Surescripts requires each entity that utilizes the Surescripts Network provided by Surescripts LLC and resold by Liberty to agree to the provisions set forth below (“Flow Down Terms”). Use of the Commercial E1 Service (the “Commercial E1 Service“) is agreement to comply with these Flow Down Terms as a subscriber of the Commercial E1 Service.  If Pharmacy is not in compliance with these Flow Down terms, Liberty may suspend Pharmacy’s access to the Commercial E1 Service immediately.  BY USING THE COMMERCIAL E1 SERVICE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE COMMERCIAL E1 SERVICE.

1. For purposes of these Flow Down Terms, the following words and terms will have the meanings set forth below. Any capitalized terms not defined herein will have the meaning ascribed to them in this Agreement.

“Applicable Law” means any and all federal, state and local laws and regulations that apply to Pharmacy.

“E1 Provider” means Relay Health or ChangeHealthcare.

“Governmental” means any United States federal, state, or local governmental authority.

“Pharmacy Benefit Manager Data Source” means a pharmacy benefit manager (“PBM”), health benefit payor or administrator, or other similar entity which has entered into a written agreement with Surescripts to allow access through the Surescripts Network to information for the Commercial E1 Service.

“Private Information” means (i) Nonpublic Personal Information as defined by the Gramm-Leach-Bliley Act; or (ii) any data or information that: (1) relates to an individual, and (2) identifies or can reasonably be believed to form the basis for identifying an individual (including, but not limited to, an individual’s name, postal address, e-mail address, telephone number, date of birth, Social Security number, driver’s license number, financial account number, or any other unique identifier) to the extent received, transmitted, maintained or created by a Party under these Flow Down Terms. Private Information does not include PHI.

“Proprietary Information” means any and all information, materials, processes, ideas, and techniques, in each case whether or not reduced to writing: (i) which are disclosed or made available by E1 Provider regarding the Surescripts Network or Surescripts Services; (ii) which afford possessors of the information a commercial advantage over others who do not have such information; (iii) which are considered trade secrets under Applicable Laws; and/ or (iv) which, if utilized or disclosed by a receiving party such information, would place E1 Provider or Surescripts at a competitive or business disadvantage. Proprietary Information includes, by way of illustration, but without limitation, any and all information relating to: Surescripts Services accessed by Pharmacy through E1 Provider; processes therefore; employee and customer information; accounting data; statistical data; existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto; information relating to development and marketing plans; strategies; forecasts; any and all information and documentation deemed confidential or a trade secret under any federal, state, or local statute or regulation; and the like, whether or not tangibly embodied in a document, model, specimen, computer storage device, or other physical object.

“Protected Health Information” or “PHI” will have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, as applied solely to the information created, received, maintained or transmitted by Surescripts as E1 Provider’s subcontractor.

“Pharmacy End User” means an individual that is employed by, an active member of the medical staff of, workforce of (as defined in 45 C.F.R. § 160.103) or otherwise performing healthcare services as an authorized representative of Pharmacy.

“Surescripts Data” means any data or information provided to Pharmacy and Pharmacy End Users by or through E1 Provider by Surescripts as part of the Commercial E1 Service, including statistics collected by Surescripts regarding transactions processed by the Surescripts Network, test data, test cases, configuration information, and problem description and resolution information; provided, however, that is does not include any data sent by Pharmacy to Surescripts through E1 Provider.

“Surescripts Services” means the service that facilitates the transmission of eligibility status information to end users (i.e., a licensed pharmacy that is duly licensed or registered with the appropriate government authority to fill prescription orders that has entered into a written agreement with E1 Provider to receive eligibility services) using the Surescripts network in connection with the treatment of a specific patient.

2. SURESCRIPTS, RELAYHEALTH, CHANGEHEALTHCARE, AND LIBERTY, HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE.

3. Pharmacy shall hold Proprietary Information in confidence and shall not, except in the performance of the duties under these Flow Down Terms disclose or permit access to any such information to any person, firm or corporation other than persons, firms or corporations authorized by that party, and shall cause their officers, employees, agents and representatives to take such action as shall be necessary or advisable to preserve and protect the confidentiality of such information. Any documentation provided by E1 Provider under these Flow Down Terms related to the Surescripts Services or Surescripts Network is Proprietary Information of E1 Provider or its vendor Surescripts and may not be copied or used in any way other than as specifically authorized in these Flow Down Terms. Proprietary Information does not include PHI, which will be governed by the applicable Business Associate Agreement. Proprietary Information does not include Private Information.

4. Pharmacy shall establish and maintain safeguards against the destruction, loss, or alteration of PHI, Private Information (as defined below) or Proprietary Information that are no less rigorous than those maintained by Pharmacy for its own information of a similar nature, but no less than reasonable safeguards.

5. Pharmacy shall reasonably safeguard PHI or Private Information from any intentional or unintentional use or disclosure that is in violation of Applicable Law, and limit incidental uses or disclosures made pursuant to otherwise permitted or required disclosures.

