreement, Vendor’s reliance uponinstructions or directions of Company, Company’s responsibilities under Section 20(b)below, or Vendor’s adherence to Company’s standard operating procedures, trainingmaterials, on-line scripting and other materials or systems provided by Company foruse by Vendor in performing the Services. Company shall also indemnify Vendor fromand against all premium charges forthe Employed Pharmacist E&O Policy maintained by Vendor under Section 11. Vendor’sindemnity to Company shall include Claims resulting from the CSR’s performance of theServices of this Agreement, including any acts and omissions or any misconduct, tothe extent not covered by the foregoing indemnity from the Company.
 
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 (b) **No Special Damages.** Unless specifically listed in this Agreement,neither party shall be liable to the other party for any incidental, consequential,special, punitive, or other indirect damages, including, but not limited to, damagesfor economic loss or lost opportunities, even if the party had been advised of thepossibility of any such loss and/or, such damages result from the breach of anyAgreement. (c) **Limitation on Direct Damages****.**Any other provision of any Agreementnotwithstanding, Vendor’s total aggregate liability to the Company, whether fornegligence, strict liability in tort, indemnification or otherwise, shall be limited tothe direct damages recoverable under law, but not to exceed (i) for Claims involvingbodily injury or death, Five Million Dollars ($5,000,000), or (ii) for any otherClaims, the total compensation payable to Vendor hereunder for any other Claims;provided that Vendor’s liability with respect to Claims caused by, arising out of, orresulting in whole or in part from a breach of Section 15, Exhibit G, or a misuse ofConfidential Information shall not be limited.**14.** **TERM; TERMINATION** (a) The term of this Agreement is from September 26, 2004, to September 25, 2009,unless otherwise agreed to by the parties in writing. (b) **Termination for Cause**. The Company may terminate this Agreement forcause if the Vendor materially breaches this Agreement and fails to cure such breachwithin thirty (30) days of written notice of such breach. With respect to Vendor’sperformance under any Project Schedule, a material breach shall be defined as Vendor’sconsistent failure to achieve all performance guarantees for a consecutive three (3)month period, taking into account the forecast variances as set forth in such ProjectSchedule. The Vendor can terminate this Agreement for cause if the Company materiallybreaches this Agreement and fails to cure such breach within sixty (60) days of writtennotice of such breach. For purposes of this Agreement, a material breach shallinclude, but is not limited to, an act or omission which results in non-compliance withstate or federal law, except to the extent attributable to Company under Section 18(b).Company may terminate this Agreement immediately upon written notice for any breach ofSection 15 and Exhibit G of this Agreement. In the event of a Termination for Cause bythe Vendor, the parties agree that no ramp down period shall apply. (c) **Termination for Convenience**. From and after, but not prior to, thesecond anniversary of this Agreement, either party may terminate this Agreement for anyreason upon ninety (90) days’ prior written notice to the other party. In the event ofsuch termination, the parties will operate under the ramp down period set forth in theapplicable Project Schedule. All provisions of the Agreement shall remain in fullforce and effect during the ramp down period. (d) **Vendor’s Right to Terminate for Non-Payment**. In the event that Companyhas not paid the undisputed amount due on any invoice within one (1) billing periodfollowing the due date of the invoice, Vendor may notify Company of the intent toterminate the Agreement within thirty (30) days if Company has not satisfied the pastdue amount. In the event of such termination, the parties will operate under the rampdown period set forth in the applicable Project Schedule. The Ramp-Down fees asprovided for in Exhibit G shall apply in the event of a termination for non-payment.All provisions of the Agreement shall remain in full force and effect during the rampdown period.
 
