Exhibit 10.1 AMENDED AND RESTATEDJOINT MARKETING AGREEMENT
This Joint Marketing Agreement (the "Agreement") is entered
into on July 28, 2003 and is effective as of June 16, 2003 is made by
and between I-trax Health Management Solutions, Inc., a Delaware
corporation ("I-trax"), located at One ▇▇▇▇▇ Square, Suite 2615, ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and NationsRx, Inc.,
a California corporation ("NationsRx"), located at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Each of NationsRx and
I-trax are referred to herein as a "Party" and collectively as the
"Parties."
The Parties believe that certain of their respective
clients may have interest in the services and products provided by
the other Party and had entered into a Joint Marketing Agreement
dated as of June 16, 2003 (the "Original Agreement") to explore such
interests.
The Parties now want to amend and restate the Original
Agreement to add certain terms.
Now therefore, in consideration of the foregoing recitals
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound, the Parties agree as follows:
1. Joint Marketing. Each Party will use its reasonable
commercial efforts to contact those of its existing and potential
clients it deems appropriate in its sole discretion (each a
"Prospect" and, collectively, the "Prospects") with or on behalf of
the other Party with the view of offering for sale to such Prospect
the other Party's products and services. Each referring party, in
its capacity as such, will be referred to herein as the "Referring
Party" and each selling Party, in its capacity as such, will be
referred to herein as the "Selling Party." Each Party's products and
services covered by this Agreement are identified with particularity
on Exhibit A to this Agreement. Each Party may amend the portion of
Exhibit A to this Agreement that describes such Party's products,
services and pricing upon 10 days written notice. Each Referring
Party will identify in advance the Prospects it intends to contact on
the Selling Party's behalf to ensure that none of the proposed
Prospects are current clients of the Selling Party.
2. Completed Sales; Discounts.
(a)With respect to each Prospect, if during the term of
this Agreement, or within 12 months of the last meeting between such
Prospect and the Selling Party concerning the Selling Party's
products or services, such Prospect enters into a binding agreement
to purchase from the Selling Party any product or service (each such
binding agreement, a "Prospect Agreement"), the Referring Party will
receive from the Selling Party a discount, rebate or commission, as
may be indicated on Exhibit A to this Agreement, on the list price
for such products or services or the revenue derived from such
products or services.
(b) With respect to each Prospect Agreement, the Selling
Party will pay the Referring Party the discount, rebate or commission
in cash or check not later than 30 days after the Selling Party
actually receives a payment pursuant to such Prospect Agreement.
Each payment will equal to the amount derived by applying the
discount, rebate or commission set froth in Exhibit A to this
Agreement, to the actual dollar amount received under such Prospect
Agreement.
(c) Selling Party will reimburse Referring Party for
reasonable out of pocket travel expenses for attending any meeting
that Referring Party attends related to the offering for sale of the
Selling Party's products and services under this Agreement.
3. Sales Procedure; Terms of Sales.
(a) Upon obtaining reasonable interest from any Prospect,
the Referring Party will assist in arranging an introduction between
Prospect and the Selling Party for purposes of negotiation and
execution of a Prospect Agreement. All prices quoted by Referring
Party for any product must be consistent with Exhibit A to this
Agreement, as Exhibit A may be amended from time to time in
accordance with the terms of this Agreement. The Selling Party will
endeavor to fulfill with reasonable dispatch all product and services
sales consistent with its preexisting sales obligations.
(b) The Selling Party will not be responsible or liable in
any way for any loss or damage to the Referring Party or any
customer, resulting from non-delivery of products or services due to
the unavailability of products or service or resulting from strikes,
riots, trade dispute acts, restraints or restrictions imposed by
governments, acts of God, or other causes beyond the control of the
Selling Party. This Section 3, however, will not be construed to
relieve either Party of its indemnification obligations set forth in
Section 7 below. Furthermore, the Selling Party may refuse a
transaction arising from the Referring Party's efforts for any reason
whatever or for no reason.
4. Status of Referring Party. This Agreement will not
constitute or be deemed to constitute a partnership or relationship
of employment between the Parties, or constitute or be deemed to
constitute the Referring Party as agent of the Selling Party for any
purpose other than as specifically provided in this Agreement. The
Referring Party will have no authority or power to bind the Selling
Party. With respect to any agreement between a Prospect and the
Selling Party, the Referring Party is not and will not be associated
with the actual performance of the Selling Party, the Selling Party
is not and will not be associated with the actual performance of the
Referring Party, and the Selling Party does not and will not have any
responsibility for any labor or other expense incurred in carrying
out the various duties of the Referring Party under this Agreement.