6. Pharmacy shall comply with Applicable Law, including with respect to any obligations to be licensed, registered, or otherwise authorized by a Governmental authority to perform the applicable healthcare services. Pharmacy shall ensure (a) that each end user of Pharmacy authorized to use the Commercial E1 Service meets the definition of Pharmacy End User set forth above; and (b) that each Pharmacy End User is identity proofed in accordance with industry standards to Surescripts’ reasonable satisfaction, pursuant to standards that Surescripts may issue from time to time. Pharmacy shall further ensure that each Pharmacy End User is authenticated in accordance with procedures compliant with a national industry standard recognized by Surescripts in its reasonable discretion.

7. Pharmacy shall not use the Surescripts Data provided by Pharmacy Benefit Manager Data Sources to promote or encourage Pharmacy maintaining pharmacy benefit manager services or to augment Pharmacy’s own eligibility or medication history records. In the event that Pharmacy has pharmacy benefit manager operations, Pharmacy shall maintain all Surescripts Data provided by Pharmacy Benefit Manager Data Sources on a separate or “walled off” from the data from its other pharmacy benefit manager operations, if any.

8. Pharmacy represents and warrants that all patient consents and/or authorizations required by applicable law have been obtained prior to requesting Surescripts Data for such patient through the Surescripts Network. Pharmacy shall and shall cause its Pharmacy End Users comply with any privacy and patient consent policies of Surescripts related to the delivery of Private Information and/or PHI as may be published by Surescripts from time to time and are provided to E1 Provider. Pharmacy acknowledges on behalf of itself and its Pharmacy End Users that Pharmacy Benefit Manager Data Sources may impose additional privacy and patient consent policies on the delivery of Private Information and/or PHI through the Surescripts Network. Pharmacy will use commercially reasonable efforts to implement any such policies within ninety (90) days following Pharmacy’s receipt of such policies from E1 Provider or Liberty Software. In the event that Pharmacy does not implement such policies within ninety (90) days of its receipt of such policies from E1 Provider or Liberty (which shall be no more than thirty (30) days after E1 Provider Health’s receipt of such policies from Surescripts), then Surescripts shall immediately suspend the Commercial E1 Service responses for such applicable Pharmacy Benefit Manager Data Source.

9. Pharmacy shall not and shall cause its Pharmacy End Users to not attempt to capture, open, examine, modify, add commercial or other messages to, repackage, distribute, license, sell or make any commercial use of any data or information provided by any Pharmacy Benefit Manager Data Source by or through the Surescripts Network other than as specifically permitted under the Commercial E1 Exhibit. Pharmacy and Pharmacy End Users shall engage in no act or omission which would alter the content of, interfere with, modify, or delay (i) the transmission of any data or information provided by the Pharmacy Benefit Manager Data Sources which is communicated through the Surescripts Network, or (ii) the incoming or outgoing transmission or receipt of any message sent through the Surescripts Network. Surescripts may share Pharmacy’s data with other Pharmacy Benefit Manager Data Sources to the extent necessary to fulfill the terms and conditions of these Flow Down Terms. Nothing in these Flow Down Terms is intended to restrict use of data or information provided by Pharmacy Benefit Manager Data Sources and obtained or sent through the Surescripts Network once such data or information has become a part of a patient’s permanent record.

10. Surescripts uses available technology to match patient identities in order to provide the Commercial E1 Service. Because patient information is maintained in multiple places, not all of which are accessible to Surescripts, and because not all patient information is kept in a standard fashion or is regularly updated, it is possible that false matches may occur or that there may be errors or omissions in the information provided by Surescripts from Pharmacy Benefit Manager Data Sources. Surescripts is not a health plan, health care provider, or prescriber. Surescripts does not and cannot independently verify or review the information transmitted through the Surescripts Network for accuracy or completeness. Neither Surescripts nor any Pharmacy Benefit Manager Data Source provides any representations or warranties with respect to the accuracy or completeness of such information. Pursuant to the foregoing, Pharmacy acknowledges and shall cause its Pharmacy End Users to acknowledge that the Surescripts Data provided by Surescripts from Pharmacy Benefit Manager Data Sources may not be complete or accurate, and hereby releases and holds harmless, and shall cause each Pharmacy End User to release and hold harmless, Liberty Software, RelayHealth, ChangeHealthcare, Surescripts and the Pharmacy Benefit Manager Data Sources from any liability, cause of action, or claim related to the completeness or lack thereof of such Surescripts Data.

11. Pharmacy shall and shall ensure its Pharmacy End Users only use the Commercial E1 Service in connection with and in conjunction the specific treatment event of dispensing a specific prescription for a specific patient. Pharmacy and Pharmacy End Users are explicitly prohibited from initiating transactions for the Commercial E1 Service for purposes of reselling such information; performing analytics; enabling other third-party commercial E1 or other eligibility to pharmacy services, real-time prescription benefit services, electronic prior authorization services, and specialty enrollment services; in conjunction with prescription routing; or for any other commercial purpose, including enhancing its other services; or population analytics, insurance marketing, or pharmaceutical marketing purposes.