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 (e) Upon termination of this Agreement, for any reason other than Company’smaterial breach of Section 3(b) or 4, Vendor shall cooperate with Company and act ingood faith to allow an orderly transition of Vendor’s services in order to minimizedisruption to Company and to its ongoing business. Should such termination take place,Vendor shall extend to Company, at Company’s request up to an additional one hundredand twenty (120) day period to properly effectuate the orderly transmission ofmaterials (“Transition Services”). Company will provide notice of its option to extendthe termination within five (5) days of the actual termination date and the partiesshall discuss and mutually agree to any Transition Services and related costs and fees.This provision shall survive the termination of this Agreement.  Notwithstanding the above, either party may terminate this Agreement at any time upon noticeto the other party if legislation is enacted, regulations adopted or judicial opinionissued, at either the federal or state level that in such party’s reasonable judgment(“Changed Laws”) would significantly impair Vendor’s ability to perform the Services underthis Agreement. In the event of a termination due to Changed Laws, the parties will observethe Ramp Down period as described in the applicable Project Schedule. **15.** **CONFIDENTIALITY**   In connection with performing Services, Vendor, and Vendor’s CSRs, Pharmacists and VendorEmployees may receive Confidential Material (as defined in Exhibit G attached hereto andmade a part hereof). Vendor and Vendor’s CSRs, Pharmacists and Vendor Employees agree to,and shall at all times comply with, the provisions of Exhibit G.   Company understands that it may receive pursuant to this agreement and/or any ProjectSchedule hereunder certain material, data, information and other communications that areconfidential and proprietary to Vendor and that are marked as “confidential,” “proprietary,”or the like and/or disclosed in a manner consistent with their proprietary and confidentialnature (hereafter, “Vendor Confidential Material”). Company agrees to, and shall at alltimes, maintain Vendor Confidential Information in strictest confidence. **16.** **BOOKS AND RECORDS; INSPECTION AND AUDIT**   Vendor agrees to maintain accurate books and records in connection with Vendor’s performanceof Services and the procedures followed for maintaining the security, integrity andconfidentiality of Confidential Material. Except for pharmacy records, which shall bemaintained in compliance with local, state and federal law, all such books and records(including without limitation all papers, correspondence, data, information,reports, records (excluding payroll records), receipts, and other sources of informationrelating to the work to be performed hereunder), other than materials or ConfidentialMaterial which Vendor returns to the Company, or purges at the Company’s direction, will beheld for a period of one (1) year from completion of Vendor’s performance of Services.
 
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  Representatives of the Company may, at any time, at the Company’s expense, inspect and auditVendor’s compliance with the provisions of this Agreement including Vendor’s books andrecords in connection with Vendor’s performance of Services and Vendor’s procedures formaintaining the security, integrity and confidentiality of Confidential Materials,individual health information and Company assets & equipment.   If an audit determines that Vendor has failed materially to comply with the provisions ofthis Agreement, the reasonable costs of the audit shall be borne by Vendor including thedirect out-of-pocket costs of such audit. **17.** **RELATIONSHIP OF PARTIES**   Vendor is an independent contractor in the performance of this Agreement. Nothing hereincontained is deemed to constitute the relationship of partners, joint venturers, or ofprincipal and agent between the parties hereto. Neither party shall hold itself out tothird persons as having the authority to act on behalf of, or as serving as the agent of theother party. Except as expressly provided for in this Agreement, Vendor will not, withoutprior written approval of the Company, undertake any commitments or incur liability onbehalf of the Company for any services or expenditures and the Company will not be liablefor any expenses incurred without prior written approval. **18.** **COMPLIANCE WITH LAW** (a) The parties mutually agree that it is their understanding and intent that thisAgreement comply with applicable federal and state laws and regulations (including, butnot limited to, HIPAA) and, in its respective performance of its obligations under thisAgreement, each party agrees to use its reasonable commercial effort to comply withsuch laws and regulations. This agreement may be changed or modified from time to timeto comply with HIPPA or other applicable Federal and State laws or regulations. In theevent there is a material change in federal or state laws or regulations (including anyjudicial or regulatory application or interpretation of such law or regulation) suchthat the provision of any services or the payment of any compensation or benefitspursuant to this Agreement would violate applicable law, regulations or governmentalpolicy, the parties agree to renegotiate this Agreement in good faith to restructuretheir relationship to comply with applicable laws, regulations, and governmentalpolicies, and to fulfill, to the maximum extent possible, the legitimate expectationsof both parties on the date of this Agreement. If any such restructuring is notfeasible, either party may terminate this Agreement upon thirty (30) days’ writtennotice thereof to the other party.    For purposes of this Section 18, “HIPAA” shall mean the Health InsurancePortability and Accountability Act of 1996 and all regulations promulgatedthereunder, in each case as amended from time to time during the Term.
 