5. Use of Name and Marks. The Referring Party is entitled to
use any trade name, trademark or service ▇▇▇▇ of the Selling Party
that is associated with any product in accordance with any and all
written guidelines of the Selling Party or as otherwise expressly
agreed in writing by the Selling Party, but only in conjunction with
the solicitation and permitted advertising of the products and
services pursuant to this Agreement; and in no event will the
Referring Party use such names in any manner tending to create the
public belief that the Referring Party or its employees are employees
of the Selling Party or are its agents for any other purpose except
for the solicitation of product sales. The marks under which the
Selling Party's products and services are marketed are the property
of the Selling Party and any and all goodwill accruing to such marks
shall accrue to the Selling Party. The Referring Party will advise
the Selling Party promptly of any infringements of the Selling
Party's rights to any of its trademarks, patents or trade secrets
which may come to the Referring Party's attention.
6. Confidentiality.
(a) In connection with the performance of this Agreement,
each Party (a "Receiving Party") may receive Confidential Information
of the other Party (a "Disclosing Party"), which constitutes
valuable, special and unique property of the Disclosing Party. For
the purposes of this Agreement, "Confidential Information" means the
confidential or proprietary information and materials of the
Disclosing Party so identified in writing at the time of disclosure
to the Receiving party including, without limitation: (1) any trade
secrets, know-how or proprietary technology; (2) information
regarding plans for research and development; or (3) the existence of
any business discussions, negotiations or agreements between the
Parties, including the terms and provisions of this Agreement;
whether any of the foregoing is in oral, graphic, written, electronic
or machine readable form. Confidential Information also includes,
each Party's products and services. Notwithstanding the foregoing,
the Parties agree that, except for information that is required by
law to remain confidential, Confidential Information will not include
any information that: (A) was in the public domain at the time it was
communicated to the Receiving Party by the Disclosing Party; (B)
entered the public domain subsequent to the time it was communicated
to the Receiving Party by the Disclosing Party through no fault of
the Receiving Party; (C) was developed by employees or agents of the
Receiving Party independently of and without reference to any
information communicated to the Receiving Party by the Disclosing
Party, as demonstrated by the Receiving Party's written records, or
(D) to the extent that either Party is required by law or regulation
to disclose such information.
(b) With respect to any Confidential Information, the
Receiving Party will: (1) receive the Confidential Information in
strict confidence; and (2) accord to such Confidential Information at
least the same level of protection against unauthorized use or
disclosure that the Receiving Party customarily accords its own
Confidential Information; and (3) use or permit use of the
Confidential Information solely and exclusively in carrying out its
obligations under this Agreement; and (4) use its commercially
reasonable best efforts to ensure that access to such Confidential
Information is not provided to any third parties or to any employees
without a specific need to know the information. Within 90 days of
this Agreement's termination, each Party will return or destroy all
copies, in whatever media or form, of the Confidential Information
received from the other Party, except to the extent that either Party
may be required by law or regulation to retain such information.
(c) Each Party has certain obligations under law and
governmental regulations to report financial and operational
information to the public and to governmental entities, which are
inherently in conflict with the high degree of confidentiality sought
to be imposed by the provisions above. Notwithstanding any other
provision of this Agreement to the contrary, either Party may make
such disclosure of Confidential Information as may be required by law
or regulation. Such disclosures, however, will be made to the
minimum extent possible under the circumstances, will wherever
possible utilize available procedures to exempt or protect
proprietary or medical information, and the disclosing Party will
give the other notice of such disclosure. In the event that a
Receiving Party or its respective directors, officers, employees,
consultants or agents is requested or required by legal process to
disclose any Confidential Information, the Receiving Party will
provide adequate notice to the Disclosing Party so that the
Disclosing Party may seek a protective order or other appropriate
relief. In the event that such a protective order is not obtained,
such Receiving Party may disclose only that portion of the
Confidential Information that such Receiving Party's counsel advises
that such Receiving Party is legally required to disclose.
(d) Damages alone will be an inadequate remedy for any
breach or violation of the provisions of this Section 6 in view of
the difficulties of placing a monetary value on the Confidential
Information, each Party is entitled to a preliminary and final
injunction to prevent any breach or further breach of this Section 6
or further unauthorized use of Confidential Information. This remedy
is separate and apart from any other remedy such party may have at
law or in equity.