12. Pharmacy shall submit an Commercial E1 transaction request with respect to an individual only if all of the following conditions are present: (a) Pharmacy has a Reasonable Expectation (as defined below) that insurance coverage exists for such individual; and (b) Pharmacy utilizes an active NPI with a valid Pharmacy taxonomy that belongs to Pharmacy; and (c) Pharmacy has an intent to bill the respective payer whose information was returned. A “Reasonable Expectation” of coverage shall exist with respect to an individual only if such individual has represented to Pharmacy that applicable insurance coverage is in effect. For example, such representation may be made by presentation of such payer’s insurance plan name (including where practicable), or other evidence of coverage by such payer. Commercial E1 transaction requests shall only be initiated by a Pharmacy, and shall not be automatically generated by Pharmacy’s system or other Pharmacy (or any other third-party) software application. If Pharmacy fails to comply with any of the foregoing requirements, or if in E1 Provider’s judgment Pharmacy’s use of the Commercial E1 Service or other transactions otherwise negatively affects the relationship with one or more Pharmacy Benefit Manager Data Source, E1 Provider shall have the right to refuse to submit any such transaction(s) to the applicable Pharmacy Benefit Manager Data Source. Liberty or E1 Provider shall notify Pharmacy in writing and identify with reasonable detail the alleged breach of the foregoing requirements or the reasons that Pharmacy’s use of the Commercial E1 Service or other transactions otherwise negatively affects with any such Pharmacy Benefit Manager Data Source. If such non-compliance, or the existence of such negative facts, is not cured to the satisfaction of E1 Provider, E1 Provider shall have the right to continue to refuse to submit any such Commercial E1 Service transactions or other transactions to the applicable Pharmacy Benefit Manager Data Source and/or to terminate the Commercial E1 Service by giving Pharmacy written notice to such effect.

13 Additionally, Pharmacy acknowledges that it is in the Centers for Medicare & Medicaid Services (“CMS“) interest to ensure that eligibility (E1) transactions are requested solely for Medicare purposes and that the data provided in the response is used solely to support coordination of benefits in accordance with guidance provided by CMS. Pharmacy acknowledges pharmaceutical manufacturer co-pay assistance coupon programs are not considered prescription drug coverage. Accordingly, Pharmacy’s End User represents (i) it will not use an E1 transaction for the purpose of ruling out Medicare coverage in order to ensure coupon use would not violate the anti-kickback statute (Section 1128B(b) of the Social Security Act) and (ii) it will only request E1 transactions in accordance with the purposes described herein.

14. PHARMACY SHALL INDEMNIFY AND SAVE HARMLESS LIBERTY SOFTWARE, RELAYHEALTH, CHANGEHEALTHCARE, SURESCRIPTS AND THE PHARMACY BENEFIT MANAGER DATA SOURCES FROM AND AGAINST ANY AND ALL LOSS, DAMAGE OR EXPENSE (OR CLAIMS OF DAMAGE OR LIABILITY) ASSERTED AGAINST LIBERTY SOFTWARE, RELAYHEALTH, CHANGEHEALTHCARE, SURESCRIPTS, OR THE PHARMACY BENEFIT MANAGER DATA SOURCES BY THIRD PARTIES ARISING OUT OF PHARMACY’S OR A PHARAMCY END USER’S VIOLATION OF ANY APPLICABLE LAWS OR ANY BREACH BY PHARMACY OR A PHARMACY END USER OF ANY OF THE FLOW DOWNS TERMS. FOR THE AVOIDANCE OF DOUBT, THE INDEMNIFICATION OBLIGATIONS OUTLINED IN THE PRECEDING SENTENCE SHALL NOT BE SUBJECT TO ANY LIMITATION OF LIABILITY OTHERWISE PROVIDED FOR IN THE AGREEMENT.

15. Notwithstanding anything in the Flow Down Terms to the contrary, Liberty Software may terminate the Commercial E1 Service immediately in the event that Surescripts is no longer performing the Commercial E1 Services or the terms of the agreement between Liberty Software and Surescripts pursuant to which E1 Provider may resell the Commercial E1 Services are no longer in force or effect. In such event, Liberty or E1 Provider will notify Pharmacy as soon as reasonably practicable.

16.  Surescripts will be a third party beneficiary with respect to the use of the Surescripts Network or its use of the Surescripts Services, including the Flow Down Terms.

17. Liberty may change these Flow Down Terms from time to time and the most current version will always be accessible at https://libertysoftware.com/pharmacyone-legal.  Liberty will notify Pharmacy of such revisions via email.  The revised version will become effective 30 days after such notice.  Your continued use of the Commercial E1 service after such revisions become effective shall constitute your acceptance of such revisions to these Flow Down Terms.  If you do not agree to the revised Flow Down Terms, you shall stop use of the Commercial E1 service.