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 (c) Provided that the DPP is employed by Company, it shall be the soleresponsibility of Company to inform Vendor, of any federal, state or local regulationswhich are specific to Company’s practice of pharmacy and to which Vendor may besubject, and to advise Vendor, in writing, of any license, permit or approvalspecifically related to Company’s business, products or services that Vendor may berequired to obtain from governmental agencies and authorities for Vendor to perform theServices, including those pertaining to obtaining and maintaining the Pharmacy Licenseand employment of licensed Pharmacists. Additional provisions with respect to suchcompliance may be set out in a Project Schedule. Vendor shall perform the Services incompliance with such requirements, provided, however, that if such provisionsmaterially affect the cost of such Services, upon request of Vendor, Vendor and Companyshall negotiate any increase in fees due to increased Vendor costs.**19.** **EXCLUSIVITY** (a) During the term of this Project Schedule, Vendor and its Affiliates shall notperform the PBM Call Center Services (in whole or in part) to, or on behalf of, (1)Caremark, (2) Aetna Pharmacy Management (APM) and/or (3) Express Scripts (each, a “TopCompetitor”) or their Affiliates or successors. The Company will have the right toreplace a Top Competitor with another entity engaged in the Business of the Company (a“Replacement Company”) upon written notice to Vendor (a “Replacement Notice”), unlessVendor can demonstrate that Vendor or its Affiliates has been in active negotiationwith the Replacement Company before the Company’s request had been received by Vendorand such active negotiation is certified in writing to the Company by an officer ofVendor. If the Company replaces a Top Competitor with another entity, then theReplacement Company shall be considered a Top Competitor and the prohibition set forthin this Section shall also apply to such Replacement Company and to such ReplacementCompany’s Affiliates and successors. Vendor will then be free to offer PBM ContactCenter Services to the replaced company. On or before the second anniversary hereof,in the event Vendor enters into an agreement to perform the PBM Contact Center Serviceson behalf of a Top Competitor, Vendor will provide Company with notice of suchagreement, whereupon the Company may, for a period of thirty (30) days from suchnotice, elect to terminate this Project Schedule for convenience. (b) During the term of this Project Schedule, Vendor and its Affiliates shall notperform PBM Call Center Services to any entity listed on Exhibit I (i) in any presentfacility or in any other future building or facility where Vendor is performing theServices, except as set forth in Section 19(d) herein; and (ii) using any dedicatedinfrastructure, dedicated materials, or dedicated equipment used in the performance ofthe Services. (c) During the term of this Project Schedule, Vendor and its Affiliates shall notperform PBM Call Center Services to any entity listed on Exhibit I using anyNon-Compete Employee that works or has worked on the Services for the period of timesuch Non-Compete Employee performs the Services and for one year following theNon-Compete Employee ceasing to perform the Services. In the event a reputableindependent publicly-available source (including, withoutlimitation, Atlantic Information Services (AIS)) indicates that an entity that isdoing business in the United States and that is not listed on Exhibit I has obtained4 million or more covered lives as a pharmacy benefits manager, upon notice fromCompany, Vendor shall add such entity to Exhibit I. In the event a reputableindependent publicly available source indicates that an entity listed on Exhibit Ihas substantially ceased providing the services of a pharmacy benefits manager,Vendor may remove such entity from Exhibit I. (d) In the event that Company requests Vendor to perform the Services in its locationin Manila, Philippines, the requirements of Section 19(b) are waived for the Manila,Philippines location provided that Vendor performs the Services in compliance with thePhysical Security Requirements defined in section 4(b).
 
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**20.** **GENERAL** (a) **Severability**. If any provision of this Agreement is void orunenforceable, the remaining provisions of this Agreement will be binding upon theparties with the same effect as though the void or unenforceable part had been deleted. (b) **Complete Agreement**. This Agreement represents the entire agreementbetween the parties hereto with respect to the Services, and all prior agreementsrelating to the Services, written or oral, are superseded hereby. This Agreementsupersedes any terms and conditions contained in purchase orders, invoices or otherdocuments issued by Vendor. The parties agree that this is a negotiated agreement andthe rule of construction that any ambiguities be construed against the drafting partywill not apply. This Agreement may not be changed orally, but only by an agreement inwriting signed by both parties hereto. (c) **Waiver**. The waiver of any breach or violation of any term or provisionof this Agreement will not constitute a waiver of any other or subsequent breach orviolation of this Agreement. (d) **No Third Party Beneficiary**. This Agreement shall not be construed toconfer any rights on any third party, except that all references to the Company shallbe deemed to include its affiliates and the respective directors or limited liabilitycompany managers, officers, employees, and agents of the Company and each affiliate. (e) **Notices**. Any notice required or permitted to be given under thisAgreement will be in writing and will be deemed given when delivered personally, byfacsimile or three (3) days after mailing when sent by registered or certified mail,return receipt requested, addressed to the address set forth below. If notice is sentby registered or certified mail, postage will be prepaid.       If to the Company: Medco Health Solutions, Inc.    8111 Royal Ridge Parkway    Irving, TX 75063    Attention: Georgia Eddleman, Vice President       With a copy to: Medco Health Solutions, Inc.    100 Parsons Pond Drive    Franklin Lakes, NJ 07417    Attn: General Counsel       If to Vendor: APAC Customer Service, Inc.    Six Parkway North    Deerfield, IL 60015    Attn: Executive Vice President         And provide a copy to, General Counsel at the same address   Either party may change its address at any time by giving written notice to theother party in the manner specified.
 