7. Indemnification.
(a) Each Party (the "Indemnifying Party") shall hold the
other Party, its officers, directors, employees, affiliates,
successors, and assigns (collectively, the "Indemnified Parties")
harmless against all losses, damages, or expenses of whatever form or
nature, including reasonable attorneys' fees and other costs of legal
defense, whether direct or indirect, that they, or any of the
Indemnified Parties, may sustain or incur as a result of any acts or
omissions of the Indemnifying Party or any of its affiliates,
directors, officers, employees, or other agents, including but not
limited to (1) breach of any of the provisions of this Agreement,
(2) gross negligence or other tortious conduct, or (3)
representations or statements not specifically authorized by the
Indemnified Parties herein or otherwise in writing.
(b) Provided that the Selling Party is not grossly
negligent in the performance of its obligations hereunder, the
Referring Party will be under no obligation to make an independent
investigation or inquiry as to the representations made to it by
either the Selling Party or any party, which the Referring Party
introduces to the Selling Party, and the Referring Party will be
entitled to rely in good faith upon any such representations. The
Referring Party does not assume responsibility for the accuracy or
completeness of any information provided to it by a Prospect.
8. Right to Audit. During the term of this Agreement and for
at least two years after termination of this Agreement, each Party
must maintain complete and correct financial records as are required
to verify compliance with this Agreement. In order to verify
compliance under this Agreement, no more than twice each year during
the term of this Agreement, and once each year after termination of
this Agreement, either Party (the "Auditing Party"), through its
nationally or regionally recognized independent auditors, must have
reasonable access during normal business hours and upon reasonable
prior written notice, to the books and records of the other Party
(the "Audited Party") insofar as such books and records relate to the
amounts payable to the Auditing Party under this Agreement. All
books of accounts and records must be kept available for at least two
calendar years after the termination of this Agreement and, in the
event that there is an unresolved dispute with regard to the amounts
payable under this Agreement at the end of such period of time, all
such records must be preserved by the Audited Party until such
dispute is resolved. If, as a result of the audit, the auditors
determine that the Audited Party misreported any figure or unpaid any
amount, the Auditing Party must promptly furnish to the Audited Party
a copy of the report of its auditors setting forth the discrepancy
and showing in reasonable detail the bases upon which the same was
determined. If the Audited Party disputes the results of the audit,
such dispute will be resolved by negotiation or arbitration in
accordance with the provisions of Section 11 below. The Audited
Party will remit to the Auditing Party the amount of any underpayment
within 30 days of receiving notification of such (or, in the event of
a disputed audit, within 30 days of its resolution by mediation or
receipt of the arbitrators' final award, as applicable), together
with interest calculated at an annual rate of one and one half
percent (1/2%) for each month such payment is overdue, or such rate as
allowed by law, whichever is less. If there is an underpayment of
ten percent (10%) or more in the amounts paid by the Audited Party
for the period in dispute, (a) the Audited Party will pay, in
addition to the amount of the shortfall plus interest, all expenses
and costs relating to such audit and (b) such audit will not count
against the total number of audits the Auditing Party is permitted to
conduct during such year.
9. Term; Termination. This Agreement shall have an initial
term of 3 years commencing on the effective date. The Agreement will
renew automatically for successive one-year terms, unless terminated
earlier. Either Party may earlier terminate this Agreement upon 30
days prior written notice to the other Party addressed to the other
at the address set forth above or such other address as the Parties
shall designate in like manner. Sections 2, 4, 6, 7 and 8 shall
survive the expiration or termination of this Agreement.
10. Future Agreements; Governing Law. This Agreement contains
the entire Agreement between the Parties concerning the subject
matter hereof, and no modifications of this Agreement or waiver of
the terms and conditions hereof will be binding unless approved in
writing by each Party hereto. This Agreement will be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania without regard to its principles of conflicts of law and
jurisdiction and venue is hereby conferred by the parties upon any
court of competent jurisdiction sitting in the Commonwealth of
Pennsylvania.
11. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, will be settled in
the state of the Party who first initiates a demand for arbitration
under this Agreement, such arbitration to be administered by the
American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction. The
arbitrator may award monetary damages (but not punitive damages as
the Parties agree that neither shall be liable to the other for
punitive damages), injunctive relief, costs and reasonable attorneys'
fees. The arbitration will be final and binding regardless of
whether one of the Parties fails or refuses to participate in the
arbitration. The arbitrator will not have the power to amend this
Agreement in any respect. Notwithstanding the foregoing, this
Section 11 does not apply to the breach of provisions pertaining to
confidentiality and proprietary rights, and that either Party may
petition a court of law for injunctive relief and such other rights
and remedies as it may have at law or equity against such breaches.
12. Limitations Period. Any action or claims rising out of or
relating to this Agreement or any completed sale hereunder, or by
reason of any federal or state statutory provision relating thereto,
must be commenced within one year from the date such cause of action
arises, otherwise such action or claim will be barred notwithstanding
any statutory period of limitations to the contrary.
13. Limitation of Damages. NEITHER PARTY WILL BE LIABLE FOR
ANY BREACH OF THIS AGREEMENT OR OF ANY DUTY OR OBLIGATION ARISING OUT
OF OR RELATED HERETO, IN ANY AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY
RECEIVED BY SUCH PARTY FOR THE PRODUCTS AND SERVICES WITH RESPECT TO
WHICH SUCH BREACH OCCURS, AND SHALL NOT BE LIABLE IN ANY EVENT FOR
LOSS OF CONTENTS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
14. Execution Authority. Execution by the persons signing
below is duly authorized by their respective entities and represents
the valid action of NationsRx and I-trax.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first written above.
I-TRAX HEALTH MANAGEMENT NATIONSRX, INC. SOLUTIONS, INC.
By: _______________________ By: _______________________
Name: Name:
Title: Title:
Exhibit A
Product, Services, Pricing, Discounts and Rebates
I-trax
Product
I-trax's Health-e-LifeT Program provides interactive tools for
healthcare providers and their well patients which are intended to
reduce the possibility of acute or chronic conditions. The
components of the program are delivered through I-trax's Health-e-
CoordinatorT care coordination tool, web portals CarePrimer and
MyFamilyMDT and communications center staffed by skilled nurses and
other health professionals 24 hours per day, 7 days per week.
Features and benefits of I-trax's Health-e-LifeT Program include:
- Proven success demonstrated with clinical and financial outcomes.
- Protocols designed and reviewed by physicians and experts in
disease management.
- Integration of industry-leading technology, proven clinical
protocols, and clients' business practices to drive custom results.
- Utilization of care processes with focus on self-care, advocacy,
and education and change management tailored to each enrolled member.
- Utilization of clinical expertise and technology to integrate
individual member needs including co-morbidities and cultural
factors without increasing program costs.
- Stratification of populations using clinically validated
statistical analysis.
- Life assessment and coaching regarding stress, self-advocacy,
lifestyle changes and self-assessment.
- Educations about risk prevention, healthy lifestyles, diet and
exercise, and other self care activities.
- Risk assessments for leading causes of morbidity and mortality.
- MyFamilyMDT interactive health platform for members with web
access, including health record management and messaging.
- Personalized daily content about health concerns and conditions.
- Status reporting to physicians about changes in members' health.
- Home monitoring and home visits as needed.
- Flexible program implementation, including complete outsourcing
to I-trax, or licensing of I-trax's technology with in-house
management, with expert consulting available.
Pricing-Rebate
Health-e-LifeT
- Non-Medicare plan with 3,000 or more members: Retail: $5.50
per member per month; NationsRx wholesale discount - 2%
- Medicare plan with 3,000 or more members: To be determined on
a case by case basis
NationsRx
Products
- Prescription Benefits Management Services
- Clinical Advisory Pharmacy Services
- Electronic Prescribing Applications and Services
- Sample Medication Distribution and Fulfillment Services
- Health Plan / Employer Pharmacy Contract Compliance Audit Services
Pricing-Commission
The commission is 50% of Net Revenue.
"Net Revenue" means:
(1) The gross amount recorded by NationsRx or its
affiliates from the sale to any Prospect of NationsRx's products
and services pursuant to the applicable Prospect Agreement, as
reflected in the books and records of NationsRx or its
affiliates, maintained in accordance with generally accepted
accounting principles and the accounting principles used by
NationsRx or its affiliates recording such amount, consistently
applied across all its products and services; less:
(2) Direct costs of NationsRx attributable to
administering or delivering NationsRx's products and services
pursuant to the applicable Prospect Agreement (estimated at
approximately 20% of amounts described in Section (1) above).