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 (f) **Public Notices**. Vendor shall not make any public announcement orcommunication concerning this Agreement or the arrangements between the partiesprovided for in this Agreement, including but not limited to issuing press releases,granting interviews, or referencing the arrangements in Vendor’s sales or marketingmaterials, except with the prior written consent of the Company. (g) **Governing Law**. This Agreement is deemed to be made under and is to begoverned by and construed according to the laws of the State of New Jersey, withoutgiving effect to principles of conflicts of law. (h) **Assignment**. This Agreement shall not be assigned or delegated byVendor. (i) **Force Majeure**. It is understood that neither party will be heldresponsible for any loss, damage or delays occasioned by fire, strikes, lockouts, actsof God or the public enemy, floods, freight embargoes, causes incident to nationalemergencies, war, failures, fluctuations or interruptions in electrical power, heat,light, telecommunications lines or telephone service beyond the reasonable control ofeither party, or other causes beyond the reasonable control of the parties despite suchparty’s full compliance with applicable contingency plans.In every case the delay or failure to perform must be beyond the control and withoutthe fault or negligence of the party claiming excusable delay, and the partyclaiming excusable delay must promptly notify the other party of such delay.Performance times under this Agreement shall be considered extended for a period oftime equivalent to the time lost because of any delay which is excusable under thisSection; provided, however, that if any such delay continues for a period of morethan five (5) business days, the party not claiming excusable delay shall have theoption of terminating this Agreement, without penalty, upon notice to the partyclaiming excusable delay. (j) **Covenants, Warranties & Representations.**Vendor hereby warrants andrepresents that: **•** The Services provided pursuant to this Agreement will conform in allrespects to Company’s specifications and other reasonable requirements.  **•** The Services provided pursuant to this Agreement and billed/invoiced toCompany are certified to be those ordered by Company pursuant to thisAgreement.  **•** It has expertise in providing the Services it is obligated to perform underthis Agreement.
 
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 **•** In recognition of the critical nature of timely completion of the Servicespursuant to this Agreement, Vendor has and will maintain sufficient resources,facilities, capacity and manpower to insure that all Services will be performedby qualified personnel in a professional manner, and all Services will beaccomplished in conformity with the highest standards of its industry.  **•** Its security procedures are adequate to protect and maintain theconfidentiality of the Confidential Information.  **•** It has complied with and will comply with any and all relevant Laws, inperformance of its obligations hereunder.  **•** In providing the Services provided pursuant to this Agreement, Vendor willnot utilize impermissibly any confidence, trade secret or copyright-protectedinformation or material of any other person or entity.  **•** Its prices outlined in the Attachments hereto shall be complete. If Companyrequests in writing that Vendor perform additional services that are not setforth in the applicable Project Schedule, or if Company requests a change toServices that may materially increase Vendor’s costs, Vendor shall be entitledto invoice Company for such Services upon prior written notice to Company ofsuch charges.In the event of a breach of any of the foregoing warranties, Vendor shall, inaddition to any other remedies which may be available to Company, supply services tocorrect such defect at no cost to Company.**IN WITNESS WHEREOF,**the parties have executed this Agreement as of the day and date firstabove written.           **Medco Health Solutions, Inc.**   **APAC Customer Services, Inc.**             By: SIGNATURE ON FILE   By: SIGNATURE ON FILE               Name:     Name:    Title:     Title:       Date:     
 
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The expiration date for the Term of the Vendor Agreement was extended from September 25, 2009 toSeptember 25, 2012. 
 
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